Full opinion text
OPINION AND FINAL ORDER REBECCA BEACH SMITH, District Judge. This matter was initiated on February 7, 1997, by petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted for the capital murder of Virginia State Trooper Jose Cavazos, and was sentenced to death on January 14, 1994. The petition alleges violations of federal rights pertaining to petitioner’s conviction and sentencing in the Circuit Court of Prince William County, Virginia. Specifically, Weeks attacks the validity of his conviction and sentence on thirty-four (34) separate grounds. The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 29 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The Magistrate Judge’s Report and Recommendation (R & R) was filed on July 30, 1997, recommending that the petition be denied and dismissed. By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On August 18, 1997, this court received “Petitioner’s Objections to United States Magistrate Judge’s Report and Recommendation,” and respondent’s “Objections to Magistrate Judge’s Report and Recommendation.” The parties’ respective responses to the objections were both filed on September 5,1997. Petitioner objects to each of the Magistrate Judge’s, recommendations to deny the individual claims presented in the Petition for a Writ of Habeas Corpus. However, of the claims on which the merits were reached, Weeks relies most heavily on Claims I, V, X, XVIII, XX, XXVI, XXVII, XXVIII, and XXIX. Petitioner maintains that these claims entitle him to conduct discovery, present evidence, and ultimately receive a Writ of Habe-as Corpus. Respondent does not contest the ultimate recommendation of the Magistrate Judge, but does object to some specific rulings within the R & R. Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of .the Magistrate Judge’s R & R to which petitioner and respondent have specifically objected. The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1). In addition, there is an outstanding objection to the Magistrate Judge’s January 23, 1997, Opinion and Order denying Weeks’ request for expert assistance. This court will also review that decision and the corresponding objection. See infra part III.A. Discussion 1. Preliminary Objections Two of respondent’s objections do not go to the Magistrate Judge’s analysis of any particular claim, but to underlying findings that affect the standard of review used throughout the R & R. First, respondent objects to the Magistrate Judge’s finding that Virginia does not satisfy the “opt-in” requirements in Chapter 154 of the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA). Respondent also objects to the Magistrate Judge’s determination that petitioner’s defaulted allegations are potentially reviewable under the “actual innocence” doctrine. A. “Optr-In” Requirements With respect to the first objection,this court, by order dated November 21, 1996, affirmed this very finding by the Magistrate Judge. Therefore, this court will treat respondent’s objection as a motion to reconsider. For the following reasons, the court upholds its earlier decision and finds that Virginia does not meet the “opt-in” requirements of the AEDPA. The AEDPA, which became effective on April 24, 1996, makes significant changes to the law of federal habeas corpus review, including creating a new Chapter 154 of Title 28 of the United States Code. Sections 101 through 106 apply generally to all federal habeas petitions. However, § 107 of the Act, which creates Chapter 154, applies specifically to petitions filed in capital cases. In addition to providing for expedited review, Chapter 154 affects habeas petitions in death penalty cases by narrowing the issues cognizable on federal habeas and by requiring federal courts to give even greater deference to state courts, prior resolution of issues presented in these petitions. See § 107(a). Section 107 specifically states that it “shall apply to cases pending on or after the date of enactment of this Act.” § 107(c). However, § 107 provisions, providing greater deference to state proceedings, are applicable only if the state meets the “opt-in” requirements set forth in § 107. To qualify for habeas benefits under the “post-conviction” prong of the “opt-in” provisions, a state must establish a mechanism that provides for the appointment, compensation, and reimbursement of competent counsel for all indigent capital defendants in its state post-conviction proceedings. In other words, § 107 creates a “quid pro quo arrangement under which States are accorded stronger finality rules on federal habeas corpus review in return for strengthening the right to counsel for indigent capital defendants.” Satcher v. Netherlands 944 F.Supp. 1222, 1238 (E.D.Va.1996) (quoting H.R.Rep. No. 23, 104th Cong., 1st Sess. 10 (1995)), rev’d in part on other grounds sub nom. Satcher v. Pruett, 126 F.3d 561 (4th Cir.), and cert. denied, — U.S. ——, 118 S.Ct. 595, 139 L.Ed.2d 431 (1997). Specifically, in order to “opt-in” a state must meet all four of the following criteria: 1. The State must establish by statute, rule of its court of last resort, or other agency authorized by state law a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent capital defendants. See § 2261(b). 2. Such mechanism must provide standards of competency for the appointment of such counsel. See § 2261(b). 3. Such mechanism must affirmatively offer counsel to all state prisoners under capital sentence. See § 2261(c). 4. Such mechanism must provide for the entry of a court order either appointing counsel to each indigent capital defendant, or explaining that such an appointment was not made on the basis that a defendant was not indigent or rejected the offer of counsel with an understanding of the legal consequences. See § 2261(e). Although not always for identical reasons, other judges in this district have recently held that the Commonwealth of Virginia does not meet the qualifications of Chapter 154 of the AEDPA. Wright v. Angelone, 944 F.Supp. 460 (E.D.Va.1996) see also Breard v. Netherlands 949 F.Supp. 1255, 1261-62 (E.D.Va.1996), aff'd sub nom. Breard v. Pruett, 134 F.3d 615 (4th Cir.1998); Satcher v. Netherlands 944 F.Supp. 1222, 1238 (E.D.Va.1996). Virginia does clearly meet the third and fourth requirements, as applied in this ease. As of July 1, 1995, the appointment of counsel in the post-conviction process became automatic. Counsel was appointed for Weeks on October 10, 1995, and his state habeas proceedings became final on March 15, 1996. Accordingly, the state was in compliance with the third and fourth requirements of the “opt-in” provisions, using either date as the measuring point. However, Virginia has failed to meet the first “opt-in” requirement. Virginia fails to meet the requirement of a comprehensive mechanism for the appointment, compensation, and payment of reasonable litigation expenses for counsel. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.1996) (“the Virginia statutes and regulations do not specifically provide for compensation or payment of litigation expenses of appointed counsel, as § 107 requires”); see also Satcher, 944 F.Supp. at 1241-42 (for detailed discussions of why Virginia fails to meet the compensation requirement); Wright, 944 F.Supp. at 464-65 (same). As Judge Payne held in Satcher, this requirement could only be satisfied by strict, rather than substantial compliance. Satcher, 944 F.Supp. at 1242. There has been no change in Virginia law, since the Satcher and Wright decisions, that would require a different outcome. Thus, the Commonwealth is not entitled to the special review that may be granted some states for their capital cases under Chapter 154. The other provisions in the AEDPA clearly do apply in this case, as the petition was filed well after April 24, 1996, the enactment date of the Act. B. Actual Innocence Doctrine The Magistrate Judge examined Weeks’ petition to determine if his procedurally defaulted ineffective assistance claims were reviewable under the “fundamental miscarriage of justice,” or “actual innocence,” doctrine. R & R at 27-31. The Magistrate Judge ultimately held that Weeks could not meet the required burden of proof, and thus his proeedurally defaulted claims were not reviewable. Id. Respondent argues that the Magistrate Judge erred in even applying the “actual innocence” doctrine in petitioner’s case. According to respondent, both 28 U.S.C. § 2264(a) and 28 U.S.C. § 2254(e)(2) dispense with any concept of “actual innocence of the death penalty.” Prior to passage of the AEDPA in 1996, the law was clear on the reviewability of proeedurally defaulted claims. Generally, this court may not review claims that have been clearly and expressly defaulted under an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A state procedural default bars federal habe-as corpus review of the claim, unless petitioner can show both justifiable cause for, and actual prejudice resulting from, his default. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If a petitioner cannot show “cause” and “prejudice” sufficient to excuse a procedural default, his claims may still be reviewed where refusal would result in a “fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Under this doctrine, if a constitutional violation has probably resulted in the conviction of someone who is actually innocent, the writ may be granted. Schlup, 513 U.S. at 323, 115 S.Ct. 851. To show “actual innocence of the death penalty,” a petitioner must show “by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty under [the applicable state law].” Sawyer v. Whitley, 505 U.S. 333, 347, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). It is only after meeting this very difficult burden that a petitioner may actually have his defaulted claims of constitutional error reviewed. According to respondent, the “actual innocence of the death penalty” doctrine no longer provides a gateway for petitioners to have their defaulted claims reviewed on habeas. In support of this position, respondent first points to 28 U.S.C. § 2264(a). The statute provides, in pertinent part: (a) ... the district court shall only consider a claim or claims that have been raised and decided on the merits in the State courts, unless the failure to raise the claim properly is (1) the result of State action in violation of the Constitution or laws of the United States; (2) the result of the Supreme Court’s recognition of a new Federal right that is made retroactively applicable; or (3) based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim.... 28 U.S.C. § 2264(a). ‘ Section 2264(a) does seem to strictly limit the circumstances under which a defaulted claim may be reviewed by a federal district court. However, § 2264 only applies onee a state has qualified under Chapter 154 as an “opt-in” state. Because Virginia is not an “opt-in” state, § 2264(a) does not apply to Weeks’ petition. See supra part I.A. Respondent next points to 28 U.S.C. § 2254(e)(2)(B) in support of the Commonwealth’s argument that the “actual innocence of death penalty” gateway is no longer available to petitioners seeking a review of their defaulted claims. Section 2254(e) provides: (1) [In a habeas corpus proceeding] a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Section 2254(e)(2) does limit the circumstances under which a court may order an evidentiary hearing to develop facts underlying a claim made by a petitioner. On its face, however, the provision does not speak to the issue of when a federal court may consider a claim that has been procedurally defaulted. Instead, the section only governs when a defendant has failed to develop facts underlying a particular claim. In such a situation, the defendant may or may not have failed to raise the related claim. The question of whether a defendant has previously raised a constitutional claim is clearly a separate issue from whether he has previously introduced certain evidence. The state does not, however, argue that § 2254(e)(2) directly overrules or changes the applicable standard for deciding when a defaulted claim may be reviewed. Instead, the state’s argument seems to be that, as a practical matter, § 2254(e)(2)(B) necessarily dispenses with the concept of actual innocence of the death penalty, since actual innocence of the underlying offense is the required showing for an evidentiary hearing. It is true that, if a petitioner can only show innocence of the death penalty, and not of the actual crime, he may not be entitled to develop facts in an evidentiary hearing. Accordingly, a petitioner could, for all practical purposes, be prevented from presenting a defaulted claim, even though he technically meets the miscarriage of justice standard. However, this will only be true when a hearing is needed to develop the facts underlying the raised claim. A claim may or may not have an underlying factual basis that needs further developing. If a petitioner does not need to introduce any evidence, or further develop any facts to advance his constitutional claim, then § 2254(e)(2) would not be applicable. For instance, the claim of actual innocence of the death penalty may rely not on new facts, but rather on an error that allowed the introduction of erroneous information. ' It may be possible to show that, without such facts, no reasonable fact finder would have found the petitioner eligible for the death penalty. The Supreme Court has suggested that such an error would be a possible way to meet the actual innocence of the death penalty standard. Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (holding that the habeas petitioner failed to show actual innocence of the death penalty because the “alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones.”); see also Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (citing same passage in explaining the standard). Another example would be if a petitioner raises a claim that the jury was erroneously instructed on the law at sentencing. It may be possible to show that, but for the error, no reasonable juror would have found the petitioner eligible for the death penalty. In such cases, the limitations of § 2254(e)(2) would not apply because the petitioner would not be attempting to introduce any new evidence, or develop new facts that he previously failed to develop. In addition, the limitations of § 2254(e)(2) would not apply where the applicant did not “fail” to introduce the relevant factual evidence in state proceedings. This court agrees with other courts that have examined this issue, and have held that § 2254(e)(2) does not apply when a petitioner attempted to, but was denied the opportunity to develop the facts by the state courts. See Cardwell v. Netherland, 971 F.Supp. 997, 1009-12 (E.D.Va.1997) (for a thorough discussion of this provision of the statute); see also Love v. Morton, 112 F.3d 131, 136 (3d Cir.1997); Burris v. Parke, 116 F.3d 256 (7th Cir.1997); Washington v. Mazurkiewicz, 1997 WL 83771, at *2 n. 1 (E.D.Pa. Feb.25, 1997). By prefacing the requirements with “[i]f the applicant has failed to develop the factual bases of a claim” the statute, on its face, indicates that the above interpretation is the correct one. § 2254(e)(2). The statute seems to expressly apply only where the flawed fact-finding is somehow attributable to the petitioner. In addition, as the Burris court held, “failure implies omission—a decision not to introduce evidence when there was an opportunity, or a decision not to seek an opportunity.” Burris, 116 F.3d at 258. Furthermore, a strict liability interpretation would allow states to insulate “its decisions from collateral attack in federal court by refusing to grant evidentiary hearings in its own courts.” Burris, 116 F.3d at 259. If Congress had intended to create a type of strict liability statute, it could have easily provided that the requirements' of § 2254(e)(2) apply whenever the factual basis of a claim was not developed in state court proceedings. Thus, where the faulty record is attributable to the state, and not the defendant, § 2254(e)(2) will not apply. In conclusion, the court holds that § 2254(e)(2)(B) does not necessarily dispense with the concept of “actual innocence of the death penalty.” The standard for determining when a procedurally defaulted claim may be reviewed has not been altered by the-general provisions of the AEDPA. Accordingly, the reviewability of such claims are still governed by the standards developed by the Supreme Court, in cases such as Murray v. Carrier and Sawyer v. Whitley. 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). Generally, a procedurally defaulted claim will not be reviewable. The exception is if a petitioner can show either (1) cause and prejudice for his default; or (2) that failure to hear the claims would constitute a “miscarriage of justice.” See Sawyer, 505 U.S. at 338-39, 112 S.Ct. 2514. To meet the miscarriage of justice exception, the petitioner must show that a constitutional violation has probably resulted in the conviction of one who is actually innocent. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Those petitioners who are sentenced to death may also meet the exception by showing through clear and convincing evidence that but for a constitutional error, no reasonable juror would have found him eligible for the death penalty. Sawyer, 505 U.S. at 336, 112 S.Ct. 2514. Whether an evidentiary hearing may be granted for the purpose of developing facts not previously developed in state court is an entirely separate question. In some cases, a constitutional claim will not need further factual development. In other cases, § 2254(e)(2) will not be applicable because the failure to develop facts in state court will not be attributable to the petitioner. Of course, it is also possible that a petitioner who meets the standard for having a defaulted claim reviewed, and who needs to further develop facts that he failed to previously develop, may not be able to make the showing required under § 2254(e)(2). Such a petitioner will thus be unable to develop the facts necessary to properly present his claim, even though his defaulted claim is technically reviewable under the applicable Sawyer standard. But whether that latter situation arises will depend on the particular claims raised and the particular circumstances of a petitioner’s case. For the above reasons, the court finds that the Magistrate Judge did not err in evaluating petitioner’s defaulted claims under the “actual innocence of the death penalty” standard to determine if his procedurally defaulted claims warranted review on the merits. The Magistrate Judge was also correct in finding that Virginia does not qualify for special review under Chapter 154, because it has not met the “opt-in” requirements. II. Procedural Default A. Ineffective Assistance Claims Weeks’ petition contained a number of ineffective assistance of counsel claims. Only Claims IX and XXXI are free-standing claims. Many of Week’s other thirty-two substantive claims, however, contain ineffective assistance claims argued “in the alternative.” Only one ineffective assistance claim, Claim IX, was raised in Weeks’ state habeas petition. The other ineffective assistance of counsel claims were never presented to the Supreme Court of Virginia. In addition, Weeks’ state habeas petition was never reviewed on the merits because it was dismissed by the Supreme Court of Virginia as untimely. Thus, none of petitioner’s ineffective assistance of counsel claims were ever presented to Virginia’s highest state court. The Magistrate Judge found that all of Weeks’ ineffective assistance of counsel claims were procedurally defaulted, due to both the untimely filing of his state habeas petition, and the omission of claims from the petition. In addition, the Magistrate Judge found that none of the defaults were excused by either the “cause and prejudice” or the “actual innocence” exceptions. Petitioner objected to each of these findings. 1. Untimely State Habeas Petition Weeks objects to the Magistrate Judge’s conclusion that the dismissal of the state habeas petition for untimeliness was an adequate and independent state bar to federal review. Effective on July 1, 1995, prisoners under sentence of death were required to comply with a statute of limitations for filing a habeas petition, and they were limited to filing an .original petition in the Virginia Supreme Court. Va.Code §§ 8.01-654.1, 8.01-654(C)(1); Supreme Court Rule 5:7A. Weeks’ counsel originally filed a petition for habeas corpus in the wrong court; he filed in the Circuit Court of Prince William County instead of the Supreme Court of Virginia. On December 1, 1995, the date on which the petition was due under the new statute of limitations, counsel withdrew the petition from the circuit court and mailed it, by regular mail, to the Supreme Court of Virginia. On March 15, 1996, the Supreme Court dismissed the petition as jurisdictionally barred because it was not timely. Petitioner points out that a state procedural rule is not adequate to preclude federal court review of the merits unless that rule is both firmly established and regularly applied. See Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). Weeks argues that the rule applied to him in this ease was not firmly established. According to petitioner, the rule of “dismissing untimely original habeas petitions” was not firmly established because the court had never before had an “opportunity to consider how it would treat an untimely habeas petition under its original jurisdiction.” Petitioner’s Objections at 9. Because there was no precedent dismissing original habeas petitions 'for- untimeliness, petitioner maintains that the rule cannot be considered firmly established. This objection is .without merit. As a general matter, procedural rules derived from unambiguous state statutes and supreme court rules are necessarily “firmly established.” O’Dell v. Netherlands 95 F.3d 1214, 1241 (4th Cir.1996), aff'd on other grounds, — U.S. -, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), The applicable statute provides that “[n]o petition for a writ of habeas corpus filed by a prisoner held under a sentence of death shall be considered unless it is filed within sixty days after.... denial by the United States Supreme Court of a petition for a writ of certiorari to the judgment of the Supreme Court of Virginia on direct appeal-” Va.Code § 8.01-654.1. This statute, which was relied on by the Supreme Court in- dismissing Weeks’ habeas petition, is clear and unambiguous. Accordingly, the Magistrate Judge correctly found that the Virginia Supreme Court’s dismissal of Weeks’ petition , as untimely was a state ground “adequate” to bar federal habeas review. Thus, all of petitioner’s claims , of ineffective assistance are defaulted, including Claims IX and XXXI. & Cause and Prejudice Weeks objects to the Magistrate Judge’s' conclusion that the performance of his state habeas counsel does not excuse the procedural default of his claims. Petitioner argues that he has a constitutional right to effective state post-conviction counsel for the purpose of presenting claims that, as a matter of law, could not have been raised on direct appeal. In Virginia, claims of ineffective assistance of trial counsel may only be presented on collateral review, and not on direct appeal. Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114, 124 n. 2(Va.), cert. denied, — U.S. -, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996). According to petitioner, it follows that ineffective assistance of state habeas counsel does constitute cause for failure to raise ineffective assistance of trial counsel claims. Ineffective assistance,of counsel may constitute “cause” for procedural default, under certain circumstances. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Attorney error will only constitute “cause” if, at the time of the error, petitioner had a constitutional right to the assistance of counsel. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The United States Supreme Court has established that, although there is a right to counsel on a first appeal as of right, there is no constitutional right to counsel on post-conviction collateral review. Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). However, the Supreme Court arguably, in Coleman, left open the possibility that there may be an exception to the rule of Giarratano and Finley, at least where state collateral review is the first place in which a prisoner can raise a particular claim. Coleman, 501 U.S. at 755, 111 S.Ct. 2546. The Supreme Court specifically declined to decide the question at that time. Id. If there is such a Coleman exception, a showing of ineffective assistance of counsel in state habeas could constitute cause for failure to raise Weeks’ ineffective assistance of trial counsel claims. However, the Fourth Circuit Court of Appeals has recently examined this very question, rejecting the argument advanced by Weeks. Mackall v. Angelone, 131 F.3d 442 (4th Cir.1997) (en banc), cert. denied, — U.S. -, 118 S.Ct. 907, 139 L.Ed.2d 922 (1998). The court explained that it was bound by the Supreme Court’s controlling holding in Finley until it was actually overruled by the Supreme Court, and not merely questioned by the Court. Id. at 449. Accordingly, the Fourth Circuit held that Mac-kall did not have a constitutional right to counsel in his state habeas proceeding, even if that proceeding was his first opportunity to raise particular claims. Id. Thus, Mackall could not show cause to excuse the procedural default of his claims that his trial and appellate counsel were ineffective. Id. Weeks makes the additional claim that, even if he had no Sixth Amendment right to counsel on state habeas, he had a due process right based on his state statutory right to counsel. However, for the reasons stated in the Report and Recommendation, Weeks has not shown that the due process clause was violated. Nor has he shown that such violation, if proven, would be equivalent to a violation of the Sixth Amendment Right to Counsel, such that it could constitute cause under Coleman, 501 U.S. at 752, 111 S.Ct. 2546 (holding that an error by counsel could constitute cause for defaulting a claim, but only if at the time of the error, petitioner had a constitutional right to the assistance of counsel). Pursuant to Mackall, Weeks had no constitutional right to counsel on state collateral review, even though he had no opportunity to present his ineffective assistance of counsel claims at an earlier point. Consequently, Weeks cannot demonstrate cause to excuse the procedural default of his ineffective assistance of counsel claims. S. Fundamental Miscarriage of Justice Petitioner objects to the Magistrate Judge’s conclusion that Weeks did not meet the standard to have his defaulted ineffective . assistance claims reviewed under the “miscarriage of justice” exception. For the following reasons, the Magistrate Judge did not err in finding that Weeks’ defaulted ineffective assistance claims could not be reviewed. Weeks does not claim that he is actually innocent of the murder of Trooper Cavazos, but only that he is “actually innocent” of the death penalty. In order to have any of his defaulted claims reviewed on the merits, Weeks is required to show by clear and convincing evidence that but for constitutional error, no reasonable juror would have found petitioner eligible for the death penalty. Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). In addition, a petitioner must focus “on those elements which render a defendant eligible for the death penalty, and not on additional mitigating evidence which was prevented from being introduced as a result of a claimed constitutional error.” Id. at 347, 112 S.Ct. 2514. Accordingly, Weeks must show that he was actually ineligible for the death penalty under Virginia law, so that barring the constitutional error, no reasonable juror would have sentenced him to death. Under Virginia law, a juror must find one of two aggravating factors for a defendant to be eligible for the death penalty: (1) that there is a reasonable possibility that the defendant would commit criminal acts of violence which would constitute a continuing serious threat to society (“future dangerousness”); or (2) the defendant’s conduct in committing the offenses was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind, or aggravated battery to the victim (“vileness”). Va. Code § 19.2-264.4(c). In Weeks’ case, the Commonwealth presented evidence on the second factor,- “vileness.” The state focused on proving depravity of the mind and/or aggravated battery. See R & R at 29-30 (for description of evidence presented to support presence of both factors). The jury found the presence of “vileness,” and subsequently imposed the penalty of death. The Virginia Supreme Court specifically found that both depravity of mind and aggravated battery were sufficiently established. Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379 (1994), cert. denied sub nom. Weeks v. Virginia, 516 U.S. 829, 116 S.Ct. 100, 133 L.Ed.2d 55 (1995). In order to have his ineffective assistance of counsel claims reviewed on the merits, Weeks must show that but for the ineffective assistance, no juror would have found the presence of the “vileness” aggravating factor. The Magistrate Judge was correct in noting that Weeks’ “petition glosses over his claims of ineffective assistance for the most part, raising the claims in the alternative to substantive claims, addressing them in a cursory fashion.”. R & R at 30. He never explains how the alleged ineffective assistance of counsel affected the finding of the presence of vileness, an aggravating factor. He certainly does not show by clear and convincing evidence that but for ineffective assistance of counsel, no jury would have found petitioner eligible for death. In his petition, where he does argue ineffective assistance of counsel, petitioner merely argues that a “reasonable probability exists.that, absent counsel’s deficient performance occasioned by the trial court’s error, the outcome at trial would have been different with respect to guilt and/or sentence.” This is a restatement of the prejudice prong of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, even if petitioner could meet the Strickland prejudice prong, that is not sufficient to meet the higher burden required to show actual innocence of the death penalty. Weeks, in his objections to the ■ R & R, argues that the Magistrate Judge erred because “it is ‘clear and convincing’ that no reasonable juror would have sentenced Mr. Weeks if it were not for the denial of defense expert assistance and the ineffectiveness of trial counsel forced to proceed without such assistance.” Petitioner’s Obj. to R & R at 15-16. There are a number of separate assumptions comprising petitioner’s argument. According to petitioner, the state’s entire aggravation case was built on the testimony of forensic and ballistic experts. “Thwarted by the court’s repeated refusal not only to provide forensic and ballistic expert assistance, but also to permit the trial defense counsel to request such assistance in an ex parte' hearing, Mr. Weeks’ trial defense counsel was ineffective because he was barred from obtaining and using essential members of the trial team.” Petitioner’s Obj. to R & R at 14-15. According to Weeks, this ineffective assistance of counsel affected the finding of the “vileness” aggravating factor because petitioner did not have the ability to challenge the Commonwealth’s experts or present evidence in support of the defense theory of the case. The court will assume for the sake of this discussion, as petitioner seems to, that the only evidence offered to show vileness came from the ballistic and forensic experts. The court will also assume that, if Weeks had been granted his motion for the appointment of expert assistance, no jury would have found him eligible for the death penalty. Assuming all of that to be true, Weeks would still not have made the showing that is required to have his ineffective assistance of counsel claims reviewed. The “actual innocence” doctrine is a gateway through which a petitioner may have specific defaulted constitutional claims reviewed. To have a defaulted constitutional claim reviewed, petitioners are required to link their new evidence to that defaulted claim, with a showing that it is the claimed error which prevented, the fact finder from adequately considering the evidence at trial. Spencer v. Murray, 18 F.3d 229, 236 (4th Cir.1994). This is because the actual innocence exception “is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The habeas court does not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the constitution. Id. at 400-01, 113 S.Ct. 853. The problem, in this case, is that the constitutional error, which petitioner is claiming should be reviewed, is not the alleged trial court error denying the motion for expert assistance. Instead, Weeks is arguing that his ineffective assistance of counsel claims should be reviewed. However, he never sufficiently explains precisely how his trial counsel was ineffective and how that ineffectiveness contributed to the finding of “vileness.” Petitioner essentially argues that, as result of the court’s denial of expert assistance, his counsel’s representation was rendered ineffective. See Petitioner’s Obj. to R & R at 14; Pet. for Writ at 42. However, he does not actually point to an error by defense counsel that may have affected the jury’s decision on vileness. Weeks does not point to anything done by counsel, which should not have been done, or anything counsel failed to do, which he should have done. An example of such error would be if counsel had failed to request the appointment of such assistance. In point of fact, Weeks’ counsel did move for the appointment of expert assistance in a timely manner. In addition, there is no evidence that counsel could have done anything differently to persuade the court to change its mind and appoint such assistance. The court finds that petitioner has made no colorable showing of an underlying constitutional error by counsel that is related to the jury finding of eligibility for the death penalty. Thus, petitioner has clearly not met the standard required to show that a miscarriage of justice will result if his defaulted ineffective assistance of claims are not reviewed. . . B. Claims Barred Under Supreme Court Rule 5:25 Petitioner objects to the Magistrate ' Judge’s finding that Weeks’ Claims IV and XXTV are proeedurally barred, and thus should be dismissed. The Supreme Court of Virginia had dismissed the claims on direct appeal under Supreme Court Rule 5:25. Rule 5:25 prohibits the consideration of errors which were not contemporaneously objected to at trial, and thus preserved for appeal. The Magistrate Judge held that Rule 5:25 constitutes an adequate and independent state bar, such that a federal court may not review these claims unless the petitioner can demonstrate “cause” and “prejudice” for his default. The Judge further found that petitioner could not demonstrate cause to excuse his default. Petitioner objects to the finding that Rule 5:25 constitutes an adequate and independent state bar. Specifically, Weeks argues that the Rule is not firmly established and regularly followed, as required to be an adequate and independent procedural bar to federal review. See Ford v. Georgia, 498 U.S. 411, 428, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984). Although the adequate and independent determination is a federal question, the conclusion that a state does not require a contemporaneous objection is a significant determination, and “should not be reached lightly or without clear support in state law.” Meadows v. Holland, 831 F.2d 493, 497 (4th Cir.1987) (en banc), vacated on other grounds, 489 U.S. 1049, 109 S.Ct. 1306, 103 L.Ed.2d 575 (1989).' According to the Fourth Circuit Court of Appeals, the effect would be to “substantially dimmish the concept of finality in the operation of the state criminal justice system.” Id. This court’s own careful de novo review of the decisions involving Virginia’s contemporaneous objection rule convinces this court that this procedural bar satisfies the requirement of consistent application. Consequently, the rule constitutes an “adequate and independent state ground” upon which federal review may be precluded. Accordingly, the court does hereby adopt and approve the findings and recommendation of the United States Magistrate Judge related to Rule 5:25. See R & R at 31-33 (for a detailed discussion of Rule 5:25 as a procedural bar to federal review). C. Claims Barred Due to Failure to Brief on Direct Appeal The Magistrate Judge held that Weeks’ Claims II, III, VI, VIII, XVII, XXI, and XXIII are proeedurally defaulted and should be dismissed. Petitioner objected to this recommendation, arguing that the claims were not defaulted, or in the alternative, that the default is excused because the state court deprived him of the ability to present the claims. Weeks initially filed a ninety page brief assigning forty-seven errors in his appeal. In addition, Weeks filed a motion for leave to file an oversized brief because of the Rule limiting the page length of briefs to fifty pages. Supreme Court Rule 5:26. The Supreme Court denied Weeks’ motion, and ordered him to file a second, conforming, fifty-page brief. In so doing, petitioner claims he was forced to eliminate all argument in support of a number of claims. Consequently, the Supreme Court of Virginia dismissed ten alleged errors, including the current Claims II, III, VI, VIII, XVII, XXI, and XXIII, for failure to brief. The Supreme Court clearly expressed that it was dismissing these claims for failure to brief or argue the errors, a state procedural ground. Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379, 383 (1994) (citing Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360, 364 (1992)). Failure to brief is an adequate and independent state ground for dismissing claims. As asserted by the Magistrate Judge, “[i]t would be completely unreasonable to expect a court to decide ‘on the merits’ a claim that was not briefed or argued. Thus, the only option for the [Virginia Supreme] Court in this case, faced with petitioner’s unsupported and conclusory claims, was to dismiss those claims on procedural grounds.” R & R at 38. Furthermore, petitioner offers no argument that the rule is not regularly or consistently applied, such that it may not be considered an adequate state ground. In petitioner’s supplemental authority for his objections, filed on November 13, 1997, Weeks points to an Eighth Circuit case to support an argument that the claims were not defaulted. However, Clemmons v. Delo, 124 F.3d 944 (8th Cir.1997), is clearly distinguishable from this case. In Clemmons, the Missouri Supreme Court had refused to consider a particular claim on the merits. There the claim had been included in a pro se supplemental brief, which the state court had refused to consider. The Eighth Circuit held that the claim had been fairly presented to the state court; in other words, that there was no procedural default. Id. at 948-49. This decision was based on the court’s finding that there was no regularly applied state procedural rule, such that it was an adequate ground supporting a procedural bar. Id. at 948 n. 3. According to the court, the Missouri Supreme Court sometimes allows pro se briefs, and sometimes does not, with no regularly applied criteria. Id. As explained above, the Virginia Supreme Court’s rule of refusing to consider claims that have not been briefed is regularly applied. As such, it is an adequate and independent state ground barring review. Petitioner argues, however, that the claims dismissed by the Supreme Court were not adequately briefed because of the imposition of the fifty-page limit. According to petitioner, this page limitation constitutes cause sufficient to excuse his procedural default. The existence of cause for procedural default must ordinarily turn on whether petitioner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). In this case, though, the actual cause of counsel’s failure to properly brief particular claims was not the fifty-page limit, but was the strategic choice made by counsel to focus on particular claims. However, it does appear that in this case the page limitation actually precipitated defense counsel’s decision to make this strategic choice. ' However, this page limitation is not unreasonable. Nor is the resulting consequence that appellate counsel must make choices as to which claims to press problematic. As the Supreme Court has noted, There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts—often to as little as 15 minutes—and when page limits on briefs are widely imposed.... A brief that raises every colorable issue runs the risk of burying good arguments—those that, in the words of the great advocate John W. Davis, ‘go for the jugular,’—in a verbal mound made up of strong and weak contentions. Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In addition, it would make no sense if a rule, which is itself a reasonable and consistently applied state procedural rule, could constitute cause for failing to comply with another rule. All procedural rules, whether working alone or in conjunction with others, impose restrictions on litigants. It is entirely reasonable for a state to expect a litigant to comply with all of its procedural rules, as long as all of the rules are themselves reasonable and are not arbitrarily imposed. For the above reasons and the reasons stated in the R & R, this court does hereby adopt and approve the United States Magistrate Judge’s findings and recommendation that Claims II, III, VI, VIII, XVII, XXI, and XXIII are procedurally defaulted and should be dismissed. See R & R at 33-34. D. Claim Barred Due to Improper Briefing on Direct Appeal The Magistrate Judge held that Weeks’ Claim XXXIII is procedurally defaulted and should be dismissed. Petitioner objected to this recommendation, arguing that the procedural bar was not adequate or in the alternative, that the default is excused because the state court deprived him of the ability to present the claims. The Supreme Court of Virginia refused to consider Claim XXXIII on direct appeal because Weeks had impermissibly incorporated by reference a memorandum filed on the subject in the trial court. Weeks v. Commonwealth, 248 Va. 460, 450 S.E.2d 379, 388 (1994) (citing Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360, 370 (1992), for the proposition that the defendant has an obligation to state clearly to an appellate court the grounds for asserting that the trial court’s ruling is erroneous, and that cross-reference to arguments presented at trial is insufficient). The Jenkins rule is , an adequate and independent ground for dismissing claims. It is a reasonable procedural rule and there is no indication that it is arbitrarily or inconsistently applied. As such, unless Weeks can demonstrate cause and prejudice for the procedural default, the claim may not be reviewed on the merits by this court. The only cause expressed by petitioner is the briefing limitation of fifty pages. As discussed above, this limitation does not constitute cause for Weeks’ procedural defaults on appeal. See supra part II.C. Accordingly, the court does hereby adopt and approve the United States Magistrate Judge’s findings and recommendation that Claim XXXlII is procedurally defaulted and should be dismissed. See R & R at 39-40. E. Claims Barred Due to Failure to Raise on Direct Appeal Petitioner objects to the Magistrate Judge’s finding that- Weeks failed to raise Claims XXX and XXXII- in the state courts, such that these claims are now procedurally barred from review. After a de novo review of the record, the court agrees with the Magistrate Judge that Claims XXX and XXXII were never raised in state court. These claims would clearly be procedurally barred if Weeks attempted to bring them before a state court at this time. Furthermore, the alleged ineffective assistance of state habeas counsel does not excuse petitioner’s default of either claim, for the reasons stated previously. See supra part II. A.2. Accordingly, the court does hereby adopt and approve the United States Magistrate Judge’s findings and recommendations that Claims XXX and XXXII are procedurally defaulted and thus may not be reviewed on their merits. See R & R at 40-42. F. Conclusion For the above reasons, the following Claims are considered procedurally defaulted, and will not be reviewed by this court on their merits: II, III, IV, VI, VIII, IX, XVII, XXI, XXIII, XXIV, XXX, XXXI, XXXII, XXXIII. In addition, all of Weeks’ ineffective assistance of counsel claims are procedurally defaulted and will not be reviewed. III. Standard of Review A. Motion for Summary Judgment Petitioner objects to the Magistrate Judge’s statement of the standard governing a motion for summary judgment on the ground that it is incomplete. First, petitioner points out that the Magistrate Judge failed to mention that respondent has an initial burden in a motion for summary judgment. Accordingly, this court notes that the party seeking a summary judgment does bear the initial responsibility of informing the district court of the basis for its motion, and of identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2648, 91 L.Ed.2d 265 (1986). It is at that point that the opposing party must come forward and make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. 2548. This is the legal standard being applied herein by this court. Second, petitioner points out that a summary judgment is inappropriate where a party has been denied discovery or other opportunity to develop material facts. Petitioner maintains that he has been denied an opportunity to develop material facts, by the Magistrate Judge’s denial of expert assistance. According to Weeks, the assistance of a ballistics expert and forensic pathologist is necessary for him to support Claim I of his petition, in which he argues that the trial court’s refusal to provide expert assistance violated his rights under the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. On December 24, 1996, petitioner filed his motion and brief in support of the motion for authorization to obtain expert assistance. The Magistrate Judge denied the request on January 23, 1997. On February 5, 1997, petitioner filed objections to the Magistrate Judge’s Opinion and Order. However, Weeks’ petition for a writ of habeas corpus was filed on February 7, 1997, and his objection to the Magistrate Judge’s decision on the request for experts was never ruled on by this court. Consequently, this court will now review the Magistrate Judge’s Opinion and Order, along with petitioner’s objection. Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court may “designate a magistrate to hear and determine any pretrial matter pending before the court.” Following the magistrate’s ruling, a “judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” Id.; see also Fed.R.Civ.P. 72(a). The decision of whether to appoint experts is a pretrial matter, and thus will be reviewed under the clearly erroneous standard. Petitioner contends that the Magistrate Judge applied the incorrect standard in deciding his request for expert assistance pursuant to 21 U.S.C. § 848(q)(9). He further maintains that the denial of the ballistics expert and forensic expert was clearly erroneous under the correct standard. This court finds that the Magistrate Judge did utilize an incorrect standard in determining the request. However, this court upholds the ultimate decision denying expert assistance, albeit for different reasons. Petitioner’s motion is for the appointment of a forensic pathologist and ballistics expert to assist him in the preparation of his petition for a writ of habeas corpus. Specifically, he seeks the assistance of experts to prepare his claim that his defense was prejudiced by the trial court’s refusal to appoint such experts. He maintains that such experts were necessary for him to adequately present a defense on the issues of premeditation and vileness. The motion for experts was pursuant to 21 U.S.C. § 848(q)(9), which states: Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant’s attorneys to obtain such services on behalf of the defendant, and if so authorized, shall order the payment of fees and expenses therefor under paragraph (10). 21 U.S.C. § 848(q)(9). Thus the question essentially reduces to whether the appointment of ballistic and forensic experts were reasonably necessary to Weeks in presenting his petition for § 2254 relief. The statute does not define reasonably necessary. However, courts have held that expert assistance is not reasonably necessary where an eviden-tiary hearing at which the testimony could be presented will not be held. See Lawson v. Dixon, 3 F.3d 743, 753 (4th Cir.1993); see also Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.) (experts not reasonably necessary where such testimony would be procedurally barred), cert. denied, — U.S. -, 118 S.Ct. 399, 139 L.Ed.2d 312 (1997); Cardwell v. Netherlands 971 F.Supp. 997, 1007 (E.D.Va.1997) (experts not reasonably necessary if evaluations cannot be introduced); Burris v. Parke, 948 F.Supp. 1310, 1327 (N.D.Ind.1996) (experts not reasonably necessary where evidence cannot be introduced because.petitioner is not entitled to an evidentiary hearing), aff'd, 116 F.3d 256 (7th Cir.1997). Accordingly, if petitioner’s claim, for which he requests the expert assistance, cannot be reviewed on the merits, or if he would not be able to win on the merits regardless of the expert’s finding, the appointments are not necessary for the petition. The Magistrate Judge concluded that experts were not reasonably necessary because even if the requested experts fulfilled Week’s expectations, he could not show prejudice. However, in determining that petitioner could not show that the trial court’s denial of experts prejudiced him, the Magistrate Judge erroneously relied upon the Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, the Supreme Court held that the habeas court, viewing the evidence in the light most favorable to the prosecution, must ascertain. whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. at 318-19, 99 S.Ct. 2781. The Magistrate Judge, in applying that standard to this case, held that “[i]f a rational juror could still reasonably decide to impose the death sentence in the face of this new evidence, then the experts would make no practical difference to Weeks’ habeas petition and hence cannot be reasonably necessary.” Opinion and Order at 9 (January 23,1997). The Magistrate Judge proceeded to examine the evidence introduced at trial in light of the “vileness” prong of the Virginia death penalty statute. He then held that if Weeks’ experts had testified at trial as Weeks hoped they would, “that additional evidence would not entitle Weeks to a ruling that no rational juror could find ‘depravity of mind and/or aggravated battery.’ ” Opinion and Order at 16 (January 23, 1997). Consequently, the court found that the requested forensic pathologist and ballistics expert were not “reasonably necessary” under § 848(q)(9). However, Jackson announced the standard of review for a federal habeas court determining, on the merits, whether sufficient evidence exists to support a state court conviction. Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. The Jackson standard would be relevant if Weeks wanted the experts to help prove a claim that there was insufficient evidence to support a conviction. His claim, for which he seeks assistance, though, is not that there was insufficient evidence to convict him, or even that there was insufficient evidence to sentence him to the death penalty. His underlying claim is that the trial judge violated his due process rights when he denied him expert assistance at trial. Petitioner can prevail on such a ha-beas claim if he can show that the state’s decision was contrary to clearly established federal law, pursuant to § 2254(d), and that the error was not harmless. In showing that the trial error was not harmless, i.e., that he was prejudiced, the Jackson standard is not the relevant standard. The Supreme court has directed federal courts on collateral review to apply the standard set forth in Kot~ teakos to trial errors. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Thus federal courts must determine whether the trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The Fourth Circuit Court of Appeals has held that the Brecht harmless-error standard applies to a trial court’s refusal to grant expert psychiatric assistance. Tuggle v. Netherlands 79 F.3d 1386 (4th Cir.), cert. denied, — U.S. -, 117 S.Ct. 237, 136 L.Ed.2d 166 (1996). Accordingly, the Magistrate Judge, in deciding whether the trial court’s decision prejudiced Week’s, should have asked whether the denial of experts had a substantial and injurious effect or influence on the jury’s sentencing decision. If it is clear that the denial did not have such a prejudicial affect, regardless of what the experts could offer and regardless of whether the denial was an error, Weeks would not be able to prevail on the merits of his claim. And consequently, the expert assistance would not be “reasonably necessary.” Although the Magistrate Judge incorrectly analyzed the request for expert assistance, Weeks nevertheless'is not entitled to the requested assistance. Furthermore, this court need not determine whether the trial court’s decision was harmless, under even the Brecht standard. This court cannot grant Weeks’ petition for a writ of habeas corpus, based on the state’s denial of expert assistance, because it is clear that the state’s decision was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Because petitioner cannot prevail on this claim, the requested expert assistance is not “reasonably necessary” for this proceeding. The Fourth Circuit has recognized that an indigent defendant has a right to the assistance of an expert, if “a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance.” Williams v. Martin, 618 F.2d 1021, 1026 (4th Cir.1980) (quoting Jacobs v. United States, 350 F.2d 571, 573 (4th Cir.1965)). However, the United States Supreme Court has not directly held that there is a federal constitutional right to non-psychiatric experts. In Ake, the Supreme Court case relied on by petitioner, the Court held that the state must provide an indigent defendant with a competent psychiatrist, provided the “defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Although there was some broad language in Ake, which could potentially be applied to a variety of circumstances, the precise holding was limited to the facts of that ease. That case only involved a request for psychiatric expert assistance. Id. The Fourth Circuit recently refused to examine a habeas claim, which was similar to Week’s request for experts, under the “new rule” doctrine. Gray v. Thompson, 58 F.3d 59 (4th Cir.1995), vacated on other grounds, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In that ease, the petitioner maintained that the state court’s refusal to appoint a private investigator for the defense contravened due process. Id. at 66. The Fourth Circuit stated that the “Supreme Court has flatly declined to address the question whether, ‘a