PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WESLEY EUGENE BAKER,
Petitioner-Appellant,

v.

THOMAS R. CORCORAN, Warden of
                                                                     No. 99-24
the Maryland Correctional
Adjustment Center; J. JOSEPH
CURRAN, JR., Attorney General of
the State of Maryland,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-850-WMN)

Argued: April 5, 2000

Decided: July 19, 2000

Before WILKINSON, Chief Judge, and WILKINS
and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Chief Judge Wilkinson and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Gary Wilmer Christopher, Chief Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Ann Norman Bosse,
Assistant Attorney General, Criminal Appeals Division, OFFICE OF
THE ATTORNEY GENERAL, Baltimore, Maryland, for Appellees.
ON BRIEF: James Wyda, Federal Public Defender, Baltimore,
Maryland; William B. Purpura, Baltimore, Maryland, for Appellant.
J. Joseph Curran, Jr., Attorney General of Maryland, Criminal
Appeals Division, OFFICE OF THE ATTORNEY GENERAL, Balti-
more, Maryland, for Appellees.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Wesley Eugene Baker appeals an order of the district court denying
his petition for a writ of habeas corpus,1 in which he challenged his
convictions and death sentence for the murder of Jane Tyson. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 2000). 2 The State cross-appeals
an order of the district court denying its motion to dismiss Baker's
petition as untimely under 28 U.S.C.A. § 2263 (West Supp. 2000),
maintaining that the district court incorrectly ruled that Maryland has
not satisfied the "opt-in" requirements of 28 U.S.C.A. § 2261(b), (c)
(West Supp. 2000). We conclude that Maryland has not satisfied the
opt-in requirements and that Baker is not entitled to habeas relief.
Accordingly, we affirm.
_________________________________________________________________

1 Baker named Eugene Nuth, Warden of the Maryland Correctional
Adjustment Center where Baker is incarcerated, and Attorney General J.
Joseph Curran, Jr. as Respondents. Nuth has since been replaced by
Thomas R. Corcoran. For ease of reference, we refer to Respondents as
"the State" throughout this opinion.

2 Because Baker's petition for a writ of habeas corpus was filed after
the April 24, 1996 enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, the
amendments to 28 U.S.C.A. § 2254 effected by§ 104 of the AEDPA
govern the resolution of this appeal. See Slack v. McDaniel, 120 S. Ct.
1595, 1602 (2000).

                   2
I.

On the evening of June 6, 1991, Tyson went to the Westview Mall
near Baltimore, Maryland with her grandchildren, six-year-old Adam
and four-year-old Carly. Tyson was shot as the three were entering
Tyson's maroon Buick to return home. At the time of the shooting,
Carly had entered the back seat, Adam was preparing to enter the
front passenger seat, and Tyson was preparing to enter the driver's
seat. Adam saw a man run up to Tyson, heard her scream, and saw
the man shoot her in the head. The man then entered"the left side"
of a blue "truck" and drove away. J.A. 30 (internal quotation marks
omitted).3

Scott Faust happened upon the scene within seconds of the shoot-
ing. He observed a blue Chevy Blazer facing west and a maroon
Buick facing east. The two vehicles were parallel to each other and
separated by a distance of approximately ten feet. Faust observed two
men run from the vicinity of the Buick and enter the Blazer. The pas-
senger, whom Faust subsequently identified as Baker, was wearing a
dark t-shirt and a baseball hat; the driver, subsequently identified as
Gregory Lawrence, was wearing a bright orange t-shirt. Faust then
saw Tyson lying near the driver's side door of the Buick. Faust fol-
lowed the Blazer out of the mall parking lot, eventually getting close
enough to record the license plate number and to observe Lawrence
and Baker. He then returned to the mall and provided this information
to the police.

Shortly thereafter, Baltimore County police officers spotted the
Blazer and gave chase. The Blazer stopped abruptly and a passenger,
who was dressed in dark clothing, fled on foot. The officers stopped
the Blazer a short distance away and arrested the driver, Gregory
Lawrence. Baker was arrested a short time later, and at that time offi-
cers observed what appeared to be blood on his shoe, sock, and leg.
Subsequent testing revealed that the blood was Tyson's. Officers
found Tyson's purse, wallet, and photograph holder on the path of
Baker's flight. Other items belonging to Tyson were found in the
_________________________________________________________________
3 A subsequent autopsy revealed that Tyson was killed by a single gun-
shot wound to the head; forensic evidence indicated that the weapon was
in contact with Tyson's temple at the time of the shooting.

                    3
Blazer, as was the firearm that had been used to shoot her. Addition-
ally, fingerprints from Baker's right hand were found on the driver's
side door and window of the Buick.

Baker was charged with first degree premeditated murder, first
degree felony murder, robbery with a deadly weapon, and use of a
handgun during the commission of a felony. Trial counsel elected to
concede Baker's involvement in the offenses in favor of arguing that
Baker was not a principal in the first degree, i.e., he did not shoot
Tyson. At counsel's request, the jury was instructed to return a special
verdict indicating whether the State had proven beyond a reasonable
doubt that Baker was a principal in the first degree; a "no" response
would have rendered Baker ineligible for the death penalty. See Md.
Ann. Code art. 27, § 413(e)(1)(i) (Supp. 1999); Gary v. State, 671
A.2d 495, 498 (Md. 1996). The jury subsequently convicted Baker of
the charged offenses and found that he was a principal in the first
degree.

Baker chose to be sentenced by the court rather than by the jury.
During his case in mitigation, Baker presented the testimony of Dr.
Robert Johnson, who stated that Baker was unlikely to be a danger to
other inmates if sentenced to life imprisonment. Defense counsel then
informed the court that they had intended to call two additional
witnesses--Baker's mother, Dolores Williams, and social worker
Lori James--to testify regarding Baker's family history, but that
Baker had directed counsel not to call those witnesses "because there
were going to be very painful kinds of things testified about." J.A.
199. Counsel further stated that "we have to respect--man to man--
Mr. Baker's very clear, unequivocable [sic] and express directions to
us." Id. A lengthy discussion followed, during which the court consid-
ered calling Williams and James as court witnesses but decided not
to do so after Baker informed the court that he did not want the evi-
dence introduced because he thought it would be damaging and for
"personal reasons." Id. at 209.

After hearing argument from the parties, the court sentenced Baker
to death. The court first independently determined that the State had
proven beyond a reasonable doubt that Baker was a principal in the
first degree. The court then found that the State had established one
aggravating circumstance--that the murder was committed in the

                    4
course of a robbery, see Md. Ann. Code art. 27, § 413(d)(10)
(Supp. 1999). The court found no mitigating circumstances, explicitly
rejecting Dr. Johnson's testimony that Baker was unlikely to pose a
danger to others if sentenced to life imprisonment. Additionally, the
court noted that even if it had considered Dr. Johnson's testimony as
establishing a mitigating circumstance, it would have found that the
mitigating circumstance was outweighed by the aggravating circum-
stance.

Shortly thereafter, Baker moved for reconsideration of his sen-
tence, stating that he had "reflected upon his decision not to call [Wil-
liams and James] on his behalf and realize[d] that he made a serious
error in judgment." J.A. 245. Baker also requested that the court con-
sider testimony from his brother and son. The court granted the
motion, and defense counsel presented testimony from James.4 James
testified that Baker was raised in a dysfunctional family that consisted
of Baker's mother, his stepfather, and his siblings. James testified that
Baker was the product of the rape of his mother, a fact of which he
was unaware until the sentencing phase of his trial. 5 She further stated
that although Baker was never physically abused, 6 he observed his
stepfather beating his mother. James also found that Baker's family
had poor communication patterns and that several family members
abused drugs. The court considered this information and found that
it was not mitigating, and therefore elected not to reduce Baker's sen-
tence.

Baker then appealed his convictions and sentence to the Maryland
Court of Appeals. Among other things, Baker argued that the trial
_________________________________________________________________
4 Baker's mother was not present for the proceeding due to a miscom-
munication; the record does not reveal why Baker's brother and son did
not testify.
5 Counsel did not assert that Baker's origins constituted a mitigating
circumstance; rather, the information was offered as an explanation of
why Baker refused to present James' and Williams' testimony at the ini-
tial sentencing hearing. Additionally, James asserted that Baker's lack of
knowledge about the rape of his mother was indicative of a pattern of
keeping secrets that was part of the dysfunctionality of the family.
6 James uncovered one instance of sexual abuse, in which Baker was
molested by two teenage girls when he was less than five years old.

                    5
court had improperly instructed the jury that premeditation could be
inferred from the "intensity and effect" of a wound, asserting that
such an instruction had "no basis in Maryland law." Id. at 310-11
(internal quotation marks omitted). The Maryland Court of Appeals
affirmed, and the United States Supreme Court denied certiorari. See
Baker v. State, 632 A.2d 783 (Md. 1993), cert. denied, 511 U.S. 1078
(1994).

Baker filed a petition for post-conviction relief (PCR) in December
1994. As is relevant here, Baker maintained that trial counsel were
constitutionally ineffective for failing to conduct any independent
investigation of the case; for conceding Baker's principalship during
closing argument; and for failing to present testimony from Williams
and James at the initial sentencing hearing. Following a hearing, the
PCR court denied relief. The Maryland Court of Appeals denied
Baker's application for leave to appeal, and the United States
Supreme Court denied certiorari, see Baker v. Maryland, 517 U.S.
1169 (1996).

The United States District Court for the District of Maryland subse-
quently appointed federal habeas counsel for Baker. In October 1996,
Baker moved through counsel to reopen the state PCR proceedings,
asserting that certain claims had not been presented in his initial PCR
proceeding due to post-conviction counsel's incompetence. The
motion to reopen and a subsequent addendum included the following
claims: that the trial court issued an unconstitutional instruction
regarding the meaning of "reasonable doubt"; that trial and appellate
counsel were constitutionally ineffective for failing to object to the
reasonable doubt instruction and to challenge it on appeal; that trial
counsel's failure to conduct an investigation resulted in the failure to
discover evidence indicating the existence of a third participant in the
crime; that trial counsel were ineffective for failing to obtain an
expert examination of the murder weapon; and that trial counsel failed
to investigate Gregory Lawrence. Following a non-evidentiary hear-
ing, the state court denied the motion to reopen in a letter ruling. The
Maryland Court of Appeals subsequently denied Baker's application
for leave to appeal. See Baker v. State, 690 A.2d 1008 (Md. 1997).

On March 21, 1997, Baker filed his federal petition for a writ of
habeas corpus. The State moved to dismiss the petition, arguing that

                    6
Maryland had satisfied the "opt-in" requirements of 28 U.S.C.A.
§ 2261(b), (c) and that Baker's petition was untimely under the 180-
day limitations period applicable to habeas petitions filed by prisoners
subject to capital sentences in opt-in states, see 28 U.S.C.A. § 2263.
The district court conducted a hearing on the motion to dismiss during
which it heard testimony from several witnesses; additionally, the
court adopted the factual records produced in two other cases involv-
ing the question of whether Maryland had satisfied the opt-in require-
ments of § 2261(b), (c). See Colvin-El v. Nuth, No. Civ. A. AW 97-
2520, 1998 WL 386403 (D. Md. July 6, 1998); Booth v. Maryland,
940 F. Supp. 849 (D. Md. 1996), vacated on other grounds, 112 F.3d
139 (4th Cir. 1997). Following the hearing, the district court con-
cluded that Maryland had not satisfied the opt-in requirements for the
reasons set forth in Booth and Colvin-El . See Colvin-El, 1998 WL
386403, at *2-*8; Booth, 940 F. Supp. at 852-55. The court therefore
denied the motion to dismiss. The district court subsequently denied
habeas relief, but granted Baker a certificate of appealability, see 28
U.S.C.A. § 2253(c) (West Supp. 2000), as to all issues raised on
appeal.

We first address the State's contention on cross-appeal that Mary-
land has satisfied the opt-in requirements of 28 U.S.C.A. § 2261(b),
(c) and thus is entitled to application of the 180-day limitations period
set forth in 28 U.S.C.A. § 2263. Because we conclude that Maryland
is not an opt-in state, we then proceed to consider the issues raised
by Baker on appeal.

II.

In addition to amending Chapter 153 of Title 28, the AEDPA
added a new chapter 154, codified at 28 U.S.C.A.§§ 2261-2266
(West Supp. 2000), which applies to habeas petitions filed by state
prisoners subject to capital sentences. See Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132,§ 107, 110 Stat.
1214, 1221-26. Chapter 154 provides more stringent limitations on
habeas petitions in capital cases than are applicable in non-capital
habeas proceedings; however, in order to take advantage of these lim-
itations, a state must first "opt in" by satisfying the requirements of
§ 2261(b), (c). Specifically, a state must"establish[ ] by statute, rule
of its court of last resort, or by another agency authorized by State

                     7
law, a mechanism for the appointment, compensation, and payment
of reasonable litigation expenses of competent counsel in State post-
conviction proceedings." 28 U.S.C.A. § 2261(b). The mechanism
"must provide standards of competency" for state post-conviction
counsel, id., and "must provide for the entry of an order by a court
of record" appointing counsel, finding that the petitioner knowingly
refused counsel, or denying counsel upon a finding that the petitioner
is not indigent, id. § 2261(c).7 As this court has previously noted,
Chapter 154 "establishes a quid-pro-quo relationship: A state seeking
greater federal deference to its habeas decisions in capital cases must,
by appointing competent counsel to represent indigent petitioners,
further ensure that its own habeas proceedings are meaningful." Ben-
nett v. Angelone, 92 F.3d 1336, 1342 (4th Cir. 1996).
_________________________________________________________________

7 Section 2261(b), (c) provides in full:

           (b) [Chapter 154] is applicable if a State establishes by stat-
          ute, rule of its court of last resort, or by another agency autho-
          rized by State law, a mechanism for the appointment,
          compensation, and payment of reasonable litigation expenses of
          competent counsel in State post-conviction proceedings brought
          by indigent prisoners whose capital convictions and sentences
          have been upheld on direct appeal to the court of last resort in
          the State or have otherwise become final for State law purposes.
          The rule of court or statute must provide standards of compe-
          tency for the appointment of such counsel.

           (c) Any mechanism for the appointment, compensation, and
          reimbursement of counsel as provided in subsection (b) must
          offer counsel to all State prisoners under capital sentence and
          must provide for the entry of an order by a court of record--

          (1) appointing one or more counsels to represent the
          prisoner upon a finding that the prisoner is indigent and
          accepted the offer or is unable competently to decide
          whether to accept or reject the offer;

          (2) finding, after a hearing if necessary, that the prisoner
          rejected the offer of counsel and made the decision with an
          understanding of its legal consequences; or

          (3) denying the appointment of counsel upon a finding
          that the prisoner is not indigent.

                    8
Under Maryland law, the Office of the Public Defender (OPD) is
the state agency responsible for providing legal representation to indi-
gent prisoners in post-conviction proceedings. See Md. Ann. Code art.
27A, § 4(b)(3) (1997). While representation in state post-conviction
proceedings may be provided by an OPD attorney or by a private
"panel" attorney, see Md. Ann. Code art. 27A, § 6 (1997), as a matter
of practice state habeas petitioners are almost always represented by
panel attorneys in order to avoid conflicts of interest with respect to
assertions that an OPD attorney provided ineffective representation at
trial or on direct appeal. Pursuant to its statutory authority, the OPD
has promulgated a regulation setting forth a minimum standard of
competency for panel attorneys in capital litigation:

          Panel A shall be comprised of licensed attorneys whose
          members are qualified to provide legal representation for an
          accused charged with a capital offense. To qualify for desig-
          nation on this panel, an attorney shall have previously par-
          ticipated in a circuit court in at least two capital cases or ten
          other cases where the maximum penalty was 10 years
          imprisonment or more.

Md. Regs. Code tit. 14, § 06.02.05(B)(1) (1986).

As a matter of policy, but apparently not by regulation, the OPD
has adopted a compensation schedule for panel attorneys in post-
conviction proceedings. For proceedings in the PCR court, such attor-
neys are paid $30 per hour for out-of-court time and $35 per hour for
in-court time, subject to a cap of $12,500 for each attorney. The OPD
arranges and pays for expert witnesses and investigators and reim-
burses attorneys for various expenses, including travel and long-
distance telephone calls. However, research expenses, including elec-
tronic research and law clerk time, are counted toward the $12,500
cap. On appeal, panel attorneys divide a total fee of $6,250, which
may be increased to $12,500 if the Maryland Court of Appeals grants
a petition for a writ of certiorari.

In adopting the reasoning of Booth and Colvin-El, the district court
ruled that the Maryland mechanism for the appointment and compen-
sation of post-conviction counsel in capital cases fails to satisfy the
opt-in requirements in three ways: Maryland does not adequately

                     9
compensate post-conviction counsel; the competency standard set
forth in Md. Regs. Code tit. 14, § 06.02.05(B)(1) is inadequate and in
any event is not applied to appointed counsel; and the mechanism
does not provide for an order of a court of record regarding the
appointment, refusal, or denial of counsel. The State argues that all
of these conclusions are erroneous.

A.

We first consider the State's contention that it provides adequate
compensation for post-conviction counsel. In Booth, the district court
found that the per-attorney overhead cost for the firm of an attorney
appointed to represent a prisoner in post-conviction proceedings was
$53 per hour. See Booth, 940 F. Supp. at 854. Thus, the hourly rates
paid to panel attorneys in post-conviction proceedings necessarily
resulted in a loss of at least $18 per hour. The loss suffered by a panel
attorney's firm will increase when, as is frequently the case, the fee
cap limits the number of hours for which the attorney is compensated
and/or the expenses for which the attorney is reimbursed. For exam-
ple, the Booth court noted that in one case, a panel attorney had been
compensated at an effective rate of $11.73 per hour after subtracting
unreimbursed expenses from the $12,500 fee cap; the result was a loss
for the attorney's firm of approximately $41 per hour. See id. at 854-
55. Similarly, in this case the Chief of the Capital Defense Division
of the OPD testified that a panel attorney in one capital post-
conviction proceeding had been compensated at an effective rate of
$13 per hour. In contrast, the Booth court took judicial notice of the
fact that "under the Federal Criminal Justice Act attorneys appointed
to represent capital defendants in federal habeas corpus actions may
be paid up to $125 per hour and fee awards in six figures are not
uncommon." Id. at 855.

In light of these findings, we cannot conclude that Maryland ade-
quately compensates state post-conviction counsel. A compensation
system that results in substantial losses to the appointed attorney or
his firm simply cannot be deemed adequate.8
_________________________________________________________________
8 The State's reliance on Mata v. Johnson, 99 F.3d 1261 (5th Cir.
1996), vacated in part on other grounds on reh'g, 105 F.3d 209 (5th Cir.

                    10
B.

The State next maintains that the district court erred in concluding
that Maryland has not "provide[d] standards of competency for the
appointment of" state post-conviction counsel. 28 U.S.C.A.
§ 2261(b). As noted above, a Maryland regulation requires that panel
attorneys appointed to serve as post-conviction counsel in capital
cases have participated in at least two previous capital cases or ten
criminal cases in which the maximum penalty was at least ten years
imprisonment. However, the evidence before the district court estab-
lished that the OPD does not actually apply this standard in appoint-
ing post-conviction counsel in capital cases. See Colvin-El, 1998 WL
386403, at *5 ("The evidence . . . indicated that the system in place
in Maryland is little more than an ad hoc, catch-as-catch-can system
where members of the OPD seek out people that they believe to be
well known in the legal community and attempt to enlist them in post-
conviction representation." (internal quotation marks omitted)).
Indeed, the Chief of the Capital Defense Division testified below that
he was not even aware of the regulation until the commencement of
the Booth litigation. We agree with the district court that a state does
not "provide standards of competency" simply by identifying criteria
for the appointment of counsel. Competency standards are meaning-
less unless they are actually applied in the appointment process.9 See
_________________________________________________________________
1997), is misplaced. In Mata, the Fifth Circuit held that a fee cap of
$7,500 for state post-conviction proceedings was not"facially inade-
quate." Mata, 99 F.3d at 1266. Here, unlike in Mata, there is substantial
evidence regarding the actual inadequacy of the compensation rates. Cf.
id. (noting that petitioner had not offered any evidence regarding the
actual inadequacy of the $7,500 cap).

Additionally, we reject the State's argument that the compensation
requirement is necessarily satisfied whenever competent counsel is
appointed. Assuming that Maryland appoints competent counsel in capi-
tal post-conviction proceedings, this fact is utterly irrelevant to whether
those attorneys are adequately paid for their time. That Maryland has
thus far been able to locate counsel willing to shoulder the financial bur-
den of appointment in such cases simply does not establish that it is in
compliance with § 2261(b).
9 In light of this conclusion, we need not consider whether Maryland's
competency standards, if complied with, are adequate to ensure that pris-

                    11
Ashmus v. Woodford, 202 F.3d 1160, 1168 (9th Cir. 2000) (conclud-
ing that "a state's competency standards must be mandatory and bind-
ing if the State is to avail itself of Chapter 154"), petition for cert.
filed, 68 U.S.L.W. 3686 (U.S. Apr. 25, 2000) (No. 99-1720); Mata v.
Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996) (stating that competency
standards must be "specific" and "mandatory" in order to satisfy the
opt-in requirements), vacated in part on other grounds on reh'g, 105
F.3d 209 (5th Cir. 1997).

The State does not seriously challenge this conclusion, but rather
argues that it is not required to promulgate competency standards in
order to satisfy the opt-in requirements. The State notes that 28
U.S.C.A. § 2261(b) provides that a mechanism for the appointment
and compensation of post-conviction counsel may be established "by
statute, rule of [the] court of last resort, or by another agency autho-
rized by State law," but identifies only "[t]he rule of court or statute"
as potential sources for competency standards. The State would have
us interpret this difference in language as indicating that no compe-
tency standards are required when a state employs a state agency,
rather than a statute or rule of court, to establish a mechanism for the
appointment and compensation of counsel.

This argument borders on the absurd. Section 2261(b) plainly and
unequivocally contemplates that a state will promulgate competency
standards as part of the "quid pro quo" established in Chapter 154. To
suggest that a state could avoid the requirement of ensuring the com-
petency of state post-conviction counsel by the mere expedient of
employing a state agency to establish the required mechanism for
appointing and compensating counsel is to flout both the language
and the evident purpose of the statute. In our view, the proper ques-
tion is not whether competency standards must be promulgated when
a mechanism for the appointment of counsel is established through a
_________________________________________________________________
oners subject to capital sentences receive competent representation in
post-conviction proceedings. But cf. Colvin-El , 1998 WL 386403, at *6
(concluding that the Maryland competency standards are not adequate
because they do not require trial experience in serious criminal matters,
do not require any experience in "the extraordinarily complex body of
law and procedure unique to post-conviction review," and apparently do
not apply to OPD attorneys).

                     12
state agency. Rather, the question is whether a state that employs a
state agency to establish a mechanism for the appointment and com-
pensation of post-conviction counsel may also promulgate compe-
tency standards through that agency, or whether such a state must
nevertheless promulgate competency standards through a rule of court
or statute. For the reasons stated in Booth, 940 F. Supp. at 853, we
conclude that when a state agency establishes a mechanism for the
appointment and compensation of post-conviction counsel, that
agency may also promulgate the required standards of competency for
such attorneys.

C.

Finally, the State argues cursorily that it has done all that is neces-
sary to comply with § 2261(c), which requires that any mechanism for
the appointment and compensation of state post-conviction counsel
"must provide for the entry of an order by a court of record" appoint-
ing counsel, finding that the petitioner has rejected the offer of coun-
sel, or finding that the petitioner is not indigent and thus not entitled
to counsel. Although the OPD has promulgated no regulation that
complies with § 2261(c), the State maintains that compliance with the
literal terms of § 2261(c) is unnecessary because the appointment of
counsel is assured through other means and because"[n]o capital
defendant in Maryland has ever litigated a post conviction proceeding
without counsel." Brief of Appellees at 65.

To reject this argument, we need look no further than the plain lan-
guage of § 2261(c), which by its terms requires that a mechanism for
the appointment and compensation of state post-conviction counsel
provide for the entry of an order regarding the appointment, refusal,
or denial of counsel. At present, no provision of Maryland law com-
ports with this requirement. Accordingly, the State's argument that it
has complied with this portion of the opt-in requirements is without
merit.

III.

Having concluded that Baker's petition is not time-barred, we now
turn to the issues raised by him on appeal. Before considering the
merits of Baker's claims, however, we first must address the State's

                     13
argument that several of Baker's claims are defaulted. The State con-
tends (1) that Baker's due process challenge to the premeditation
instruction given by the trial court is defaulted because it was never
presented to the state courts, and (2) that Baker's challenge to the rea-
sonable doubt instruction, and the other claims raised in the motion
to reopen the PCR proceeding, were not properly presented to the
state courts. We agree with the State that Baker's claim regarding the
premeditation instruction is defaulted. However, we reject the State's
assertion that the claims presented for the first time in the motion to
reopen were not properly exhausted.

The Supreme Court has long recognized that principles of comity
dictate that the state be given the first opportunity to correct constitu-
tional errors in criminal proceedings. See Ex parte Royall, 117 U.S.
241, 251-53 (1886). Accordingly, a federal court may not grant a writ
of habeas corpus to a petitioner in state custody unless the petitioner
has first exhausted his state remedies by presenting his claims to the
highest state court. See 28 U.S.C.A. § 2254(b)(1); O'Sullivan v. Boer-
ckel, 526 U.S. 838, 842 (1999). The petitioner's duty to exhaust is
codified in 28 U.S.C.A. § 2254(c), which provides that "[a]n applicant
shall not be deemed to have exhausted [state remedies] . . . if he has
the right under the law of the State to raise, by any available proce-
dure, the question presented." However, the Court has never strictly
construed the requirement that a claim be raised"by any available
procedure"; for example, the Court has held that the exhaustion
requirement does not demand that a petitioner raise on collateral
review a claim that has been fully considered by the state court on
direct review. See Brown v. Allen, 344 U.S. 443, 447 (1953). Rather,
the exhaustion requirement is satisfied so long as a claim has been
"fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270,
275 (1971).

A claim that has not been presented to the highest state court never-
theless may be treated as exhausted if it is clear that the claim would
be procedurally barred under state law if the petitioner attempted to
present it to the state court. See Gray v. Netherland, 518 U.S. 152,
161 (1996). "However, the procedural bar that gives rise to exhaus-
tion provides an independent and adequate state-law ground for the
conviction and sentence, and thus prevents federal habeas corpus

                     14
review of the defaulted claim, unless the petitioner can demonstrate
cause and prejudice for the default." Id. at 162.

A.

We first consider the State's assertion that Baker failed to exhaust
his federal due process challenge to the premeditation instruction
given by the trial court. That instruction was as follows:

           Premeditated means that the Defendant thought about the
          killing and that there was time, even if brief, for the Defen-
          dant to form the intent to kill. The premeditated intent to kill
          must be formed before the killing.

           Premeditation requires proof that the conscious and delib-
          erate intention to do the fatal act existed for an appreciable
          time before the act was done. The law does not require that
          the intention to kill exist for any considerable length of time
          before the fatal act was done; it is sufficient if there is time
          for the mind to think and consider the act and then deter-
          mine to do it.

           The intensity and effect of a wound may provide adequate
          evidence of a premeditated and determined effort, not sim-
          ply to harm, but to destroy any semblance of life remaining
          in Jane Tyson. If the killing stems from a choice made as the
          result of thought, however short the struggle between the
          intention and the act, it is sufficient to characterize the crime
          as deliberate and premeditated murder.

J.A. 132-33 (emphasis added). Baker maintains that the emphasized
portion of the instruction violated the Due Process Clause because
there is no rational connection between the "intensity and effect" of
a wound and the element of premeditation. See County Court v. Allen,
442 U.S. 140, 157 (1979) (explaining that a permissive inference vio-
lates the Due Process Clause "only if, under the facts of the case,
there is no rational way the trier [of fact] could make the connection
permitted by the inference"). The State contends that this claim is
unexhausted because Baker has never presented it to the state court.

                     15
Although a petitioner need not "cit[e] book and verse on the federal
constitution" in order to satisfy the exhaustion requirement, Picard,
404 U.S. at 278 (internal quotation marks omitted), the federal claim
nevertheless must be "fairly presented" to the state court, id. at 275.
Fair presentation mandates that the federal claim"be presented face-
up and squarely . . . . Oblique references which hint that a theory may
be lurking in the woodwork will not suffice." Matthews v. Evatt, 105
F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted).
Rather, "both the operative facts and the controlling legal principles
must be presented to the state court." Id. (internal quotation marks
omitted). Importantly, the presentation to the state court of a state law
claim that is similar to a federal claim does not exhaust the federal
claim. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam).

Here, while Baker challenged the "intensity and effect" portion of
the premeditation instruction on direct appeal to the Maryland Court
of Appeals, he did not assert that the instruction violated the federal
Constitution, but rather maintained only that the instruction had "no
basis in Maryland law." J.A. 311. Baker acknowledges this defi-
ciency, but asserts that the exhaustion requirement was satisfied
because "the constitutional implications" of his challenge to the pre-
meditation instruction were "readily apparent." Appellant's Reply
Brief at 27. This argument is flatly inconsistent with the principles of
the exhaustion requirement outlined above, and we need not consider
it further.

Additionally, Baker relies on West v. Wright, 931 F.2d 262 (4th
Cir. 1991), rev'd on other grounds, 505 U.S. 277 (1992), in which we
held that "[a]ny challenge to the sufficiency of the evidence to convict
in a state prosecution is necessarily a due process challenge to the
conviction." West, 931 F.2d at 266. West is inapplicable, however. In
West, a panel of this court determined that the petitioner's claim,
which was nominally a challenge to a permissive inference, was actu-
ally a challenge to the sufficiency of the evidence. See id. at 265
("[West] raises no challenge to the jury instructions as such. Through-
out, his challenge has been to the sufficiency of the evidence to take
the case to the jury under any jury instructions." (emphasis added)).
Here, in contrast, Baker's challenge is solely directed to the constitu-
tionality of the permissive inference itself. Accordingly, we conclude

                     16
that Baker has not fairly presented this claim to the state court and
thus that it is not exhausted.

We may treat Baker's claim as exhausted--and consequently pro-
cedurally defaulted--if he would now be procedurally barred from
presenting the claim in state court. In order to address this question,
we must first briefly discuss principles of waiver under Maryland law.

Maryland employs a two-tier waiver rule that is part statutory and
part common law. The statutory waiver provision, codified at Md.
Ann. Code art. 27, § 645A(c)(1) (Supp. 1999), provides that allega-
tions of error are waived "when a petitioner could have made, but
intelligently and knowingly failed to make" the allegation in a prior
proceeding.10 Although this statutory language appears to require that
every allegation of error be subject to a formal waiver, the Maryland
Court of Appeals has construed the provision much more narrowly.
See generally Curtis v. State, 395 A.2d 464, 469-74 (Md. 1978) (dis-
cussing scope of § 645A(c)(1)). As construed in Curtis, the
§ 645A(c)(1) requirement of an intelligent and knowing waiver
applies only to claims involving fundamental constitutional rights of
the type for which the United States Supreme Court has required an
express, knowing, and intelligent waiver. See McElroy v. State, 617
A.2d 1068, 1070 (Md. 1993). "As to lesser or non-fundamental rights,
the petitioner will be deemed to have waived any claim of error if
petitioner or petitioner's counsel failed to exercise a prior opportunity
to raise it notwithstanding a lack of personal knowledge of the right
of which petitioner was deprived . . . ." Id. Waiver of either type may
be excused by special circumstances. See Md. Ann. Code art. 27,
§ 645A(c)(1); McElroy, 617 A.2d at 1070-71.

Under Maryland law, Baker's challenge to the premeditation
instruction does not involve a fundamental right; accordingly, his fail-
ure to raise this claim on direct appeal results in a waiver of the claim
absent a showing of special circumstances.11 See Walker v. State, 684
_________________________________________________________________
10 The failure to raise an available claim is presumed to be intelligent
and knowing; this presumption may be rebutted, however. See Md. Ann.
Code art. 27, § 645A(c)(2) (Supp. 1999).
11 Baker contends that because the Maryland waiver rule is not consis-
tently applied in capital cases, it cannot serve as an adequate state law

                     17
A.2d 429, 436-37 (Md. 1996). There having been no such showing
here, the claim is defaulted.12

B.

In his motion to reopen the state PCR proceedings, Baker raised a
challenge to the reasonable doubt instruction given by the trial court
and several issues regarding the performance of trial and appellate
counsel. Relying on Castille v. Peoples, 489 U.S. 346 (1989), the
State contends that because the decision whether to reopen a PCR
proceeding rests within the discretion of the PCR court, Baker's
motion to reopen did not "fairly present" any claims to the state court.
Therefore, the State would have us conclude that these claims are
unexhausted. The State further argues that because the claims would
be procedurally barred if presented to the Maryland courts at this
juncture, they are defaulted.13
_________________________________________________________________
ground of decision. See Johnson v. Mississippi , 486 U.S. 578, 587 (1988)
(explaining that a state law rule is adequate if it is "consistently or regu-
larly applied" by the state court). A panel of this court recently rejected
a challenge to the adequacy of the Maryland rules of waiver, see Oken
v. Corcoran, No. 99-27, slip op. at 6 (4th Cir. July 18, 2000), and we
have no authority to reconsider that conclusion here, see Etheridge v.
Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993) (stating that "[a]
decision of a panel of this court becomes the law of the circuit and is
binding on other panels unless it is overruled by a subsequent en banc
opinion of this court or a superseding contrary decision of the Supreme
Court" (internal quotation marks omitted)).

Even if we possessed the authority to reject the holding of the Oken
panel, we would not do so. Our careful review of the applicable law per-
suades us that, aside from some minor exceptions, Maryland courts con-
sistently and regularly apply rules of waiver in capital proceedings. Cf.
Meadows v. Legursky, 904 F.2d 903, 907 (4th Cir. 1990) (en banc)
(explaining that consistent or regular application of a state procedural
rule "does not mean undeviating adherence to such rule admitting of no
exception").
12 Baker has not attempted to demonstrate cause and prejudice or a mis-
carriage of justice to excuse his default.
13 The State alternatively contends that the denial of the motion to
reopen is itself a procedural default, i.e., the denial constitutes an ade-

                    18
In determining whether a claim has been exhausted, a federal court
sitting in habeas must consider not merely whether the claim has been
placed before the highest state court, but also whether the state court
has been given a fair opportunity to review the claim. See O'Sullivan,
526 U.S. at 848 (explaining that to "protect the integrity of the federal
exhaustion rule, we ask not only whether a prisoner has exhausted his
state remedies, but also whether he has properly exhausted those rem-
edies" (citation & internal quotation marks omitted)). In Castille, the
Court held that a federal claim had not been exhausted even though
it had been presented to the state court. Following affirmance of his
convictions by a Pennsylvania appellate court, Castille raised certain
claims in a petition for allocatur in the Pennsylvania Supreme Court.
"Under Pennsylvania law, such allocatur review`is not a matter of
right, but of sound judicial discretion, and . . . will be allowed only
when there are special and important reasons therefor.'" Castille, 489
U.S. at 347 (quoting Pa. R. App. P. 1114). The petition was denied
without opinion by the Pennsylvania Supreme Court. The Supreme
Court held that the exhaustion requirement is not satisfied when a
claim is "presented for the first and only time in a procedural context
in which its merits will not be considered unless there are special and
important reasons therefor." Id. at 351 (internal quotation marks omit-
ted).

The State contends that Castille compels a conclusion that the
claims raised in the motion to reopen were not "fairly presented" to
the Maryland courts because the decision to reopen a postconviction
proceeding is a discretionary one. See Md. Ann. Code art. 27,
§ 645A(a)(2)(iii) (Supp. 1999) ("The court may in its discretion
reopen a postconviction proceeding that was previously concluded if
the court determines that such action is in the interests of justice.").
We disagree. Maryland law plainly establishes a right to raise new
claims in a motion to reopen a previous PCR proceeding. Indeed, as
_________________________________________________________________

quate and independent state law ground for decision. In making this
argument, the State confuses the ruling with the basis for the ruling. In
determining whether a claim has been defaulted, the relevant question is
whether the state court has declined to consider the merits of a particular
claim on the basis of a state procedural rule, not the ultimate disposition
of the proceeding in which the claim was raised.

                    19
the district court noted, a motion to reopen is the statutorily prescribed
mechanism for doing so. That the PCR court possesses discretion to
decline to review such claims does not mean that they are unex-
hausted. Cf. O'Sullivan, 526 U.S. at 845 (holding that although peti-
tioner had no right of review for claims raised in certiorari petition to
Illinois Supreme Court, he had a right to raise those claims and thus
was required to do so in order to satisfy the exhaustion requirement).
Accordingly, we conclude that the claims raised in the motion to
reopen were properly exhausted.

IV.

Turning at last to the merits of Baker's claims, we consider first his
contention that the trial court gave the jury an unconstitutional
instruction regarding reasonable doubt.14 That instruction was as fol-
lows:
_________________________________________________________________
14 We note that our review of all of Baker's claims, including those
raised in the motion to reopen, is governed by § 2254(d) as amended by
the AEDPA. See Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir.)
(holding that a summary ruling constitutes an "adjudication" within the
meaning of § 2254(d)), cert. denied, 525 U.S. 925 (1998). Section
2254(d) prohibits a federal court from granting habeas relief to a state
prisoner on a claim adjudicated by the state court unless the adjudication
of the claim

           (1) resulted in a decision that was contrary to, or involved an
          unreasonable application of, clearly established Federal law, as
          determined by the Supreme Court of the United States; or

           (2) resulted in a decision that was based on an unreasonable
          determination of the facts in light of the evidence presented in
          the State court proceeding.

28 U.S.C.A. § 2254(d). The Supreme Court recently interpreted
§ 2254(d)(1) in Williams v. Taylor, 120 S. Ct. 1495, 1518-23 (2000),
substantially affirming the interpretation set forth in Green v. French,
143 F.3d 865, 869-76 (4th Cir. 1998). As explained by the Williams
Court, a state court decision is "contrary to" clearly established Supreme
Court precedent when "the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or . . . the state
court decides a case differently than [the] Court has on a set of materially
indistinguishable facts." Williams, 120 S. Ct. at 1523. A state court deci-

                     20
           The State has the burden of proving the guilt of the
          Defendant beyond a reasonable doubt. This burden remains
          on the State throughout the trial. The Defendant is not
          required to prove his innocence. However, the State is not
          required to prove guilt beyond all possible doubt or to a
          mathematical certainty. Nor is the State required to negate
          every conceivable circumstance of innocence.

           A reasonable doubt is a doubt founded upon reason. It is
          not a fanciful doubt, a whimsical doubt or a capricious
          doubt. Proof beyond a reasonable doubt requires such proof
          as would convince you of the truth of a fact to the extent
          that you would be willing to act upon such belief without
          reservation in an important matter in your own business or
          personal affairs.

           In deciding whether a charge has been proved beyond a
          reasonable doubt and to a moral certainty, you may ask
          yourselves, "Is the evidence of guilt of the kind that I would
          put my trust in or rely upon in coming to a decision concern-
          ing the more important matters of my own life?" If the evi-
          dence does have the same force as information you would
          rely upon in such important matters, you may conclude that
          the charge has been proved beyond a reasonable doubt and
          to a moral certainty. However, if you are not satisfied of the
          Defendant's guilt to that extent, then reasonable doubt exists
          and the Defendant must be found not guilty.

J.A. 126-27. Baker contends that this instruction relieved the state of
its burden to prove the elements of the charged offenses beyond a rea-
_________________________________________________________________
sion rests on an "unreasonable application" of clearly established
Supreme Court precedent when "the state court identifies the correct
governing legal principle from [the] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case." Id.

Because the summary denial of the motion to reopen did not articulate
the basis for the rejection of Baker's claims by the PCR court, our review
of those claims, while still governed by § 2254(d), necessarily requires
an independent examination of the applicable law. See Wright, 151 F.3d
at 157.

                    21
sonable doubt, mandating reversal of his convictions. See Sullivan v.
Louisiana, 508 U.S. 275, 279-80 (1993) (holding that erroneous rea-
sonable doubt instruction cannot be reviewed for harmless error).

Although due process requires that the government prove each ele-
ment of an offense beyond a reasonable doubt, see In re Winship, 397
U.S. 358, 364 (1970), the Constitution neither requires that trial courts
define reasonable doubt nor prohibits them from doing so, see Victor
v. Nebraska, 511 U.S. 1, 5 (1994). And, when a trial court elects to
define reasonable doubt, the Constitution does not mandate a particu-
lar definition. See id. Rather, the question is whether the instruction,
taken as a whole, correctly conveyed the concept of reasonable doubt
to the jury. See Holland v. United States, 348 U.S. 121, 140 (1954).

We conclude that, taken as a whole, the instruction given by the
trial court correctly conveyed the concept of reasonable doubt to the
jury. The instruction was one of the type called"willing to act"
instructions, i.e., it informed the jurors that the reasonable doubt stan-
dard is satisfied by evidence on which they would be willing to act
in their personal affairs. Such instructions have been criticized by the
courts. For example, in Holland the Court considered an instruction
that defined reasonable doubt as "the kind of doubt . . . which you
folks in the more serious and important affairs of your own lives
might be willing to act upon." Id. (internal quotation marks omitted)
(alteration in original). While the Court declined to declare this
instruction unconstitutional, it noted that "this section of the charge
should have been in terms of the kind of doubt that would make a per-
son hesitate to act." Id.; see Monk v. Zelez, 901 F.2d 885, 890 (10th
Cir. 1990) (per curiam) (holding unconstitutional a"willing to act"
instruction because it was not expressed in terms of hesitation to act).
However, courts have affirmed reasonable doubt instructions that
informed jurors that the standard was satisfied by evidence on which
they would be willing to act "without hesitation." See, e.g., United
States v. Daniels, 986 F.2d 451, 457-58 (11th Cir. 1993) (per curiam).

Here, the "willing to act" language to which Baker points was
given in the course of an instruction that correctly conveyed the con-
cept of reasonable doubt to the jury. In particular, the court stated that
"reasonable doubt requires such proof as would convince you of the
truth of a fact to the extent that you would be willing to act upon such

                     22
belief without reservation in an important matter in your own busi-
ness or personal affairs." J.A. 126 (emphasis added). Accordingly, the
rejection of this claim by the state court was neither contrary to, nor
involved an unreasonable application of, clearly established federal
law.

V.

Finally, Baker contends that trial counsel were constitutionally
deficient in numerous respects.15 To prevail on these claims, Baker
must demonstrate that his attorneys' "representation fell below an
objective standard of reasonableness" and "that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). Review of counsel's performance is
"highly deferential." Id. at 689. And, competency is measured against
what an objectively reasonable attorney would have done under the
circumstances. See id. at 687-88. Counsel are afforded a strong pre-
sumption that their performance was within the extremely wide range
of professionally competent assistance. See id. at 689. For the reasons
set forth below, we conclude that all of Baker's claims of ineffective
assistance of counsel are without merit. Accordingly, the rejection of
these claims by the state court was neither contrary to, nor involved
an unreasonable application of, clearly established federal law.

A.

Baker first contends that trial counsel were constitutionally defi-
cient for failing to conduct an independent investigation of the case.
See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (stating that
counsel generally is required to conduct a reasonable investigation of
the case). Baker asserts that such an investigation would have uncov-
ered the testimony of Mary Spicer, who lived near the Westview
_________________________________________________________________
15 Baker also claims that appellate counsel were constitutionally defi-
cient for failing to challenge the reasonable doubt instruction on direct
appeal. Because we have concluded that the challenge to the reasonable
doubt instruction is without merit, it necessarily follows that counsel
were not ineffective for failing to raise it. See Jones v. Gibson, 206 F.3d
946, 959 (10th Cir. 2000).

                    23
Mall. In an affidavit submitted in connection with the motion to
reopen, Spicer stated that on the night of the Tyson murder she heard
"several gunshots" and observed a man running away from the mall
carrying a white purse. J.A. 561. Spicer stated that a blue "`Bronco'-
type vehicle" picked the man up and sped away, followed by Scott
Faust. Id.

Even if counsel's investigation was inadequate, the Spicer affidavit
is inadequate to demonstrate prejudice. At best, Spicer's testimony
would have indicated that a third individual, other than Baker and
Lawrence, was involved in the crime. It would do nothing to contra-
dict Faust's observation of a man he later identified as Baker running
from the Buick to the Blazer. Indeed, Spicer's testimony would have
done little, if anything, to contradict the overwhelming evidence of
Baker's involvement in the crime. And, Spicer's testimony provides
no assistance concerning the identity of the triggerman.

B.

Next, Baker asserts that trial counsel were ineffective for failing to
investigate his codefendant, Gregory Lawrence. Baker contends that
a routine investigation would have revealed that in 1978 (some 13
years before the Tyson murder), Lawrence carjacked a man at gun-
point. Lawrence locked the victim in the trunk of the car and pro-
ceeded to rob several businesses, one of which was located only one-
half mile from the Westview Mall. Baker asserts that evidence of this
"chillingly similar" crime would have persuaded the jury that Law-
rence, rather than Baker, was the triggerman. Appellant's Brief at 34.

Again assuming that counsel were ineffective for failing to investi-
gate Lawrence, we conclude that Baker suffered no prejudice. In the
first place, the circumstances of the 1978 carjacking are not similar
to the Tyson murder, much less "chillingly" so. Additionally, evi-
dence of the 1978 crime could actually have undermined Baker's
claim that he was not the triggerman, inasmuch as Lawrence did not
shoot the victim of the 1978 carjacking, thus indicating a lack of a
propensity to shoot a robbery victim.

C.

Baker also challenges the failure of trial counsel to obtain expert
analysis of the firearms and ballistics evidence. He maintains that

                    24
independent analysis would have revealed that the firearm used to
shoot Tyson had a trigger pull of between 1.875 and 2.5 pounds, "sig-
nificantly below the minimum safe trigger pull of three pounds." Id.
at 27. According to Baker, this evidence indicates a significant likeli-
hood that the shot that killed Tyson was the result of an accidental
discharge of the weapon. Baker asserts that counsel's failure to obtain
and present this evidence undermines confidence in both the verdict
and the sentence. With respect to the verdict, Baker maintains that the
jury likely would not have convicted him of premeditated murder had
it known that the fatal shot might have been accidental. With respect
to his sentence, Baker claims that the trial court likely would not have
sentenced him to death if it had been aware of the trigger-pull evi-
dence.

We conclude that counsel's failure to obtain and present the
trigger-pull evidence, even if deficient, did not prejudice Baker. To
begin, assuming that the trigger-pull evidence would have persuaded
the jury to acquit Baker of premeditated murder, this would have been
at best a Pyrrhic victory. Evidence that the shot that killed Tyson
might have been accidental would not undermine confidence in
Baker's conviction for felony murder, a death-eligible offense. See
Brooks v. State, 655 A.2d 1311, 1317 (Md. Ct. Spec. App. 1995).
Moreover, the failure to present the trigger-pull evidence does not
undermine our confidence in the outcome of the sentencing proceed-
ing. In imposing the death penalty, the trial court commented at some
length regarding Baker's past conduct and the circumstances of the
crime, noting that "[w]hen I look at the manner in which this [crime]
was carried out and the circumstances under which it was carried out,
it causes me grave concern as to the threat that Mr. Baker poses to
society." J.A. 237. The court also focused on Baker's conduct in plan-
ning an armed robbery and placing the gun to Tyson's head, concerns
that would not be lessened by evidence that the shooting might have
been accidental. There is simply no reason to think that evidence that
the weapon might have accidentally discharged would have dissuaded
the court from imposing the death penalty.

D.

Given the overwhelming evidence of Baker's participation in the
crime, trial counsel elected not to mount a serious challenge to

                    25
Baker's guilt. Rather, counsel decided that the best strategy was to
attempt to convince the jury that the State could not prove beyond a
reasonable doubt that Baker was the one who shot Tyson, thus render-
ing him ineligible for the death penalty. To this end, counsel per-
suaded the court to have the jury render a special verdict on
principalship--normally a sentencing phase issue--during the guilt
phase. And, counsel's closing argument focused entirely on whether
the State had proven beyond a reasonable doubt that Baker was the
triggerman. Near the end of argument, counsel made the following
statements:

          The State has produced evidence that Mr. Baker was pres-
         ent. They have introduced evidence that he was in the
         Blazer. The State has adduced evidence that he had blood on
         his sock. The State has shown you no evidence at all that
         Mr. Baker was the one who pulled the trigger. He is not the
         principal in the first degree.

          . . . What I have tried to do in my closing argument is not
         appeal to your passion or your sympathies. I have not tried
         to attack the Police Department of Baltimore County and
         tried to somehow shift the focus onto them. That's a com-
         mon defense tactic. I have done it myself in other cases.

          When you don't have a case, you do what you can, but
         what I tried to do with you this morning is, as objectively
         as I can, go through the evidence you have in front of you.
         And I'm not going to stand here and insult your intelligence
         and tell you the State can't prove to you that Wesley Baker
         was there, and that Wesley Baker was in the Blazer and that
         Wesley Baker got arrested on Old Frederick Road. If I was
         going to stand up here and argue that, you would have
         stopped listening to me a long time ago. But what the State
         has not proved, and there is no evidence that you can ratio-
         nally, objectively latch onto, is the fact that the State has
         simply not proved directly or circumstantially who shot
         Ms. Tyson.

Id. at 186-87 (emphasis added).

                   26
Baker challenges counsel's tactical decision to focus exclusively on
the question of whether Baker was the triggerman, maintaining that
a decision to concede guilt can never be objectively reasonable.16 Cf.
Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988) (stating that
"an attorney who adopts and acts upon a belief that his client should
be convicted `fail[s] to function in any meaningful sense as the Gov-
ernment's adversary'" (quoting United States v. Cronic, 466 U.S. 648,
666 (1984)) (alteration in original)). Baker further claims that damage
done by conceding guilt was aggravated by counsel's statement that
"[w]hen you don't have a case, you do what you can." Baker claims
that in making this comment counsel "disparage[d] his own candor
and paint[ed] himself as a gamesman willing to`do what [he] can' in
a hopeless and desperate situation." Appellant's Brief at 51.

Baker's assertion that counsel were ineffective for conceding guilt
is without merit. "Our precedents plainly illustrate that counsel's con-
cession of a client's guilt does not automatically constitute deficient
performance." Young v. Catoe, 205 F.3d 750, 759 (4th Cir. 2000). We
have observed that "there is a distinction which can and must be
drawn between . . . a tactical retreat and . . . a complete surrender,"
Clozza v. Murray, 913 F.2d 1092, 1099 (4th Cir. 1990), and that
"[s]ome remarks of complete concession may constitute ineffective
assistance of counsel, but tactical retreats may be reasonable and nec-
essary within the context of the entire trial, particularly when there is
overwhelming evidence of the defendant's guilt," Bell v. Evatt, 72
F.3d 421, 429 (4th Cir. 1995). See Underwood v. Clark, 939 F.2d 473,
474 (7th Cir. 1991) (explaining that "acknowledgment [of guilt] can
be a sound tactic when the evidence is indeed overwhelming (and
there is no reason to suppose that any juror doubts this) and when . . .
there is an advantage to be gained by winning the confidence of the
jury").
_________________________________________________________________
16 In his brief, Baker argued at some length that counsel's decision to
concede guilt in favor of challenging the State's ability to prove princi-
palship constituted ineffective assistance of counsel. See Appellant's
Brief at 48-51. At oral argument, however, counsel for Baker asserted
that the decision to concede guilt was "one hundred percent defensible."
Faced with the evident conflict between the statements in the brief and
at oral argument, we have elected to address the issue as raised in the
brief.

                    27
This court recently held that counsel was not ineffective for con-
ceding guilt in a case similar to this one. See Young, 205 F.3d at 759-
61. In Young, the defendant was charged with capital murder for
shooting the victim during a robbery. The evidence that Young fired
the fatal shot--which included a confession--was simply overwhelm-
ing, and counsel decided that the best strategy was to focus not on
obtaining an acquittal, but rather on avoiding imposition of the death
penalty. To this end, counsel conceded Young's guilt of the crime in
the hope of persuading the jury that the circumstances did not warrant
imposition of the death penalty. This court approved this tactic, rea-
soning that "it was necessary for counsel to retreat from an unlikely
acquittal of a patently guilty client, so that he might attain the more
realistic goal of saving the client's life." Id. at 760. Similarly, in Lin-
gar v. Bowersox, 176 F.3d 453, 459 (8th Cir. 1999), cert. denied, 120
S. Ct. 1536 (2000), the Eighth Circuit held that counsel was not inef-
fective for conceding the defendant's guilt of second degree murder
in favor of arguing that the defendant was too intoxicated to deliber-
ate and thus not guilty of first degree murder. Had the jury accepted
this argument, the defendant would not have been eligible for the
death penalty. The court noted that "[g]iven the overwhelming evi-
dence, Lingar could not credibly deny involvement in[the murder],
and denying all involvement could inflame the jury and incite it to
render a death sentence." Id. The strategy allowed counsel to retain
some credibility with the jury, hopefully rendering them more sympa-
thetic to pleas for mercy in the event of a conviction of first-degree
murder.

Here, counsel's decision to concede Baker's involvement in the
robbery and murder of Tyson was a reasonable tactical retreat, rather
than a complete surrender. The evidence of Baker's involvement in
the crime was simply overwhelming; therefore, the only strategy rea-
sonably available to counsel was to persuade the jury that Baker was
not the triggerman, and thus not eligible for the death penalty. Given
that the evidence of Baker's principalship was weaker than the evi-
dence of his involvement,17 this strategy amounted to a reasonable
_________________________________________________________________
17 The evidence that Baker shot Tyson was not overwhelming. First,
Adam's stipulated testimony stated that the man he saw shoot his grand-
mother ran to the left, i.e., the driver's side, of the Blazer. Additionally,

                     28
attempt "to risk losing the battle in the hope of winning the war."
Young, 205 F.3d at 760.

Baker's assertion that counsel undermined their strategy of conced-
ing guilt in order to avoid the death penalty by stating to the jury that
"[w]hen you don't have a case, you do what you can" is also without
merit. According to Baker, this was a concession that defense counsel
had no case on the issue of principalship. The state PCR court rea-
soned that the statement was not a concession of principalship, but
rather that counsel was saying, "[W]hen you cannot argue absolute
innocence, you do what you can, and by the way the State hasn't
proven that Baker was the triggerman." J.A. 493. We conclude that
this is a reasonable interpretation of counsel's statement.18 So inter-
preted, the statement does nothing to undermine, but rather is consis-
tent with, counsel's strategy of attempting to persuade the jury that
Baker was not the triggerman.

E.

Lastly, Baker argues that counsel were constitutionally deficient
for failing to present mitigation testimony regarding Baker's family
history from his mother and social worker Lori James. As noted
above, during her investigation James learned from Baker's mother,
_________________________________________________________________

Faust testified that he saw two people run from the Buick to the Blazer,
and that Lawrence entered the driver's side. Finally, the fingerprints on
the Buick were from Baker's right hand. If Baker were right-handed, as
is the majority of the population, one must wonder how it was possible
for him to hold the gun to Tyson's head and leave his fingerprints on the
Buick, especially in light of the fact that the incident took only a matter
of moments.
18 We note that it is also reasonable to interpret the challenged state-
ment in light of the remarks immediately preceding it, in which counsel
referred to the "common defense tactic" of diverting the attention of the
jury from the issue of guilt by appealing to prejudice or attacking the
police department. Given those remarks, counsel's statement that
"[w]hen you don't have a case, you do what you can" can reasonably be
viewed as referring to such diversionary tactics and emphasizing to the
jury that such tactics were unnecessary in this case because counsel had
a strong argument that Baker was not the triggerman.

                     29
Dolores Williams, that Baker was the product of a rape when Wil-
liams was a teenager. Baker was first informed of this fact shortly
before the sentencing hearing and, because he was unwilling to have
this information revealed in open court, told his attorneys that he did
not want Williams and James to testify. Baker's counsel then
informed the court that Baker did not wish to present evidence of his
family history in mitigation and that they had to respect that decision
"man to man." Id. at 199. In order to persuade the court not to call
Williams and James as court witnesses, Baker informed the court that
he thought their testimony would be more damaging than helpful.
Based upon this assertion, the trial court did not call Williams and
James as court witnesses.

Baker now contends that it was objectively unreasonable for coun-
sel to fail to inform him that he was the product of a rape sufficiently
in advance of the sentencing proceeding to give him time to adjust.
Baker further claims that counsel should have presented Williams'
and James' testimony over his objection. See Brookhart v. Janis, 384
U.S. 1, 8 (1966) (opinion of Harlan, J.) ("[A] lawyer may properly
make a tactical determination of how to run a trial even in the face
of his client's incomprehension or even explicit disapproval."). Even
if counsel were constitutionally deficient in these respects, Baker suf-
fered no prejudice. The trial court granted Baker's motion to reopen
the sentencing proceeding and reconsidered its sentencing decision in
light of James' testimony that Baker was raised in a dysfunctional
family marked by poor communication, physical abuse, and drug use.
The court found that this testimony was not mitigating and thus
declined to change the sentence. There is no indication whatsoever
that the court gave James' testimony less weight because it was pre-
sented in the context of a motion to reopen or that the court placed
a heavier burden on Baker because of the previous decision to impose
a death sentence.19
_________________________________________________________________
19 Moreover, there is no reason to believe that Williams' failure to tes-
tify at the reopening proceeding had any prejudicial impact. Williams'
testimony would have been largely cumulative of James', which the
court had found not to be mitigating. We do not believe that receiving
the same information from an additional witness, even if the witness was
Baker's mother, would have changed the view of the court. See Glock v.
Moore, 195 F.3d 625, 635-36 (11th Cir. 1999) (holding that petitioner
was not prejudiced by counsel's failure to present cumulative evidence
in mitigation).

                    30
VI.

In sum, we conclude that Maryland has not satisfied the "opt-in"
requirements of 28 U.S.C.A. § 2261, and accordingly that Baker's
habeas petition was timely filed. We also determine, however, that
Baker is not entitled to relief on any of his claims.20 Therefore, we
affirm the district court in all respects.

AFFIRMED
_________________________________________________________________
20 Additionally, we conclude that the district court properly denied
Baker's request for an evidentiary hearing.

                    31
