Winston v. Warden (Unpublished Order) ( 2007 )

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Wednesday, the 7th day of
March, 2007.
Leon Jermain Winston, Petitioner,
against Record No. 052501
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 January 27, 2006, the respondent's motion to dismiss, and
petitioner’s opposition to the motion to dismiss, the Court is of
the opinion that the motion should be granted and the writ should
not issue.
Leon Jermain Winston was convicted in the Circuit Court of the
City of Lynchburg of capital murder of Anthony Robinson in the
commission of robbery or attempted robbery, capital murder of
Rhonda Whitehead Robinson in the commission of robbery or attempted
robbery, capital murder of Rhonda Whitehead Robinson during the
same act or transaction in which another person was willfully,
deliberately and with premeditation killed, two counts of attempted
robbery, statutory burglary, maliciously discharging a firearm, and
five counts of use of a firearm in the commission of a felony. The
jury fixed Winston’s punishment at death for each of the three
capital murder convictions and at seventy-three years imprisonment
for the remaining convictions. The trial court sentenced Winston
in accordance with the jury verdict. This Court affirmed Winston’s
convictions and upheld the sentences of death in Winston v.
Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004), cert. denied, ___
U.S. ___, 126 S. Ct. 107 (2005).
In claim (I), petitioner alleges that he is actually innocent
of capital murder. While conceding that this Court’s decision in
Lovitt v. Warden, 266 Va. 216, 259, 585 S.E.2d 801, 827 (2003),
bars consideration of assertions of actual innocence in a petition
for a writ of habeas corpus, petitioner contends that Lovitt was
wrongly decided. We disagree. The Court holds that claim (I) is
barred because assertions of actual innocence are outside the scope
of habeas corpus review, which concerns only the legality of the
petitioner’s detention. Lovitt, 266 Va. at 259, 585 S.E.2d at 827.
In claim (II), petitioner relies on an affidavit of Dr. J.
Thomas McClintock, a purported expert in DNA analysis, who has
analyzed the certificates of analysis, the Department of Forensic
Science (“DFS”) laboratory notes, the trial testimony, and a
September 12, 2005 report of an audit conducted of DFS practices,
and alleges generally that the DNA evidence that the Commonwealth
introduced against petitioner at trial was scientifically invalid.
In claim (II)(A), petitioner relies on both Dr. McClintock’s
affidavit and on an audit of DFS, which was performed after
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petitioner’s trial and direct appeal, and alleges that the
statistical analysis of the DNA evidence introduced at petitioner’s
trial was “inappropriate” because the analyst “selected only those
loci that ‘fit’ her formulated hypothesis” and inappropriately
“disregarded the loci that did not necessarily ‘fit’ that
hypothesis.” In claim (II)(B), petitioner relies on Dr.
McClintock’s affidavit and alleges that the random controls used in
analyzing the DNA evidence were flawed. In claim (II)(C),
petitioner relies on Dr. McClintock’s affidavit and alleges that
DFS analysts erroneously interpreted the data, to wit, concluding
that certain allelic bands were “stutter” rather than actual
alleles of another contributing individual.
The Court holds that to the extent petitioner should have
known the basis supporting his claims (II)(A), (II)(B), and
(II)(C), before or during trial, claims (II)(A), (II)(B) and
(II)(C) are procedurally defaulted because these non-jurisdictional
issues could have been raised at trial and on direct appeal and,
thus, are not cognizable in a 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).
To the extent that petitioner’s claims are based upon the
audit conducted after trial and direct appeal, the Court holds that
claims (II), (II)(A), (II)(B), and (II)(C), are not cognizable in a
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petition for a writ of habeas corpus. “The writ is available only
where the release of the prisoner from his immediate detention will
follow as a result of an order in his favor. It is not available
to secure a judicial determination of any question which, even if
determined in the prisoner’s favor, could not affect the lawfulness
of his immediate custody and detention.” Virginia Parole Bd. v.
Wilkins, 255 Va. 419, 420–21, 498 S.E.2d 695, 696 (1998).
In claim (II)(D)(1), petitioner alleges that flaws in the DNA
analysis linking petitioner to the murder weapon support
petitioner’s claim that he is actually innocent of capital murder.
The Court holds that claim (II)(D)(1) is barred because assertions
of actual innocence are outside the scope of habeas corpus review,
which concerns only the legality of the petitioner’s detention.
Lovitt, 266 Va. at 259, 585 S.E.2d at 827.
In a portion of claim (II)(D)(2), petitioner relies on the
affidavit provided by Dr. McClintock and alleges that the
Commonwealth knew the DNA profile developed on the murder weapon
strongly suggested multiple contributors of DNA, and that the
Commonwealth’s failure to disclose this fact constituted a
violation of the requirement to disclose exculpatory evidence
pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The record,
including motions, orders, exhibits, and the trial transcript,
demonstrates that petitioner was provided with the necessary
4
assistance, including access to the DFS case file and the
appointment of an expert to conduct an independent review of the
DNA examination performed by the DFS. Petitioner does not allege
that the Commonwealth withheld information from the file provided
to the defense expert, but instead contends that the Commonwealth
had reached and reported erroneous conclusions.
The Court holds that this portion of claim (II)(D)(2) is
procedurally defaulted because this non-jurisdictional issue could
have been raised at trial and on direct appeal and, thus, is not
cognizable in a petition for a writ of habeas corpus. Slayton, 215
Va. at 29, 205 S.E.2d at 682.
In another portion of claim (II)(D)(2), petitioner alleges
that the Commonwealth, in violation of Brady, failed to disclose
certain electronic data that would have allowed petitioner to
conduct an independent examination of the data, and that had this
information been made available to the jury, there is a reasonable
probability that Winston “could have been convicted of a lesser
offense.” The Court holds that this portion of claim (II)(D)(2) is
without merit. Petitioner does not identify specifically the
electronic data that he claims the Commonwealth should have
disclosed and, thus, he cannot demonstrate that the electronic data
contained either exculpatory or material information.
In claim (II)(D)(3), petitioner alleges that he was denied the
5
effective assistance of counsel because counsel failed to identify
and challenge the errors relating to the DNA evidence enumerated in
claims (II)(A), (II)(B), (II)(C), and (II)(D). The Court holds
that claim (II)(D)(3) satisfies neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland v.
Washington, 466 U.S. 668, 687 (1984). The record, including the
trial transcripts, demonstrates that counsel sought and obtained an
independent, expert review of the DFS analysis. Petitioner’s
court-appointed DNA expert reviewed the Commonwealth’s analysis and
expressed her disagreement with some of the Commonwealth’s expert’s
conclusions. The Commonwealth’s expert testified that the DNA
evidence recovered from gloves found discarded in the neighborhood
near the scene of the murders was a mixture, which matched DNA
samples taken from the petitioner, Kevin Brown and David Hardy.
Whereas the Commonwealth’s expert testified that the probability
was greater than one-in-one billion of matching the DNA evidence
from the gloves to a different group of three people, the defense
expert testified that “the probability of randomly selecting an
individual out of the African-American population that would be
included . . . for [] evaluation was one in 195.” Furthermore,
petitioner’s own expert testified that the only area of the DFS
conclusion with which she disagreed concerned the gloves. Thus,
petitioner has failed to show that counsel’s performance was
6
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 a portion of claim (III), petitioner alleges that the
Commonwealth committed prosecutorial misconduct in knowingly
presenting the false testimony of Marty Campbell to the grand jury.
Campbell testified to the grand jury that petitioner said he shot
“the woman, three times in the face,” and that “after Kevin shot
the guy,” petitioner said he “had to cap [the woman].” Petitioner
claims that petitioner did not speak to Campbell and Campbell never
spoke to Kevin Brown about these crimes. According to petitioner,
Campbell had previously told investigators that none of Campbell’s
information about the crimes came from either petitioner or Brown.
The Court holds that Code §§ 8.01-654.1 and 8.01-654(B)(2) bar
consideration of this portion of claim (III). Code § 8.01-654.1
requires a petition for a writ of habeas corpus filed by a person
sentenced to death to be filed within 60 days of the “denial by the
United States Supreme Court of a petition for a writ of certiorari
to the judgment of Supreme Court of Virginia on direct appeal.”
The Supreme Court of the United States denied petitioner’s petition
for a writ of certiorari on October 3, 2005; thus, he had until
December 2, 2005 to file a petition for a writ of habeas corpus in
this Court. Petitioner filed an oversized petition for writ of
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habeas corpus (which he categorized as “prophylactic”) and this
Court twice directed him to file a petition for writ of habeas
corpus that complied with this Court’s rules. On January 27, 2006,
petitioner filed the instant petition for a writ of habeas corpus.
In an order dated February 28, 2006, this Court accepted the
January 27th petition only with respect to those claims that were
also raised in the oversized petition for a writ of habeas corpus
filed on December 2, 2005. This portion of claim (III) was
untimely filed because it was not included in the oversized
petition for a writ of habeas corpus filed in this Court on
December 2, 2005. In addition, as the facts which support this
allegation were known to petitioner at the time he filed his
oversized petition on December 2, 2005, Code § 8.01-654(B)(2) also
bars our consideration of this portion of claim (III).
In another portion of claim (III), petitioner alleges that the
Commonwealth committed prosecutorial misconduct in knowingly
presenting false testimony from Nate Rorls that petitioner called
Rorls and confessed to killing the victims. Petitioner contends
that Rorls’ testimony actually indicated that petitioner called
Rorls and confessed to the murders before they took place and that
Rorls testified falsely that he first notified the Commonwealth
about this telephone call only “a couple days” before trial.
Petitioner contends further that the Commonwealth knew this
8
testimony was untruthful because investigators asked Rorls about
the call during an interview five months earlier. The record,
including the trial transcript, demonstrates that defense counsel
was aware of Rorls’ earlier statement to the police and used it in
cross-examination of Rorls.
The Court holds that this portion of claim (III) is
procedurally defaulted because this non-jurisdictional issue could
have been raised at trial and on direct appeal and, thus, is not
cognizable in a petition for a writ of habeas corpus. Slayton, 215
Va. at 29, 205 S.E.2d at 682.
In another portion of claim (III), petitioner alleges that the
Commonwealth committed prosecutorial misconduct in knowingly
creating false impressions regarding Rorls’ negotiations for a plea
agreement in connection with federal drug charges in exchange for
his testimony against petitioner at petitioner’s capital murder
trial. Petitioner claims that the Commonwealth concealed its
awareness of federal prosecutors’ decision to delay the
finalization of Rorls’ plea agreement until after petitioner’s
trial. Petitioner maintains that the delay prevented the jury from
learning about Rorls’ plea agreement, wherein he would serve less
than three years of incarceration, as opposed to the fourteen years
he told the jury on direct examination that he faced. The record
demonstrates that petitioner was aware of the ongoing negotiations
9
and that counsel elicited testimony from Rorls that he actually
faced “twenty-five [years] to life.”
The Court holds that this portion of claim (III) is factually
without merit. The petitioner has failed to allege facts that
establish how the Commonwealth violated its obligation to disclose
impeachment evidence. The record established that petitioner was
aware of ongoing plea negotiations with federal prosecutors and
that the negotiations were not completed at the time Rorls
testified. Petitioner used this information in his cross-
examination of Rorls to establish that Rorls expected to receive
favorable treatment as a result of his testimony.
In another portion of claim (III), petitioner asserts that
Rorls subsequently received treatment better than Rorls predicted
while testifying. In support of this claim, petitioner notes that,
following his testimony against Winston, Rorls pled guilty to
conspiracy to distribute 50 grams or more of cocaine and instead of
serving “twenty-five [years] to life,” Rorls was released in less
than three years. Petitioner contends that such treatment proves
the Commonwealth engaged in prosecutorial misconduct. The Court
holds that this portion of claim (III) is factually without merit.
The record, including the trial transcript and the exhibits
submitted in support of the petition, demonstrates that the
Commonwealth properly disclosed that Rorls was in negotiations with
10
federal prosecutors and that Rorls’ sentence reduction was the
result of his cooperation in 2003 and in 2004 with federal
authorities and his testimony in petitioner’s case.
In another portion of claim (III), petitioner alleges that the
Commonwealth committed prosecutorial misconduct in creating the
false impression that petitioner’s knowledge of victim Rhonda
Robinson’s pregnancy was solely attributable to the fact that he
was the one that killed her. Petitioner claims the Commonwealth
failed to elicit during re-direct examination of Rorls that he
stated six months before trial that petitioner knew about the
pregnancy from Tywan Turner, the father of Rhonda Robinson’s unborn
baby. Furthermore, petitioner contends the Commonwealth also knew,
from Campbell’s grand jury testimony, that Rhonda Robinson’s
pregnancy was public knowledge before trial.
The Court holds that, to the extent petitioner is challenging
the admission of evidence of Rhonda Robinson’s pregnancy, this
portion of claim (III) is barred because this issue was raised and
decided in the trial court and on direct appeal from the criminal
conviction and, therefore, petitioner cannot raise it in a petition
for a writ of habeas corpus. Henry v. Warden, 265 Va. 246, 249,
576 S.E.2d 495, 496 (2003). To the extent petitioner is
challenging the Commonwealth’s failure to elicit from Rorls his
prior speculation that Winston learned of the pregnancy from Tywan
11
Turner, this portion of claim (III) is procedurally defaulted
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Slayton, 215 Va. at 29, 205
S.E.2d at 682.
In another portion of claim (III), petitioner alleges that the
Commonwealth committed prosecutorial misconduct when, in spite of
its knowledge that Tywan Turner was in the City of Lynchburg on the
night of the murders, it argued to the jury that Turner could not
have committed the murders because the evidence at trial showed
that Turner was in Washington, D.C. and not in Lynchburg on the
night of the murders. Petitioner submits that Turner told police
on the day after the murders that he was in Lynchburg, at home with
his girlfriend, on the night of the murders. Second, petitioner
contends that the Commonwealth knew that Patty Whitehead, the
sister of Rhonda Robinson and mother to Turner’s two children, told
police that Turner’s son had been visiting Turner, and that Turner
returned the child to Patty Whitehead in Lynchburg on the day of
the murders. Third, petitioner further contends that Rorls told
police and prosecutors that Turner was “down there in Lynchburg”
and that Turner brought Winston to Lynchburg from Washington, D.C.
so Winston could “retaliate” against individuals who had stolen a
safe from his home.
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The Court holds that this portion of claim (III) is
procedurally defaulted because these non-jurisdictional issues
could have been raised at trial and on direct appeal and, thus, are
not cognizable in a petition for a writ of habeas corpus. Slayton,
215 Va. at 29, 205 S.E.2d at 682.
In a footnote, petitioner alleges that he was denied the
effective assistance of counsel with respect to each of the claims
of prosecutorial misconduct raised in claim (III) because counsel
had failed “to investigate and present the claims.” The Court
holds that petitioner’s allegation of ineffective assistance of
counsel with respect to petitioner’s claim (III) does not satisfy
the “prejudice” prong of the two-part test enunciated in
Strickland. Petitioner has failed to allege with particularity any
prejudice he sustained as a result of counsel’s alleged failures or
that there is a reasonable probability that, but for counsel’s
alleged errors, the result of the proceeding would have been
different.
In claim (IV)(A), petitioner alleges violations of his Sixth,
Eighth, and Fourteenth Amendment rights to an impartial jury
because several jurors “were exposed to extraneous influences
during the course of the trial.” Juror Archer Caldwell reported
that four jurors were approached during recesses by members of the
victims’ families, who made statements to these jurors that they
13
should convict petitioner and sentence him to death. The trial
court questioned each contacted juror and determined that none of
those jurors felt threatened or intimidated and that the contact
would not affect their deliberations. The record demonstrates that
petitioner raised this argument on direct appeal but that Rule 5:25
prevented this Court from considering the argument because it had
not been presented to the trial court.
The Court holds that claim (IV)(A) is procedurally defaulted
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Slayton, 215 Va. at 29, 205
S.E.2d at 682.
In claim (IV)(B), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to make a
timely motion for a mistrial as a result of the victims’ families
contact with the jurors. Petitioner argues that counsel failed to
request that the trial court examine the entire jury panel about
the extraneous contact, that counsel should have ensured
petitioner’s presence during the in-chambers voir dire of the four
jurors, and that counsel should have known about and argued during
trial the Court of Appeals decision in Scott v. Commonwealth, 11
Va. App. 516, 521-23, 399 S.E.2d 648, 651-52 (1990), that jurors
cannot be expected to admit that they violated their oaths of
14
office, that a defendant is entitled to be tried by no fewer than
twelve impartial jurors, and that a new trial must be granted if
there is the possibility that the jury’s verdict was improperly
influenced. Instead, the affidavit of counsel reveals that trial
counsel did not know about the decision in Scott until after trial,
when he cited it to the trial court in a post-trial motion, which
petitioner claims the trial court denied as having been untimely
filed.
The record, including the post-verdict sentencing transcript,
demonstrates that the trial court denied petitioner’s motion on the
grounds that the court had examined each of the jurors who stated
they had been approached, the trial court was satisfied with their
answers, and the trial court remained satisfied that petitioner was
not prejudiced or harmed. The Court holds that claim (IV)(B)
satisfies neither the “performance” nor the “prejudice” prong of
the two-part test enunciated in Strickland. The record, including
the affidavit of counsel and the trial transcript, establishes that
each juror testified that the contact with third parties did not
intimidate or frighten them and would not influence their
deliberations. The record further demonstrates that counsel made a
tactical decision not to move for a mistrial after discussing the
issue with petitioner. Counsel believed that at least one specific
juror would not vote for a death sentence and that they would
15
likely not get another juror like her at a new trial, and that
counsel thought, “the trial was leaning our way.” Thus, petitioner
has failed to show that counsel’s performance was deficient or that
there is a reasonable probability that a motion for mistrial would
have been granted and that, but for counsel’s alleged error, the
result of the proceeding would have been different.
In claim (V)(A), petitioner alleges that he was denied his
right to be present during critical stages of trial, to wit, when
the trial judge and the Commonwealth’s Attorney examined four
jurors in the court’s chambers. The Court holds that claim (V)(A)
is procedurally defaulted because this non-jurisdictional issue
could have been raised at trial and on direct appeal and, thus, is
not cognizable in a petition for a writ of habeas corpus. Slayton,
215 Va. at 29, 205 S.E.2d at 682.
In claim (V)(B), petitioner alleges that he was denied the
effective assistance of counsel because trial counsel failed to
ensure petitioner’s presence during the examination of the four
jurors. Petitioner argues that had he witnessed the reactions of
the jurors, he would not have agreed to forego a motion for a
mistrial and that the motion likely would have been granted.
The Court holds that claim (V)(B) satisfies neither the
“performance” prong nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner fails to establish that even
16
if he had asked counsel to seek a mistrial, one would have been
granted. The testimony of the jurors regarding the outside contact
proved there was no basis for a mistrial and the trial judge noted
his satisfaction with the jurors’ responses. 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 error, the outcome of the proceeding would have been
different.
In a portion of claim (VI)(A), petitioner alleges that he was
denied the effective assistance of counsel because counsel failed
to cross-examine Nate Rorls concerning continuances of Rorls’
criminal trial in federal court. Petitioner claims that counsel
should have cross-examined Rorls about the fact that any leniency
he would receive from federal prosecutors depended on his testimony
at petitioner’s trial and should have cross-examined Rorls
concerning the fact that Rorls’ federal trial was continued and
would not be held until after Rorls testified at petitioner’s
trial. Petitioner contends that this fact “contradicted Rorls’
testimony that the capital murder case was a small factor in his
anticipated federal deal.”
The Court holds that this claim satisfies neither the
“performance” prong nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
17
transcript, establishes that counsel cross-examined Rorls about his
discussions with the United States Attorney and the Drug
Enforcement Agency regarding his knowledge about petitioner’s case
and how that knowledge could benefit Rorls. Petitioner has not
articulated how additional information concerning the details of
Rorls’ potential agreement with federal prosecutors would have
affected his credibility. 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 error,
the result of the proceeding would have been different.
In another portion of claim (VI)(A), petitioner alleges that
he was denied the effective assistance of counsel because counsel
failed to effectively cross-examine Rorls about the existence and
timing of alleged telephone calls between Rorls and petitioner.
Petitioner alleges that Rorls gave conflicting statements and
testimony as to when petitioner called him and confessed to the
crimes and, under both versions of his account, Rorls claimed to
have received the telephone call before the victims died.
The Court holds that this portion of claim (VI)(A) satisfies
neither the “performance” prong nor the “prejudice” prong of the
two-part test enunciated in Strickland. The Commonwealth’s
evidence proved that petitioner saw Rorls the day after petitioner
called Rorls; however, neither in his statement to police nor in
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his trial testimony did Rorls state what day he received the phone
call or what day he met with petitioner. Rorls noted only that he
received the phone call after the killings and that on the day
after he received the phone call he spoke with petitioner in person
in Woodbridge, Virginia, and in Maryland. Furthermore, the
information provided by Rorls corroborated the account given by
Niesha Whitehead. Additionally, on direct appeal, petitioner
conceded that he was present when the murders took place.
Therefore, any discussion of the exact time of day petitioner made
the phone call has little bearing on the truthfulness of Rorls’
testimony that petitioner told Rorls he had “slumped” some people.
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 error, the result of the proceeding
would have been different.
In another portion of claim (VI)(A), petitioner alleges that
he was denied the effective assistance of counsel because counsel
failed to cross-examine Rorls about the conflict between his
statement that petitioner told him that petitioner left the murder
weapon at the victims’ home and the Commonwealth’s evidence, which
showed that police recovered the weapon from a different home.
Petitioner also alleges that he was denied the effective assistance
of counsel because counsel failed to question Rorls about his
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failure to alert law enforcement about petitioner’s confession for
six months and then only after Rorls was arrested and charged with
federal drug crimes.
The Court holds that this portion of claim (VI)(A) satisfies
neither the “performance” prong nor the “prejudice” prong of the
two-part test enunciated in Strickland. The record, including
Rorls’ statement to police and the trial transcripts, demonstrates
that there was no “glaring contradiction” because there were two
guns involved in the killings. In both his statement to police and
in his trial testimony, Rorls claimed that petitioner showed one of
the guns, a 9-millimeter handgun, to Rorls. The trial transcript
demonstrates that petitioner then took the gun to Robin Wilson to
keep in his apartment where police later recovered it. When read
in context, it is clear that, in his statement to police, Rorls was
referring to the second gun, which Rorls believed, based upon his
conversation with petitioner, had been left in the victims’ house,
but which actually had been found at a location near the house.
The record demonstrates that the other gun used in the murders, a
.38 caliber handgun, was found in Lynchburg near the victims’
residence and near the area where articles of clothing worn by
petitioner’s co-defendant were found. Counsel’s failure to cross-
examine a witness concerning a contradiction that does not exist is
not deficient performance. Thus, petitioner has failed to
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demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged error,
the result of the proceeding would have been different.
In another portion of claim (VI)(A), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to investigate Rorls’ statements. Petitioner bases this claim on
Rorls’ trial testimony that ”Pego,” petitioner’s cousin, was
present during petitioner’s confession to Rorls in Woodbridge,
Virginia. Petitioner contends counsel erred because “counsel never
asked [petitioner] who was present at the house, and never
identified [Peyton] Carter before trial.” Petitioner alleges that
Peyton Carter is the cousin “Pego” who was present in Woodbridge.
Carter submitted an affidavit wherein he stated that he would have
testified that he was with petitioner the entire time petitioner
was at the house in Woodbridge, Virginia, that petitioner and Rorls
never had a private conversation in that house, and that Carter
never heard petitioner mention the murders and never saw petitioner
show anyone a gun.
The Court holds that this portion of claim (VI)(A) satisfies
neither the “performance” prong nor the “prejudice” prong of the
two-part test enunciated in Strickland. The record, including
Carter’s affidavit, establishes only that Carter did not hear or
see petitioner confess to the crimes. Essentially, petitioner
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claims that counsel’s assistance was ineffective because counsel
failed to present the testimony of this witness who did not see the
gun or hear the confession. As such, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged error,
the result of the proceeding would have been different.
In another portion of claim (VI)(A), petitioner alleges that
he was denied the effective assistance of counsel because counsel
failed to present the testimony of Joe Lewis, who would have
testified that he was present at the time and location of
petitioner’s alleged in-person confession to Rorls and that he did
not hear petitioner confess, nor did Rorls ever tell him that
petitioner had confessed to the murders.
The Court holds that this portion of claim (VI)(A) satisfies
neither the “performance” prong nor the “prejudice” prong of the
two-part test enunciated in Strickland. The record, including
Lewis’ affidavit, establishes only that Lewis did not hear or see
petitioner confess to the crimes and that Rorls did not relay
petitioner’s confession to him. Essentially, petitioner claims
that counsel was ineffective for failing to present testimony of a
witness who did not see or hear anything. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s
22
alleged error, the result of the proceeding would have been
different.
In another portion of claim (VI)(A), petitioner alleges that
he was denied the effective assistance of counsel because counsel
failed to properly address testimony regarding Rhonda Robinson’s
pregnancy at the time of her death. The record establishes that
the trial court ruled that it would allow testimony regarding
Rhonda Robinson’s pregnancy “if the witness can testify as to what
the defendant told him about the appearance.” Rorls testified on
re-direct examination “that [Robinson] was pregnant.” Petitioner
claims that Rorls never testified about comments made by petitioner
about Rhonda Robinson’s appearance and that counsel should have
objected or moved for a mistrial at that point of the proceedings
because the testimony was irrelevant, inflammatory, and
prejudicial.
The Court holds that this portion of claim (VI)(A) satisfies
neither the “performance” prong nor the “prejudice” prong of the
two-part test enunciated in Strickland. The record, including the
trial transcript and this Court’s opinion on direct appeal,
demonstrates that although Rhonda Robinson’s pregnancy may not have
been relevant before cross-examination, upon cross-examination it
became relevant and admissible and was properly elicited on re-
direct examination. Petitioner, therefore, cannot establish that
23
an objection would have been successful. Furthermore, any chance
that the information would have been improperly prejudicial was
negated when counsel, on cross-examination, elicited testimony from
Rorls that at least one other person knew about Rhonda Robinson’s
pregnancy. This testimony undermined the Commonwealth’s contention
that only Rhonda Robinson’s killer knew about the pregnancy, that
petitioner knew about the pregnancy, and that, therefore, the
petitioner was Rhonda Robinson’s killer. 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 error, the result of the proceeding would have been
different.
In a portion of claim (VI)(B), petitioner alleges that he was
denied the effective assistance of counsel because counsel failed
to offer “affirmative evidence of their theory” that there was “a
viable alternate suspect,” Tywan Turner.
The Court holds that this portion of claim (VI)(B) satisfies
neither the “performance” prong nor the “prejudice” prong of the
two-part test enunciated in Strickland. The record, including the
trial transcript, demonstrates that counsel attempted to present
evidence that Rhonda Robinson’s sister, Angela Whitehead, had told
Investigator Carson that Turner kept a 9-millimeter handgun in his
car. Angela Whitehead surprised counsel by vehemently denying
24
having made that statement to Carson. Counsel attempted to refresh
Angela Whitehead’s recollection and she maintained that she never
saw a gun and never told anyone about a gun. Moreover, counsel
presented evidence that Turner was the primary drug supplier to
Anthony Robinson, a suspected drug dealer, that Anthony Robinson
was under indictment for drug trafficking, and that Anthony
Robinson had been released from custody shortly before his murder.
Petitioner does not identify any additional evidence which counsel
could have presented to demonstrate that Turner was “a viable
alternate suspect.” 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 error, the
result of the proceeding would have been different.
In claim (VI)(C), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to call
Patty Whitehead, Angela Whitehead’s sister and mother of two of
Turner’s children, to testify in furtherance of this “alternate
suspect theory.” Petitioner claims that Patty Whitehead would have
testified that Turner dropped off the children at her home in
Lynchburg around midnight on the night of the murders, placing him
in the city and without the company of his children. She also
would have testified, according to petitioner, that Turner supplied
Anthony Robinson with drugs.
25
The Court holds that claim (VI)(C) fails to satisfy the
“prejudice” prong of the two-part test enunciated in Strickland.
The record, including the transcript of Patty Whitehead’s statement
to law enforcement, establishes that she had “no idea” if Turner
killed the victims. Moreover, her statement that Turner was in
Lynchburg to drop off the children at her house is not evidence of
his involvement in the crimes. Thus, petitioner has failed to
demonstrate that there is a reasonable probability that, but for
counsel’s alleged error, the result of the proceeding would have
been different.
In claim (VI)(D), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to call Ann
Marie Lewis as a defense witness. Petitioner contends that Lewis
was concerned that Patty Whitehead influenced Niesha Whitehead’s
statement to police. Petitioner bases this claim on the notes from
a police interview with Lewis. According to the notes, it appears
that Lewis was present when Niesha Whitehead told the police that
the men were masked. Later, however, Patty Whitehead told police
that Niesha had told her that one of the assailants was light-
skinned, with braided hair and a tattoo of a dog on his arm.
The Court holds that claim (VI)(D) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner does not proffer an affidavit
26
from Lewis to establish that she would have testified as he
contends. Furthermore, petitioner does not articulate how the two
statements are inconsistent. 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 error,
the result of the proceeding would have been different.
In claim (VI)(E), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to confront
Angela Whitehead with “important information contained in her
recorded interview with Investigator Carson.” The record,
including the trial transcript, establishes that counsel subpoenaed
Angela Whitehead to testify about statements she made immediately
after the murders that tended to implicate Turner in the crimes.
On direct examination, however, Angela Whitehead surprised defense
counsel by denying having made any of the statements attributed to
her.
The Court holds that claim (VI)(E) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, establishes that counsel did confront Angela Whitehead
with her statement to Investigator Carlson after she denied making
the statement. After giving Angela Whitehead the opportunity to
refresh her recollection by reviewing her prior statement to
27
Carlson, the witness continued to insist that she had never seen
the inside of Turner’s car and that she had never seen Turner hold
a weapon. 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 error, the result of
the proceeding would have been different.
In claim (VI)(F), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to call
Thomas Whitehead, Rhonda Robinson’s brother, as a defense witness.
Petitioner alleges that Thomas Whitehead made a statement to police
and would have testified that Rhonda Robinson’s daughter, Niesha,
told him that she did not witness the actual shootings. Petitioner
claims that Thomas Whitehead also would have testified that his
sister, Patty Whitehead, had discussed the events with Niesha,
which, petitioner contends, would have supported his theory that
Patty Whitehead was attempting to deflect suspicion from Turner,
the father of two of her children.
The Court holds that claim (VI)(F) satisfies neither the
“performance” prong nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including transcripts and
notes of Thomas Whitehead’s statements to police, establishes that
he told police that Niesha, Rhonda Robinson’s daughter, had told
him and Patty Whitehead that she had seen her mother get shot.
28
Petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel’s alleged error, the result of the proceeding would have
been different.
In claim (VI)(G), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to call
Investigator Gearhardt in order to demonstrate to jurors that
police ignored Turner as a possible suspect in the murders despite
their knowledge that Turner was in Lynchburg on the night of the
murders, that he had a motive to murder Anthony Robinson, that
Turner owned guns, and that Turner matched the general physical
description given by Niesha Whitehead, the sole eyewitness to the
murders. Petitioner claims that Turner, by his own admission to
police, knew that Anthony Robinson had been incarcerated the
weekend before his death and that Turner had seen Anthony Robinson
within days of his murder.
The Court holds that claim (VI)(G) satisfies neither the
“performance” prong nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record establishes that counsel
presented evidence that Turner was concerned that Anthony Robinson
would implicate him in drug trafficking and that Turner had guns.
The jury could have inferred that Turner was involved in the
killings. Further, the record establishes that petitioner admitted
29
he was present at the scene at the time of the murders and he was
identified as the shooter by the tattoo on his arm. 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 error, the result of the proceeding would have
been different.
In claim (VII)(A), petitioner alleges that the Commonwealth
made several misstatements of fact during its closing argument at
the conclusion of the guilt phase of petitioner’s trial. First,
petitioner claims that the Commonwealth improperly referred to
petitioner as “Mr. No Name,” whom Niesha Whitehead identified as
the person who shot her mother. Second, petitioner claims that the
Commonwealth improperly argued in closing that Niesha’s testimony
proved “that the two men had guns.” Third, petitioner claims that
the Commonwealth improperly argued in closing that the results at
each locus in petitioner’s DNA profile matched the results at the
corresponding locus on the sample taken from the murder weapon.
The Court holds that claim (VII)(A) is procedurally defaulted
because these non-jurisdictional issues could have been raised at
trial and on direct appeal and, thus, are not cognizable in a
petition for a writ of habeas corpus. Slayton, 215 Va. at 29, 205
S.E.2d at 682.
In a portion of claim (VII)(B), petitioner claims that he was
30
denied the effective assistance of counsel because counsel failed
to object to the Commonwealth’s misstatement that petitioner was
“Mr. No Name.” Petitioner contends that the prosecutor’s reference
to petitioner as “Mr. No Name” is a misstatement because Niesha had
identified “Mr. No Name,” as a black-clad black male and the
Commonwealth had introduced into evidence petitioner’s black
sweatshirt with white stripes on the arms and Niesha had described
“Mr. No Name’s Friend” as wearing black with white stripes.
The Court holds that this portion of claim (VII)(B) satisfies
neither the “performance” nor the “prejudice” prongs of the two-
part test in Strickland. The record, including the trial
transcript, establishes that Niesha also testified that “Mr. No-
Name” bore a tattoo of a dog on his arm, and that petitioner bore a
tattoo of a dog on his arm. On direct appeal, petitioner did not
deny that he was present at the shootings and the record
demonstrates that he was the only criminal actor bearing a tattoo
on his arm. 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 error, the result of
the proceeding would have been different.
In a portion of claim (VII)(B), petitioner claims that he was
denied the effective assistance of counsel because counsel failed
to object to the Commonwealth’s misstatement that Niesha
31
Whitehead’s testimony proved that both assailants had guns. The
Court holds that this portion of claim (VII)(B) satisfies neither
the “performance” nor the “prejudice” prong of the two-part test in
Strickland. The record, including the trial transcript,
establishes that counsel elicited from Niesha Whitehead on cross-
examination that only one of the men had a gun. Niesha positively
identified the man who shot her mother as the man with a tattoo on
his arm. In addition, Niesha’s mother was shot three times with a
9-millimeter handgun, the gun which petitioner is identified as
having possessed. Anthony Robinson, however, was shot eight times:
seven times with the 9-millimeter handgun and once with a .38
caliber handgun. No evidence was presented that petitioner ever
possessed the .38 caliber weapon. Consequently, objecting to the
Commonwealth’s argument that the second assailant also had a gun
would have been without effect. Petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel’s alleged error,
the result of the proceeding would have been different.
In a portion of claim (VII)(B), petitioner claims that he was
denied the effective assistance of counsel because counsel failed
to object to the Commonwealth’s misstatement that petitioner’s DNA
matched the DNA recovered from the murder weapon at the TPOX, Penta
D, and the CSF1PO loci because the results of the DNA testing were
32
inconclusive for both the petitioner and the gun. Petitioner
contends that the prosecutor misstated the record because, in fact,
no result was obtained at the TPOX locus for either the gun or the
petitioner and because an inconclusive result does not constitute a
“match.”
The Court holds that this portion of claim (VII)(B) satisfies
neither the “performance” nor the “prejudice” prongs of the two-
part test in Strickland. The record, including the trial
transcript, demonstrates that there was overwhelming evidence of
petitioner’s DNA on the weapon, and that the evidence introduced at
trial established that the likelihood of another person being the
contributor of the DNA on the weapon was greater than one in six
billion. Any error in the prosecutor’s argument concerning whether
there were inconclusive results, as opposed to no results at the
TPOX locus, would not have been prejudicial in light of the
conclusions to which the experts testified concerning the DNA match
and the trial court’s instruction that closing argument is not
evidence. As to the prosecutor’s argument that the other loci
contained inconclusive results for both the gun and the petitioner,
the evidence adduced at trial supports the prosecutor’s statements.
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 error, the result of the proceeding
33
would have been different.
With respect to petitioner’s claim that he was denied the
effective assistance of counsel because counsel failed to object to
the Commonwealth’s argument that an “inconclusive” finding on the
TPOX locus from both petitioner’s DNA sample and the sample from
the murder weapon constituted a positive DNA match, the Court holds
that this portion of claim (VII)(B) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test in
Strickland. The record, including the trial transcript and the
testimony of the Commonwealth’s DNA expert, establishes that there
was overwhelming evidence of petitioner’s DNA on the weapon, even
if petitioner’s DNA was not on the specific locus that was
mentioned during closing. Petitioner has failed to demonstrate
that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged error, the
result of the proceeding would have been different.
In claims (VIII)(A) and (VIII)(B), petitioner alleges that his
execution is barred by Atkins v. Virginia, 536 U.S. 304 (2002),
because he was diagnosed with mental retardation at age sixteen and
allegedly meets the statutory definition for mental retardation as
prescribed in Code § 19.2-264.3:1.1. In support of this claim,
petitioner relies on a cover page from a Fairfax County Public
Schools Special Education Eligibility Form that indicates that
34
petitioner was eligible to receive special education services after
school officials determined that he was disabled due to mild mental
retardation. Petitioner additionally submits an affidavit
indicating that the test scores and data relied upon to reach this
determination are unavailable.
The Court holds that claims (VIII)(A) and (VIII)(B) are not
cognizable in a petition for a writ of habeas corpus, as these non-
jurisdictional issues could have been raised at trial and on direct
appeal. Slayton, 215 Va. at 29, 205 S.E.2d at 682.
In claim (VIII)(C), petitioner alleges he was denied the
effective assistance of counsel because counsel unreasonably failed
to present evidence of petitioner’s mental retardation, including
petitioner’s school record diagnosing his mental defects and
evidence of the “Flynn Effect,” a multiplier that petitioner
asserts must be accounted for in calculating a person’s true
intelligence quotient (IQ) score.
The Court holds that claim (VIII)(C) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the evidence
presented at trial and the documents upon which petitioner now
relies, demonstrates that petitioner was administered three
standardized tests for measuring intellectual functioning.
Petitioner achieved full-scale scores of 77, 76, and 73 on three
35
administrations of the Wechsler Intelligence Scale for Children-
Revised. While petitioner offered evidence that he was once
described as “mildly mentally retarded” for the purposes of special
education eligibility, the definitions of mental retardation
provided by petitioner demonstrate that for special-education
eligibility, a candidate may, nonetheless, have an IQ score above
70. Furthermore, petitioner offers no objective data in support of
his claim of mental retardation. The legislature has defined
mental retardation as:
[A] disability, originating before the age of 18 years,
characterized concurrently by (i) significantly
subaverage intellectual functioning as demonstrated by
performance on a standardized measure of intellectual
functioning administered in conformity with accepted
professional practice, that is at least two standard
deviations below the mean and (ii) significant
limitations in adaptive behavior as expressed in
conceptual, social and practical adaptive skills.
Code § 19.2-264.3:1.1(A).
This Court has previously held that the maximum score for a
classification of mental retardation is an I.Q. score of 70. See
Johnson v. Commonwealth, 267 Va. 53, 75, 591 S.E.2d 47, 59 (2004),
vacated on other grounds, 544 U.S. 901 (2005). Petitioner provides
no documentation that he was diagnosed as being mentally retarded
before the age of 18 in accordance with the legal definition of
mental retardation established by the legislature. Thus,
petitioner has failed to demonstrate that counsel’s performance was
36
deficient or that there is a reasonable probability that, but for
counsel’s alleged error, the result of the proceeding would have
been different.
In claim (VIII)(D), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to present
evidence about petitioner’s subaverage intellectual functioning.
Petitioner contends that there was abundant evidence of his low
functioning and its impact on his life.
The Court holds that claim (VIII)(D) satisfies neither the
“performance” prong nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript and the exhibits admitted at trial, demonstrates that
counsel moved into evidence copies of four different psychological
evaluations made of petitioner in 1987, 1990, 1994 and 1995. These
reports included the following findings: petitioner “is a youngster
of mentally deficient to average intelligence” with “functional
deficits . . . evidenced in short and long term auditory memory,
visual memory, visual motor integration, visual sequencing, and
perception and integration of part-whole relationships;” petitioner
had “extreme problems maintaining attention and effort;”
“declining” verbal scores over the years; and “many emotional
concerns resulting from his abandonment and rejection from various
family members.” Petitioner does not identify the substance of any
37
additional evidence he contends counsel should have presented and
does not explain how such evidence would not have been cumulative.
Furthermore, petitioner does not allege how the presentation of
this evidence would have affected the proceedings. 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 error, the result of the proceeding would have
been different.
In claim (IX), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to investigate and
present available mitigation evidence. Petitioner alleges that
counsel failed to investigate his immediate family’s criminal
activity during his formative years and that counsel failed to
interview or present for the jury’s consideration petitioner’s
schoolteachers, psychologist, counselors and social workers, who
observed the impact petitioner’s exposure to his family environment
had on him. Petitioner alleges that counsel failed to interview
other children in petitioner’s family, who also were exposed to the
adults’ criminal activity, and failed to review the court files
from the prosecutions of petitioner’s mother and grandmother.
Petitioner contends it was unreasonable for counsel to present
psychological reports and “hope” the jury would read them.
The Court holds that claim (IX) satisfies neither the
38
“performance” prong nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that counsel presented the testimony of
petitioner’s mother, Connie Winston, that she drank alcohol and
used PCP, marijuana and cocaine nearly every day while she was
pregnant with petitioner. Petitioner’s grandmother, Mary Berrios,
testified that petitioner, while he was a child in Berrios’ care,
accompanied Berrios on various shoplifting capers and observed his
grandmother stealing merchandise. Counsel moved into evidence
copies of four different psychological evaluations made of
petitioner in 1987, 1990, 1994 and 1995. These reports included
the following findings: petitioner “is a youngster of mentally
deficient to average intelligence” with “functional deficits . . .
evidenced in short and long term auditory memory, visual memory,
visual motor integration, visual sequencing, and perception and
integration of part-whole relationships;” petitioner had “extreme
problems maintaining attention and effort;” “declining” verbal
scores over the years; and “many emotional concerns resulting from
his abandonment and rejection from various family members.”
Petitioner does not articulate how the evidence he claims
counsel failed to present would not have been cumulative, given the
evidence that counsel did present in mitigation. Furthermore,
petitioner does not allege that the jury disregarded the trial
39
court’s instruction to consider the evidence in aggravation and in
mitigation and to review the additional exhibits. 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 error, the result of the proceeding would have been
different.
In a portion of claim (X), petitioner alleges that the
Commonwealth made improper statements during its closing argument
in the sentencing phase of petitioner’s trial. First, petitioner
claims that the Commonwealth violated his right to due process by
referring to petitioner as a “pitbull.” Second, petitioner claims
that the Commonwealth’s request of the jury for “justice for our
community” was improper in that it called for the jury to sentence
petitioner on behalf of the community rather than on the law and
the facts presented.
The Court holds that this portion of claim (X) is procedurally
defaulted because these non-jurisdictional issues could have been
raised at trial and on direct appeal and, thus, are not cognizable
in a petition for a writ of habeas corpus. Slayton, 215 Va. at 29,
205 S.E.2d at 682.
In another portion of claim (X), petitioner alleges he was
denied the effective assistance of counsel because counsel failed
to object to the Commonwealth’s improper statements during the
40
closing argument of the sentencing phase of petitioner’s trial, as
set forth in the first portion of claim (X).
The Court holds that this portion of claim (X) fails to
satisfy the “prejudice” prong of the two-part test enunciated in
Strickland. The record, including the trial transcript,
demonstrates that the prosecutor’s statement during closing
regarding “justice for the community,” was not improper. This
Court has previously held that “[w]hile considerations of
deterrence should not be the basis for a finding of guilt of the
offense, such considerations may be argued in connection with the
punishment to be assessed for the crime.” Wilkins v. Commonwealth,
253 Va. 156, 157, 482 S.E.2d 837, 838 (1997) (citing Payne v.
Commonwealth, 233 Va. 460, 468, 357 S.E.2d 500, 505, cert. denied,
484 U.S. 933 (1987)). Furthermore, not every improper argument
amounts to a denial of due process.
The relevant question is whether the prosecutors'
comments "so infected the trial with unfairness as to
make the resulting conviction a denial of due process."
Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Moreover,
the appropriate standard of review for such a claim on
writ of habeas corpus is "the narrow one of due process,
and not the broad exercise of supervisory power." Id. at
642.
Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also Bennett
v. Angelone, 92 F.3d 1336, 1346-47 (4th Cir. 1996) (religiously
loaded closing argument, while “highly improper and deserve[d]
41
condemnation” did not render death sentence constitutionally
infirm). Petitioner has not demonstrated that in the context of
the trial, considering all of the evidence and the totality of the
arguments, the prosecutor’s reference to petitioner as a “pitbull”
rendered the death penalty constitutionally infirm. Thus,
petitioner has failed to demonstrate that there is a reasonable
probability that, but for counsel’s alleged error, the result of
the proceeding would have been different.
In claim (XI), petitioner alleges that the claims concerning
petitioner’s constitutional right to effective assistance of
counsel, when considered cumulatively, demonstrate that “trial
counsels’ performance and the resulting prejudice deprived Winston
of constitutionally guaranteed effective assistance of counsel, and
requires that his convictions and/or sentences be vacated.”
The Court holds that petitioner’s claim (XI) is without merit.
As addressed previously, petitioner 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 v. Warden of the Sussex
I State Prison, 267 Va. 318, 340, 593 S.E.2d 292, 305, cert.
denied, 542 U.S. 953 (2004).
42
Upon consideration thereof, petitioner’s “motion for leave to
depose the department of forensic science,” “motion for funds to
hire a psychologist or psychiatrist,” “motions for appointment of a
DNA expert and discovery of electronic data,” and “motion for
discovery” are denied.
Accordingly, for the reasons stated, the petition is
dismissed.
A Copy,
Teste:
Patricia L. Harrington, Clerk
43