Winston was convicted of capital murder and sentenced to death. After his ineffective assistance claim was denied in state court, he raised it in a federal habeas claim. After remand for the 4th Circuit to consider all new evidence on his mental retardation and ineffective assistance claim, the district court vacated the dearth sentence and ordered a new sentencing limited to the mental retardation issue. The panel affirmed on both appeal and cross appeal. On the appeal, the panel rejected Virginia’s argument that recent Supreme Court cases required reversal holding that Winston tried diligently to develop his claim in state court, but, was thwarted by the state court’s refusal to hold an evidentiary hearing. The panel held that read closely, the Supreme Court cases either did not apply to this case or supported the reasoning of the earlier 4th Circuit panel. The panel also rejected arguments that earlier 4th Circuit cases acknowledged the earlier Winston opinion was no longer valid as those cases involved claims already adjudicated on the merits by state courts. Turing to the ineffectiveness claim, the panel held failure to review school records which would have provided inquiry notice of mental retardation was deficient in the circumstances. The failure lead to harm as it is reasonably likely the mental retardation evidence conceivably could have affected the outcome of the sentencing. On cross appeal, the panel observed that Virginia is allowed to remedy the mental retardation issue with a limited resentencing or new trial and indicated a new sentencing is likely.
Colson was convicted of child pornography charges. At sentencing, the district court concluded a prior state conviction for explicit visual materials depicting a minor was a prior conviction relating to child sexual abuse and sentenced Colson to a mandatory minimum of 15 years. The Panel affirmed. As the records of Colson’s state case were destroyed by the time of his federal sentencing, the panel looked at the language of the then applicable statute. Relying on state authority that mere nudity in an image did not violate the statute, the panel held the conviction did relate to child sexual abuse. It noted related to is a broad term and other courts of Appeal have reached similar conclusions and the Virginia appellate courts limit the state statute to depictions of actual minors.