Filed:   October 16, 1997


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                               No. 97-4
                            (CA-95-837-3)



Thomas H. Beavers, Jr.,

                                              Petitioner - Appellant,

           versus

Samuel V. Pruett, etc.,

                                               Respondent - Appellee.




                              O R D E R


    The Court amends its opinion filed September 23, 1997, as

follows:
    On page 5, first full paragraph of continuation of footnote 4,

line 13 -- the phrase "those alleged facts" is corrected to read

"those alleged events."
                                       For the Court - By Direction



                                            /s/ Patricia S. Connor

                                                      Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS H. BEAVERS, JR.,
Petitioner-Appellant,

v.
                                                              No. 97-4
SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-837-3)

Argued: July 10, 1997

Decided: September 23, 1997

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Luttig and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Mark Evan Olive, Tallahassee, Florida, for Appellant.
Katherine P. Baldwin, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Michele J. Brace, VIRGINIA CAPITAL REPRESENTA-
TION RESOURCE CENTER, INC., Richmond, Virginia, for Appel-
lant. James S. Gilmore, III, Attorney General of Virginia, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Thomas H. Beavers, Jr. appeals an order of the district court dis-
missing his petition for a writ of habeas corpus,1 which challenged his
Virginia conviction for capital murder and resulting death sentence.
See 28 U.S.C.A. § 2254 (West 1994).2 We conclude that the district
_________________________________________________________________

1 Beavers named J. D. Netherland, former Warden of the Mecklenburg
Correctional Center where Beavers is incarcerated, as Respondent in his
petition. Subsequently, Samuel V. Pruett succeeded Netherland as War-
den at that institution. For ease of reference, we refer to Respondent as
"the Commonwealth" throughout this opinion.

2 Because Beavers' petition for a writ of habeas corpus was filed on
October 11, 1995, prior to the April 24, 1996 enactment of the Antiterro-
rism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No.
104-132, 110 Stat. 1214, amendments to chapter 153 of Title 28 effected
by the AEDPA do not govern our resolution of this appeal. See Lindh v.
Murphy, 

, 2067 (1997). We have not yet decided whether
the provisions contained in § 107 of the AEDPA apply to Beavers, who
filed his state habeas petition on April 18, 1994. See Bennett v. Angelone,

, 1342 (4th Cir.) (declining to decide whether the proce-
dures established by the Commonwealth for the appointment, compensa-
tion, and payment of reasonable litigation expenses of competent counsel
satisfy the statutory opt-in requirements of § 107, which would render
those provisions applicable to indigent Virginia prisoners seeking federal
habeas relief from capital sentences if an initial state habeas petition was
filed after July 1, 1992), cert. denied, 

(1996). However,
we need not address this issue because we conclude that habeas relief is
inappropriate under the more lenient standards in effect prior to the
recent amendments. See O'Dell v. Netherland, 

, 1255 n.36
(4th Cir. 1996) (en banc), aff'd, 

(1997).

                    2
court correctly held that Beavers was not entitled to habeas relief.
Accordingly, we deny Beavers' application for a certificate of proba-
ble cause to appeal and dismiss this appeal.

I.

On the night of May 1, 1990, Beavers broke into the home of Mar-
guerite Lowery, a 60-year-old widow, and murdered her by suffocat-
ing her with a pillow while raping her. Beavers subsequently was
convicted of capital murder and sentenced to death on the basis that
he posed "a continuing serious threat to society."3 Va. Code Ann.
§ 19.2-264.2 (Michie 1995). The Supreme Court of Virginia affirmed
on direct appeal, and the United States Supreme Court denied certio-
rari. See Beavers v. Commonwealth, 

(Va.), cert.
denied, 

(1993). Thereafter, a state habeas court denied
Beavers postconviction relief without conducting an evidentiary hear-
ing, reasoning that Beavers' allegations of constitutionally ineffective
assistance of counsel lacked merit and that his remaining claims were
barred by Hawks v. Cox, 

, 274 (Va. 1970) (precluding,
absent changed circumstances, consideration in state habeas proceed-
ings of claims considered on their merits during direct review), or
were defaulted under Slayton v. Parrigan, 

, 682 (Va.
1974) (holding that issues not properly raised on direct appeal will not
be considered on state collateral postconviction review). The Supreme
Court of Virginia denied review.

Beavers then filed this action raising a plethora of issues. Without
conducting an evidentiary hearing, the district court denied habeas
relief and dismissed his petition. With respect to those issues that
Beavers presses on appeal, the district court held federal habeas
review to be foreclosed as to four of them because they were proce-
durally defaulted. Beavers' defaulted claims are as follows: (1) his
appointed mental health expert was constitutionally ineffective in vio-
lation of the Eighth and Fourteenth Amendments; (2) the refusal of
the state trial court to permit one of his trial attorneys to withdraw
from representation violated the Sixth, Eighth, and Fourteenth
_________________________________________________________________

3 Beavers was also convicted of rape, grand larceny, and arson, and was
sentenced separately on these counts to life, ten years, and eight years
respectively.

                    3
Amendments; (3) the refusal of the state trial court to remove for
cause a prospective juror who stated during voir dire that she would
impose the death penalty if the jury returned a capital conviction vio-
lated the Eighth and Fourteenth Amendments; and (4) the failure of
the state trial court to guide adequately the discretion of the jurors in
considering the mitigating evidence violated the Sixth, Eighth, and
Fourteenth Amendments. The district court ruled that the three
remaining claims that Beavers presents--that (1) trial counsel was
constitutionally ineffective under the Sixth Amendment with respect
to the handling of issues relating to Beavers' mental health and in the
investigation and presentation of mitigating evidence; (2) the trial
court violated the Eighth and Fourteenth Amendments by refusing to
grant a mistrial; and (3) the trial court denied Beavers protections
guaranteed by the Eighth and Fourteenth Amendments by refusing
during voir dire to question prospective jurors concerning whether
they would automatically impose the death penalty--lacked merit.

II.

Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 

,
262 (1989). The Supreme Court of Virginia expressly relied on the
procedural default rule set forth in Slayton in refusing to consider
Beavers' claims that his court-appointed mental health expert was
constitutionally ineffective; that the trial court erred in refusing to per-
mit one of his attorneys to withdraw; that the trial court erred in quali-
fying a juror who stated that she would impose the death penalty if
the jury returned a capital murder conviction; and that the instructions
failed to guide adequately the discretion of the jury in considering the
mitigating evidence. Thus, we may not consider these claims on their
merits,4 see Smith v. Murray, 

, 533 (1986); Bennett v.
_________________________________________________________________

4 Beavers maintains that his claim relating to the adequacy of the
instructions to guide the discretion of the jury in considering the mitigat-
ing evidence is not procedurally defaulted. He asserts that he raised that
claim in his petition for appeal to the Supreme Court of Virginia from
the denial of state postconviction relief. The referenced portion of the
petition states:

                     4
Angelone, 

, 1343 (4th Cir.), cert. denied, 

(1996), unless Beavers can demonstrate that cause and prejudice exist
to excuse the default or that the failure of the court to consider the
claim would amount to a fundamental miscarriage of justice, see
Coleman v. Thompson, 

, 750 (1991).
_________________________________________________________________

        Trial counsel failed to request any mitigating instructions at the
        sentencing phase of Beavers' capital murder trial.... Trial coun-
        sel's failure to request, and the trial court's failure to give, these
        instructions prejudiced Beavers because the jury may have
        imposed the death penalty on an improper, inadequate or arbi-
        trary basis.

Appellant's Pet. for Appeal at 52, Beavers v. Netherland, No. 950146
(Va. Apr. 24, 1995). And, he contends, the Supreme Court of Virginia
denied relief on this claim on the basis that the ineffective assistance
claims raised were without merit.

The claim Beavers presented to the Supreme Court of Virginia, how-
ever, was one of ineffective assistance of counsel. The petition omitted
reference to any other constitutional right to additional instruction con-
cerning the mitigating evidence and failed to provide any argument con-
cerning why the referenced instructions were constitutionally required.
Thus, Beavers failed to properly exhaust this claim. See Duncan v.
Henry, 

, 366 (1995) (per curiam); Matthews v. Evatt, 

, 911 (4th Cir. 1997) (explaining that in order for federal claim
to be exhausted, the substance of the federal right must be presented to
the highest state court), petition for cert. filed, ___ U.S.L.W. ___ (U.S.
May 27, 1997) (No. 96-9163); Mallory v. Smith , 

, 994 (4th
Cir. 1994) (noting that exhaustion requires that petitioner do more than
apprise state court of the facts; he must "explain how those alleged events
establish a violation of his constitutional rights"); 

that exhaustion requires "more than scatter[ing] some makeshift needles
in the haystack of the state court record" (internal quotation marks omit-
ted)). Because presentation to the state court at this juncture would be
fruitless, the claim is properly considered to be procedurally barred. See
George v. Angelone, 

, 363 (4th Cir. 1996) ("A claim that
has not been presented to the highest state court nevertheless may be
treated as exhausted if it is clear that the claim would be procedurally
defaulted under state law if the petitioner attempted to raise it at this
juncture."), cert. denied, 

(1997). Therefore, we hold this
claim to be procedurally defaulted.

                     5
Beavers does not assert that cause and prejudice exist to excuse the
default. See Teague v. Lane, 

, 298 (1989) (possible cause
and prejudice not considered when petitioner fails to argue that any
exist); Correll v. Thompson, 

, 1288 (4th Cir. 1995)
(same), cert. denied, 

(1996). But, he maintains that the
failure to consider his claims would amount to a miscarriage of justice
because the evidence he proffered to the district court concerning his
organic brain disorder and brain tumor demonstrate his actual inno-
cence.

It is undisputed, however, that Beavers actually murdered Lowery,
and the additional evidence to which Beavers points does not demon-
strate that he was not criminally responsible for his conduct. Thus,
Beavers has not demonstrated that a constitutional error probably
resulted in the conviction of one who is actually factually innocent.
See Schlup v. Delo, 

, 323-27 (1995). Further, Beavers
has not presented "`clear and convincing evidence that but for a con-
stitutional error, no reasonable juror would have found the petitioner
eligible for the death penalty,'" and thus he has not demonstrated that
he is "`actually innocent of the death penalty.'" 

omitted) (quoting Sawyer v. Whitley, 

, 336 (1992)). Con-
sequently, Beavers has not established a fundamental miscarriage of
justice to excuse his default of these claims.

III.

The first of Beavers' undefaulted claims is his argument that his
trial counsel was constitutionally ineffective. In order to be entitled
to relief on this claim, Beavers bears the burden of demonstrating that
his attorneys' "representation fell below an objective standard of rea-
sonableness" and "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceedings would
have been different." Strickland v. Washington, 

, 688,
694 (1984). In assessing counsels' performance, we bear in mind that
our review is "highly deferential." 

we afford a
strong presumption that counsel's performance was within the
extremely wide range of professionally competent assistance. See 

the deceptive effects of hindsight on our consider-
ation, we look to "the reasonableness of counsel's challenged conduct
on the facts of the particular case, viewed as of the time of counsel's

                    6
conduct." 

even those instances in which coun-
sel's conduct fell below an objective standard of reasonableness gen-
erally will not justify setting aside a conviction unless the error
affected the outcome of the proceeding. See 

deficiencies in Beavers' attorneys' conduct would warrant reversal
only if he convinces us that in the absence of unprofessional errors
by his attorneys there is a reasonable probability--i.e., one adequate
to undermine our confidence in the result--that "the result of the pro-
ceeding would have been different." See 

review de
novo Beavers' claim that counsel was ineffective. See 

maintains that the performance of his trial counsel fell
below an objective standard of reasonableness in two areas--the han-
dling of issues relating to Beavers' mental health and the investigation
and presentation of mitigating evidence. More specifically, Beavers
asserts that counsel failed: (1) to communicate effectively with his
mental health expert; (2) to ensure that he obtained a psychiatric eval-
uation on an in-patient basis; (3) to obtain a full social and clinical
history for use by his court-appointed mental health expert; and (4)
to present the testimony of mitigation witnesses during the sentencing
phase of trial, including family and friends who could have testified
about Beavers' upbringing by a schizophrenic mother.

With respect to counsel's handling of the mental health issues,
Beavers maintains that the district court erred in denying this claim
based on our repeated admonitions that counsel is not obligated to
"shop around" to find an expert that will provide a different or better
expert opinion. Poyner v. Murray, 

, 1419 (4th Cir.
1992); Roach v. Martin, 

, 1477 (4th Cir. 1985). Beavers
contends that this is not the basis for his claim and that his argument,
instead, "is that he was entitled to one, competently arrived at, opin-
ion, which he did not receive." Initial Brief of Appellant at 48. This
argument, however, only serves to highlight the deficiency in Bea-
vers' position.

Attorneys need not be mental health experts or medical doctors,
and they are not held to a standard of competence requiring them to
be. See Pruett v. Thompson, 

, 1574 (4th Cir. 1993).
Pursuant to defense counsel's request that Beavers be examined by a
mental health expert, Dr. Henry O. Gwaltney, Jr., a forensic clinical

                    7
psychologist, was appointed. Dr. Gwaltney's subsequent opinion pro-
vided Beavers' attorneys with little support for an insanity defense or
evidence in mitigation. Beavers does not assert that counsel was
informed by Dr. Gwaltney or others that more information concerning
Beavers' social and medical history, further testing, or additional
expert assistance was required in order for Dr. Gwaltney to properly
evaluate Beavers. And, Dr. Gwaltney's opinion was consistent with
that of two psychiatrists who had evaluated Beavers to determine his
mental state at the time of the murder. In short, Beavers' attorneys did
not perform unprofessionally in relying on his court-appointed mental
health expert. See Jones v. Murray, 

, 1112-13 (4th Cir.
1991) (rejecting argument that counsel was ineffective for relying on
the psychological assessment of Dr. Gwaltney).

With regard to Beavers' claim that counsel should have engaged in
further investigation to discover additional mitigating evidence from
his past, we again conclude that counsel's performance was not pro-
fessionally deficient. Beavers does not dispute that trial counsel con-
tacted a number of Beavers' family members, including his wife, his
mother and father, and his uncle in an effort to obtain mitigating
background evidence. Nor does he dispute that it was the professional
judgment of his attorneys that the testimony of these witnesses poten-
tially would have been more damaging than beneficial because of
aggravating information they possessed that counsel did not wish to
risk disclosing. Beavers does not attack this strategic decision on the
part of counsel, but rather proffers affidavits from family members,
neighbors, and former coworkers who indicate that Beavers' mother
was schizophrenic and that her bizarre conduct had an extremely
adverse effect on her child-rearing skills and that, as a result, Beavers
was subjected to a very difficult and abusive childhood.

Although "counsel has a duty to make reasonable investigations or
to make a reasonable decision that makes particular investigations
unnecessary," 

, counsel is not constitution-
ally required to interview every family member, neighbor, and
coworker in the search for constitutionally mitigating evidence.
Because Beavers' trial counsel conducted a reasonable investigation
for mitigating evidence with Beavers' closest family members and
found nothing that, in the professional judgment of the attorneys,

                    8
could be employed in Beavers' defense, we conclude that counsel did
not perform unprofessionally in failing to investigate further.

Moreover, even if Beavers had overcome the presumption that
counsel's performance was within the broad range of professionally
acceptable conduct, we are not convinced that he would have satisfied
the prejudice prong of Strickland. The mental health evidence that
Beavers argues would have been obtained if counsel had performed
competently does not undermine our confidence in the verdict at the
guilt phase of his trial. And, although "evidence of a defendant's men-
tal impairment may diminish his blameworthiness for his crime," it
also may "indicate[ ] that there is a probability that he will be danger-
ous in the future." Barnes v. Thompson, 

, 980-81 (4th Cir.
1995) (internal quotation marks omitted). Thus, this evidence is a
two-edged sword, and "the sentencing authority could well have
found in the mitigating evidence of mental illness or history of abuse,
sufficient evidence to support a finding of future dangerousness." 

sum, Beavers was not deprived of constitutionally adequate
assistance of counsel.5

IV.

Beavers next contends that the state trial court violated the Eighth
and Fourteenth Amendments by refusing to grant a mistrial after it
struck a witness' testimony. During Beavers' trial, a state law
enforcement officer, Deputy Lam, testified. At the beginning of his
testimony, the Commonwealth presented him with a document to
refresh his memory. Beavers objected to Deputy Lam reading from
the document in answering two questions and sought a mistrial. Dep-
uty Lam then testified that Beavers had told him that "`he had no
_________________________________________________________________

5 Beavers also argues that he was entitled to an evidentiary hearing in
district court to develop the facts underlying his ineffective assistance of
counsel claim and his ineffective assistance of court-appointed mental
health expert claim. We review a decision of a district court denying an
evidentiary hearing for an abuse of discretion. See 

. We conclude that the district court did not abuse its discretion
because Beavers did not demonstrate that the additional facts he alleges,
if true, would entitle him to relief. See, e.g., Beaver v. Thompson, 

, 1190 (4th Cir.), cert. denied, 

(1996).

                    9
other choice but to do what he had done because [Mrs. Lowery] could
identify him.'" 

(alteration in original).
Deputy Lam subsequently equivocated regarding the accuracy of his
memory of portions of the statement, and when Beavers once again
objected, the trial court sustained the objection and ordered the jury
to disregard the officer's testimony in its entirety. On direct appeal,
the Supreme Court of Virginia held that the trial court had not erred
in refusing to grant a mistrial rather than give a cautionary instruction.
See 

that the instruction given by the trial court
was insufficient to cure the prejudice caused by Deputy Lam's state-
ment and that the failure of the trial court to grant a mistrial created
an impermissible risk that Beavers' conviction and sentence were the
product of passion, prejudice, and arbitrary factors.

We disagree. Even if we were to conclude that Beavers is correct
that the failure to grant a mistrial under these circumstances was an
error of constitutional dimension, relief would not be appropriate.
Beavers points to no clearly established rule of constitutional law in
existence in October 1993, when his conviction became final, that
would have compelled a state court to reverse his conviction; hence
this argument is barred by the new rule doctrine set forth in Teague
v. Lane, 

(1989). See O'Dell v. Netherland, 

, 1973 (1997). Accordingly, this argument does not provide a
basis for relief.

V.

Finally, Beavers contends that the state trial court deprived him of
the guarantees of the Eighth and Fourteenth Amendments by refusing
to ask prospective jurors during voir dire, "Do you believe that if one
is convicted of taking another's life, the proper penalty is loss of your
own life?" Initial Brief of Appellant at 59. Again, we disagree.

"[T]he requirement of impartiality embodied in the Due Process
Clause of the Fourteenth Amendment," prohibits "[a] juror who will
automatically vote for the death penalty in every case" from sitting on
a capital jury. Morgan v. Illinois, 

, 729 (1992). A corol-
lary of the right to an impartial jury is the requirement of a voir dire
sufficient to permit identification of unqualified jurors because with-
out an adequate voir dire, a trial judge will not be able to remove

                    10
unqualified jurors and the defendant will not be able to exercise chal-
lenges for cause. See 

a capital defendant must be
allowed on voir dire to ascertain whether prospective jurors are unal-
terably in favor of the death penalty in every case, regardless of the
circumstances, rendering them unable to perform their duties in accor-
dance with the law. See 

directed simply to
whether a juror can be fair, or follow the law, are insufficient. See 

it declined to ask Beavers' proposed question, the state
trial judge asked prospective jurors, "`[I]f the jury should convict the
defendant of capital murder, would you be able to consider voting for
a sentence less than death?'" 

. This ques-
tion is adequate to identify those who would automatically vote for
the death penalty. Thus, Beavers' argument lacks merit.

VI.

In sum, we conclude that Beavers procedurally defaulted his claims
that (1) his appointed mental health expert was constitutionally inef-
fective in violation of the Eighth and Fourteenth Amendments; (2) the
refusal of the state trial court to permit one of his trial attorneys to
withdraw from representation violated the Sixth, Eighth, and Four-
teenth Amendments; (3) the refusal of the state trial court to remove
for cause a prospective juror who stated during voir dire that she
would impose the death penalty if the jury returned a capital convic-
tion violated the Eighth and Fourteenth Amendments; and (4) the
state trial court failed to guide adequately the discretion of the jurors
in considering the mitigating evidence in violation of the Sixth,
Eighth, and Fourteenth Amendments. And, Beavers' remaining
claims lack merit.

Prior to the decision of the Supreme Court in Lindh v. Murphy, 

(1997), Beavers sought a certificate of appealability in
this court pursuant to 28 U.S.C.A. § 2253(c)(1) (West Supp. 1997)
(providing in pertinent part that "[u]nless a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the
court of appeals from ... the final order in a habeas corpus proceeding
in which the detention complained of arises out of process issued by
a State court"). Following the Lindh decision, see Lindh, 

at 2067 (concluding that generally the amendments to chapter 153 of
Title 28 do not apply to petitions, like Beavers', filed prior to the
effective date of the AEDPA), Beavers sought a certificate of proba-
ble cause to appeal from the district court. The district court denied
the certificate, reasoning that Beavers had not made a substantial
showing of denial of a constitutional right. Beavers subsequently peti-
tioned this court for a certificate of probable cause to appeal.

We need not decide whether, strictly speaking, Beavers was correct
in seeking a certificate of appealability under amended § 2253 or a
certificate of probable cause to appeal because he has failed to make
the substantial showing of the denial of a constitutional right neces-
sary for the grant of either. See Lozada v. Deeds, 

, 431-
32 (1991) (per curiam) (explaining that to warrant the grant of a cer-
tificate of probable cause to appeal, a habeas petitioner must "make
a substantial showing of the denial of [a] federal right" and that to sat-
isfy this showing, the petitioner "must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate to
deserve encouragement to proceed further" (internal quotation marks
& emphasis omitted; alterations in original)); Murphy v. Netherland,

, 101 (4th Cir. 1997) (denying certificate of appealability
under § 2253 in habeas corpus action seeking relief from death sen-
tence where petitioner failed to make a substantial showing of the
denial of a constitutional right). Accordingly, we dismiss Beavers'
appeal.

DISMISSED

                     12