Prieto v. Warden (ORDER) ( 2013 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme
Court Building in the City of Richmond, on Thursday, the
12th day of September, 2013.
Present: Kinser, C.J., Lemons, Goodwyn, Millette,
McClanahan and Powell, JJ., and Lacy, S.J.
Alfredo R. Prieto, Petitioner,
against Record No. 122054
Warden of the Sussex I State Prison, Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of
habeas corpus filed November 30, 2012, and the respondent's
motion to dismiss, the Court is of the opinion that the
motion should be granted and the writ should not issue.
Alfredo R. Prieto was convicted in the Circuit Court
of Fairfax County in 2008 of capital murder in the
commission of, or subsequent to, rape, Code § 18.2-31(5);
capital murder of more than one person as part of the same
act or transaction, Code § 18.2-31(7); rape, Code § 18.2-
61; two counts of use of a firearm in the commission of
murder, Code § 18.2-53.1; and grand larceny, Code § 18.2-
95, and was sentenced to death for each of the capital
murder convictions and twenty years' imprisonment for the
remaining convictions. The victims of these 1988 crimes
were Rachel Raver and Warren Fulton III. This Court
affirmed Prieto's convictions, but found the verdict forms
defective and remanded for resentencing. Prieto v.
Commonwealth, 278 Va. 366, 418, 682 S.E.2d 910, 938 (2009).
On remand in 2010, after finding the aggravating factors of
vileness and future dangerousness, the jury fixed Prieto's
sentence for each of the capital murder convictions at
death. The trial court sentenced Prieto in accordance with
the jury's verdicts. This Court upheld Prieto's sentences
of death in Prieto v. Commonwealth, 283 Va. 149, 189, 721
S.E.2d 484, 508 (2012), cert. denied, ___ U.S. ___, 133
S. Ct. 244 (2012).
CLAIM (I)
In a portion of claim (I), Prieto argues he was denied
the effective assistance of counsel during the guilt phase
of the 2008 trial because counsel failed to thoroughly
investigate and review the analysis of the DNA found in
Raver's vagina. Prieto alleges the analysis showed the
presence of DNA not linked to either Prieto or Raver.
Testing conducted on three occasions in 2000 by Carol
Palmer, a forensic scientist of the Virginia Department of
Forensic Science, showed a "12" allele at the vWA locus of
the non-sperm fraction from the vaginal swabs taken from
Raver. Neither Raver nor Prieto have a "12" allele at that
2
locus. Prieto argues the presence of the "12" allele shows
another perpetrator also sexually assaulted Raver. Prieto
contends counsel was deficient for failing to notice the
"12" allele and to argue at trial that it showed the
presence of another perpetrator.
Prieto further argues counsel failed to have Dr. J.
Thomas McClintock, a DNA expert appointed to assist Prieto,
review this information to determine if it supported the
presence of a second perpetrator. In support, Prieto
provides Dr. McClintock's affidavit, stating he was never
asked to look at the documentation pertaining to the non-
sperm fraction of the vaginal swab and that had he known of
the presence of the "12" allele he would have testified
that it represented a foreign allele. Prieto contends this
evidence was the strongest evidence available in support of
the defense theory that a second perpetrator committed the
murders. Prieto argues that had this evidence been
presented, it would have "raise[d] reasonable doubt in
jurors' minds about whether the evidence proved that Prieto
acted alone or was an immediate perpetrator of the murders"
and would have likely "required a jury to acquit Prieto of
capital murder."
The Court holds that this portion of claim (I)
satisfies neither the "performance" nor the "prejudice"
3
prong of the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984). The record,
including the affidavit of Carol Palmer, demonstrates that
Palmer observed the "12" allele at the vWA locus but
determined it was an artifact, which is the byproduct of
the DNA typing process resulting from the required
amplification of samples. Palmer observed the same "12"
allele artifact in an analysis of Raver's blood sample.
The determination of the "12" allele as an artifact was
confirmed when (1) the non-sperm fraction of the vaginal
swab and Raver's blood were analyzed by a second analyst
and the results from Palmer's and the second analyst's
testing were reviewed by a third scientist, and (2) when
the samples were independently tested, re-tested, and those
results reviewed at another Division of Forensic Science
laboratory. This data, all of which was collected prior to
the guilt phase of trial, supported Palmer's determination
that the "12" allele was an artifact, not a real allele, as
well as her conclusion that a third DNA donor was not
present.
The affidavit of Dr. McClintock does not address the
testing done at the second laboratory or how those results
would have affected his opinion. Moreover, this Court has
already extensively reviewed the evidence presented at
4
trial and determined that the evidence was overwhelming
that Prieto was the sole perpetrator of the murders.
Prieto, 278 Va. at 398-01, 682 S.E.2d at 927-29. Thus,
petitioner has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the
result of the proceeding would have been different.
In another portion of claim (I), Prieto argues he was
denied the effective assistance of counsel during the guilt
phase of the trial because counsel failed to have the anal
swabs taken from Raver further analyzed. Prieto cites to a
1988 certificate of analysis which notes the presence of
spermatozoa in the extracts of the anal swabs and a 1994
note from the Department of Forensic Science that indicates
both the vaginal and anal swabs contained a "male
fraction." The anal swab was never further tested. Prieto
contends such testing reasonably could have uncovered
additional evidence of a second perpetrator.
The Court holds that this portion of claim (I) fails
to satisfy the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript and Palmer's affidavit, demonstrates that the
anal swabs, which contained a trace amount of spermatozoa,
were tested twice. In 1989, the swabs were tested by an
5
outside laboratory, LifeCodes. This analysis showed the
presence of only Raver's DNA. The swabs were tested again
in 1994 by another scientist at the Division of Forensic
Science, George Li. Li's testing showed "[n]o conclusive
DNA profile was obtained from . . . the extract of the anal
swab."
Subsequently, in 2000, Palmer inventoried the anal
swabs and determined not to test them again because only a
trace amount of spermatozoa had been present in the samples
and most of the samples had been destroyed by the previous
testing. Prieto fails to show that any testing could have
been conducted on the amount of the anal swab sample that
remained and he fails to proffer what the results of any
testing would have shown. Thus, Prieto has failed to
demonstrate that, but for counsel's alleged errors, the
result of the proceeding would have been different.
In another portion of claim (I), Prieto argues he was
denied the effective assistance of counsel during the guilt
phase of the trial because counsel failed to present
evidence that the Negroid hairs recovered from combings of
Raver's pubic area were lost after the Commonwealth had
identified Prieto as the primary suspect and after the
exculpatory nature of the hairs became apparent. Prieto
further contends counsel erred by conceding at trial that
6
the police did not act in bad faith when the hairs were
either lost or destroyed. Prieto argues counsel's failure
deprived Prieto of his "due process remedy," allowed the
Commonwealth to unfairly undermine the probative value of
the hairs, and diminished the efficacy of his theory of a
second perpetrator.
The Court holds that this portion of claim (I)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland.
The Court addressed the issue of the missing hairs in
Prieto I. The Court held that the Commonwealth could not
have had knowledge of any exculpatory value in the hairs at
the time they were lost because the hairs were lost before
Prieto was a suspect. Prieto, 278 Va. at 397, 682 S.E.2d
at 926. The last time that the hairs were seen was in
1989, when they were sealed inside an evidence envelope.
Id. They were not discovered to be missing until 2005,
when Prieto became a suspect. Id. Thus, the hairs did not
have "apparent exculpatory value" when they were lost. Id.
Moreover, the record, including the trial transcript,
demonstrates that the jury was presented with evidence that
the hairs were discovered to be missing in 2005, after
Prieto had been identified as a possible suspect. Finally,
Prieto presents no evidence to demonstrate that the
7
Commonwealth acted in bad faith. Thus, petitioner has
failed to demonstrate that counsel's performance was
deficient or that there is a reasonable probability that,
but for counsel's alleged errors, the result of the
proceeding would have been different.
CLAIM (II)(A)
In claim (II)(A), Prieto contends he was denied the
right to a jury "of the state and district" where the
crimes were committed, in violation of the Sixth Amendment,
because a juror who did not reside in Virginia was seated
at his first trial. Prieto further alleges the seating of
this juror violated Code § 8.01-337, which provides that
individuals are "liable" to serve on a jury if they are
citizens of the United States, are over the age of
eighteen, and have been "residents of the Commonwealth one
year, and of the county, city or town in which they reside
six months next preceding their being summoned to serve."
Prieto claims he learned of the juror's alleged disability
more than four years after the trial. Prieto contends the
seating of this juror is a structural error requiring
automatic reversal because it exceeded both the trial
court's authority and the limits of state sovereignty to
reach across state lines to seat a juror from another
state.
8
In support of this claim, Prieto relies on two
affidavits from Juror 46, in which the juror avers that
shortly before Prieto's trial he moved out of the Fairfax
County townhouse that he owned, that he was renting the
townhouse to another and living in the District of
Columbia, and that he did not intend to move back to
Virginia. Prieto concedes the juror list provided to trial
counsel by the trial court showed a Fairfax County address
for Juror 46. Prieto further concedes Juror 46, along with
a panel of thirty-three other prospective jurors, was asked
during voir dire if he had lived in Fairfax for the past
six months and in the Commonwealth of Virginia for the past
year and that the panel responded "yes."
The Court holds claim (II)(A) is without merit. "A
'structural error' is a 'defect affecting the framework
within which the trial proceeds, rather than simply an
error in the trial process itself.'" Morrisette v. Warden
of the Sussex I State Prison, 270 Va. 188, 192, 613 S.E.2d
551, 556 (2005) (citing Arizona v. Fulminante, 499 U.S.
279, 310 (1991)). Structural errors have been found in a
very "limited class of cases," and include the denial of
counsel, the denial of an impartial trial judge, and the
systematic exclusion of members of the defendant's race
from the grand jury. Johnson v. United States, 520 U.S.
9461, 468-69 (1997). Structural errors "necessarily render
a trial fundamentally unfair," and thus are not susceptible
to harmless error review. Rose v. Clark, 478 U.S. 570,
577-78 (1986). "[I]f [a] defendant had counsel and was
tried by an impartial adjudicator, there is a strong
presumption that any other errors that may have occurred
are subject to harmless-error analysis." Id. at 579.
The seating of Juror 46 is not a structural error as
it is not a "defect affecting the framework" of Prieto's
trial. Thus, it is governed by the ordinary rules
controlling claims of juror disqualification. After the
jury has been sworn, such claims may only be brought "with
leave of court" upon a showing the "disability be such as
to probably cause injustice in a criminal case to the
Commonwealth or to the accused." Code § 8.01-352; see
Mason v. Commonwealth, 255 Va. 505, 510, 498 S.E.2d 921,
923 (1998) (affirming trial court's denial of defendant's
motion for a mistrial where the record failed to
demonstrate the challenged juror had a disability which was
"such as to probably cause injustice"); see also Kohl v.
Lehlback, 160 U.S. 293, 302 (1895) (reviewing common law
relating to juror disability and holding if a party fails
to timely bring a challenge based on a claim that a juror
is incompetent to serve for reasons such as alienage,
10
infancy, or nonresidency, whether "voluntarily, or through
negligence, or want of knowledge" such claim is waived;
such "defect is not fundamental as affecting the
substantial rights of the accused[,] and the verdict is not
void for want of power to render it"). Prieto has not
articulated any prejudice or injustice stemming from the
alleged lack of residency of Juror 46.
CLAIM (II)(B)
In claim (II)(B), Prieto contends he was denied the
effective assistance of counsel because counsel failed to
learn Juror 46 was not a Virginia resident at the time of
Prieto's 2010 trial.
The Court holds claim (II)(B) satisfies neither the
"performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland, 466 U.S. at 687. As Prieto
concedes, the record, including the manuscript record and
the trial transcript, demonstrates that the juror list
provided to trial counsel by the trial court showed an
address for Juror 46 in Fairfax County. Additionally,
after specifically informing Juror 46 and thirty-three
other prospective jurors that each question required a
verbal response, the trial court questioned the jurors
regarding their citizenship and residency and the jurors
affirmed that they had each lived in Fairfax County for the
11
past six months and in the Commonwealth for the past year.
Under the circumstances, it was entirely reasonable for
counsel to accept that Juror 46 was a resident of Virginia
and to decline to question him further. Moreover, Prieto
fails to allege any prejudice resulting from counsel's
failure to challenge Juror 46. Thus, Prieto has failed to
demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding
would have been different.
CLAIM (III)
In claim (III), Prieto alleges he was denied the right
to select and be sentenced by an impartial jury. Prieto
contends that, at his 2010 trial, Juror 23 intentionally
withheld information during voir dire regarding sexual
assaults the juror had suffered. In support of this claim,
Prieto relies on Juror 23's September 2012 affidavit,
stating that Juror 23 was repeatedly molested as a child.
Prieto alleges that Juror 23 withheld this information from
the questionnaire that jurors filled out prior to voir
dire, as well as during the course of voir dire
questioning, to hide his bias against Prieto. Prieto
contends the concealment of this information deprived him
of a valid basis to remove Juror 23 for cause because he
12
was not afforded the opportunity to question Juror 23 about
whether the sexual assaults impacted the juror's decision-
making and ability to be impartial.
The Court holds that claim (III) is without merit.
The record, including the questionnaire of Juror 23 and the
trial transcript, does not demonstrate that Juror 23 either
failed to honestly answer the questions asked of him, or
that he was biased against Prieto. In the questionnaire,
Juror 23 responded "no" when asked if he had ever been the
victim of a crime, even if the crime was never reported.
However, Juror 23 subsequently answered that he had been
previously assaulted by three men in response to a question
about whether he had ever appeared in court. During voir
dire, a panel of prospective jurors that included Juror 23
was asked if any of them or individuals close to them had
been the victim of serious criminal conduct. Even though
another juror answered regarding the rape of a niece, Juror
23 still only addressed the previous assault in his
response. Additionally, near the end of voir dire, Juror
23 did not respond when asked if he thought of anything new
as a result of anything that had been asked during the
course of voir dire.
Juror 23's responses do not show that he was
intentionally withholding information or not honestly
13
answering the questions posed to him. Rather, they show
that Juror 23 may not have realized from the questions
posed the need to address the sexual molestation he
suffered as a youth. Moreover, Prieto fails to show that
Juror 23 was biased against him. Multiple times during
voir dire, Juror 23 indicated he could remain impartial
before making a decision as to Prieto's sentence. Thus,
Prieto has failed to demonstrate that Juror 23 failed to
answer honestly a material question during voir dire, and
he has consequently failed to show he was denied the right
to an impartial jury. See McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984).
CLAIM (IV)
In a portion of claim (IV), Prieto contends he was
denied the effective assistance of counsel because counsel
failed to move to exclude Juror 23 for cause. Prieto
alleges Juror 23 indicated during voir dire that he would
not vote for a life sentence unless he heard from Prieto,
either directly or indirectly, at sentencing.
The Court holds that this portion of claim (IV)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates that
Juror 23 expressed a desire either to hear directly from
14
Prieto or to be able to review any testimony Prieto may
have given during the guilt phase of the trial as a way to
help the jury determine the appropriate sentence Prieto
should receive. However, when asked by counsel if he would
be able to put aside his expectation of Prieto testifying
and follow the court's instructions that Prieto's failure
to testify could not be held against him, Juror 23
responded on two separate occasions that he could and would
have no problem doing so. Based on the responses of Juror
23, counsel for Prieto could reasonably conclude they had
no grounds to move to exclude Juror 23 for cause.
Furthermore, given the responses of Juror 23, Prieto cannot
establish a reasonable probability that the court would
have granted a motion to strike the juror if counsel for
Prieto had moved to strike Juror 23 for cause. Thus,
Prieto has failed to demonstrate that counsel's performance
was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the
proceeding would have been different.
In another portion of claim (IV), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to interview Juror 23 after the jury returned with a
sentence of death. Prieto contends that, based on the voir
dire responses of Juror 23, counsel should have known Juror
15
23 would hold Prieto's failure to testify against him and
should have interviewed Juror 23 about this matter once the
sentence was handed down. Continuing, Prieto asserts that
if counsel had done so, they would have discovered juror
misconduct that would have supported a motion for a
mistrial.
Prieto cites to two portions of the affidavit of Juror
23 in support of this claim. First, Juror 23 admits he
"really wanted" to hear from Prieto in some fashion at
sentencing because Juror 23 believed Prieto "owed" the jury
an explanation for his actions. Juror 23 states his belief
that Prieto "should get up there and refute what [the
Commonwealth is] saying about you" and that had such an
explanation occurred he "could have voted for life."
Second, Juror 23 states that while the court explained what
a life sentence was, the explanation was vague and did not
change his understanding that "life in prison was 50
years." Prieto alleges that, had counsel conducted a post-
sentencing interview, these matters would have come to
light and would have supported the granting of a mistrial
as it would have showed that Juror 23 did not follow the
court's instructions.
The Court holds that this portion of claim (IV)
satisfies neither the "performance" nor the "prejudice"
16
prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates that,
while Juror 23 expressed a desire to hear either directly
or indirectly from Prieto, he also, on two separate
occasions, informed counsel and the court that he would
follow the court's instructions and not hold Prieto’s
failure to testify against him. The record also reflects
that the court instructed the jury that "[i]mprisonment for
life means imprisonment for life without the possibility of
parole."
Given the responses of Juror 23 and the precedent of
this Court, which holds that a juror is presumed to follow
the instructions given by the trial court, Muhammad v.
Warden, 274 Va. 3, 18, 646 S.E.2d 182, 195 (2007) (citing
Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139
(2002)), counsel could reasonably conclude they had no
reason to interview Juror 23. Additionally, this Court has
refused to impose such post-trial juror interviews upon
trial counsel unless counsel knew or should have known of
the alleged problem at the time of trial. See Lenz v.
Warden, 267 Va. 318, 325-26, 593 S.E.2d 292, 296 (2004).
Furthermore, courts in Virginia "have adhered strictly
to the general rule that the testimony of jurors should not
be received to impeach their verdict" and that the best
17
evidence of a juror's opinion in a case is the unanimous
verdict reached by the jury. Caterpillar Tractor Co. v.
Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 751 (1987). Thus,
Prieto has failed to demonstrate that counsel's performance
was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the
proceeding would have been different.
CLAIM (V)
In a portion of claim (V), Prieto alleges he was
denied the effective assistance of counsel because counsel
failed to present evidence that he suffered from organic
brain damage. Specifically, Prieto contends counsel should
have presented evidence from a neurological evaluation,
including a positron emission tomography (PET) scan, which
would have proven that he suffers from frontal lobe
dysfunction and temporal lobe damage, which renders him
"incapable of appropriate reasoning, judgment, and impulse
control."
The Court holds that this portion of claim (V)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates that
counsel did present evidence at Prieto's 2010 trial that
Prieto suffered from organic brain damage. Counsel
18
presented testimony from Dr. James Grabarino that the
results of the type of long-term trauma Prieto experienced
as a child included poor brain development, and from
clinical and forensic psychologist Dr. Mark Cunningham, who
opined that Prieto's low IQ was an indicator of brain
damage.
Moreover, counsel presented evidence of Prieto's PET
scan during the sentencing phase of Prieto's 2008 trial.
Although Prieto's expert, Dr. James Merikangan, testified
that the scan showed Prieto suffered from organic brain
damage, Dr. Merikangan's opinion was impeached by the
report of Dr. Michael Kistler, the doctor who conducted the
PET scan. Dr. Kistler opined that Prieto did not have
organic brain damage and that his scan was "normal."
Counsel, having had the opportunity to present the PET
scan evidence and to evaluate the strength of the
Commonwealth's contrary evidence and the effect of the
evidence on the jury, could reasonably have determined that
presenting the same evidence at Prieto's second sentencing
hearing would not be prudent. Such tactical decisions are
an area of trial strategy left to the discretion of counsel
and should not be second-guessed in a habeas corpus
proceeding. See Strickland, 466 U.S. at 689-90. Thus,
Prieto has failed to demonstrate that counsel's performance
19
was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the
proceeding would have been different.
In another portion of claim (V), Prieto contends
counsel was ineffective for failing to introduce anecdotal
evidence to support his claim of brain damage.
Specifically, Prieto contends counsel should have
introduced evidence to show that as a youth Prieto was
nervous and slow, stuttered, failed to follow instructions,
did not like to bathe, and engaged in regressive behavior,
including bed wetting, playing with toys that were not
appropriate for his age and exhibiting fear of ghost
stories, and that as an adult he was unnaturally focused.
The Court holds that this portion of claim (V)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. The
record, including the trial transcript, demonstrates that
in addition to the expert testimony supporting Prieto's
claim that he suffered brain damage, counsel presented
anecdotal evidence at Prieto's 2010 trial that Prieto was
slower and more reserved than other children, that he
experienced nightmares as a child, and that he was scared
of the violence he and his siblings had seen on a regular
basis. Moreover, Prieto fails to explain in what manner
20
his childhood regressive behavior, dislike of bathing,
stuttering and nervousness or his unnatural focus as an
adult support his claim of organic brain damage to his
frontal and temporal lobes. Thus, Prieto has failed to
demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding
would have been different.
In another portion of claim (V), Prieto contends
counsel was ineffective for failing to present evidence of
the specific effects on Prieto of the chronic trauma he
experienced and the ways in which such trauma influenced
his actions as an adult. Prieto contends counsel should
have presented evidence showing the symptoms of Post-
Traumatic Stress Disorder (PTSD) that he suffered as a
child and as an adult. Prieto contends that by presenting
such evidence, counsel could have connected Prieto's
symptoms to his actions in this case and that counsel's
failure to do so left the jury with no option but to
believe Prieto committed the crimes out of "malevolent
choice."
The Court holds that this portion of claim (V)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. The
21
record, including the trial transcripts, demonstrates that
counsel presented evidence at both Prieto's 2008 trial and
at his 2010 trial that Prieto suffered from PTSD. At
Prieto's 2008 trial, Dr. Pablo Stewart testified that
Prieto suffered from the disorder, which he opined
originated in El Salvador when Prieto was a child. Dr.
Stewart described the symptoms of PTSD generally and
explained how Prieto exhibited those symptoms both as a
child and an adult. Dr. Stewart further testified Prieto's
PTSD combined with his low IQ put "him at risk of untoward
behaviors." Dr. Stewart conceded, however, that Prieto's
PTSD could not explain his behavior in this case.
At Prieto's 2010 trial, counsel presented the
testimony of Dr. Cunningham. Dr. Cunningham opined that
Prieto did suffer from PTSD caused by his childhood
exposure to "scenes of recurrent horror" during the El
Salvadorian civil war. In addition, Dr. Cunningham
suggested that Prieto suffered from a number of other
deficits, including the results of chronic, long-term
trauma, and opined that these deficits caused Prieto to
lack self-control, inured him to violence, and prevented
him from appreciating the pain he might inflict. Dr.
Cummingham conceded Prieto's outward appearance might not
show signs of PTSD but explained that his experience of
22
chronic trauma enabled him to present an outward appearance
of being calm and comfortable with the past while his
psyche remained disturbed by it.
Counsel, having had the opportunity to present
evidence in Prieto's 2008 trial related to his PTSD, to
evaluate Prieto's appearance at trial relative to the
description of the effects of his PTSD, and to evaluate the
effect of the evidence on the jury, could reasonably have
determined that presenting the same evidence at Prieto's
2010 trial would not be effective. Such tactical decisions
are an area of trial strategy left to the discretion of
counsel and should not be second-guessed in a habeas corpus
proceeding. See Strickland, 466 U.S. at 689-90. Thus,
Prieto has failed to demonstrate that counsel's performance
was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the
proceeding would have been different.
CLAIM (VII)
In claim (VII), Prieto contends he is mentally
retarded and that his execution is therefore barred under
Atkins v. Virginia, 536 U.S. 304, 321 (2002).
The Court holds that claim (VII) is barred because
this non-jurisdictional issue could have been raised during
the direct appeal process and, thus, is not cognizable in a
23
petition for a writ of habeas corpus. Slayton v. Parrigan,
215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied,
419 U.S. 1108 (1975).
CLAIM (VIII)
In claim (VIII) and a portion of claim (V), Prieto
argues counsel was ineffective for failing to present
evidence at Prieto's 2010 trial that he is mentally
retarded. Prieto contends counsel should have presented
evidence of his low performance on the Escala Wechsler de
Inteligencia Para Adultos III (EWIPA III) and of his
significant deficits in adaptive functioning.
The Court holds that claim (VIII) and this portion of
claim (V) satisfy neither the "performance" nor the
"prejudice" prong of the two-part test enunciated in
Strickland. The record, including the trial transcripts,
demonstrates that counsel presented evidence at Prieto's
2008 trial that Prieto is mentally retarded. Dr. Ricardo
Weinstein testified that Prieto's full scale IQ score on
the EWIPA III was 66, that his true score was much lower,
taking into consideration the standard error of measurement
and the Flynn Effect, 1 and that Prieto had significant
1
Dr. Weinstein and Dr. Leigh Hagan, who also testified
regarding Prieto's IQ, describe the Flynn Effect as the
gradual increase in the general population's average IQ
24
deficits in his adaptive functioning, including low
academic achievement, poor social skills, and poor
practical skills. Dr. Weinstein represented that the EWIPA
III was a Spanish translation of the Wechsler Adult
Intelligence Scale III (WAIS III), published in Mexico.
Dr. Weinstein testified that he gave Prieto the EWIPA III
instead of the WAIS III because Spanish was Prieto's
primary language. Dr. Weinstein further testified he had
scored Prieto's test against American norms, rather than
the Mexican norms established for the EWIPA III, because
the Mexican norms were unreliable. Dr. Weinstein conceded
the instructions for the EWIPA III required that the
American norms be used only if the test-taker's IQ seemed
to have been underestimated when measured using the Mexican
norms, and that Prieto's full scale IQ when measured using
the Mexican norms was 75.
The Commonwealth presented evidence that Prieto was
not mentally retarded, including evidence that Prieto
achieved a full scale score on the WAIS III of 73, that the
EWIPA III that was administered to Prieto was not an
approved test, as required by Code § 19.2-264.3:1.1, that
the EWIPA III was not scored in conformity to established
scores over time, increasing at a rate of approximately .33
points per year in the United States.
25
practices, and that it is not acceptable professional
practice to modify an individual's score by subtracting
points to accommodate for the standard error of measurement
or the Flynn Effect.
The Commonwealth further presented evidence that
Prieto did not suffer from deficits in his adaptive
functioning, including evidence that Prieto received
consistently good grades in elementary school; that he was
capable of handling money and opening and closing his own
bank accounts, obtaining employment, operating heavy
equipment, and obtaining drivers' licenses in two states;
that he was fluent in Spanish and English; that he was
capable of using the inmate grievance procedures; that he
was interested in and understood current political and
foreign policy issues; and that he had the ability to
cultivate useful relationships. The Commonwealth further
presented evidence suggesting the WAIS III, rather than the
EWIPA III, was the appropriate tool for measuring Prieto's
IQ, because at the time the tests were administered, Prieto
had been in the United States for more than twenty-four
years, over half of his life, spoke fluent English and was
more fluent in English than in Spanish.
At Prieto's 2010 trial, counsel chose not to argue
that Prieto was mentally retarded, instead focusing on his
26
limited intellect, the trauma he experienced as a child,
the effects of that trauma, and residual doubt of Prieto's
culpability in the minds of the jurors in an effort to
mitigate the offenses. Counsel, having had the opportunity
to present evidence in Prieto's 2008 trial that Prieto is
mentally retarded, to weigh the evidence that he is
mentally retarded against the Commonwealth's contrary
evidence, and to evaluate the effect of the evidence on the
jury, could reasonably have determined that any attempt to
re-litigate the issue at Prieto's 2010 trial would have
been futile and determined it would be more effective to
focus on evidence in mitigation of the crimes. Such
tactical decisions are an area of trial strategy left to
the discretion of counsel and should not be second-guessed
in a habeas corpus proceeding. See Strickland, 466 U.S. at
689-90. Further, under the circumstances, Prieto cannot
meet the burden to show that the jury would have found that
he is mentally retarded if the evidence was presented in
the 2010 trial. Thus, Prieto has failed to demonstrate
that counsel's performance was deficient or that there is a
reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been
different.
CLAIM (IX)
27
In a portion of claim (IX), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to investigate and present evidence "that would have
cast doubt upon" his convictions in California for the rape
and first-degree murder of Y. W., a fifteen year-old girl,
two attempted murders, two additional rapes, three
kidnappings, two robberies, two attempted robberies, and
possession of a firearm by a felon. At the 2010 trial, the
Commonwealth presented certified copies of Prieto's
California convictions as well as his sentence of death for
the first-degree murder conviction. The Commonwealth also
presented testimony from one of the victims, Lisa Barajas,
and from the lead investigator regarding the events that
led to those convictions. At the time of Prieto's 2010
trial, counsel was aware of a pending petition for a writ
of habeas corpus relating to the California convictions.
Prieto argues counsel should have investigated the claims
raised in that habeas petition to rebut the Commonwealth's
evidence relating to the California convictions.
The Court holds that this portion of claim (IX)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. A
collateral attack on a prior conviction from a court of
competent jurisdiction is normally not allowed as that
28
conviction is given a presumption of regularity, "till the
contrary appears." See Parke v. Raley, 506 U.S. 20, 29-30
(1992) (quoting Voorhees v. Jackson, 35 U.S. (10 Peters)
449, 472 (1836)). The claims Prieto contends counsel
should have investigated and presented at his 2010
sentencing hearing did not call into question the
presumption of regularity that attached to the California
convictions and, as no ruling on the California petition
has occurred, the "contrary [has not] appear[ed]" to rebut
the presumption.
Counsel was not ineffective for failing to attempt a
collateral attack on Prieto's California convictions.
Thus, Prieto has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the
result of the proceeding would have been different.
In another portion of claim (IX), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to investigate and present evidence that would have
cast doubt on his role in the California crimes and thus
would have diminished the weight of the evidence. Prieto
argues counsel should have investigated and presented
evidence of Barajas' initial statement to the police that
she could not identify the assailants as she was
29
blindfolded during the incident as well as evidence of
Barajas' alleged exposure to suggestive identification
procedures. Prieto contends that had this information been
presented at his 2010 trial it would have affected the
jury's assessment that Prieto was a future danger to
society.
The Court holds that this portion of claim (IX)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. The
record, including Prieto's 1991 California trial
transcript, demonstrates that Barajas was questioned
extensively regarding her identification of Prieto.
Barajas admitted to initially lying about being blindfolded
and explained she did so out of fear of retaliation by her
assailants. Barajas also explained how she identified
Prieto from a photographic line-up prior to seeing his
photograph in the newspaper and again identified Prieto in
a live line-up after his photograph was published.
Throughout the trial, Barajas was adamant in her
identification of Prieto.
Counsel could have reasonably determined that
attempting a similar attack on Barajas' identification of
Prieto at his 2010 trial would have been unsuccessful.
Prieto has also failed to show in what way the
30
identification procedures were suggestive. Moreover,
extensive cross-examination of Barajas on this point had
the potential to highlight the aggravated nature of these
crimes and Prieto's continuing failure to take
responsibility for his actions. Counsel is not ineffective
for failing to present evidence that has the potential of
being "double-edged." Lewis v. Warden, 274 Va. 93, 116,
645 S.E.2d 492, 505 (2007). Such tactical decisions are an
area of trial strategy left to the discretion of counsel
and should not be second-guessed in a habeas corpus
proceeding. See Strickland, 466 U.S. at 689-90. Thus,
Prieto has failed to demonstrate that counsel's performance
was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the
proceeding would have been different.
In another portion of claim (IX), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to investigate and present evidence that would have
cast doubt on his role in the California crimes and thus
would have diminished the weight of the evidence. Prieto
argues counsel should have investigated the lack of an
expert to rebut California's theory for the absence of
seminal fluid on Y. W. Prieto contends that had this
information been presented at his 2010 trial it would have
31
affected the jury's assessment that Prieto was a future
danger to society.
The Court holds that this portion of claim (IX)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland.
Prieto has failed to proffer the name or testimony of an
expert regarding the seminal fluid. Muhammad, 274 Va. at
19, 646 S.E.2d at 195. Thus, Prieto has failed to
demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding
would have been different.
In another portion of claim (IX), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to investigate and present evidence that would have
cast doubt on his role in the California crimes and thus
would have diminished the weight of the evidence. Prieto
argues counsel should have investigated Prieto's trauma
disorder and his use of drugs at the time of the California
crimes. Prieto contends that had this information been
presented at his 2010 trial it would have affected the
jury's assessment that Prieto was a future danger to
society.
32
The Court holds that this portion of claim (IX)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. The
record, including the 2010 trial transcript, demonstrates
that counsel did present evidence of Prieto's trauma
disorder and drug use around the time of the California
crimes. Counsel presented evidence that Prieto suffered
from PTSD caused by his childhood exposure to "scenes of
recurrent horror" during the El Salvadorian civil war. In
addition, counsel presented evidence that Prieto suffered
from a number of other deficits, including the results of
chronic, long-term trauma. Counsel further presented
evidence that Prieto began using drugs extensively in high
school, that he was using drugs in 1990, and that his drug
use was one of the factors that "created a significant
emotional disturbance in" Prieto and thus precipitated his
violent crimes.
Prieto fails to allege what additional evidence
counsel could have presented that would have rebutted the
aggravating circumstances of his California offenses.
Thus, Prieto has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the
result of the proceeding would have been different.
33
In another portion of claim (IX), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to investigate and present evidence that would have
cast doubt on his role in the California crimes and thus
would have diminished the weight of the evidence. Prieto
argues counsel should have investigated an erroneous jury
instruction that allowed the California jurors to infer
Prieto's guilt from his possession of Barajas' stolen car
keys.
The Court holds that this portion of claim (IX)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. In
People v. Prieto, 66 P.3d 1123, 1137-38 (Cal. 2003), the
Supreme Court of California determined that the jury was
erroneously instructed that Prieto's possession of the car
keys was a circumstance they could consider in determining
his guilt without limiting the instruction to the theft
related crimes. However, the Court found the error
harmless. Id. at 1138.
Prieto fails to state how presenting evidence at his
2010 trial of the erroneous jury instruction would have
mitigated the aggravating circumstances of his California
offenses. Thus, Prieto has failed to demonstrate that
counsel's performance was deficient or that there is a
34
reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been
different.
In another portion of claim (IX), Prieto argues he was
denied the effective assistance of counsel because counsel
failed to rebut the Commonwealth's evidence regarding
Prieto's other prior convictions.
The Court holds that this portion of claim (IX)
satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland.
Prieto fails to proffer what evidence counsel should have
presented to rebut the Commonwealth's evidence as to his
other prior convictions. Thus, Prieto has failed to
demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding
would have been different.
CLAIM (X)
In claim (X), Prieto argues he was denied the
effective assistance of counsel because counsel failed to
object to evidence of his California convictions and death
sentence. At the 2010 trial, the Commonwealth introduced
certified copies of Prieto's California convictions and
death sentence to show he was a future danger to society.
35
Prieto argues that, prior to the start of the hearing,
counsel should have objected to the introduction of this
evidence as Prieto was challenging his California
convictions and sentence in a petition for a writ of habeas
corpus. In support of this claim, Prieto cites Johnson v.
Mississippi, 486 U.S. 578 (1988) (death sentence vacated as
it had been predicated, in part, on a New York conviction
which was later reversed). Prieto opines that had counsel
objected, there is a reasonable probability that the
evidence relating to his California convictions and death
sentence would not have been presented.
The Court holds that claim (X) satisfies neither the
"performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. Counsel had no reason to
object to the introduction of the evidence relating to
Prieto's convictions and sentence in California as this
Court had previously upheld the introduction of such
evidence. Prieto v. Commonwealth, 278 Va. at 413-15, 682
S.E.2d at 936. Prieto's reliance on Johnson is misplaced
and would not have supported the objection Prieto contends
counsel should have raised. In Johnson, the New York
conviction was reversed while Johnson's motion for post-
conviction relief from his Mississippi death sentence was
pending. 486 U.S. at 583. The United States Supreme Court
36
found that Mississippi erred when it refused to consider
that fact. Id. at 587-90. Prieto's California convictions
and death sentence had not been overturned, thus there was
no basis for counsel to object to their introduction. 2
Thus, Prieto has failed to demonstrate that counsel's
performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the
result of the proceeding would have been different.
CLAIM (XI)
In claim (XI), Prieto contends that the cumulative
effect of counsel's deficient performance at the 2010 trial
undermines confidence in the jurors' decision.
The Court holds that claim (XI) is without merit. As
addressed previously, Prieto has failed to demonstrate
prejudice as a result of counsel's alleged errors. "Having
rejected each of petitioner's individual claims, there is
no support for the proposition that such actions when
considered collectively have deprived petitioner of his
constitutional right to effective assistance of counsel."
Lenz, 267 Va. at 340, 593 S.E.2d at 305.
CLAIM (VI)
2
As of the date of this order, Prieto's habeas
petition is still pending in the California Supreme Court.
37
In claim (VI), Prieto contends counsel was ineffective
for failing to present mitigating evidence, as alleged in
claims (I), (V), (VII), and (VIII). Prieto argues that as
a result of counsel's cumulative errors in failing to
present this evidence, counsel was unable to persuade the
jury that Prieto was not the sole perpetrator or that his
multiple deficiencies diminished his moral culpability.
The Court holds that claim (VI) is without merit. Prieto's
argument is one of cumulative error. "Having rejected each
of petitioner's individual claims, there is no support for
the proposition that such actions when considered
collectively have deprived petitioner of his constitutional
right to effective assistance of counsel." Lenz, 267 Va.
at 340, 593 S.E.2d at 305.
Upon consideration whereof, Prieto's motions for
access to files from the Virginia Department of Forensic
Science, for the appointment of a DNA expert, to hold his
Virginia habeas corpus proceedings in abeyance pending
resolution of the California habeas corpus proceedings, and
for an evidentiary hearing are denied.
Upon consideration of the respondent's motion to
strike Prieto's rebuttal affidavits, the motion to strike
is denied. The rebuttal affidavits are considered pursuant
to the appropriate evidentiary rules.
38
Accordingly, the petition is dismissed and the
respondent shall recover from petitioner the costs expended
in his defense herein.
This order shall be published in the Virginia Reports.
Respondent's costs:
Attorney's fee $50.00
A Copy,
Teste:
Patricia L. Harrington, Clerk
39