UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 05-22

JOHN YANCEY SCHMITT,

Petitioner - Appellant,
versus
LORETTA
Prison,

K.

KELLY,

Warden,

Sussex

State
Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, District
Judge. (CA-02-953-3-REP)
Argued:

May 25, 2006

Decided:

July 13, 2006

Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Dana Johannes Finberg, LECLAIR RYAN, P.C., Richmond,
Virginia, for Appellant. John H. McLees, Jr., Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee. ON BRIEF: Barbara L. Hartung,
Richmond, Virginia; David J. Sensenig, LECLAIR RYAN, P.C.,
Richmond, Virginia, for Appellant. Robert F. McDonnell, Attorney
General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

PER CURIAM:
Petitioner-appellant John Yancey Schmitt appeals the district
courts denial of his habeas petition filed under 28 U.S.C.A.
2254 (West Supp. 2005).

The district court granted a certificate

of appealability to Schmitt on the following six claims:

(1)

whether the Virginia Supreme Courts holding that the exclusion of

evidence relating to general prison security and prison life at
state prisons was reasonable under Supreme Court precedent; (2)
whether impeachment evidence suppressed by the prosecution violated
Brady1; (3) whether Schmitts trial counsel were ineffective for
failing to preserve his prosecutorial misconduct claim by moving
for a mistrial at the appropriate time; (4) whether prosecutorial
misconduct rendered Schmitts trial unfair; (5) whether Schmitts
Massiah

claim2

was

procedurally

defaulted;

and

(6)

whether

Schmitts trial counsel were ineffective for failing to file a

pretrial motion to suppress a tape that thereby waived Schmitts

A defendants due process rights are violated pursuant to

Brady v. Maryland, 373 U.S. 83 (1963), when the prosecution
suppresses evidence favorable to the defendant that is material to
either the defendants guilt or punishment.
2

A Massiah v. United States, 377 U.S. 201 (1964), violation

occurs when the government deliberately elicit[s] incriminating
evidence from an accused after he has been indicted and in the
absence of his counsel. United States v. Kennedy, 372 U.S. 686,
692 (4th Cir. 2004) (internal quotation marks and alterations
omitted).

Massiah

claim.

Finding

no

error

in

the

district

courts

adjudication of Schmitts claims, we affirm.

I.

Procedural History

A. Proceedings in the Trial Court

On

January

19,

1999,

Schmitt

robbed

Nationsbank

Chesterfield County, Virginia, taking more than $65,000.

time

of

the

robbery,

Schmitt

was

on

probation

for

in

At the
a

prior

conviction for unlawful possession of a firearm by a convicted

felon.

With part of the money from the robbery, Schmitt purchased

a car.

Cliff Sauer, Schmitts former employer and friend, helped

broker the car deal.

aware

that

Schmitt

After the closing of the car deal, Sauer,

had

not

been

gainfully

employed

in

quite

sometime, asked Schmitt about where he had obtained the funds for
the new car.
bank.

Eventually, Schmitt told Sauer that he had robbed a

Sauer did not contact the police with this information.

On January 30, 1999, Schmitt and his girlfriend were staying

at a local hotel in Henrico County, Virginia and the hotel received

noise complaints regarding Schmitts room. When the police came to
investigate, Schmitt became belligerent and refused to comply with
the police officers instructions.
obstruction of justice.

During the booking process, Schmitt told

the police he was James Cromer.3

Schmitt was arrested for

Pretending to be James Cromer,

Cromer was a mutual friend of Schmitt and Sauer.

Schmitt called Sauer from the Henrico County jail and asked Sauer
to bail him out of jail.

Sauer, believing he was assisting Cromer,

complied with the request and bailed Schmitt out of jail.

On February 17, 1999, Schmitt entered the same Nationsbank in
Chesterfield County, Virginia and robbed it again.

This time,

however, Schmitt shot and killed the banks security guard.

The

robbery was captured on the banks security cameras, but the

shooting occurred outside the view of the cameras.

Schmitt fled

the bank and checked into a hotel under a false name.

The

Chesterfield County Police Department tracked Schmitt to the hotel,

and

Lieutenant

Clarcq

negotiated

his

surrender.

During

the

negotiations, Schmitt told Lt. Clarcq that he had not intended to

shoot the security guard, and he expressed concern for his family
and the family of the victim.
After the second robbery and the murder, but before Schmitt
was apprehended, the Chesterfield County police contacted Sauer.
Sauer cooperated with the police and disclosed his knowledge of the
first bank robbery and the car deal.

Sauer provided the police

with the information that led to Schmitts arrest. After Schmitts

arrest, the police again sought assistance from Sauer, asking him
to tape record any telephone conversations he would have with
Schmitt.

Complying

with

this

request,

Sauer

recorded

conversation that would become a key piece of the prosecutions

penalty phase evidence. During this recorded conversation, Schmitt

made several incriminating and exculpatory statements regarding the

robbery and murder.

Schmitt expressed concern over his friends

that had been implicated in the robbery, including the young lady
who drove him to the hotel.

Schmitt also expressed confidence in

beating the murder charge because he claimed he did not intend to

shoot or kill the security guard. Schmitt explained that there was
a fight and that the security guard grabbed his gun.

Schmitt

described in detail how he grabbed the security guards hand and

how he had scratches on himself to prove the struggle.

Schmitt

believed that he committed manslaughter because he lacked the

intent to kill. Schmitt also laughingly described to Sauer how the
security guards eyes got real big when he pointed the gun at
him.

Changing topics, Schmitt then described the amenities of the

prison.

He said the prison was nice and noted that it had cable

television, ping-pong, microwaves, single cells, and reasonable

prices at the canteen.
The Commonwealth of Virginia indicted Schmitt for capital
murder, armed entry of a bank with intent to commit larceny, two
counts of robbery, and three counts of use of a firearm in
violation of Virginia Code 18.2-53.1 (2004).

Faced with a

defendant who wished to proceed to trial in spite of the mountain

of evidence against him, Schmitts trial co-counsel, Mr. Cooley and
Mr. Collins, turned their attention to trial strategy.
attorneys

weighed

the

possibility

of

moving

to

Schmitts

suppress

the

telephone

call

between

Sauer

and

Schmitt.

They

ultimately

concluded, however, that if the prosecution entered the tape into

evidence during the guilt phase of the trial, which they believed
was a strong possibility, they could use the tape to Schmitts
advantage by arguing that the shooting was unintentional. This was
a critical decision because Virginia law requires that all defense
motions seeking to suppress evidence on the basis of violations of
the U.S. Constitution, whether the evidence is for use at trial or
sentencing, be filed no later than seven days before trial.

See

Va. Code Ann. 19.2-266.2 (Supp. 2005)(stating Defense motions or

objections seeking . . .

suppression of evidence on the grounds

such evidence was obtained in violation of the provisions of the

Fourth, Fifth, or Sixth Amendments to the Constitution of the
United

States

or

Article

I,

Section

8,

10,

or

11

of

the

Constitution of Virginia proscribing illegal searches and seizures

and protecting rights against self-incrimination . . . shall be
raised by motion or objection, in writing, before trial.

The

motions or objections shall be filed and notice given to opposing

counsel not later than seven days before trial . . . . The court
may, however, for good cause shown and in the interest of justice,
permit the motions or objections to be raised at a later time.).
At trial, the prosecution presented the surveillance video and
eye witnesses who identified Schmitt as the bank robber.

The

prosecution also presented forensic evidence indicating that the

security guard had been shot from a distance of 12 to 36 inches and

that the security guards gun never left its holster during the
robbery.

A search of the hotel room in which Schmitt was arrested

revealed a handgun, shotgun shells, newly purchased clothing and

$27,091 in cash bearing bank bands identifying the money as from
Nationsbank.

The

prosecution

chose

not

to

introduce

the

Sauer/Schmitt tape in the guilt phase and the state trial court
ruled against Schmitts attempt to proffer the tape, finding that
the tape could not be admitted as a declaration against interest
because Schmitt was an available witness.

The jury convicted

Schmitt on all counts.

At the sentencing phase, the prosecution produced evidence of
Schmitts prior convictions, his drug-dealer lifestyle, the bank
robberies, the Sauer/Schmitt tape, the hotel arrest, and testimony
from the victims family. The prosecution sought the death penalty
based on Schmitts future dangerousness and the vileness of the
murder.

The prosecution used Sauer to introduce the Sauer/Schmitt

tape.

Schmitt objected to the introduction of Sauers testimony

and the Sauer/Schmitt tape, arguing that it violated his Fifth and
Sixth Amendment rights according to Massiah because Sauer was
acting

as

an

agent

of

the

Commonwealth

at

the

time

of

the

conversation and when Sauer elicited incriminating statements from

Schmitt.

The prosecution argued that Schmitt had waived any

argument relating to such constitutional rights by failing to file

a pre-trial motion to suppress the tape and other evidence.

The

state trial court reviewed the tape and then overruled Schmitts
objection.

Sauer also testified that Schmitt asked him to drive

for him during the second robbery and offered to buy Sauers gun,
but Sauer rejected both offers. The prosecution also argued to the
jury that Schmitt had tricked the prison system and the probation
system by giving a false name and failing to comply with the terms
of his probation.
Schmitt

presented

evidence

from

Lt.

Clarcq,

the

police

negotiator, describing the remorse Schmitt expressed from the

shooting and a medical specialist who testified about the effects
of drug addiction.

Schmitt also attempted to have the Chief of

Operations of the Virginia Department of Corrections, Gary Bass,

testify to the protections at maximum security prisons and the
general prison conditions in Virginia.

The trial court, however,

allowed Mr. Bass to testify only that a life sentence means life
without parole.
behalf.

Friends and family also testified on Schmitts

Finding the future dangerousness aggravator present, the

jury recommended the death sentence for Schmitt and 118 years
imprisonment on the remaining charges.
B.

The Virginia Supreme Courts Decision on Direct Appeal

Schmitt timely filed a direct appeal of his conviction and

sentence in the Virginia Supreme Court.
errors

in

the

jury

selection,

guilt,

Schmitt alleged numerous

and

sentencing

phases.

Relevant to our inquiry, Schmitt alleged that the trial court erred
by admitting into evidence the recorded telephone conversation
between Sauer and Schmitt because it violated Schmitts Sixth
Amendment right to counsel established under Massiah v. United
States, 377 U.S. 201 (1964). The Commonwealth responded that this
claim was procedurally defaulted pursuant to Virginia Code 19.2266.2 because Schmitt raised it after the trial began.

The

Virginia Supreme Court agreed that the claim was procedurally

defaulted.

Next, Schmitt argued that the trial court erred in

refusing to admit evidence concerning prison life and the security

features of a maximum security prison in the Commonwealth to
rebut

the

Commonwealths

dangerousness.

(J.A.

at

contention
390.)

The

of

Schmitts

Virginia

Supreme

future
Court

rejected this argument on the merits, reasoning that Schmitts

proffered evidence was not admissible to rebut any particular
evidence concerning prison security or prison conditions offered by
the Commonwealth.

(J.A. at 390.)

The Virginia Supreme Court

further noted that evidence of maximum security prison features did

not constitute mitigation evidence because the relevant inquiry
in assessing a defendants future dangerousness rests on whether
the defendant would commit future acts while in prison, as
opposed to whether the defendant could commit such acts.
at 390.)

(J.A.

Finally, Schmitt alleged that he was entitled to a

mistrial based on improper and inflammatory arguments made by the

10

prosecution during its closing argument.

The Virginia Supreme

Court noted that the trial court provided appropriate curative

instructions each time that Schmitts counsel objected to the
prosecutions

statements

during

closing

argument.

It

further

concluded that Schmitts counsel did not preserve the mistrial

motion with respect to some of the prosecutions comments because
that motion was made after the jury left the courtroom.

Thus, the

request for a mistrial based on those portions of the prosecutions

closing argument was procedurally defaulted.

Ultimately, the

Virginia Supreme Court affirmed Schmitts conviction and sentence.

C.

The Virginia Supreme Courts Decision on Habeas Review

On state habeas review, Schmitt reasserted his previous claims

and added ineffective assistance of counsel claims.

The Virginia

Supreme Court held that because Schmitt raised these claims on

direct appeal they were barred from habeas review.
Supreme

Court

then

turned

its

assistance of counsel claims.

attention

to

The Virginia

the

ineffective

Schmitt alleged that his counsel

were ineffective for failing to move to suppress the Sauer/Schmitt

tape on Massiah grounds. The Virginia Supreme Court found that the
claim satisfied neither the prejudice nor performance prong of the
Strickland v. Washington, 466 U.S. 668 (1984) test, because Sauer
was not acting as an agent of the state and therefore no basis
existed

for

the

suppression

motion.

Schmitt

also

alleged

ineffective assistance of counsel based on his counsels failure to

11

move for a mistrial after the prosecutions closing arguments.

Again,

the

Virginia

Supreme

Court

found

the

claims

to

be

unpersuasive because Schmitt failed to demonstrate how he could

have

prevailed

on

the

mistrial

motion

in

light

of

counsels

objections and the trial courts curative instructions.

D.

The District Courts Decision on Federal Habeas Review

Having exhausted his state-court remedies, Schmitt filed a 28

U.S.C.A. 2254 petition in the Eastern District of Virginia
alleging twenty-four grounds for relief, including the six before
us.

The district court denied relief on Schmitts claim that the

exclusion of general prison security evidence violated his due

process rights, reasoning that the Supreme Court has never held
that a defendant is entitled to present all evidence that may
touch on [the defendants] future sentence, such as the security
features of prisons in which Schmitt may or may not be stationed.
The district court conducted extensive evidentiary hearings as
to the remaining five claims before us.
found

Schmitts

Sauer/Schmitt
Virginia

Massiah

telephone

Supreme

Court

claim
call
deemed

First, the district court

relating
to
it

be

to

the

taping

unreviewable

was

of

the

because

the

procedurally

defaulted.

Second, the district court concluded that ineffective assistance of

counsel did not excuse the procedural default because the decision
not to move to suppress the tape was the product of a well-reasoned

12

defense strategy.4
Brady

claim,

in

Third, the district court addressed Schmitts

which

Schmitt

alleged

that

the

Commonwealth

suppressed impeachment evidence relating to Sauer because the

Commonwealth failed to disclose that Sauer received use immunity
for his grand jury testimony, that Sauer was working for the police
prior to Schmitts capture, that Sauer was mentally unstable, and
that the Commonwealth had provided Sauer with a free mental health
evaluation. The district court concluded that the suppressed facts
constituted impeachment evidence, but that the suppressed evidence
was not material.

Fourth, the district court denied relief on

Schmitts claims that the prosecutions improper closing arguments

entitled Schmitt to a mistrial because the claim was procedurally
defaulted.

And finally, the district court concluded that no

ineffective assistance of counsel excused the procedural default of

the mistrial motion.
The district court granted a certificate of appealability on
these six claims, and we have jurisdiction to review the district
courts denial of the writ of habeas corpus pursuant to 28 U.S.C.A.

2253

(West

Supp.

2005)

(providing

appellate

courts

with

In doing so, the district court concluded that the Virginia

Supreme Court erred when it held that Sauer was not acting as an
agent for the state when he recorded the telephone call.
The
Commonwealth has not appealed this holding and, for purposes of
this opinion, we will assume that Sauer was acting as an agent of
the Commonwealth.

13

jurisdiction to review final orders from habeas proceedings if a

certificate of appealability has issued).
II. Analysis
In reviewing the district courts denial of [Schmitts]
habeas petition, we review the district courts conclusions of law
de novo and its findings of fact for clear error.
Polk, 441 F.3d 238, 243 (4th Cir. 2006).

Billings v.

We review de novo the

district courts decision to deny a 2254 petition based on the

record before the [state habeas court], applying the same standards
as the district court.
(4th Cir. 2006).

Robinson v. Polk, 438 F.3d 350, 354-55

[W]here a state court has not considered a

properly preserved claim on its merits, a federal court must assess

the claim de novo.
Cir. 2003).

Monroe v. Angelone, 323 F.3d 286, 297 (4th

Conversely, relief may not be granted on a claim that

has been adjudicated by the state court unless the state court
decision was either contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court
or the decision was based on an unreasonable determination of the
facts.

Robinson, 438 F.3d at 354.

A decision of a state court is

contrary to clearly established federal law if the state court

arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Id. at 355 (internal quotation marks and

14

alterations omitted). The phrase clearly established law refers

to the holdings, as opposed to the dicta, of the Supreme Courts
decisions as of the time of the relevant state-court decision.
Id. (internal quotation marks and alterations omitted).

A state

court adjudication is an unreasonable application of federal law

when the state court correctly identifies that governing legal
rule from the Supreme Courts cases but applies it unreasonably to
the facts of a particular case or applies a precedent in a context
different from the one in which the precedent was decided and one
to which extension of the legal principle of the precedent is not
reasonable or fails to apply the principle of a precedent in a
context

where

such

failure

is

unreasonable.

Id.

(internal

quotation marks and alterations omitted).

We also may not review claims that the state court has held
were procedurally defaulted on independent and adequate state
grounds absent a showing of cause and prejudice. Strickler v.
Greene, 527 U.S. 263, 282 (1999).

Utilizing these standards, we

examine each of Schmitts claims.

A.

Prison Security and Prison Life Claim

Schmitts first argument is that the exclusion of evidence

relating to general prison security and prison life during the
sentencing

phase

of

his

trial

violated

his

right

to

present

rebuttal evidence as established by Gardner v. Florida, 430 U.S.

349 (1977), Skipper v. South Carolina, 476 U.S. 1 (1986), and

15

Simmons v. South Carolina, 512 U.S. 154 (1994)(plurality opinion).5

Schmitt proffered the testimony of Gary Bass, a senior member of
the Virginia Department of Corrections, to describe the security
features at Virginias maximum security prisons in rebuttal to the
Commonwealths future dangerousness argument.

Bass would not have

testified to Schmitts individual capacity to conform to prison

life, but only to general evidence of how state maximum security
prisons manage prisoners.
Schmitt contends that he needed to present evidence relating
to general prison security and the nature of life at a maximum
security prison to rebut the Commonwealths argument that the
system could not be trusted to prevent him from committing future
acts of violence, and that he would enjoy pleasant amenities while
incarcerated.

The

Virginia

Supreme

Court

rejected

Schmitts

To the extent Schmitt contends that general evidence of

prison life and prison security features constitute relevant
mitigating evidence under the Eighth Amendment and Fourteenth
Amendment, his claim is without merit. The Supreme Court has never
held that a defendant may present general evidence relating to
prison life and security as mitigating evidence. To the contrary,
the Supreme Court has repeatedly noted that mitigating evidence
should relate to the individual defendant and why that defendant
should or should not be sentenced to death. See Skipper, 476 U.S.
at 4; Lockett v. Ohio, 438 U.S. 586, 605 (1978)(plurality opinion);
Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982); see also United
States v. Johnson, 223 F.3d 665, 674-75 (7th Cir. 2000) (noting
that a defendant should not have been entitled to present to the
jury . . . evidence of the existence of maximum-security federal
prisons decked out with control units, in order to establish a
mitigating factor. A mitigating factor is a factor arguing against
sentencing this defendant to death; it is not an argument against
the death penalty in general. (emphasis in original)).

16

argument, holding that because the Commonwealth did not present

evidence

concerning

prison

security

or

the

nature

of

prison

confinement Schmitt was not entitled to present such evidence in

rebuttal. (J.A. at 390.) The Virginia Supreme Court also rejected
Schmitts general claim that evidence relating to prison security
should

always

be

admissible

to

rebut

future

dangerousness

argument.
As established above, we cannot grant relief unless the
Virginia

Supreme

Courts

decision

was

contrary

to

clearly

established federal law, was based on an unreasonable application

of

clearly

established

law,

determination of the facts.

or

was

based

on

an

unreasonable

We begin by assessing whether the

inclusion of a future dangerousness aggravator necessarily gives

rise to the right to present general prison security evidence and
then evaluating whether Schmitt needed to present Basss testimony
to rebut the Commonwealths evidence relating to prison security
and prison life.
Here, Schmitt presents us with the same arguments that he
presented to the district court.

Schmitt relies on Skippers

language that it is . . . [an] elemental due process requirement

that a defendant not be sentenced to death on the basis of
information which he had no opportunity to deny or explain.
Skipper, 476 at 5 n.1.

Schmitt also points to language in Simmons

stating that juries may and should consider a defendants likely

17

conduct
factor.6

in

prison

when

evaluating

Simmons, 512 U.S. at 171.

the

future

Gardner

dangerousness

established that due

process is violated when a defendant is forbidden from rebutting

the prosecutions evidence in support of the death penalty.
The district court correctly concluded that the Supreme Court
has not addressed directly the right of a capital defendant to
present evidence of his prison security conditions when future
dangerousness is placed in issue, [therefore] the refusal of the
Virginia courts to permit evidence on that point does not run
contrary to a decision of the Supreme Court.

(J.A. at 733.)

We

also agree with the district courts reasoning that the Virginia
Supreme Court did not unreasonably apply the holdings of Simmons,
Gardner, and Skipper.

Although these cases clearly establish that

a defendant has a due process right to present rebuttal evidence,

they do not define rebuttal evidence to include evidence that
merely

describes

the

general

conditions

of

incarceration,

as

opposed to evidence about how the conditions of confinement would

affect a particular defendant. The district court aptly noted that

The actual holding of Simmons is that when the prosecution

seeks the death penalty based on future dangerousness, a defendant
is entitled to a jury instruction that life imprisonment means no
possibility of parole.
512 U.S. at 161.
Here, Schmitt is not
arguing that the trial court did not conform to this holding as
Bass testified that a life sentence means no possibility of parole,
and we are limited to examining whether the Virginia Supreme
Courts decision is contrary to the holdings, not the dicta of
Supreme Court precedent. See Robinson, 438 F.3d at 355.

18

in Young v. Catoe, 205 F.3d 750, 763 (4th Cir. 2000), we rejected
the defendants argument to expand Simmons, finding that Simmons
does not require that a jury be informed that the defendant would
be ineligible for parole for thirty years, even though Simmons
provides that juries should be instructed that a life sentence
means life imprisonment.

Thus, the district court was correct in

concluding that it is not an unreasonable application of clearly

established federal law to bar admission of evidence relating to
general prison security and prison life when the prosecution,
although

arguing

for

the

death

penalty

based

on

future

dangerousness, never argues that general prison security and prison

life factors support a death sentence.
Having concluded that Supreme Court precedent does not require
that defendants be allowed to present evidence of general prison
security features to rebut a future dangerousness argument, we
address whether Schmitt had a right to use Basss testimony to
rebut specific evidence of prison security and conditions presented
by the prosecution.

During its closing argument, the Commonwealth

argued that the system, namely the Department of Probation and

Parole, had failed to keep Schmitt from preventing future crimes,
as he was on probation at the time of the murder.

(J.A. at 363.)

The Commonwealth also noted Schmitts prior manipulation of the

system as he provided a false name to the police after his arrest
on January 30.

In his summation, the prosecutor stated

19

I would urge you not to trust the system that can be so

easily manipulated by the defendant, but Mr. Cooley says
dont worry about that. Hes going to be locked up for
the rest of his life, and you look at me and say isnt
that right, Mr. Commonwealth.
Im going to tell you
something. Theres not one person on this planet that
can predict the future. If you want to give him life,
you roll the dice because you know from what youve heard
that John Yancey Schmitt is a fist full of matches.
(J.A. at 365-66.)
After reviewing the record, we agree with the Virginia Supreme
Court that the Commonwealth did not argue that general prison
security features were inadequate to protect against Schmitts
future dangerousness.

The Commonwealths dont trust the system

argument focused not on the prison security features, but on

Schmitts failure to comply with the Department of Corrections
protocol, by committing crimes while on probation, and by Schmitts
deceitfulness in providing the police with a false name.

In

essence, the Commonwealth argued to the jury that the system

could not be trusted based on Schmitts prior actions. Schmitt has
failed

to

direct

us

to

any

statements

by

the

Commonwealth

specifically discussing security aspects of the prison, such as the

frequency of prison escapes, prisoner-on-prisoner assaults, or
murders

in

prison.

In

fact,

Schmitt

even

admits

that

his

probation violations and his successful deception of the Henrico

[County] authorities became the highlight of lead prosecutor Von
Schuchs argument for his death sentence.

20

(Appellants Reply Br.

at 4.)

Because the Commonwealths sentencing arguments focused on

Schmitts character, his propensity for violent acts and his

manipulation

of

the

state

prison

and

probation

systems,

the

statements were decidedly not general statements about prison

security features that could give rise to the right to present
rebuttal evidence in the form of general prison security features.7
In summary, we deny Schmitts claim because the Virginia
Supreme Court did not err in holding that evidence relating to
general

prison

security

is

inadmissible

to

rebut

future

dangerousness argument when the prosecution has not placed general

prison security evidence before the jury.

We also conclude that

Schmitt also argues that the Commonwealth actually presented

evidence of prison life through the introduction of the
Sauer/Schmitt tape. During the sentencing phase, the Commonwealth
introduced the Sauer/Schmitt tape in which Schmitt himself
discussed the amenities of the local jail, including cable
television, microwave ovens, ping pong, and reasonable prices at
the canteen (the amenities).
Despite our conclusion that the
prosecution introduced prison life evidence, we cannot grant relief
on this claim because the local jails amenities had no relevance
to the jurys determination of whether the murder was particularly
vile or whether Schmitt has a propensity to commit future acts of
violence. See e.g., Skipper, 476 U.S. at 7 n.2 (noting that how
often the defendant showers in prison is irrelevant to the
sentencing determination). Thus, to the extent that evidence of
prison life was entered into evidence, such evidence did not have
a substantial and injurious effect on the jurys determination of
whether the aggravating factors of vileness or future dangerousness
were present. See Richmond v. Polk, 375 F.3d 309, 335 (4th Cir.
2004) ([P]rinciples of comity and respect for state court
judgments preclude federal courts from granting habeas relief to
state prisoners for constitutional errors committed in state court
absent a showing that the error had a substantial and injurious
effect or influence in determining the jurys verdict.(quoting
Brecht v. Abrahamson, 507 U.S. 619 (1993)).

21

the

Virginia

Supreme

Court

reasonably

determined

that

the

Commonwealth did not present general evidence of prison security.

B.
We

next

address

Brady Claim

Schmitts

claim

that

the

prosecution

suppressed material impeachment evidence. Schmitt alleges that the

Commonwealth violated the dictates of Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose that Sauer received use immunity
for his grand jury testimony, that Sauer was working for the police
prior to Schmitts capture, that Sauer was mentally unstable, and
that the Commonwealth provided Sauer with a free mental health
evaluation.

Schmitt did not exhaust this claim in state court

because the factual underpinnings of the claim came to light only

on federal habeas review.

Ordinarily, an unexhausted claim is

procedurally defaulted and we may only review the claim if the

defendant

demonstrates

cause

Strickler, 527 U.S. at 282.

and

prejudice

for

the

default.

The Supreme Court, however, has held

that in reviewing Brady claims, the Strickler cause and prejudice

prongs overlap with two of the three elements of a Brady claim.
A successful Brady claim, requires that the defendant demonstrate
that

(1)

the

suppressed

evidence

was

favorable,

either

as

exculpatory evidence or impeachment material, (2) the government

suppressed the impeachment or exculpatory evidence either willfully
or inadvertently, and (3) the suppressed evidence was material.
See Monroe, 323 F.3d at 298.

Corresponding to the second Brady

22

component

(evidence suppressed by the State), a petitioner shows

cause when the reason for his failure to develop facts in statecourt proceedings was the States suppression of the relevant
evidence; coincident with the third Brady component (prejudice),
prejudice

within

the

compass

of

the

cause

and

prejudice

requirement exists when the suppressed evidence is material for

Brady purposes.

Banks v. Dretke, 540 U.S. 668, 691 (2004).

Because no state court adjudicated Schmitts Brady claim, we will

review the claim de novo.

See Monroe, 323 F.3d

at 297 (AEDPAs

deference requirement does not apply when a claim made on federal

habeas review is premised on Brady material that has surfaced for
the first time during federal proceedings.).
Because the Commonwealth does not challenge that it suppressed
the evidence relating to Sauer or that the evidence had impeachment
value,

we turn to the materiality prong.

Kyles v. Whitley, 514 U.S. 419 (1995) instructs that the

materiality standard is met when the favorable evidence could
reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.
[Schmitt]
result.

must

show

reasonable

Banks, 540 U.S. at 699.

Id. at 435. In short,

probability

of

different

Because Schmitts Brady claim

relates entirely to the ability to impeach Sauer, who testified

only at the sentencing phase of the trial, we need only determine
whether Schmitt has demonstrated a reasonable probability that the

23

jury, armed with the suppressed evidence, would have given him a
life sentence.8
We begin by summarizing the evidence presented to the jury at
the sentencing phase.

The prosecution introduced evidence of

Schmitts prior convictions, which included two convictions for

possession of marijuana with intent to distribute, one conviction
for

receipt

of

stolen

property,

one

conviction

for

felon

in

possession of a firearm, and one conviction for possession of

marijuana. The prosecution also presented testimony from Schmitts
former probation officers; JoAnna Murphy, Schmitts friend; Kenny
Lockner, the owner of the gun used in the first robbery; the
officer involved in the hotel arrest; and victim impact testimony
from the security guards family. The probation officers testified
that Schmitt violated his probation by failing drug tests, missing
his outpatient drug treatment meetings, never demonstrating that he
was gainfully employed, missing his mandatory probation meetings,

To the extent that Schmitt argues that the suppressed

impeachment evidence may have encouraged his trial counsel to move
to suppress the Sauer/Schmitt tape pre-trial because the suppressed
impeachment evidence included evidence that Sauer was working as a
government agent, this claim is without merit. As developed more
fully in the text infra in Part II-F, Schmitts attorneys were well
aware that they had a valid basis under Massiah for moving to
suppress the Sauer/Schmitt tape.
After much deliberation, his
counsel determined that the tape could be more helpful than harmful
and they chose not to move to suppress it.
The additional
information would not have altered this strategic decision because
it bore no relationship to Schmitts counsels tardy filing of the
suppression motion.

24

and missing his court appearances.

Joanna Murphy testified that

she saw Schmitt with a sawed off shotgun just prior to the first
robbery and that after she learned of the first robbery, Schmitt
took her to the mall to buy approximately three hundred dollars
worth of new clothes.

Kenny Lockner, a former friend of Schmitt,

testified that Schmitt used his (Lockners) shotgun in the first

bank robbery without his knowledge. The prosecution also presented
testimony from the officer involved in the hotel incident who
described the belligerent acts leading to Schmitts arrest on that
night and the false name provided by Schmitt. The prosecution then
presented victim impact testimony from the security guards family.
The mother of the security guard testified to her sons popularity,
his twenty years of service in the United States Army, and the
community foundation that was established in memory of her son.
Finally, at the conclusion of the sentencing phase, the
prosecution called Sauer. First and foremost, the prosecution used
Sauer to introduce the Sauer/Schmitt tape.

It was during this

taped conversation that Schmitt stated his confidence in beating

the

murder

charge,

used

profanity,

laughingly

described

the

security guards reaction to the sight of his gun, stated his

commitment to carrying out the robbery even though it required
shooting the security guard, and described the amenities of the
county jail.

Sauer also testified that Schmitt tried to purchase

a gun from him and that Schmitt threatened to kill Joanna Murphy

25

after the first bank robbery out of fear that Murphy would turn him
into the police.

Sauer then described the incident where Schmitt

called him pretending to be James Cromer and requested that he be

bailed out of jail.
In his defense, Schmitt presented mitigation testimony from
Lt. Clarcq, the officer who negotiated his surrender; Dr. Bright,
an adolescent addiction specialist; Gary Bass, a Department of
Corrections employee; and various family members and friends.
Clarcq

testified

that

while

negotiating

Schmitts

Lt.

surrender,

Schmitt stated that he robbed the bank to obtain drug money and
that he never intended to kill anyone.

Dr. Bright testified that

the withdrawal symptoms felt by a cocaine addict include cravings,

depression,

anxiety,

suicidal ideation.

paranoia,

boredom,

memory

problems,

and

Dr. Bright, however, informed the jury that he

had not evaluated Schmitt.

Mr. Cooley used Dr. Brights testimony

to support his opinion that Schmitts drug addiction drove him to

rob the banks and shoot the security guard and that when not on
drugs, Schmitt was a good person.
sentence

means

life

without

the

Gary Bass testified that a life

possibility

of

parole.

And

Schmitts family and friends testified that he had redeeming

qualities, such as always being courteous, kind and respectful, and
was a pleasant individual when not on drugs.
Because the suppressed evidence could only have been used to
impeach Sauers credibility, our confidence in the jurys verdict

26

has not been undermined.

Schmitt cannot demonstrate that the jury

would have imposed a life sentence had they have known that Sauer
was working with the government and that he had received mental
health

services.

prosecutions

One

case

of

was

the
the

most

damaging

Sauer/Schmitt

portions
tape

of

and,

the
more

specifically, the very statements made by Schmitt during the

conversation.

Schmitt

could

not

have

used

the

suppressed

impeachment evidence to bar the introduction of the tape after the

trial began, nor could the evidence have been used to impeach
Schmitts damaging remarks.9

At most, the impeachment evidence

could have been used to discredit Sauers statement that Schmitt

offered to buy his gun to use presumably in the bank robberies and
that Schmitt threatened to kill Joanna Murphy.
been

of

little

help

to

Schmitt

because

This would have

Schmitt

had

already

stipulated to the fact that he was a convicted felon and thus he

illegally possessed the gun used in the murder. Moreover, the jury
had already heard that Schmitt had taken Lockners gun for use in
the first robbery.

Also, Joanna Murphys own testimony cast doubt

on the alleged threat to kill her because she testified that

Schmitt took her shopping when he learned that she knew about the
first

robbery

knowledge.

--

as

opposed

to

killing

her

because

of

her

The ability further to impeach Sauer on the alleged

Schmitt did not contest the authenticity of the tape and his
mental instability would not have affected the authentication.

27

threat against Joanna Murphy is, alone, insufficient to warrant a

finding that the jury would not have imposed the death penalty.
Lastly, the impeachment evidence would have done little to curtail
the harm from Sauers testimony about Schmitt pretending to be
James Cromer because the arresting officer had already provided
corroborating evidence of the arrest and the false name.
Even if the jury used the suppressed evidence to discredit all
of Sauers testimony, the underlying facts would not have changed.
At the end of the day, the jury reviewed Schmitts lengthy criminal
record and listened to his damaging statements on the Sauer/Schmitt
tape, his probation officers testify to Schmitts failure to become
a law-abiding citizen after being convicted multiple times, his
drug abuse, his evasion of the police, and how he took the life of
a respected and loved member of the community.

It also bears

noting that the same jury had just found Schmitt guilty of capital
murder and robbing the same bank twice within six weeks, which
undoubtedly is powerful evidence of future dangerousness.10

10

Schmitt urges this court to find that his case is no

different than Banks v. Dretke, 540 U.S. 668 (2004), in which the
Supreme Court found all three elements of a Brady claim satisfied
where the prosecution suppressed the paid informant status of one
of the prosecutions key witnesses.
The facts of Banks are
materially distinguishable from our case. In Banks, the Supreme
Court found that the informants testimony was key to the
prosecutions case during the guilt and sentencing phases. Id. at
698.
Here, by contrast the Sauer/Schmitt tape was key to the
Commonwealths penalty case, but Sauers live testimony was not.
The Court also noted in Banks that the defendant was denied the
opportunity to probe the informants credibility through cross-

28

In summary, we conclude that Schmitt has not demonstrated

prejudice from the suppression or that the suppressed evidence was
material because the suppressed evidence does not put the whole
case in such a different light as to undermine confidence in the
verdict.

Strickler, 527 U.S. at 291 (internal quotation marks

omitted).
C.

Ineffective Assistance Claim

Schmitt alleges that his trial counsel were ineffective for

failing to move for a mistrial prior to the jury leaving the
courtroom,

which

would

misconduct argument.

have

preserved

Schmitts

prosecutorial

The Virginia Supreme Court on state habeas

review found that the failure to move for a mistrial at the proper
time did not satisfy the performance or the prejudice prongs of the
Strickland test.

Because the Virginia Supreme Court reached the

merits of this ineffective assistance of counsel claim, we must

examine their conclusions under the strictures of 28 U.S.C.A.
2254.

examination. Id. at 701. Here, any cross-examination on Sauers

grant of immunity, his mental status, and the free mental health
screening provided by the government could not have cast doubt on
the damaging statements made by Schmitt during the taped
conversation. Furthermore, in Banks the paid informant testified
to the defendants propensity to commit violent acts, which was
crucial because the defendant did not have a criminal record. Id.
at 700. Here, Schmitt had a lengthy criminal record and the jury
listened to an officer describe Schmitts belligerent nature at the
hotel.

29

To prove a Sixth Amendment violation under Strickland a

defendant

must

demonstrate

that

counsels

performance

was

deficient, and that this deficient performance prejudiced the

defense.
(internal

Vinson v. True, 436 F.3d 412, 418 (4th Cir. 2006)

quotation

marks

omitted).

Judicial

scrutiny

of

counsels performance must be highly deferential. Strickland, 466

at 689. A fair assessment of attorney performance requires that
every

effort

be

made

to

eliminate

the

distorting

effects

of

hindsight, to reconstruct the circumstances of counsels challenged

conduct, and to evaluate the conduct from counsels perspective at
the time. Id.
must

demonstrate

To establish deficient performance, a petitioner

that

counsels

representation

fell

below

an

objective standard of reasonableness,

Wiggins v. Smith, 539 U.S.

510,

marks

521

(2003)(internal

quotation

omitted),

and

the

prejudice prong requires a claimant to show that there is a

reasonable

probability

that,

but

for

counsels

unprofessional

errors, the result of the proceeding would have been different,

Strickland, 466 U.S. at 694 (internal quotation marks omitted).
Schmitt contends that his trial counsel should have moved for
a mistrial after the prosecution made the following inappropriate
arguments to the jury during its closing argument:

(1) that

Schmitt possessed a stolen gun; (2) that Schmitt assaulted his

girlfriend; (3) that

the system could not be trusted to contain

Schmitt; and (4) that Schmitt would enjoy amenities while in

30

prison.

Before

we

can

determine

whether

any

of

the

above

statements warranted a mistrial motion, we must determine whether

any of the statements were actually improper.
The first statement referencing the stolen gun was improper
because the prosecution and defense had stipulated prior to trial
that Schmitt possessed the gun illegally because he was a convicted
felon, not because it was stolen.

The second statement, that

Schmitt assaulted his girlfriend, was also inappropriate because

the

alleged

assault

was

not

put

into

evidence.

The

third

statement, that the system could not be trusted to contain

Schmitt, however, was an appropriate comment. During the defenses
closing argument, Mr. Cooley argued that there is no probability
or even possibility that [Schmitt] can be a continuing serious
threat to our society because he will be imprisoned for the rest
of

his

natural

life.

(J.A.

at

344-45.)

Therefore,

the

prosecutions argument that the system could not be trusted to

contain Schmitt because of Schmitts prior deviant acts within the
prison and probation systems was an acceptable rebuttal argument.
Finally, the fourth statement, that the prosecution described the
amenities of prison, contained both appropriate and inappropriate
comments.

During its rebuttal argument, the prosecution began to

argue that if given life Schmitt will enjoy a life of ping pong.
Defense counsel quickly objected and the trial court instructed the
jury

that

what

the

prosecution

31

said

was

not

evidence.

The

prosecution then proceeded with its argument, altering its focus

just slightly by asking the jury to recall Schmitts description of
what he had enjoyed at the local prison, including the ping pong,
microwaves, cable television, and canteen privileges.

The second

portion

of

clearly

acceptable

because

it

evidence

previously

the

prosecutions

merely

argument

reiterated

was

irrelevant

submitted to the jury and as noted in Part II-A.

In

summary,

prosecutions

the

argument

only
were

objectionable
the

mention

of

portions
the

of

the

stolen

gun,

Schmitts assault on his girlfriend, and the reference to Schmitt

playing ping pong.

Defense counsel objected contemporaneously to

each of the above statements, and each time the trial court issued
a curative instruction. In fact, the trial court four times issued
instructions in which it reminded the jury that what the lawyers
said in closing argument was not to be considered evidence.

We

agree with the district courts conclusion that Schmitts counsel

were not ineffective for failing to move for a mistrial after each
of these statements because counsel had objected and received
appropriate curative instructions from the trial court.

See

Bennett, 92 F.3d at 1346 (finding no harm from improper prosecution

argument where trial court told the jury what the lawyers say is
not evidence and evidence of guilt was powerful); cf. Martin v.
Grosshans, 424 F.3d 588, 591-92 (7th Cir. 2005)(finding defense
counsels performance deficient where counsel failed to move for a

32

mistrial when the prosecutions closing argument referenced Jeffrey

Dahmer).
Even if we assumed, for arguments sake, that moving for a
mistrial at the wrong time satisfies the deficient performance
prong of Strickland, Schmitt cannot satisfy Stricklands prejudice
prong.

The

trial

court

repeatedly

instructed

the

jury

that

statements made in closing arguments are not evidence and, in fact,

in denying Schmitts untimely mistrial motion, the trial court
noted

that

it

presumed

the

jury

followed

its

instructions.

Furthermore, even if Schmitts counsel had preserved the mistrial

motion

and

the

Virginia

courts

could

have

reviewed

the

prosecutions closing argument on appeal, there is no reasonable

probability that Schmitts sentence would have been reversed.

The

prosecutors

the

isolated

comments

regarding

the

stolen

gun,

assault on the girlfriend, and the reference to Schmitt playing

ping pong did not undermine the jurys verdict.

In fact, only the

reference to the assault could have been used to support the future
dangerousness argument, whereas the ping pong comment does not
reflect future dangerousness and the stolen gun hardly reflects
future

dangerousness

instruction

actually

any
given

more
by

than
the

the
trial

importantly, the prosecutors comments were

illegal
court.

possession
And

more

minuscule compared to

Schmitts prior criminal record, his two bank robberies, his drug
abuse, his lack of remorse, and his deception of the local police.

33

See Bennett, 92 F.3d at 1347.

Thus, there is no reasonable

probability that the trial judge would have granted a timely

mistrial motion based on the prosecutions comments, or that the
Virginia courts would have vacated his sentence based on the same
arguments.

Because

Schmitt

has

not

met

the

Strickland

prerequisites, we cannot conclude that the Virginia Supreme Court

unreasonably applied the Strickland test to the facts presented.
D.
Schmitt

next

Prosecutorial Misconduct

contends

that

the

improper

remarks

by

the

prosecution during closing argument were so prejudicial that they

rendered the trial unfair.

This claim is procedurally defaulted,

and we may not review it unless Schmitt can demonstrate that

ineffective assistance of counsel excuses the default.

Because

Schmitt cannot prevail on his ineffective assistance of counsel

claim under Strickland, he also has not established cause and
prejudice for excusing the default of his prosecutorial misconduct
argument.

See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (So

long as a defendant is represented by counsel whose performance is

not constitutionally ineffective under the standard established in
Strickland v. Washington, 466 U.S. 668, (1984), we discern no
inequity in requiring him to bear the risk of attorney error that
results in a procedural default. (internal quotation marks and
alterations omitted)).

34

E.

Massiah Claim

Schmitts fifth claim for relief is that the district court

erred

in

defaulted.

concluding

that

his

Massiah

claim

was

procedurally

Schmitt claims that his Sixth Amendment right to

counsel was violated when he telephoned Sauer from prison and

Sauer, acting as a government agent, recorded the conversation and
elicited incriminating statements from him.

The Virginia Supreme

Court found that claim procedurally defaulted because Schmitt

failed to move to suppress the Sauer/Schmitt tape prior to trial as
required by Virginia Code 19.2-266.2.

The district court,

relying on Skipper v. French, 130 F.3d 603 (4th Cir. 1997),

concluded that it was precluded from reviewing the merits of the
claim

because

the

Virginia

Supreme

Court

found

the

claim

procedurally defaulted on independent and adequate state grounds.

Schmitt now argues that we should review the claim because (1) the
trial court denied the Massiah motion on the merits and not on the
basis of 19.2-266.2; (2) the Virginia procedural default law is
not regularly enforced and cannot constitute an independent and
adequate state ground barring federal habeas review; and (3) that
cause and prejudice excuses the failure to move to suppress the
tape pretrial. We review the district courts purely legal ruling
de novo.

Skipper, 130 F.3d at 609.

Schmitt presents two arguments to support his supposition that

the Virginia courts decided the merits of his Massiah claim.

35

First, Schmitt cites to Ramdass v. Angelone, 187 F.3d 396, 409 (4th
Cir. 1999) for the proposition that a defendant may preserve the
substance of a constitutional claim when couching the claim under
an ineffective assistance of counsel claim.

Schmitt contends that

because the Virginia Supreme Court reviewed the merits of his

ineffective assistance of counsel claim relating to the Massiah
motion, the Virginia Supreme Court necessarily decided the merits
of the Massiah motion to suppress. Ramdass, however, is inapposite
to the present case.

Here, the issue is not whether Schmitt

presented the Massiah argument to the state court (he did), but
whether the Virginia Supreme Court unequivocally held that Schmitt
had procedurally defaulted the claim at the trial level pursuant to
an independent state ground. And contrary to Schmitts contention,
the Virginia Supreme Court, on both direct appeal and state habeas
review, explicitly rejected the claim on procedural grounds because
Schmitt failed to comply with the requirements of 19.2-266.2 at
trial.
Second, Schmitt contends that the denial of his Massiah motion
was not procedurally defaulted, but must have been decided on the
merits because the trial court accepted the motion and reviewed a
transcript of the telephone call.

Whether the trial court denied

Schmitts motion on the merits is, however, irrelevant to our

inquiry.

When we assess whether a state court has dismissed a

claim on independent and adequate state grounds, [t]he relevant

36

state court decision for purposes of the inquiry is that of the

last state court to be presented with the particular federal claim
at issue.
omitted).

Skipper, 130 F.3d at 609 (internal quotation marks

Here, the Virginia Supreme Court on state habeas review

declined to review the appropriateness of the trial courts denial

of Schmitts Massiah motion because it found the claim procedurally
defaulted; this decision precludes our review.
Schmitt

also argues that we can review his Massiah claim

because 19.2-266.2 is not an independent and adequate state

ground due to its irregular enforcement.

When a state court has

found a claim to be procedurally defaulted on independent state

grounds, that ground must be a constitutionally adequate one.
Skipper, 130 F.3d at 609 (quoting James v. Kentucky, 466 U.S. 341,
348-49 (1984)).

This means that it must be a firmly established

and regularly followed state practice.

Id.

As a general

matter, whenever a procedural rule is derived from state statutes

and supreme court rules, as this one is, the rule is necessarily
firmly established.
(4th Cir. 1996).

ODell v. Netherland, 95 F.3d 1214, 1241

Thus, the only disputed point is whether 19.2-

266.2 is regularly followed.

Schmitt cites to a few unpublished Virginia opinions to
support his argument. In the first case, Wheaton v. Commonwealth,
No. 1409-95-2, 1997 WL 191299 (Va. Cir. Ct. Apr. 22, 1997), the
Commonwealth objected to the defendants tardy suppression motion,

37

but the trial court allowed the motion for good cause, as provided
in 19.2-266.2, and thus the Virginia Court of Appeals reviewed
the merits of the suppression motion.

Similarly, in Evans v.

Commonwealth, No. 1963-47-2, 1998 WL 387497 (Va. Cir. App. Jul. 14,
1998), the Virginia Court of Appeals explicitly stated that the
defendant failed to comply with 19.2-266.2, but that the trial
court presumably allowed the tardy motion because the defendant
exhibited good cause.

The last two cases are similarly unhelpful

to Schmitt because in Sykes v. Commonwealth, 556 S.E.2d 794 (Va.

Ct. App. 2001), the Commonwealth did not object to the defendants
tardy motion on 19.2-266.2 grounds and in Neal v. Commonwealth,
498 S.E.2d 422 (Va. Ct. App. 1998), the issue of 19.2-266.2 was
not

presented.

In

summary,

Schmitt

cannot

produce

single

published Virginia opinion in which the Virginia Supreme Court or

the Virginia Court of Appeals has ignored the dictates of

19.2-

266.2 when properly presented.11

In

contrast

to

the

unpublished

cases

cited

by

Schmitt,

Virginia courts have recognized that the word shall in 19.2266.2 makes the pretrial filing of suppression motions mandatory.

11

Moreover, even if Schmitt could direct us to a Virginia case

excusing compliance with 19.2-266.2 one decision does not likely
establish inconsistent application of a procedural rule.
An
occasional act of grace by a state court in excusing or
disregarding a state procedural rule does not render the rule
inadequate. Coleman v. Mitchell, 268 F.3d 417, 429 (6th Cir.
2001)(quoting Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995)).

38

See Upchurch v. Commonwealth, 521 S.E.2d 290, 291 (Va. Ct. App.
1999).

The Upchurch court concluded that enforcement of 19.2-

266.2 is necessary because it preserves the Commonwealths right to

appeal an adverse suppression ruling.

The pretrial filing of a

suppression motion is key because the state may not appeal an

erroneous suppression ruling after the jury is impaneled and sworn
in a jury trial.

Id. at 292.

Thus, [t]he justification for the

requirement of a pretrial suppression motion is readily apparent in

light of the Commonwealths limited right to appeal an adverse
suppression ruling.

Id.

In summary, the Virginia Supreme Court rejected Schmitts

Massiah claim on an independent and adequate state ground that is
firmly established and regularly followed in Virginia.

Thus, we

cannot review the merits of the Massiah claim unless Schmitts

final argument that cause and prejudice in the form of ineffective
assistance of counsel excused the procedural default. See Vinson,
436 F.3d at 417 (federal habeas courts may not review procedurally
barred claims unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law (internal quotation marks omitted)).
F.

Ineffective Assistance Relating to Massiah Claim

Schmitts third and final attempt to have us review the merits

of his Massiah claim is that ineffective assistance of counsel
excused the procedural default.

Because Schmitt raised this claim

39

in his state habeas proceedings and the Virginia Supreme Court

decided the merits of this ineffective assistance of counsel claim,
we review its decision pursuant to the strictures of 28 U.S.C.A.
2254.

And as set forth in Part II-C, the Strickland standard

governs our review of the ineffective assistance of counsel claim.

On state habeas review, the Virginia Supreme Court found no
Massiah violation occurred because Sauer was not a government agent
and Schmitts ineffective assistance of counsel claim necessarily
failed because Schmitt could not have successfully suppressed the
tape.

As noted earlier, the district court, after conducting an

evidentiary hearing, disagreed with the Virginia Supreme Court and

found that Sauer functioned as a government agent when he taped the
phone call.
Amendment

Therefore, the conversation violated Schmitts Sixth

right

to

counsel,

as

established

in

Massiah.12

Nevertheless, the district court concluded that Schmitts counsels

failure to move to suppress the tape pre-trial did not constitute
ineffective assistance of counsel because it was a reasonable
tactical decision made by defense counsel.
Schmitt puts forward three arguments for why defense counsels
performance was objectively unreasonable:

(1) defense counsel

should have recognized that they could not place the tape into

12

As previously mentioned, the Commonwealth has not appealed

the district courts finding that Schmitt was acting as a
government agent.

40

evidence during the guilt phase pursuant to Virginia law; (2)

defense counsel should have filed a pretrial motion in limine to
determine whether the tape would be admitted as an exception to the
hearsay rule by the prosecution; and (3) defense counsel failed to
fully

appreciate

the

value

of

the

prosecution at the penalty phase.

Schmitt/Sauer

tape

to

the

(Appellants Br. at 72.)

At the outset, we briefly review the facts facing Schmitts

counsel prior to trial.

It was without question that Schmitt

committed the robbery and the murder; the only point truly at issue
was whether Schmitt committed capital murder.

Prior to trial, the

prosecution provided Schmitts counsel with a transcript of the

Sauer/Schmitt telephone call.

From the transcript, Schmitts

counsel quickly ascertained that the prosecution could use the tape
during the guilt and sentencing phases because the tape contained
inculpatory statements by Schmitt and showed a lack of remorse.
Schmitt told Sauer that he robbed the bank and that he did not
abandon the robbery when the security guard approached him because
he was committed to the robbery.

(J.A. at 211.)

Schmitt also

stated that the security guards eyes got real big when he saw
Schmitts gun.
Moreover, Schmitts counsel knew that the bank surveillance
tape did not depict the shooting and that none of the bank
employees could testify to how the shooting occurred.

In fact,

Schmitt was the only person who could testify to how the shooting

41

occurred and his phone call to Sauer, whom he believed at the time
was his friend, provided a believable version of the facts.

To the

defenses benefit, Schmitt described in detail the struggle between

himself and the security guard and how he did not intend to kill
the guard. The tape also revealed Schmitts humane side because he
repeatedly

expressed

concern

implicated in the robbery.

over

his

friends

that

had

been

Schmitts defense counsel also knew

that if the jury convicted Schmitt on the capital murder charge,

they could still successfully have Lt. Clarcq testify to the
remorse Schmitt felt after the murder and how Schmitt did not
intend to kill the security guard.

In essence, Schmitts counsel

recognized that the worst-case scenario was that the prosecution

would not introduce the Sauer/Schmitt tape during the guilt phase,
but choose to introduce it during the sentencing phase.

Even with

that possibility (which bore true), Schmitts counsel determined

that the most sound decision was to not make any move toward the
suppression of the one piece of evidence that could have exculpated
Schmitt from the capital murder charge.
Schmitts argument that his counsel were ineffective for
failing to recognize that they could not place the tape into
evidence during the guilt phase is without merit because Schmitts
trial counsel were experienced lawyers with a full grasp of the
relevant law and facts.

Mr. Collins expressly stated that the

status of law in Virginia is that if a defendant makes inculpatory

42

statements, thats admissible against his penal interest. However,

if he makes exculpatory statements, that is not admissible. (J.A.
at 1095.)

Schmitts trial counsel, recognizing that Schmitt made

inculpatory statements on the tape, reasonably believed that the

Commonwealth would move the tape into evidence during the guilt
phase and, accordingly, believed that they need not worry about the
fact that they could not enter it into evidence.

Because this

court must assess the reasonableness of Mr. Collinss conduct at

the time he chose not to move to suppress the tape and because Mr.
Collinss decision was based on a full grasp of the facts and the
relevant law, we cannot say that his decision was objectively
unreasonable.

See Strickland, 466 U.S. at 690 (strategic choices

made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable).
Schmitts argument that his attorneys should have filed a
pretrial motion in limine also carries little force.

The essence

of this argument is that Schmitts counsel could have proceeded in

an

elaborate

scheme

by

filing

motion

in

limine

on

the

admissibility in the guilt phase of the transcript of the call

between the crisis negotiator, Lt. Clarcq, and Schmitt on the night
of his arrest. According to Schmitt, this motion would have served
as a stalking horse to determine the outcome if a similar motion
was filed on the more crucial Sauer/Schmitt tape.

Schmitt argues

that if the motion in limine on the Clarcq transcript failed,

43

defense counsel could have moved to suppress the Sauer/Schmitt

tape.
Schmitt is correct that the filing of a motion in limine may
have shed some light on the risk that his attorneys were taking by
failing pretrial to move to suppress the Sauer/Schmitt tape.
Nevertheless, this argument misses the mark.
Cooley

were

well-aware

that

they

stood

on

Mr. Collins and Mr.

solid

footing

for

suppressing the Sauer/Schmitt tape and that they probably could not
move the Sauer/Schmitt tape into evidence during the guilt phase on
their own. Defense counsel, however, chose not to move to suppress
the Sauer/Schmitt tape because the tape was the most convincing
guilt phase evidence that Schmitt accidentally shot the security
guard.

In fact, Schmitts attorneys testified that any pretrial

motion relating to the Sauer/Schmitt tape or the crisis negotiator

transcript would have tipped off the prosecution that the defense
wanted to use the tapes during the guilt phase and thus encouraged
the prosecution not to submit the Sauer/Schmitt tape during the
guilt phase.

Admittedly, Mr. Cooley testified that, in hindsight,

he would have filed a pretrial motion to suppress the Sauer/Schmitt

tape at the penalty phase while simultaneously seeking admission of
the tape at the guilt phase.

Even with the acceptance of Mr.

Cooleys statement that he should have filed a bifurcated motion as

a reasonable defense strategy, that acceptance does not render the
trial

strategy

actually

instituted

44

by

Mr.

Cooley

objectively

unreasonable.

In hindsight, almost every lawyer, whether he has

won or lost, recognizes that he could have improved upon some part
of his performance at trial, but that honest recognition does not
necessarily
ineffective.

mean

that

his

performance

was

constitutionally

We agree with the district court that

Counsels best hope for admitting the most direct and

clear evidence of Schmitts only defense to the capital
murder charge rested in the prosecutions introduction of
the Sauer tape in the guilt phase of the trial. Measured
from that perspective and considering the reasonably
perceived costs and the significant potential benefits,
the decision made by counsel was not outside the wide
range of professionally competent performance to forego
a pretrial motion to suppress the tape at issue.
(J.A. at 1564 (quoting Strickland, 466 U.S. at 490).) As such,
Schmitts counsel were not ineffective for failing to file a motion
in limine before trial.
Finally,

Schmitt

contends

that

his

trial

counsel

were

ineffective because they failed to fully appreciate how damaging

the Sauer/Schmitt tape would be at the sentencing phase.
have

repeatedly

noted,

Schmitts

counsel

well

As we

understood

the

double-edged nature of the Sauer/Schmitt tape. (J.A. 1103 (Mr.

Collins noting that the Sauer/Schmitt tape was more harmful than
beneficial at the sentencing phase).)

However, they reasonably

believed that the best defense to a death sentence would be a

strong defense during the guilt phase using the Sauer/Schmitt tape
and they had good reason to believe that the prosecution might move
the tape into evidence. Furthermore, when confronted with the fact

45

that the tape was admitted only at the sentencing phase, Schmitts
trial counsel made the best of a bad situation by using the
Sauer/Schmitt

tape

to

defeat

proposed by the prosecution.

the

vileness

aggravating

factor

Thus, it is possible that the

suppression of the Sauer/Schmitt tape could have resulted in the

jury finding present both the vileness and future dangerousness
factors.

Schmitts trial counsel effectively weighed the trade-

off between suppressing the tape and allowing the prosecution to

use the tape in the sentencing phase; although in hindsight their
decision did not bear fruit, the decision to forego moving to
suppress

the

Accordingly,

tape
the

was

an

Virginia

objectively

Supreme

reasonable

Courts

rejection

choice.
of

this

ineffective assistance of counsel claim was not unreasonable, and

we may not review the merits of Schmitts Massiah claim.
III.
Although we conclude that the prosecutions missteps in this
case did not affect the outcome of the trial, we emphasize that the
intentional

suppression

of

impeachment

material

prosecutorial misconduct should not be taken lightly.

and

other

The Supreme

Court has long emphasized the special role that prosecutors play in
our judicial system. See Banks, 540 U.S. at 696 (compiling cases).
And we could not agree more with the district courts conclusion
that this prosecution team displayed a disconcerting lack of
respect for its sole responsibility to ensure that justice shall

46

be done, as opposed to merely winning the case.

at 439 (internal quotation marks omitted).

Kyles, 514 U.S.

We strongly encourage

the state prosecution team to revisit and review its obligations

under Virginia state law and constitutional law, especially in
light of the fact that the misconduct was not confined to a single
incident.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.

47