PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 17-5
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`UNITED STATES OF AMERICA,
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`DAVID ANTHONY RUNYON,
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`Plaintiff - Appellee,
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`v.
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`Defendant - Appellant.
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`Appeal from the United States District Court for the Eastern District of Virginia at Newport
`News. Rebecca Beach Smith, Senior District Judge. (4:08-cr-00016-RBS-DEM-3)
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`Argued: September 10, 2020
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`Decided: December 23, 2020
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`Before GREGORY, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges.
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`Affirmed in part, vacated in part, and remanded with instructions by published opinion.
`Judge Niemeyer wrote the opinion, in which Chief Judge Gregory joined except as to
`Parts II, IV, and V and Judge Wilkinson joined except as to Part III. Chief Judge Gregory
`wrote a separate opinion concurring in part and dissenting in part. Judge Wilkinson wrote
`a separate opinion concurring in part and dissenting in part.
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`ARGUED: Helen Susanne Bales, FEDERAL DEFENDER SERVICES OF EASTERN
`TENNESSEE, Knoxville, Tennessee, for Appellant. Brian James Samuels, OFFICE OF
`THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. ON
`BRIEF: Michele J. Brace, VA CAPITAL REPRESENTATION RESOURCE CENTER,
`Charlottesville, Virginia; Dana C. Hanson Chavis, FEDERAL DEFENDER SERVICES
`OF EASTERN TENNESSEE, Knoxville, Tennessee, for Appellant. G. Zachary
`Terwilliger, United States Attorney, Alexandria, Virginia, Lisa R. McKeel, OFFICE OF
`THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.
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`NIEMEYER, Circuit Judge, with whom Chief Judge GREGORY joined except as to
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`Parts II, IV, and V and Judge WILKINSON joined except as to Part III:
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`David Runyon shot and killed Cory Allen Voss in late April 2007 in Newport News,
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`Virginia, pursuant to a murder-for-hire conspiracy that he entered into with Voss’s wife,
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`Catherina Voss, and her paramour, Michael Draven. A jury convicted Runyon of
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`conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958(a); carjacking
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`resulting in death, in violation of 18 U.S.C. § 2119; and murder with the use of a firearm
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`in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1), (j)(1), and
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`recommended that Runyon be sentenced to death. The district court accordingly entered
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`judgment on December 4, 2009, sentencing Runyon to death. On appeal we affirmed.
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`United States v. Runyon, 707 F.3d 475 (4th Cir. 2013), cert. denied, 135 S. Ct. 46 (2014).
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`Runyon has now filed this motion under 28 U.S.C. § 2255 to vacate or correct his
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`sentence, asserting 18 grounds for relief. The district court denied his motion by order
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`dated January 19, 2017, and denied a certificate of appealability. By order dated August
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`14, 2019, we granted a certificate of appealability as to four issues: (1) whether Runyon’s
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`§ 924 conviction is invalid because the offense was not committed during and in relation
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`to a “crime of violence”; (2) whether trial counsel provided ineffective assistance by failing
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`to investigate and present mitigating evidence of Runyon’s brain injury and potential
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`mental illness; (3) whether the government violated Brady v. Maryland, 373 U.S. 83
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`(1963), in failing to disclose the codefendant’s history of sexual assault or whether, in the
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`alternative, trial counsel’s failure to investigate that history and present it to the jury
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`constituted ineffective assistance of counsel; and (4) whether the government exercised its
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`peremptory jury strikes in a discriminatory manner, in violation of Batson v. Kentucky, 476
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`U.S. 79 (1986), or whether counsel unreasonably failed to challenge the government’s
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`strikes at trial or on direct review.
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`For the reasons that follow, we vacate the district court’s ruling dismissing
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`Runyon’s claim that his counsel was constitutionally ineffective in failing to investigate
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`mitigating evidence of brain injury and potential mental illness and remand that claim for
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`an evidentiary hearing. Otherwise, we affirm.
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`I
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`The murder in this case was highly planned. Briefly, the facts, which are set out in
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`more detail in our earlier opinion, 707 F.3d at 484–86, show that Catherina Voss
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`(“Catherina”), the wife of Cory Voss (“Voss”), a U.S. Navy officer, had been engaged in
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`an extramarital affair with Michael Draven. Catherina and Draven decided to murder Voss
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`in the hope of gaining Voss’s Navy death benefits and life-insurance proceeds. To carry
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`out the murder, Draven hired David Runyon, whom Draven had met as a co-participant in
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`a drug-research study.
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`Shortly before the crime, Catherina opened an account at a branch of a local bank
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`in Newport News with a five-dollar deposit. Thereafter, on the night of the murder,
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`Catherina sent Voss to the bank’s ATM to withdraw cash. Video surveillance of the scene
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`showed that while Voss stood at the ATM, an unidentified man — later found to be Runyon
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`— entered Voss’s pickup truck. Voss then drove away from the ATM but returned a few
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`minutes later and attempted another withdrawal, which was denied due to insufficient
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`funds. The next morning, Voss was found dead in his truck in a parking lot near the bank,
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`having been shot five times at close range. Compelling evidence connected the bullets
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`used in the murder to Runyon.
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`Runyon, Catherina, and Draven were ultimately arrested and charged for the murder
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`of Voss and related offenses. Catherina pleaded guilty to all counts and was sentenced to
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`life imprisonment. Runyon and Draven proceeded to trial, with the government seeking
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`the death penalty against Runyon. The jury returned a verdict, finding both Runyon and
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`Draven guilty of conspiracy to commit murder for hire, carjacking, and murder with the
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`use of a firearm in relation to a crime of violence. Draven was sentenced to life
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`imprisonment, while the trial continued against Runyon pursuant to the Federal Death
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`Penalty Act, 18 U.S.C. §§ 3591–98.
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`In proceedings under the Death Penalty Act, the jury next found Runyon eligible for
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`the death penalty after finding that he intentionally killed Voss and finding two statutory
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`aggravating factors — that Runyon had committed the crime for pecuniary gain and that
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`he committed the crime after substantial planning.
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`Before the next phase of trial, in which the jury was required to select the penalty,
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`the government gave notice of four non-statutory aggravating factors for the jury to
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`consider — in addition to the statutory factors that the jury had already found. The non-
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`statutory aggravating factors were a lack of remorse; injury and loss to Voss and his family
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`and friends; a history of physical abuse toward women; and use of law enforcement and
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`military training to perpetrate the murder. The military-training aggravator was based in
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`part on Runyon’s service as an officer in the Kansas National Guard and as an enlisted
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`member of the United States Army. The jury unanimously found each of the government’s
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`proposed aggravating factors. It also unanimously found that Runyon had established 7 of
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`his proposed 14 mitigators, including the mitigator that “[o]ther persons equally culpable
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`in the crime will not be punished by death.” In addition, the jury unanimously found two
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`non-statutory mitigators that Runyon had not proposed — that Runyon experienced
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`domestic violence as a child and that his brother would suffer emotional harm if Runyon
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`were executed. Ten or eleven jurors found three additional proposed mitigators, and eleven
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`jurors agreed that Runyon had established a mitigator that he had not proposed — that
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`Runyon was given the impression that Voss was molesting his own daughter. After making
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`its findings on the aggravating and mitigating factors, the jury unanimously recommended
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`the death sentence on two counts — conspiracy to commit murder for hire and murder in
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`connection with the use of a firearm in relation to a crime of violence — and it
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`recommended life imprisonment on the carjacking count. The district court imposed the
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`recommended sentences, entering judgment on December 4, 2009.
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`In his motion under § 2255 seeking collateral review, Runyon advanced 18 claims.
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`He sought discovery for several of the claims, as well as an evidentiary hearing. In a
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`thorough 246-page opinion and order, the district court denied Runyon’s request for
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`discovery and an evidentiary hearing and dismissed the § 2255 motion. It also denied a
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`certificate of appealability. Runyon v. United States, 228 F. Supp. 3d 569 (E.D. Va. 2017).
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`By order dated August 14, 2019, we granted a certificate of appealability on the four
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`issues now before us. See 28 U.S.C. § 2253.
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`II
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`With respect to the first issue certified for appeal, Runyon contends that his
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`conviction for violating 18 U.S.C. § 924(c)(1), (j)(1) is invalid because the predicate crimes
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`relied on for conviction — conspiracy to commit murder for hire under § 1958(a) and
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`carjacking under § 2119 — do not qualify as “crime[s] of violence,” as defined by
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`§ 924(c)(3). The relevant portions of § 924 provide that “any person, who, during and in
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`relation to any crime of violence” “causes the death of a person through the use of a firearm,
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`shall — if the killing is a murder . . . be punished by death or by imprisonment.” 18 U.S.C.
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`§ 924(c)(1), (j)(1). And “crime of violence” is defined in § 924(c)(3)’s “force clause”* as
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`any felony that “has as an element the use, attempted use, or threatened use of physical
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`force against the person or property of another.” Id. § 924(c)(3)(A).
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`Runyon argues that neither conspiracy to commit murder for hire nor carjacking is
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`a crime of violence because neither crime necessarily requires for conviction the “use of
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`physical force.” With respect to the conspiracy predicate, he argues that the crime “requires
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`merely an agreement to act, which cannot qualify as physical force.” And insofar as the
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`crime might involve physical force, he contends that it lacks the requisite mens rea inherent
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`in the “use” of physical force. Similarly, with respect to carjacking, he argues that the
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`* The definition of “crime of violence” also includes a “residual clause,” which
`defines “crime of violence” as any felony that “by its nature, involves a substantial risk that
`physical force against the person or property of another may be used in the course of
`committing the offense.” 18 U.S.C. § 924(c)(3)(B). Because the Supreme Court recently
`held that § 924(c)(3)(B)’s residual clause is unconstitutionally vague, see United States v.
`Davis, 139 S. Ct. 2319, 2323–24 (2019), the government no longer relies on that clause to
`argue that conspiracy to commit murder for hire and carjacking are crimes of violence.
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`crime “can be accomplished without strong physical force. It may be accomplished with
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`intimidation.” Moreover, he asserts that, because the jury did not indicate which predicate
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`it relied on to return its conviction on § 924(c)(1), (j)(1), the government must show that
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`both predicates constitute crimes of violence.
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`The government does indeed contend that both conspiracy to commit murder for
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`hire and carjacking are crimes of violence. While it acknowledges that conspiracy
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`generally does not serve as a valid predicate under the force clause — see, e.g., United
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`States v. Simms, 914 F.3d 229, 234 (4th Cir. 2019) (en banc) (concluding that conspiracy
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`to commit Hobbs Act robbery is not a force-clause crime under § 924(c)(3)(A)); United
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`States v. McCollum, 885 F.3d 300, 309 (4th Cir. 2018) (holding that conspiracy to commit
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`murder in aid of racketeering is not categorically a crime of violence) — it argues that the
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`elements of the conspiracy offense here are different in that “it is not possible for a
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`conspiracy with the object of committing murder for hire to result in death without the use
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`or threatened use of force.” And with respect to carjacking, the government notes that this
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`court has already concluded that carjacking in violation of 18 U.S.C. § 2119 is a crime of
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`violence. See United States v. Evans, 848 F.3d 242, 247–48 (4th Cir. 2017).
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`Accordingly, we are presented with the two distinct questions of whether conspiracy
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`to commit murder for hire under § 1958(a) and carjacking under § 2119 are “crimes of
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`violence,” as defined by 18 U.S.C. § 924(c)(3).
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`Because § 924(c)(3) requires us to focus on the elements of the offense — defining
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`“crime of violence” as a felony that has “as an element” the use of force (emphasis added)
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`— we apply the categorical approach. See Davis, 139 S. Ct. at 2327–28. Under the
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`categorical approach, we consider only the statutory definition of the offense by its
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`elements and the fact of conviction, without considering the actual facts supporting
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`conviction. See Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Bell,
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`901 F.3d 455, 468–69 (4th Cir. 2018); United States v. McNeal, 818 F.3d 141, 152 (4th
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`Cir. 2016). And when looking at the elements of the offense, we must determine whether
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`“there is a realistic probability — not merely a theoretical possibility — that the minimum
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`conduct necessary for conviction . . . involves the use of physical force as defined by
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`federal law.” United States v. Rumley, 952 F.3d 538, 548 (4th Cir. 2020) (emphasis added);
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`see also United States v. Allred, 942 F.3d 641, 648 (4th Cir. 2019) (similar).
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`Federal law defines physical force to mean “violent force — that is, force capable
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`of causing physical pain or injury to another person.” Curtis Johnson v. United States, 559
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`U.S. 133, 140 (2010); see also Stokeling v. United States, 139 S. Ct. 544, 553 (2019)
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`(same); Allred, 942 F.3d at 652 (same). And that, of course, includes causing death to
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`another person. See, e.g., United States v. Irby, 858 F.3d 231, 236 (4th Cir. 2017)
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`(observing that “it is hard to imagine conduct that can cause another to die that does not
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`involve physical force against the body of the person killed” (cleaned up)). But not every
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`act that causes bodily injury or death amounts to the use of physical force as required by
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`§ 924(c)(3)’s force clause. That is because the term “use” targets action, implying a
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`deliberate or perhaps reckless mens rea, and bodily injury or death “can result from
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`negligent or even accidental acts.” Rumley, 952 F.3d at 549. “[T]hose acts, even if
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`criminal, would not constitute” crimes of violence, as they do not involve a “use” of
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`physical force. Id. (emphasis added). Thus the phrase “use of physical force” in the force
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`clause requires “a higher degree of intent than negligent or merely accidental conduct.”
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`Leocal v. Ashcroft, 543 U.S. 1, 9 (2004); see also Allred, 942 F.3d at 652 (“[A]n offense
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`will not have as an element the ‘use’ of force sufficient to qualify as a violent felony if it
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`does not have the requisite level of mens rea”). By contrast, “the knowing or intentional
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`causation of bodily injury necessarily involves the use of physical force.” United States v.
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`Castleman, 572 U.S. 157, 169 (2014) (emphasis added); see also United States v. Battle,
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`927 F.3d 160, 166 (4th Cir. 2019).
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`Finally, when an offense includes alternative elements for conviction, it becomes
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`divisible, and courts may then use a “modified categorical approach” to determine “which
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`element played a part in the defendant’s conviction.” Descamps v. United States, 570 U.S.
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`254, 260 (2013). Under this approach, the court may look to the terms of the relevant
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`charging document, jury instructions, plea agreement, plea colloquy, and the like. See
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`Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); Shepard v. United States, 544 U.S.
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`13, 26 (2005); Allred, 942 F.3d at 648 (noting that under the modified categorical approach,
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`we “consult a limited set of record documents . . . for the sole purpose of determining ‘what
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`crime, with what elements, a defendant was convicted of’” (quoting Mathis, 136 S. Ct. at
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`2249)). “[O]nce the court has [under the modified categorical approach] consulted the
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`record and isolated the specific crime underlying the defendant’s conviction, it must then
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`apply the categorical approach to determine if it constitutes a [crime of violence],”
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`considering only the elements of the identified crime and the fact of conviction. Allred,
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`942 F.3d at 648.
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`In this case, the jury was not asked to indicate in its verdict form whether it was
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`relying on conspiracy to commit murder for hire or carjacking in finding Runyon guilty
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`under § 924(c)(1), (j)(1). Accordingly, we must assume that Runyon could have been
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`convicted by the jury’s reliance on either predicate offense, requiring us to determine
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`whether each predicate offense qualifies as a crime of violence. See Curtis Johnson, 559
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`U.S. at 137; United States v. Vann, 660 F.3d 771, 774–75 (4th Cir. 2011) (en banc) (per
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`curiam). And if one predicate offense does not qualify, we would be required to vacate the
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`conviction.
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`We consider first, as our discussion need only be brief, whether carjacking under
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`§ 2119 is a crime of violence under § 924(c)(3)’s force clause. We recently held that a
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`conviction under § 2119 is categorically a conviction for a crime of violence, and that
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`holding controls here. See Evans, 848 F.3d at 245. And while Runyon invites us to
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`overrule Evans, in this circuit it is established that “one panel cannot overrule another.”
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`McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004). Thus, Runyon’s carjacking
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`offense qualifies as a crime of violence that can support a conviction under § 924(c)(1),
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`(j)(1).
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`Whether conspiracy to commit murder for hire in violation of § 1958(a) is a crime
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`of violence merits a fuller discussion. This inquiry requires us to consider the elements of
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`the offense and whether a conviction under those elements necessarily requires the “use”
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`of physical force within the meaning of the force clause.
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`Section 1958(a) provides that:
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`Whoever travels in or causes another (including the intended victim) to travel
`in interstate or foreign commerce, or uses or causes another (including the
`intended victim) to use the mail or any facility of interstate or foreign
`commerce,
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`with intent that a murder be committed in violation of the laws of any State
`or the United States as consideration for the receipt of, or as consideration
`for a promise or agreement to pay, anything of pecuniary value,
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`or who conspires to do so,
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`shall be fined under this title or imprisoned for not more than ten years, or
`both;
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`and if personal injury results, shall be fined under this title or imprisoned for
`not more than twenty years, or both;
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`and if death results, shall be punished by death or life imprisonment, or shall
`be fined not more than $250,000, or both.
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`18 U.S.C. § 1958(a) (emphasis added) (spaces between clauses added).
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`Because § 1958(a) imposes distinct enhanced penalties in circumstances where
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`“personal injury results” or where “death results,” those are alternative elements for
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`conviction that must be proven to the jury beyond a reasonable doubt under Apprendi v.
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`New Jersey, 530 U.S. 466 (2000). See Mathis, 136 S. Ct. at 2256 (“If statutory alternatives
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`carry different punishments, then under Apprendi they must be elements”); see also
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`Burrage v. United States, 571 U.S. 204, 210 (2014) (“Because the ‘death results’
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`enhancement increased the minimum and maximum sentences to which [the defendant]
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`was exposed, it is an element that must be submitted to the jury and found beyond a
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`reasonable doubt”). Similarly, the “conspiracy” clause requires a jury to find the
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`alternative additional element that the defendant entered into an agreement that the
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`underlying offense be committed. See Ocasio v. United States, 136 S. Ct. 1423, 1429
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`(2016); cf. Simms, 914 F.3d at 233–34 (treating conspiracy to commit Hobbs Act robbery
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`as a distinct offense from Hobbs Act robbery and holding that it requires the government
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`to “prove . . . that the defendant agreed with another to commit actions that, if realized,
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`would violate the Hobbs Act”). As a consequence, the multiple alternative elements of
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`§ 1958(a) define six distinct possible crimes: (1) using facilities of commerce with the
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`intent that a murder be committed for hire; (2) conspiracy to use facilities of commerce
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`with the intent that a murder be committed for hire; (3) using facilities of commerce with
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`the intent that a murder be committed for hire where personal injury results; (4) conspiracy
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`to use facilities of commerce with the intent that a murder be committed for hire where
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`personal injury results; (5) using facilities of commerce with the intent that a murder be
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`committed for hire where death results; and (6) conspiracy to use facilities of commerce
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`with the intent that a murder be committed for hire where death results. In these
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`circumstances, the modified categorical approach is necessary to determine the crime for
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`which Runyon was convicted and which was identified as a crime of violence for his
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`conviction under § 924(c)(1), (j)(1).
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`Thus, as allowed by the modified categorical approach, we review the indictment
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`on which Runyon was convicted and the jury instructions leading up to the conviction to
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`determine the actual crime for which Runyon was convicted. Count V of the indictment
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`charged that Runyon “did knowingly carry and use a firearm during and in relation to a
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`crime of violence [referring, among other things, to the crime charged in Count I] in
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`violation of Title 18, United States Code, Section 924(c)(1), and in the course of this
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`violation caused the death of a person through the use of a firearm, which killing was a
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`murder . . . in that the defendants, with malice aforethought, did unlawfully kill Cory Allen
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`Voss by shooting him with a firearm,” in violation of § 924(j). And Count I charged that
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`Runyon “did unlawfully, knowingly and intentionally conspire . . . to travel in and cause
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`another to travel in interstate commerce . . . with intent that a murder be committed . . . as
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`consideration for the receipt of, and as consideration for a promise and agreement to pay,
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`something of pecuniary value, resulting in the death of Cory Allen Voss,” in violation of
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`§ 1958(a). The jury instructions likewise stated that finding guilt on Count I required the
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`government to prove that Runyon engaged in a conspiracy to commit murder for hire
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`resulting in Voss’s death. The jury found Runyon guilty on both Counts I and V. Thus, in
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`finding Runyon guilty of Count I, the jury necessarily found Runyon guilty of the offense
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`of conspiracy to use facilities of commerce with the intent that a murder be committed for
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`hire where death results, in violation of § 1958(a). This conclusion still leaves us with the
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`question whether that particular crime categorically qualifies as a crime of violence under
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`§ 924(c)(3)’s force clause.
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`We conclude that it does. While conspiracy alone does not necessarily implicate
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`the use of force, see, e.g., Simms, 914 F.3d at 234, conspiracy in the context of the § 1958
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`offense at issue is different because it has heightened mens rea elements, as well as the
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`element that “death results.” As already noted, an act that results in death obviously
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`requires “physical force.” See Irby, 858 F.3d at 236. And the death resulting from a
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`conspiracy to commit murder for hire has the “requisite mens rea” to constitute a use of
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`physical force. Battle, 927 F.3d at 166. The conspiracy here has two heightened mens rea
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`elements: (1) the intent to join the conspiracy, see Ocasio, 136 S. Ct. at 1429, and (2) the
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`specific intent that a murder be committed for hire, 18 U.S.C. § 1958(a). While these mens
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`rea elements are not explicitly tied to the resulting-in-death element, in any realistic case,
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`they must nonetheless carry forward to the resulting-in-death element. There is no
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`“realistic probability” of the government prosecuting a defendant for entering into a
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`conspiracy with the specific intent that a murder be committed for hire and for a death
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`resulting from that conspiracy while that death was somehow only accidentally or
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`negligently caused. Allred, 942 F.3d at 648. This means that a conspiracy to commit
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`murder for hire where death results necessarily involves the “use of physical force.”
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`Runyon nonetheless argues that the death-results strain of § 1958(a) is not a crime
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`of violence because, in United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012), we
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`stated that “a crime may result in death or serious injury without involving the use of
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`physical force.” Id. at 168. But “[t]his part of Torres-Miguel dealt with the requirement
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`that a crime include a heightened mens rea in order to involve the ‘use’ of physical force.”
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`Allred, 942 F.3d at 653. Or, as we put it elsewhere, this “proposition applies only where a
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`crime does not have as an element the intentional causation of death or injury.” Battle, 927
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`F.3d at 166. That is why in United States v. Middleton, 883 F.3d 485 (4th Cir. 2018), we
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`held that South Carolina involuntary manslaughter does not necessarily involve the use of
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`force. See Allred, 942 F.3d at 653–54. “But a crime requiring the ‘intentional causation’
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`of injury requires the use of physical force.” Battle, 927 F.3d at 166. And that is what we
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`have here.
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`Runyon also posits a hypothetical where the target of a § 1958 murder-for-hire
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`conspiracy died from an accidental or negligent car crash while riding in a conspirator’s
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`car and argues from this that the crime can be committed without the use of violent force.
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`While this hypothetical might be in the realm of “theoretical possibility,” there is no
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`“realistic probability” that the government would indict the conspirator for the death-results
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`strain of conspiracy to commit murder for hire in such a situation. See Allred, 942 F.3d at
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`648. Indeed, this crime satisfies the force clause just as the crime in Allred did.
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`In Allred, we considered whether a federal statute that prohibits “knowingly
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`engag[ing] in any conduct and thereby caus[ing] bodily injury to another person . . . with
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`intent to retaliate against any person for” serving as a witness satisfied the force clause.
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`18 U.S.C. § 1513(b)(1) (emphasis added). We explained that “[a]lthough there is no mens
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`rea specified for the element of causation, the statute contains not one, but two heightened
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`mens rea requirements.” Allred, 942 F.3d at 654. Specifically, the defendant must have
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`“‘knowingly engage[d]’ in conduct with the specific ‘intent to retaliate against’ a witness.”
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`Id. (quoting § 1513(b)). We found “it difficult to imagine a realistic scenario in which a
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`defendant would knowingly engage in conduct with the specific intent to retaliate against
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`a witness and thereby only recklessly or negligently cause bodily injury.” Id.
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`Such is the case here. Section 1958(a)’s mens rea elements cannot be limited to
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`their individual clauses. If a defendant willingly agrees to enter into a conspiracy with the
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`specific intent that a murder be committed for money and death results from that agreement,
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`it follows that the defendant acted with specific intent to bring about the death of the
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`conspiracy’s victim. And this specific intent ensures that the victim’s death was
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`necessarily the result of a use of physical force and not merely from negligence or accident.
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`Thus, we conclude that conspiracy to commit murder for hire where death results, in
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`violation of § 1958(a), is a crime of violence under § 924(c)(3)’s force clause, and
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`accordingly we reject Runyon’s argument that his conviction under § 924(c)(1), (j)(1) is
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`invalid.
`
`
`
`III
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`On the second issue certified for appeal, Runyon contends that his counsel failed to
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`provide him with effective assistance, in violation of the Sixth Amendment, by failing to
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`investigate adequately his brain injury and potential mental illness and introduce such
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`evidence in mitigation during the penalty phase of trial. See Wiggins v. Smith, 539 U.S.
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`510, 521 (2003) (requiring a petitioner to establish that his counsel’s performance was
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`“deficient” and that the deficiency “prejudiced the defense” (citing Strickland v.
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`Washington, 466 U.S. 668, 687 (1984))); Williams v. Stirling, 914 F.3d 302 (4th Cir. 2019)
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`(applying this standard to a failure to investigate mitigating evidence). Runyon claims that
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`his counsel was alerted to the evidence before trial but never followed through and that the
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`development and presentation of the evidence would likely have swayed at least one juror
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`from voting for death to voting for life imprisonment.
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`The government argues that the evidence was weak and, even if the jury credited it,
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`“was double-edged,” as it “could have strengthened government arguments about
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`Runyon’s dangerousness.” It adds that such evidence would also have been “in tension
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`with [Runyon’s] claims of innocence.” It concludes, therefore, that Runyon’s counsel
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`“made reasonable strategy calls at the penalty phase” in not presenting the evidence and
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`that such strategic calls cannot be in violation of counsel’s duty. See Strickland, 466 U.S.
`
`
`
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`at 690 (noting that “strategic choices made after thorough investigation . . . are virtually
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`unchallengeable”).
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`Roughly six months before the penalty phase of trial began, Stephen Hudgins was
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`appointed to represent Runyon as lead counsel for that phase after one of Runyon’s original
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`lawyers, Jon Babineau, developed a conflict of interest. When Hudgins took over,
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`Babineau had already filed a motion for neuropsychological expert services after a clinical
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`psychologist, who had examined Runyon, “strongly advised that Runyon be evaluated by
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`a neuropsychologist for the presence of neuropsychological deficits that may bear on
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`mitigation.” Around this time, Runyon was also examined by two government mental-
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`health experts, both of whom reported that Runyon had sustained a series of head traumas.
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`He had apparently been knocked out during military training after being too close to an
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`exploding grenade, and he had suffered injuries in two serious car accidents. These
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`doctors, however, concluded that Runyon did not “suffer from any serious mental illness,
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`mental disorder, or brain pathology and that there [were] no mental health factors that are
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`mitigating or aggravating to whatever sentence, if any, is determined by the court.” But
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`both doctors did suggest that Runyon was narcissistic and demonstrated some evidence of
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`“personality dysfunction.”
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`Nonetheless, Hudgins sought and obtained the appointment of his own experts. He
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`obtained the services of neuropsychologist Dr. Allen Mirsky, who examined Runyon and
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`submitted a preliminary report to Hudgins. Dr. Mirsky explained that Runyon’s history of
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`head injuries was potentially relevant to his mental status. He observed that Runyon’s low
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`scores on certain tests were “consistent with some mild, diffuse brain damage” and
`
`
`
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`“entirely consistent with brainstem injury, which could have resulted from” either the car
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`accidents or the blast injury. He explained that it had become clear from a study “of
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`wounded soldiers in Iraq and Afghanistan that blast injury can have profound effects on
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`neurocognitive functions.” He concluded that the symptoms that he observed “merit[ed]
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`further neurological investigation.”
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`In addition to this preliminary report, Dr. Mirsky also wrote Hudgins separately
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`about his examination, explaining that while his review of the information was “not yet
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`complete,” “it is clear from the data that there is strong evidence that [Runyon] is suffering
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`from a neurological disorder.” (Emphasis added). “It would be essential for Mr. Runyon
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`to be evaluated by a neurologist, and have the necessary tests to establish the nature of this
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`disorder.” (Emphasis added).
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`Hudgins also obtained the services of Dr. James Merikangas, a neuropsychiatrist.
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`After conducting a neurological examination of Runyon, Dr. Merikangas ordered brain
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`scans. Pending receipt of those scans, however, he submitted a preliminary report to
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`Hudgins, concluding that Runyon “presently i