Timothy Wilson SPENCER

AKA "The Southside Slayer"

Classification: Serial killer
Characteristics: Rape
Number of victims: 5 +
Date of murders: 1984 / 1987
Date of arrest: January 20, 1988
Date of birth: 1962
Victims profile: Carol Hamm / Debbie Dudley Davis, 35 / Dr. Susan Hellams / Diane Cho / Susan Tucker, 44
Method of murder: Strangulation
Location: Arlington County, Virginia, USA
Status: Executed by electrocution in Virginia on April 27, 1994

Timothy Spencer is best known for being the first to be identified and convicted as a result of DNA evidence. His rape and murder spree began in January of 1984 when he killed Carol Hamm after raping her in her Arlington, Virginia, home. Another man was convicted of the murder and not released until Spencer was uncovered five years later.

Spencer resumed killing in September of 1987 when he raped and strangled Debby Davis in Richmond, Virginia, and continued just two weeks later with the slaying of Dr. Susan Hellams, also found raped and strangled. Next was teenager Diane Cho who was killed in her home outside Richmond in November. Susan Tucker joined Spencer's list of victims the next month when she was found, like the others, raped and strangled in her Arlington home.

Spencer was linked scientifically to three of the five murders, though her certainly committed them all, and earned a death sentence in 1988. He was executed on April 27, 1994.

Timothy W. Spencer, or the "Southside Strangler," was an American serial killer who committed four rape/murders in Richmond, Virginia in the fall of 1987. In addition he committed another murder in 1984, which a different man, David Vasquez, was wrongfully convicted of and served five years in prison for, until he was reprieved in 1989. Spencer became the first murderer to be convicted on the basis of DNA evidence in Virginia.

Crimes

Spencer's first reported victim was thirty-five-year-old Debbie Dudley Davis. Spencer raped and strangled her in her apartment, where her naked body was discovered lying on the bed, in September. Two weeks later, Dr. Susan Hellems was found dead and partially stripped in her bedroom wardrobe. Like Davis, she too had been raped and strangled as well as having been gagged. On the twenty-second of November, another victim was found in her apartment outside the city, this was Diane Cho, a teenage student. She too was raped and strangled. Spencer's final victim, Susan Tucker, age forty-four, was reported missing in December. After a week her body was found in her apartment. Her injuries left detectives certain that her death was caused by the murderer now dubbed by the press as the "Southside Strangler."

Investigation

At this point the hunt for the Southside Strangler took an odd turn. Two women were found dead on the same day, January 16, 1988, Rena Chapouris and, a few blocks away, Michael St. Hilaire. Though initially thought to be the work of the Southside Strangler, Chapouris's death was determined to be the work of a copycat, as she had not been raped as previous victims, and St.Hilaire's death was ruled a suicide.

Later that month, Spencer was arrested by Arlington police and charged with the murder of Susan Tucker, his most recent victim. DNA evidence later connected him to the murders of Davis and Hellams. He was also convicted in the Cho murder though DNA evidence wasn't used at trial. DNA evidence also tied him to the 1984 murder of Carol Hamm, a crime which David Vasquez had been convicted of. Vasquez was eventually acquitted after having served five years of a thirty-five year prison sentence and was the first American to be exonerated based on DNA evidence.

Trials

Spencer's first trial was in July of 1988, charged with the murder of Susan Tucker, he was convicted with DNA evidence, the first case in Virginia in which DNA was used to prove identity, and sentenced to life imprisonment. At a series of trials in 1988 and 1989, Spencer was found guilty of raping and murdering Debbie Davis, Diane Cho, and Susan Hellams, and sentenced to death. He was executed on April 27, 1994.

Va. Serial Killer First to Die Based on DNA Test

The Washington Post

Friday, April 29, 1994

Serial killer Timothy Wilson Spencer, the first person in the country convicted of a capital crime through DNA testing, died in the state electric chair late Wednesday night.

The man known as the Southside Strangler was pronounced dead at 11:13 p.m., said Wayne Brown, operations officer at Greensville Correctional Center here in southern Virginia.

His electrocution came after a flurry of last-minute legal efforts that went as high as the U.S. Supreme Court, which rejected a request for a stay at 10:45 p.m. Spencer's attorneys had frantically pleaded for retesting of the DNA genetic material that led to his convictions for raping and murdering four women during a 10-week rampage in 1987.

A crowd of about 100 gathered outside the prison, about half of them death-penalty opponents conducting a candlelight prayer vigil. The rest were local high school students who boisterously cheered for Spencer's death. As death-penalty opponents sang "Amazing Grace," some of the students yelled, "Kill the bitch."

The case was watched closely nationwide because Spencer, 32, was the first defendant ever sentenced to death on the basis of DNA genetic "fingerprinting." According to state specialists, the chances were less than 1 in 700 million that someone other than Spencer had left the semen at the murder scenes.

His conviction was such a legal milestone that it prompted Virginia to open the first state DNA laboratory in the country and inspired mystery writer Patricia D. Cornwell's popular 1990 novel "Postmortem."

"It was a landmark case because prior to that, none of us really knew much about DNA and we didn't know whether a jury would be able to understand that sufficiently to convict someone of something as serious as capital murder," said U.S. Attorney Helen F. Fahey, who won the first conviction of Spencer when she was Arlington's chief prosecutor.

Timothy Spencer

The story begins with the 1984 murder of Carolyn Hamm in Arlington, Virginia. She was raped, tied up and hanged in the indoor entry to her garage. The body was found face down, nude. Her bathrobe was on the living room floor. A piece of cord had been cut from the venetian blinds. A knife was on the floor.

The victim was a lawyer living alone in a neighborhood where murder was rare. The case made a splash. An arrest was made fairly quickly, a confession obtained, a conviction logged. It turned out, eventually, that the confessor was innocent.

Three years later an extremely similar murder took place in the same neighborhood. On December 1, 1987, Susan Tucker was found dead, lying across her bed. She was nude, partially covered by a sleeping bag. She had been dead for several days. Rope cut from the venetian blinds was tied around her arms and her neck. She was raped and strangled.

There were other similarities to the first scene. Multiple semen stains were found at each, indicating that the killer had masturbated over the bodies. In each case the killer broke into the home through a first floor rear window. Each victim's purse was dumped out and the premises partially ransacked.

In the course of a remarkably thorough investigation, the detective assigned to this new case, Joe Horgas, turned up three more similar murders over a hundred miles away in Richmond, Virginia.

All of these murders took place, also, in 1987. The first was discovered on September 19. The victim, Debbie Davis, lived alone in a first floor apartment. Her hands were tied. She was strangled - slowly - by a sock tied around her neck and twisted tight with a length of pipe. There were also multiple semen stains.

Two weeks later and only half a mile away, Dr. Susan Hellams was found dead in her bedroom closet. Her hands were tied. She was strangled with a belt. There were several semen stains.

The third murder took place in a Richmond suburb. Fifteen-year-old Diane Cho was murdered in her bedroom while her brother and her parents slept nearby. Her hands were tied. She was strangled with a rope. A piece of duct tape across her mouth kept her from crying out. She was raped and there were semen stains on the sheets.

In connecting murders that were so widely spaced, detective Horgas made a difficult logical connection. This book showed the tremendous hurdles Horgas faced in convincing his colleagues in Arlington and in Richmond that the cases were connected. The unwillingness to see such connections is called "linkage blindness" and is a major obstacle to serial murder investigations. Part of what makes it so insidious is that the objections raised by skeptical detectives were not entirely unreasonable.

Another point shown better in this book than in any other I've read involves the long-term evolution of a killer as a criminal personality. Horgas made two other connections his colleagues found hard to swallow. He realized that a series of burglaries in the same neighborhoods as the murders and a string of rapes in each city were all committed by the same man who killed the five women.

In one break-in, someone entered a woman's house through a basement window, when no one was home. He spent some time in the home. When the woman came back she found the burglar left pornographic magazines and a length of venetian blind cord on her bed. In hindsight, it is easy to see that he was waiting for her to come home, at which point he intended to rape and probably kill her, but at the time the connection simply wasn't that obvious.

By reinterviewing the rape victims, detective Horgas was able to trace the development of the rapist's methods from early, clumsy, often unsuccessful abductions off the street, to in-home attacks where his control of the victims was far surer. Horgas found that, over time, the rapist's methods became more refined, and resembled the murders more and more.

In one of the rapes, a woman was awakened in the very early morning by a black man wearing a ski mask and armed with a knife. He threatened her, taunted her, made her drink Southern Comfort. (This last can be recognized as a bizarre equivalent - in the attacker's mind - of something that might happen on a date.) He tied her up and for three hours raped and tortured her. At the time that he produced a length of rope that presumably would have been used to hang or strangle her, the woman's upstairs neighbors heard crying and came to investigate. The rapist left quickly.

In the fourth Arlington rape, he put tape over his victim's mouth (Diane Cho's mouth was also taped) and tied her up. She escaped as he began cutting cord from the venetian blinds.

The man eventually arrested and convicted for the four 1987 murders (and implicated in the 1984 murder) was Timothy Wilson Spencer, a small time convicted burglar who had a secret life as the most sadistic of rapists. His years of experience breaking into houses gave him the skills to stalk and approach the women he killed without being seen. Repeated rapes taught him how to control his victims and gave him a taste for escalating brutality.

The time period between the murder of Carolyn Hamm and those that came later and the spacial shift from Arlington to Richmond - inconsistencies that were considered by most to be weaknesses in Horgas's theory that the cases were all connected - resulted from a prison term Spencer did for burglary. When he was released, he was put in a half-way house in Richmond.

Though the time and location sequence of the various crimes could be shown to fit Spencer's activities, that wasn't enough to get a conviction. It wasn't even enough to convince other detectives that Horgas was on the right track. They were more used to criminals who specialized: burglars who avoided contact with the people whose homes they robbed; rapists who attacked in alleys or parks and left their victims alive. A rapist-burglar-murderer was something beyond their experience. It was the DNA evidence mentioned in the subtitle and other, extremely thorough, lab work, that clinched the case.

This book shows a more complete picture of a serial murderer's activities than most do. I took 22 pages of notes on Stalking Justice. That's a strong recommendation for serious students of serial murder.

Stalking Justice

The dramatic true story of the detective who first used DNA testing to catch a serial killer.

By: Paul Mones
Pocket Books 1995
Hardcover 314 pages.

5 F.3d 758

Timothy W. SPENCER, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Respondent-Appellee.

No. 92-4006.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 28, 1992.
Decided Sept. 16, 1993.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Debbie Dudley Davis. We affirm.

* The gruesome details of the murder of Debbie Davis can be found in the Supreme Court of Virginia’s opinion on direct review, Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). For our purposes, a brief recitation will suffice.

Miss Davis was murdered sometime between 9:00 p.m. on September 18, 1987 and 9:30 a.m. on September 19, 1987. The victim’s body was found on her bed by officers of the Richmond Bureau of Police. She had been strangled by the use of a sock and vacuum cleaner hose, which had been assembled into what the Virginia Court called a ligature and ratchet-type device.

The medical examiner determined that the ligature had been twisted two or three times, and the cause of death was ligature strangulation. The pressure exerted was so great that, in addition to cutting into Miss Davis’s neck muscles, larynx, and voice box, it had caused blood congestion in her head and a hemorrhage in one of her eyes. In addition her nose and mouth were bruised. Miss Davis’s hands were bound by the use of shoestrings, which were attached to the ligature device. 384 S.E.2d at 789.

Semen stains were found on the victim’s bedclothes. The presence of spermatozoa also was found when rectal and vaginal swabs of the victim were taken. In addition, when the victim’s pubic hair was combed, two hairs were recovered that did not belong to the victim. 384 S.E.2d at 789. The two hairs later were determined through forensic analysis to be “consistent with” Spencer’s underarm hair. 384 S.E.2d at 789.

Further forensic analysis was completed on the semen stains on the victim’s bedclothes. The analysis revealed that the stains had been deposited by a secretor whose blood characteristics matched a group comprised of approximately thirteen percent of the population. Spencer’s blood and saliva samples revealed that he is a member of that group. 384 S.E.2d at 789.

Next, a sample of Spencer’s blood and the semen collected from the bedclothes were subjected to DNA analysis. The results of the DNA analysis, performed by Lifecodes Corporation, a private laboratory, established that the DNA molecules extracted from Spencer’s blood matched the DNA molecules extracted from the semen stains. Spencer is a black male, and the evidence adduced at trial showed that the statistical likelihood of finding duplication of Spencer’s particular DNA pattern in the population of members of the black race who live in North America is one in 705,000,000 (seven hundred five million). In addition, the evidence also showed that the number of black males living in North America was approximately 10,000,000 (ten million). 384 S.E.2d at 790.

On September 22, 1988 a Richmond jury found Spencer guilty of rape, burglary, and capital murder. The jury unanimously fixed Spencer’s punishment at death, which was affirmed on direct appeal. Spencer then filed a petition for habeas corpus with the state trial court, which was dismissed. He appealed to the Virginia Supreme Court, but because his appeal was filed one day out of time, the Virginia Supreme Court refused the petition. Spencer then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The district court denied his petition. Spencer v. Murray, No. 3:91CV00391 (E.D.Va. April 30, 1992).

On appeal, Spencer raises essentially five issues: (1) the DNA evidence in this case is unreliable; (2) defense counsel was denied an opportunity to adequately defend against the DNA evidence because the trial court denied a discovery request for Lifecodes’ worknotes and memoranda, the trial court refused to provide funds for an expert defense witness, and the prosecution did not reveal evidence of problems with Lifecodes’ testing methods; (3) the trial court should not have admitted the DNA evidence; (4) the prosecution improperly struck Miss Chrita Shelton from the jury for racially-motivated reasons as prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (5) the future dangerousness aggravating factor in Virginia’s capital sentencing scheme is unconstitutionally vague.

The Virginia State Supreme Court ruled that the DNA testing had been performed properly and denied Spencer’s appeal.

18 F.3d 229

Timothy W. SPENCER, Petitioner-Appellant,
v.
Edward W. MURRAY, Director; Commonwealth of Virginia,
Respondents-Appellees.

No. 93-4002.

United States Court of Appeals,
Fourth Circuit.

Argued Sept. 30, 1993.
Decided Feb. 3, 1994.
Rehearing and Rehearing En Banc Denied Feb. 28, 1994.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Dr. Susan Hellams. The district court denied Spencer's petition for a writ of habeas corpus. We affirm.

I

* Dr. Susan Hellams was a resident in neurosurgery at the Medical College of Virginia in Richmond.1 She was murdered in her home on the night of October 2, 1987 or the early morning of October 3, 1987.

The police were notified by her husband after he returned home and discovered her partially-clothed body on the floor of the couple's bedroom closet. Dr. Hellams's attacker apparently gained access to the house by cutting out a large portion of a second-story bedroom window screen.

The medical examiner testified at trial that the cause of Dr. Hellams's death was ligature strangulation, apparently caused by two belts found around her neck. The medical examiner also testified that Dr. Hellams sustained other injuries, including a fractured nose, a blunt force injury to the lower lip, various bruises and scrapes, and an injury consistent with one made by a shoe on the back of her right leg.

In addition, the medical examiner had found fluid consistent with seminal fluid on her back and in the gluteal fold. The medical examiner also observed small mucosal tears of the anal ring, which were "consistent with the anus having been penetrated 'by a hard object, such as a penis.' " 238 Va. 563, 385 S.E.2d at 852.

The presence of spermatozoa was found on swabs taken from the vagina, rectum, and perianal area. Seminal fluid and spermatozoa also were found on Dr. Hellams's skirt and slip. The swab from the perianal area, as well as the stains on Dr. Hellams's skirt and slip, were examined by the Commonwealth's expert serologist and compared to Spencer's blood. Based on her analysis of identifiable secretions, the serologist testified at trial that the source of the secretions was a third party, because neither Dr. Hellams nor her husband could have produced the secretions.

The serologist further stated that the secretions in the seminal fluid found on the skirt and slip were consistent with Spencer's secretion type and inconsistent with Dr. Hellams's husband's type.2 The secretions in the seminal fluid found on the perianal swabs were consistent with a combination of Spencer's and Dr. Hellams's blood types and inconsistent with a combination of the blood types of Dr. Hellams and her husband.

A sample of Spencer's blood and a sample of the seminal fluid found on Dr. Hellams's slip were subjected to DNA analysis. The two samples matched. This evidence was admitted at trial.

Proceedings

The trial commenced in the Circuit Court of the City of Richmond, Manchester Courthouse, on January 17, 1989. The jury convicted Spencer of capital murder, rape, sodomy, and burglary. 238 Va. 563, 385 S.E.2d at 351. At the penalty phase of the trial, the jury fixed Spencer's punishment for the capital murder at death. Spencer appealed his convictions and death sentence to the Supreme Court of Virginia, which affirmed. Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850 (1989). The United States Supreme Court denied Spencer's petition for a writ of certiorari. Spencer v. Virginia, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990).

Spencer next filed a petition for a writ of habeas corpus with the state trial court on September 10, 1990. The petition was dismissed on November 15, 1990. Spencer v. Murray, No. ML2232 (Cir.Ct. for the City of Richmond, Manchester Courthouse, Nov. 15, 1990). The Supreme Court of Virginia affirmed. Spencer v. Murray, No. 910252 (Va. June 4, 1991). Spencer then turned to the United States District Court for the Eastern District of Virginia. The district court denied his habeas petition. Spencer v. Murray, No. 3:92CV160 (E.D.Va. Jan. 21, 1993). Spencer then asked the district court, on February 11, 1993, for a Certificate of Probable Cause to appeal to this court. That request was denied. Spencer v. Murray, No. 3:92CV160 (E.D.Va. March 30, 1993).

Spencer filed his Notice of Appeal in the district court on April 29, 1993. Spencer then applied to this court for a Certificate of Probable Cause on May 25, 1993. Appellee Murray responded with a motion to dismiss the appeal on May 11, 1993. By order filed June 21, 1993, we denied Murray's motion to dismiss and, as individual judges, granted Spencer's application for a Certificate of Probable Cause. Spencer v. Murray, No. 93-4002 (4th Cir. June 21, 1993).

The Execution Order and Stay

On the same day that we entered our order, the Commonwealth sought and received from the state trial court an execution date of August 26, 1993, in this case. Commonwealth v. Spencer, Nos. 88-181-F to 88-184-F (Cir.Ct. for the City of Richmond, Manchester Courthouse, June 21, 1993). On July 23, 1993, Spencer applied to this court for a stay of execution, which we granted on July 27, 1993, for the pendency of this appeal or until further order of this court. Spencer v. Murray, No. 93-4002 (4th Cir. July 27, 1993).

II

On appeal, Spencer raises seven issues: (1) his trial counsel were ineffective because they failed to secure a DNA expert for the defense; (2) he is "actually innocent" of the crime for which he was sentenced to death, and he would not have been convicted if he had been able to challenge the DNA evidence and if the "prejudicial injection of astronomical probability ratios" into the trial had not occurred; (3) his trial counsel were ineffective because they did not conduct voir dire on the issue of racial prejudice; (4) Virginia's proportionality review is unconstitutional, and her application of procedural default rules was unconstitutional because it did not make "rational exceptions"; (5) the jury instructions at trial on mitigating evidence were constitutionally inadequate; (6) his trial counsel were ineffective because they did not explore or present certain mitigating evidence; (7) the DNA analysis used on the evidence in this case was subject to error and produced unreliable results, the results should not have been admitted, and his trial counsel were ineffective in handling this evidence.

Issues Precluded from Review

We do not consider Spencer's Issues 4 (proportionality review and default rules), 5 (jury instructions on mitigating evidence), and 7 (DNA analysis claims), except to the extent that in Issue 7 he alleges his counsel were ineffective in their handling of the DNA evidence and to the extent he raised a challenge to the admissibility of the DNA evidence on direct review. The Supreme Court of Virginia held that these issues were procedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Spencer v. Murray, No. 910252 (Va. June 4, 1991).

When a habeas petitioner has defaulted in a federal claim in state court pursuant to an independent and adequate state procedural rule, federal review of the defaulted claim is barred, absent two exceptions not urged upon us by Spencer. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640, (U.S.1991).3 We address each of Spencer's remaining issues, turning first to his allegations of ineffective assistance of counsel, and then to his actual innocence claim.4

A. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are governed by the now-familiar standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, the petitioner must show that counsel's performance was deficient and that the petitioner suffered prejudice as a result. 466 U.S. at 687, 104 S.Ct. at 2064. The petitioner must show both deficient performance and prejudice; the two are separate and distinct elements of an ineffective assistance claim. See 466 U.S. at 687, 104 S.Ct. at 2064.

In examining a claim that counsel's performance was deficient, we examine whether counsel's performance was reasonable under prevailing professional norms. 466 U.S. at 688, 104 S.Ct. at 2064. We conduct this review not by asking whether we would have defended the petitioner in the same way, but instead with a deferential eye, and we presume that challenged acts are likely the result of a sound trial strategy. 466 U.S. at 689, 104 S.Ct. at 2065.

Just as the petitioner carries the burden of proving that counsel's performance was deficient, the petitioner also carries the burden of affirmatively proving that prejudice resulted from counsel's deficient performance. 466 U.S. at 693, 104 S.Ct. at 2067. The petitioner must affirmatively prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S.Ct. at 2068.

Further, when it is a conviction the petitioner is challenging, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." 466 U.S. at 695, 104 S.Ct. at 2068-69. When it is a death sentence that the petitioner is challenging, "the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." 466 U.S. at 695, 104 S.Ct. at 2069. Keeping the proper standard in mind, we turn to each of Spencer's allegations of ineffective assistance of counsel.

Issue 1--DNA Expert

Spencer's Issue 1 on appeal is that his trial counsel were ineffective because they failed to procure a defense DNA expert. At this point, we feel it necessary to point out that Spencer was tried twice for capital murder in the Circuit Court for the City of Richmond by the same trial judge and defended by the same attorneys, Jeffrey L. Everhart and David J. Johnson. The first trial commenced on September 19, 1988, and Spencer was found guilty of the capital murder of Miss Debbie Davis. That trial has been before us for review and is the subject of our recent opinion Spencer v. Murray, 5 F.3d 758 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994). We mention the earlier trial because the state trial judge, confronted with two very similar trials just four months apart, allowed the parties to file consolidated motions for both cases.

On June 15, 1988, Spencer's attorneys filed a motion for funds for experts with the trial court to put the court on notice that they intended to seek such funds. The court had an extended discussion with Spencer's counsel about the motion and procuring an expert. Spencer, 5 F.3d at 760 n. 2. Spencer now argues that trial counsel's performance was deficient because

[n]othing in the record reveals that counsel did anything to follow through with this motion. No mention is made anywhere in the record of any additional requests for hearings or experts.

As counsel recognized the need for specific experts, some affirmative steps should have been taken to secure them.... If nothing else, counsel should have read the current literature dealing with forensic DNA.

Spencer's attorneys filed an affidavit with the state trial court concerning the allegations made in the state habeas petition. The affidavit details the research Spencer's attorneys conducted into DNA evidence. Spencer's attorneys also questioned at least four experts and attempted to find one who would be willing to serve as a defense witness, but they "were unable to find an expert who was willing to accept such an appointment." So Spencer's attorneys did take affirmative steps to secure a DNA expert. The fact that they could not find one cannot be charged to them as deficient performance. See also Spencer v. Murray, No. 3:92CV160, slip op. at 4-5, (E.D.Va. Jan. 21, 1993) (supplying additional reasoning for rejecting claim).

Further, we doubt very much from the record we have in front of us that Spencer is correct when he charges in his brief that his attorneys did not read the current literature. Spencer has the burden of proof on the issue of deficiency, and he has not carried it. We note that the attorneys even attended Spencer's Arlington trial in these serial killings and had a blind DNA test run by an independent laboratory, which only corroborated the Commonwealth's evidence.5

Issue 3--Voir Dire

Spencer charges that his counsel's performance was deficient because they did not conduct voir dire on the issue of racial bias. The affidavit submitted by Spencer's attorneys shows that they made a strategy decision not to conduct voir dire on this issue:

Prior to trial, because of the publicity from the first Richmond trial, we asked for and obtained a change of venire and the jury selection actually took place in Norfolk. We also asked for and obtained individual voir dire. During jury selection, the questions we asked any given juror were based upon our combined professional judgment as to how best to determine whether the juror was impartial or would be favorable or unfavorable to the defense. If a prospective juror's answers gave us any doubt about his or her impartiality, we either challenged the juror for cause or followed up with additional questions until, in our judgment, the doubt was removed or we believed the juror's answers warranted a challenge for cause.

In our view, particularly because of the change of venire, race was simply not an issue in the case. We had no reason to believe that any prospective juror harbored any racial bias against Spencer, and our decision not to ask any questions on voir dire that might have injected race into the case was a matter of trial tactics.

Under Strickland, we defer to counsel's sound trial strategy decisions. 466 U.S. at 689, 104 S.Ct. at 2065.6

Issue 6--Mitigating Evidence

Spencer also argues that his counsel were ineffective because if they had adequately investigated his case, they would have discovered that his presentence report, school history, and Department of Corrections reports show that he was a troubled child, that he was emotionally damaged by being told his father was dead when he in fact was alive, that he used a dangerous drug, PCP, and that he may suffer from organic brain damage. He also argues that they failed to seek the appointment of a psychologist to evaluate his mental state. Once again, we turn to counsel's affidavit.

The record shows that they conducted a thorough investigation of Spencer's background, both personally and through the use of a private investigator. Counsel or their investigator interviewed family members, neighbors, teachers, employers, and halfway house personnel.7

We therefore reject Spencer's claim of deficient investigation. In addition, counsel had observed the mitigation witnesses in the Arlington trial and in the first Richmond trial. To the extent that Spencer argues that there were witnesses other than mental health experts who should have been presented, Spencer's attorneys formulated a trial strategy based on their "combined professional judgment to determine which persons would make good witnesses and which ones would be poor witnesses."

As for Spencer's claims about his mental state, Spencer's attorneys assert that they never had any reason from their own experiences in talking with him to doubt his sanity or his ability to recall his whereabouts at the times of the crimes. They also had never encountered any evidence of drug use, other than two urinalyses in the halfway house that had shown marijuana use.

Spencer's attorneys knew that the attorneys who represented Spencer in the Arlington trial had hired both a psychiatrist and a psychologist who had found a complete lack of any mitigating circumstances. The Arlington attorneys did not want to inquire further because they feared they would find information that would harm the defense. Rather than request a court-appointed expert in the case, Spencer's Richmond counsel first asked members of the Richmond criminal defense bar to recommend a psychiatrist.

Spencer's attorneys then hired a psychiatrist, Dr. Mullaney, who evaluated Spencer before his first Richmond trial. Dr. Mullaney found nothing of any real help to the defense. However, the report did contain an opinion that Spencer's crimes were "victim specific," and his imprisonment would minimize his future dangerousness to society. However, Spencer's attorneys decided against using Dr. Mullaney. Their reasoning is spelled out in their affidavit:

We decided ... not to use Dr. Mullaney as a witness for several reasons. The sole "plus" of his testimony would have been an opinion that Spencer's future dangerousness would be minimized if he were kept in prison. In our judgment, this "plus" was negligible and we were able to argue that same theory to the jury even without Dr. Mullaney's testimony. Moreover, the minimal "plus" was outweighed by the fact that, if Mullaney were to testify at the penalty stage, the jury would have already found that Spencer committed the offense, and Mullaney would have to admit that Spencer continued to deny his guilt and had shown absolutely no remorse.

Further, we knew that if we wanted to use Dr. Mullaney, then pursuant to Virginia Code Sec. 19.2-264.3:1F the prosecution would be entitled to have Spencer evaluated by its own expert. Based upon what we knew about Spencer and his offenses, we had no doubt that the state's experts would render an opinion that Spencer was, in fact, "future dangerous." We affirmatively wanted to avoid an expert opinion to that effect. Based upon all of this information we made a strategic decision not to request a court-appointed expert and not to present any mental health evidence at the penalty stage.

In light of the reasonable strategy decision made by Spencer's counsel, we do not find their performance deficient.

Claim 7--Deficient Handling of DNA Evidence

Spencer's final claim is that his counsel were ineffective because they "were unable to cope with the tremendous volume of DNA evidence presented by the Commonwealth through its witnesses."8 The affidavit submitted by counsel once again belies the claim.

Counsel conducted a thorough investigation of DNA evidence. They contacted several experts, and even had expert help throughout the trial from experts unwilling to testify. A claim of ineffective assistance of counsel requires us to look at counsel's conduct, not at the experts who aided counsel. See Pruett v. Thompson, 996 F.2d 1560, 1573 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 487, 126 L.Ed.2d 437 (U.S.1993). Spencer would have us find fault with his counsel's conduct because they could not bring to light arguable flaws in DNA testing that the experts in the field did not themselves know about at the time and that are still far from certain today. We cannot fault Spencer's lawyers for an inability to find something that did not then exist. Their conduct was not deficient, and Spencer therefore cannot prevail under Strickland.

B. Actual Innocence Claim

Spencer claims that he is "actually innocent" of the crime for which he was sentenced to death, and he would not have been convicted if the "prejudicial injection of astronomical probability ratios" into the trial had not occurred. Spencer's specific fault-finding with the probability statistics is a claim that is procedurally defaulted because not presented to the Virginia Supreme Court on direct appeal. See Part II, supra. If we construe Spencer's claim as an assertion that he is innocent of the crime for which he was convicted, we cannot entertain his claim because "a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim heard on the merits." Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (U.S.1993).

A claim of factual innocence, in the I-didn't-do-it sense, and actual innocence, which excuses procedural default of a constitutional claim, are two different things. See Spencer, 5 F.3d at 765. We have very limited discretion, if any, to consider claims of factual innocence, and Spencer has not produced any evidence that would cause us to undertake such an inquiry. See id. at 765-66. Therefore, we must assume that Spencer is asserting actual innocence in an attempt to have the merits of his defaulted probability claim heard.

At the outset, we note that the district court was concerned that we may hold that the actual innocence test for defaulted claims under Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S.1992), applies only to penalty-phase errors and not to guilt-phase errors. See Spencer v. Murray, No. 3:92CV160, slip op. at 8 n. 13 (E.D.Va. Jan. 21, 1993).9 We have implicitly held that Sawyer is not so limited by applying it to guilt-phase errors in Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 487, 126 L.Ed.2d 437 (U.S.1993), and we now explicitly hold that Sawyer applies to such errors.

Spencer's claim is that he would not have been convicted if the probability statistics had not been admitted. To have a defaulted claim reviewed, a petitioner must first prove, under the actual innocence test of Sawyer, "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer, --- U.S. ----, ----, 112 S.Ct. 2514, 2515, 120 L.Ed.2d 269 (U.S.1992). Spencer's claim fails at the outset because he cannot show a constitutional error that could have infected the jury's verdict.

The question of whether the probability statistics should have been admitted is a question of state law that does not involve a federal constitutional issue. It is only in extraordinary circumstances that federal review of these questions is warranted. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960); see also Spencer, 5 F.3d at 762. Here, we find that the state trial court carefully considered the DNA evidence, including the population statistics. Spencer's counsel cross-examined the Commonwealth's experts about the Hardy-Weinberg equilibrium,10 ] and they had obtained and reviewed the transcripts from cases in Florida and New York where some of the Commonwealth's DNA experts had previously testified.

The state trial court heard the information about the limitations of the statistics along with the rest of the information about DNA evidence and decided to admit the statistics. We simply cannot find any constitutional error in the admission of the statistics, and we therefore must decline Spencer's invitation to reach the underlying merits of the probability statistics either through the Sawyer actual innocence inquiry or otherwise. Even if his claim were not defaulted, the result would not be any different, for under our holding in Grundler we leave these questions to the state courts.

III

We hold that Spencer's trial counsel were not ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We further hold that Spencer's claim of actual innocence does not state a constitutional claim, and to the extent that his argument is an attempt to have the merits of his defaulted probability statistics claim heard, we find that he is not entitled to have that claim reviewed.

The judgment of the district court is accordingly

AFFIRMED.

*****

*

With concurrences of Judges Phillips and Williams

1

Our recitation of the facts is condensed from the Virginia Supreme Court's opinion in this case, Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850, 851-53 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990)

2

Spencer is a type O secretor, PGM type 1, PGM subtype 1+, and peptidase A type 1. Spencer shares this type with only 13% of the population. 238 Va. 563, 385 S.E.2d at 852.

Dr. Hellams was a nonsecretor, PGM type 2-1, PGM type 2+ 1-, and peptidase A type 1. Her husband is a nonsecretor, PGM type 2-1, and PGM subtype 2+ 1+. Id.

3

The two exceptions are (1) cause for the default and actual prejudice that results from the violation of the petitioner's federal rights, see Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or (2) failure to review the claims would result in a fundamental miscarriage of justice within the meaning of the actual innocence test of Sawyer v. Whitley, --- U.S. ----, 112 S.Ct. 2514, 120 L.Ed.2d 269 (U.S.1992). See Coleman, 501 U.S. at ----, 111 S.Ct. at 2551

4

Spencer's claim regarding the admissibility of the DNA evidence in this case was raised on direct appeal to the Virginia Supreme Court, Spencer v. Commonwealth, 238 Va. 563, 385 S.E.2d 850, Brief of Appellant at 9 (4th Cir. J.A. at 65), and it therefore is not defaulted for our purposes. See Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 644-45, 103 L.Ed.2d 308 (1989); Grundler v. North Carolina, 283 F.2d 798, 800 (4th Cir.1960); see also Spencer v. Murray, 5 F.3d 758, 761 (4th Cir.1993), petition for cert. filed, No. 93-7475 (Jan. 11, 1994). However, we decided essentially the same question against Spencer once before, see Spencer, 5 F.3d at 762-63, and adhere to that decision in the present case

5

In addition to the murder of Miss Davis, which was before us in our earlier case reported at 5 F.3d 758, Spencer was tried and convicted of the capital murder of Susan Tucker in Arlington County. We referred to the Arlington trial in our earlier reported opinion, and an appeal concerning that trial is pending on our docket as Case Number 93-4004

6

Spencer argues that his trial counsel erred in making this determination in light of Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), which holds that a capital murder defendant "accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." 476 U.S. at 36-37, 106 S.Ct. at 1688. Turner does not apply to Spencer's case, for in Turner the trial judge refused to allow questioning on bias after defense counsel requested it. Turner specifically states that a court does not have to raise the question sua sponte and that the issue of whether such questioning is appropriate is left to the discretion of counsel. 476 U.S. at 37 & n. 10, 106 S.Ct. at 1688 n. 10

7

Spencer was living in a halfway house in Richmond when he murdered Dr. Hellams

8

The habeas petition filed with the district court is difficult to construe

This claim is embedded in Claim K of the petition, which concerns discovery violations. The district court held that Claim K was procedurally defaulted. Spencer v. Murray, No. 3:92CV160, slip op. at 3 (E.D.Va. Jan. 21, 1993). The same claim appears in the brief submitted to this court as part of Claim 7 concerning DNA evidence, which was Claim III and Claim N, because of a lettering error, on habeas appeal to the Virginia Supreme Court. The Virginia Supreme Court specifically excepted the question of ineffective assistance of counsel from its procedural default ruling. Spencer v. Murray, No. 910252 (Va. June 4, 1991). We address this claim to give Spencer the benefit of any doubt in light of the Virginia Supreme Court's ruling, but we do not mean our finding to be a comment on the admirable job the district court did in sorting out a confusing and ambiguous petition.

9

Actually, the district court discussed Sawyer in the context of Spencer's factual innocence claim. This is understandable because the district court issued its opinion before the Supreme Court decided Herrera

10

The formula by which Lifecodes, the DNA laboratory, arrived at its population statistics

Spencer's counsel cross-examined the Commonwealth's DNA witness with reference to the population statistics in a joint suppression hearing held, by agreement of the parties, in this case and in the other Richmond case involving the murder of Miss Davis. Spencer's counsel also cross-examined the Commonwealth's DNA witness with reference to the population statistics at the trial of this case in the presence of the jury. The transcript of the joint suppression hearing is a part of the state record, both in this case and in the case involving the murder of Miss Davis.

Timothy W. Spencer, Petitioner-appellant,

v.

Edward W. Murray, Director, Respondent-appellee

18 F.3d 237

United States Court of Appeals, Fourth Circuit.

Argued Dec. 7, 1993.
Decided March 1, 1994
Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

WIDENER, Circuit Judge:

Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Susan Tucker in Arlington County, Virginia. The district court denied Spencer's petition for a writ of habeas corpus and dismissed his case. We affirm.1

I

* On December 1, 1987, the nude body of Susan Tucker was found in her Arlington townhouse. She had been raped and murdered by ligature strangulation. Because most of the underlying facts of the murder are not critical to our discussion, we refer for them to the Virginia Supreme Court's opinion on direct review in this case. Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989).

Spencer was convicted and sentenced to death by a jury on July 16, 1988. He appealed his convictions and sentences to the Virginia Supreme Court, which affirmed. Spencer v. Commonwealth, 238 Va. 275, 384 S.E.2d 775 (1989). The United States Supreme Court denied Spencer's petition for a writ of certiorari. Spencer v. Virginia, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990).

Spencer next petitioned the Circuit Court of Arlington County for a writ of habeas corpus. His petition was dismissed and denied on July 17, 1990. Spencer v. Thompson, No. 90-424 (Cir.Ct. of Arlington County, July 17, 1990). On October 15, 1990, the record in the state habeas case was filed with the Virginia Supreme Court, but no petition for appeal was filed with the Virginia Supreme Court within the time allowed by law.

Accordingly, the Virginia Supreme Court ordered that the record be returned to the Circuit Court of Arlington County on April 24, 1991. On October 3, 1991, Spencer requested leave to file a petition for appeal out of time. The Virginia Supreme Court denied Spencer's motion on October 22, 1991.

Spencer then turned to the United States District Court for the Eastern District of Virginia. By order dated May 7, 1993, the district court denied Spencer's petition for a writ of habeas corpus and dismissed the case. Spencer v. Murray, No. 3:92CV507 (E.D.Va. May 7, 1993). On June 4, 1993, Spencer filed a notice of appeal and an application for a certificate of probable cause to appeal. The district court denied Spencer's application on July 8, 1993. Spencer v. Murray, No. 3:92CV507 (E.D.Va. July 8, 1993).

Without applying for a certificate of probable cause, Spencer prosecuted his appeal in this court.2 Spencer raises three issues here: (1) The jury instructions and verdict form at the sentencing phase do not adequately address mitigating evidence; (2) Virginia's appellate review of death sentences is inadequate; and (3) forensic DNA profiling is unreliable.

II

Spencer's first claim regarding the jury instructions and verdict form's failure to adequately address mitigating evidence must be denied because Spencer did not exhaust his state remedies.3 28 U.S.C. Sec. 2254(b).

This claim was not raised in Spencer's direct appeal to the Virginia Supreme Court. There, Spencer raised vagueness challenges to the vileness aggravating factor under the Virginia sentencing scheme and claimed the jury had excessive discretion. See Spencer, 384 S.E.2d at 778.

No mention was made in his brief to the Virginia Supreme Court of mitigating evidence with respect to jury instructions or verdict forms. The Virginia Supreme Court held that the vagueness claim concerning the vileness factor and the claim of excessive jury discretion were not raised at trial and were defaulted under Va.Sup.Ct.R. 5:25. Spencer, 384 S.E.2d at 788. It was not until he reached the federal district court that Spencer raised the issue of jury instructions and verdict forms in the mitigating evidence context.

The district court's holding that the claim was raised on direct review but procedurally defaulted under Va.Sup.Ct.R. 5:25 may not be correct, but apparently results from understandable confusion in construing Spencer's assignments of error on direct review. The district court was correct, however, in dismissing the claim, because the claim before us concerning mitigating evidence has not been presented to the state courts and therefore is not exhausted.

Spencer's second claim, which attacks Virginia's appellate review, must also be denied because it was not raised in his direct appeal to the Virginia Supreme Court.4 Spencer has not exhausted his state remedies on this claim, and we therefore deny relief on that account. 28 U.S.C. Sec. 2254(b).

Spencer's third claim is that forensic DNA profiling is unreliable. Spencer has not stated a federal claim with respect to his allegations, and we therefore cannot entertain his petition on this ground.5 28 U.S.C. Sec. 2254(a). Further, even if we were to construe his petition as alleging a denial of due process, the result would not be any different.

The claim would be dismissed for failure to exhaust under Section 2254(b), except to the extent it argues that the DNA evidence should not have been admitted at trial. Spencer's claim that the DNA evidence was inadmissible was raised on direct appeal, but the admissibility of evidence under state law is not a question we consider on the merits on habeas review. Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.1960); see also Spencer v. Murray, 5 F.3d 758, 762 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994).

Spencer attempted to raise a claim that his counsel were ineffective in handling the DNA evidence in his petition for appeal from the state trial court's decision on his habeas petition, but he was denied leave to file his petition out of time. Because his ineffective assistance claim in the state habeas case was not presented to the highest state court for review, it, too, must be denied for failure to exhaust.6 28 U.S.C. Sec. 2254(b). Therefore, we do not review any aspect of Spencer's DNA evidence claim.

III

All of Spencer's claims for relief must be denied for failure to exhaust his state remedies or failure to state a cognizable federal habeas corpus claim.

The judgment of the district court is accordingly

AFFIRMED.

*****

1

This is the third murder and rape committed by Spencer which has come to this court. Both of our earlier cases arose out of convictions obtained in the City of Richmond. Spencer v. Murray, 18 F.3d 229, (4th Cir.1994) (murder of Susan Hellams) (published); Spencer v. Murray, 5 F.3d 758 (4th Cir.1993) (murder of Debbie Davis), cert. denied, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994)

2

When no application for a certificate of probable cause is filed after the district court's denial of the certificate, the notice of appeal is treated as a request addressed to the judges of the court. Fed.R.App.P. 22(b). Accordingly, as individual judges, the members of this panel grant a certificate of probable cause to appeal in this case

3

The result would not be any different if the claim were exhausted because we have repeatedly held that this claim is without merit. See, e.g., Jones v. Murray, 947 F.2d 1106, 1119-20 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992); Briley v. Bass, 750 F.2d 1238, 1242-44 (4th Cir.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985)

4

Again, even if this claim were exhausted, we would not afford Spencer habeas relief because the claim is without merit. We have examined and rejected substantially the same claim before in Peterson v. Murray, 904 F.2d 882, 887 (4th Cir.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990). See also Clozza v. Murray, 913 F.2d 1092, 1105 (4th Cir.1990) (deciding question under specific facts involved), cert. denied, 499 U.S. 913, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991)

5

Indeed, Spencer's petition on this point cites no constitutional amendment nor mentions any constitutional right infringed by the supposed unreliability of the test

Also, the district court correctly held that it would not consider the point made here because no federal constitutional claim in this regard was presented on direct appeal to the Virginia Supreme Court.

6

The fact that the Virginia Supreme Court refused to allow Spencer to file his appeal because of his failure to comply with Virginia's procedural law supplies us with an additional ground to affirm the district court. Crowell v. Zahradnick, 571 F.2d 1257, 1258 n. 1 (4th Cir.1977), cert. denied, 439 U.S. 956, 99 S.Ct. 357, 58 L.Ed.2d 348 (1978)