RICHMOND, Va. — The man who killed the Harvey family in their South Richmond home nearly 10 years ago will remain on Virginia’s death row. The Federal 4th Circuit Court of Appeals has denied killer Ricky Gray’s most recent appeal of his conviction and death sentence. Gray filed the appeal before a a three-judge panel in September.
In explaining the appeal’s denial, Judge Diaz wrote:
Ricky Jovan Gray appeals the district court’s denial of his petition for a writ of habeas corpus. His appeal presents two questions. First, whether the Supreme Court of Virginia, in resolving factual disputes regarding an ineffective-assistance-of-counsel claim without an evidentiary hearing, made an “unreasonable determination of the facts” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d)(2).
Because we find that the state court did not ignore Gray’s evidence or otherwise reversibly err in resolving factual disputes on the record, we reject this first challenge.
The second question is whether Gray may belatedly raise in the district court a claim of ineffective assistance of trial counsel under the Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
We find that the claim Gray seeks to raise was presented to, and decided by, the state court. Therefore, it is not subject to de novo review in the district court under Martinez.
Accordingly, we affirm the judgment of the district court.
Senior Circuit Judge Davis disagreed, in part, with the decision to deny Gray’s appeal:
I agree with my friends in the majority that Ricky Jovan Gray exhausted his claim that trial counsel were constitutionally ineffective in failing to present evidence during the penalty phase of his trial that he was voluntarily intoxicated during the commission of the crimes.
Furthermore, because a “reasonable fact-finder . . . could have found the facts necessary to support [Gray’s] claim from the evidence presented to the state court,” Winston v. Kelly, 592 F.3d 535, 551 (4th Cir. 2010), I agree with the majority that the district court properly dismissed Gray’s Martinez claim.
But I disagree, respectfully, with the majority’s determination that the Supreme Court of Virginia’s resolution of disputed issues of fact, based on conflicting and partially unaddressed sworn affidavits, without an evidentiary hearing, did not amount to an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2).
I therefore concur in part and dissent in part.
In his habeas petition to the Supreme Court of Virginia, Gray presented several claims of ineffective assistance of counsel.
He grounded one such claim in his trial counsel’s alleged failure to undertake a reasonable investigation into the circumstances surrounding his confession. Gray alleged that, during the course of his January 7, 2006 police interrogation, he had repeatedly requested an attorney and a phone call, but the police denied both requests, continued the interrogation, and ultimately obtained his written confession.
Gray also asserted that he had told the police that he could not remember many details of the crimes because of his drug use during the day in question.
Gray claimed that the police had responded by showing him the statement of one of his accomplices, Ray Dandridge, and by helping Gray fashion his own confession in reliance on many of the details included in Dandridge’s statement.
Importantly, Gray alleged in his habeas petition that he had expressly informed his trial counsel of the details surrounding his interrogation and confession during a February 10, 2006 meeting.
Even though Gray had relayed this information, his trial counsel allegedly failed to conduct a reasonable investigation into these matters.
Had his trial counsel adequately investigated the circumstances surrounding Gray’s interrogation and confession, Gray asserted, his trial counsel could have moved to suppress his confession or used the results of the investigation to impeach the testimony of Detective Howard Peterman during trial.
Gray supported his ineffective assistance of counsel claim and his recollection of the January 7, 2006 police interrogation and confession with the affidavit of Melvin B. Knight. Knight was an investigator with the Office of the Capital Defender of the Central Region of Virginia and was tasked with assisting Gray’s trial counsel in preparing Gray’s defense.
Prior to his employment with the Office of the Capital Defender, Knight was a law enforcement officer with the City of Richmond Police Department for more than twenty-five years.
In his affidavit, Knight recounted his February 10, 2006 interview with Gray and explained that Gray had expressly stated that he had asked for an attorney and a phone call during his questioning by police. Knight also remembered Gray mentioning that he could not remember many details of the crimes because he had been high on a combination of marijuana, ecstasy, and PCP at the time the crimes were committed.
Gray also indicated, according to Knight, that he had shared this information with the police. Gray then told Knight that, because he had been unable to remember many details of the crimes during his interrogation, the police had assisted Gray in crafting a written statement based upon the statement prepared by Dandridge. In short, a plausibly credible witness offered sworn facts more than trivially corroborative of Gray’s allegations supporting a claim of ineffective assistance.
On New Year’s Day 2006, Bryan and Kathryn Harvey and their two young daughters were bound, beaten and stabbed inside the basement of their South Richmond home. The home was also set on fire. Gray confessed his role in murders to police. Gray admitted to investigators that he was high on various drugs, including PCP, at the time of the murders. However, prosecutors said Gray told police his drug use did not influence his decision making process when carrying out the murders. A jury later convicted Gray and sentenced him to death for the murder of the Harvey’s daughters. An execution date can not be set until Gray exhausted all his appeal possibilities.
Gray’s current defense attorney, Robert Lee, released the following statement:
“The 2-1 panel decision implicates the quality of review of death sentences in Virginia. The judges did not dispute that Gray sought to show that jurors were not told the truth about his role in the tragic Richmond murders, but was denied “the type of adversarial process historically thought essential to the truth-finding function of a court.” By a one-vote margin, the panel found that this lack of quality in the court’s truth-finding function was concerning but not sufficient to reverse under strict restraints imposed on federal courts. We are considering options for further review on this question whether it is unreasonable to expect courts to provide review that confirms an interest in finding the truth about a case before putting a person to death.”
Virginia’s Attorney General Office also released a statement:
“Gray’s crimes were as cruel, heinous, and coldblooded as can be imagined and his convictions have been consistently affirmed. In accordance with state law, we will notify the Richmond Circuit Court of the conclusion of proceedings in the Fourth Circuit once the time to ask for a rehearing expires or once his rehearing is denied. The court will then hold a hearing to set an execution date. The execution date must be set within 60 days of the hearing.”
Gray’s defense team can ask the 4th Circuit for an “en banc” hearing, meaning every judge would hear Gray’s appeal for a “rehearing.”