Jackson v. Kelly

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JERRY TERRELL JACKSON, 
Petitioner-Appellee,
v.
 No. 10-1
LORETTA K. KELLY, Warden,
Sussex I State Prison,
Respondent-Appellant.

JERRY TERRELL JACKSON, 
Petitioner-Appellant,
v.
 No. 10-3
LORETTA K. KELLY, Warden,
Sussex I State Prison,
Respondent-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(1:06-cv-01097-LMB-TCB)
Argued: January 26, 2011
Decided: April 25, 2011
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
2 JACKSON v. KELLY
Reversed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Davis and Judge Wynn joined.
COUNSEL
ARGUED: Matthew P. Dullaghan, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia, for Loretta K. Kelly, Warden, Sussex I State Prison.
Michele Jill Brace, Washington, D.C., for Jerry Terrell Jack-
son. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General
of Virginia, Richmond, Virginia, for Loretta K. Kelly, War-
den, Sussex I State Prison. Philip E. Holladay, Jr., Taryn
Koball, KING & SPALDING LLP, Atlanta, Georgia, for
Jerry Terrell Jackson.
OPINION
DUNCAN, Circuit Judge:
In the fall of 2002, a jury found petitioner Jerry Jackson
guilty of breaking into 88-year-old Ruth Phillips’s home, rap-
ing her, and smothering her to death with a pillow from her
bed. Jackson was sentenced to death. Jackson’s direct and col-
lateral appeals were denied by the Supreme Court of Virginia.
Jackson sought federal habeas relief, which the district court
granted as to his penalty-phase claims following an evidenti-
ary hearing.
The government appealed, urging that the district court
abused its discretion by holding the evidentiary hearing and
that relief was erroneously granted on Jackson’s claims that
counsel’s development and presentation of mitigation evi-
dence, as well as his failure to object to alleged instructional
error, were constitutionally deficient. Jackson has cross-
JACKSON v. KELLY 3
appealed, asserting additional claims arising out of alleged
instructional error.
We assess the merits of Jackson’s petition under the defer-
ential standards spelled out in Strickland v. Washington, 466
U.S. 668 (1984), and the Anti-Terrorism and Effective Death
Penalty Act ("AEDPA"), 28 U.S.C. § 2254 ("AEDPA"). Our
review is informed by the Supreme Court’s recent guidance
in Cullen v. Pinholster, No. 09-1088, 2011 WL1225705 (U.S.
April 4, 2011). For the reasons described below, we conclude
that, based on the record available to the state court that adju-
dicated Jackson’s claims on the merits, the writ was improvi-
dently granted.
I.
A.
On Sunday, August 26, 2001, 88-year-old Ruth Phillips did
not show up to church. Jackson v. Commonwealth, 590 S.E.2d
520, 524 (Va. 2004) ("Jackson I"). Concerned by her absence,
Mrs. Phillips’s son tried reaching her by telephone. Id. When
there was no answer, he went to her Williamsburg, Virginia,
apartment to check on her. Id. After letting himself in, he
found his mother’s body "lying ‘twisted and exposed’ on a
bed in her bedroom." Id. As he later described it, her "leg was
twisted around, and her pubic region was exposed[; h]er
breast was exposed[; and h]er nightgown was up around her
neck." Id. (alterations in original).
Mrs. Phillips’s autopsy showed that she had died of
asphyxia, which "occurs when the brain is without a supply
of oxygen for four to six minutes." Id. The autopsy also found
a bruise on her nose and lacerations on the exterior and inte-
rior of her vagina. Id. A crime scene investigator recovered a
hair from Mrs. Phillips’s chest and another from the bed
underneath her stomach; more hairs were found in the vicinity
of her left thigh. Id. Forensic analysis revealed that several of
4 JACKSON v. KELLY
the hairs were pubic hair that was inconsistent with samples
taken from Mrs. Phillips. Id. These hairs were later found "to
be consistent with [Jackson’s] mtDNA to the exclusion of
99.998% of the population with a 95% degree of confidence."
Jackson v. Warden of the Sussex I State Prison, 627 S.E.2d
776, 783 (Va. 2006) ("Jackson II").
In December 2001, investigators conducted a videotaped
interview with Jackson. Jackson I, 590 S.E.2d at 524. After
waiving his Miranda rights, he "admitted entering Mrs. Phil-
lips’ apartment, searching through and taking money out of
her purse." Id. Jackson claimed he did not know Mrs. Phillips
was home when he flipped on the light and began to sift
through her purse. Id. As a result, he was "scared" when Mrs.
Phillips, who had been lying in bed, exclaimed: "What do you
want? I’ll give you whatever, just get out." Id.
Jackson acknowledged that when he realized Mrs. Phillips
had seen him, "he held a pillow over her face for two or three
minutes and tried to make her ‘pass out’ so she could not
identify him" and further "admitted that he inserted his penis
into her vagina while he was holding the pillow over her
face." Id. at 524-25. Jackson added that after exiting through
a back window, he drove away in Mrs. Phillips’s car, which
he ultimately abandoned. Id. at 524-25. He also reported that
he used the sixty dollars he stole from Mrs. Phillips’s purse
to buy marijuana. Id. at 525. Jackson repeatedly insisted that
he had not intended to kill Mrs. Phillips. Id.
A Virginia grand jury indicted Jackson in March 2002 and
charged him, inter alia, with two counts of capital murder for
the premeditated killing of Phillips in the commission of rape
or attempted rape and in the commission of robbery or
attempted robbery. Id. at 523.
Jackson’s trial was bifurcated into a guilt and a penalty
phase. During the guilt phase, Jackson retreated from his ear-
lier statement to law enforcement, testifying that he had con-
JACKSON v. KELLY 5
fessed to investigators because he believed "that was what
[they] wanted to hear" and that an accomplice had in fact
smothered Phillips. Id. at 525. Jackson further "denied having
any knowledge about who raped Mrs. Phillips or about how
his pubic hairs got on her body." Id.
The jury found Jackson guilty of both capital counts and of
various other state crimes. Id. at 523. Following penalty-phase
proceedings—which we discuss in greater detail below—the
jury found a "probability that [Jackson] would commit crimi-
nal acts of violence that would constitute a continuing threat
to society" and recommended a death sentence on both capital
counts. J.A. 983-85. In April 2003 the state circuit court
accepted the jury’s recommendation and imposed a death sen-
tence.
Jackson appealed his convictions. The Supreme Court of
Virginia affirmed in January 2004. See Jackson I, 90 S.E.2d
at 520. The United States Supreme Court declined review.
Jackson v. Virginia, 543 U.S. 891 (2004).
B.
On December 3, 2004, Jackson "filed an oversized habeas
petition with the [Supreme Court of Virginia] along with a
motion for leave to exceed the court’s 50-page limit." J.A.
2384. The Supreme Court of Virginia denied the motion for
extra pages and directed Jackson to file a "corrected petition."
Id. at 1140. Jackson filed an amended petition on January 4,
2005, alleging fourteen distinct claims of constitutional error.
The Supreme Court of Virginia rejected each of Jackson’s
habeas arguments and denied his petition on its merits on
March 24, 2006. See Jackson II, 627 S.E.2d at 780. We
briefly review the state court’s analysis of Jackson’s claims at
issue in this appeal: (1) that defense counsel1 provided consti-
1
Jackson was represented at trial by two attorneys, Patrick Kelley and
Andrew A. Protogyrou. Jackson v. Kelly, 699 F. Supp. 2d 838, 843 n.6
6 JACKSON v. KELLY
tutionally deficient representation by failing to interview
Jackson’s siblings and by failing to present evidence of Jack-
son’s positive traits;2 and (2) that the participation of two
jurors who indicated they would not consider certain mitigat-
ing factors unless instructed to do so—coupled with the
absence of a specific mitigation instruction—constituted con-
stitutional error on the part of the prosecutor, defense counsel,
and the trial court.
The Supreme Court of Virginia rejected Jackson’s argu-
ment that counsel’s failure to interview his brother and sister,
Damien and Chandal Jackson, constituted ineffective assis-
tance of counsel. The court reasoned that Jackson’s claim did
not satisfy the "prejudice" prong of the Supreme Court’s two-
part Strickland test for constitutionally deficient representa-
tion. Jackson II, 627 S.E.2d at 786 (citing Strickland, 466
U.S. at 687). It did not address whether his claim satisfied the
first prong of the test, i.e., whether "counsel’s representation
fell below an objective standard of reasonableness." Strick-
land, 466 U.S. at 688; see also McHone v. Polk, 392 F.3d
691, 704 (4th Cir. 2004) (noting that when a defendant "fails
to demonstrate sufficient prejudice from certain acts or omis-
sions" a court "need not decide whether counsel’s perfor-
mance in those respects was, in fact, deficient under
Strickland").
The court anchored its determination in two related find-
ings. First, it concluded that counsel had presented ample mit-
(E.D. Va. 2010) ("Jackson III"). All references to defense counsel with
respect to the penalty phase of Jackson’s trial are to Protogyrou, who was
responsible for that portion of the trial.
2
As part of his claim that counsel’s development and presentation of
mitigation evidence was constitutionally deficient, Jackson’s state-court
habeas petition also asserted that counsel failed to present expert evidence
about the impact of childhood abuse on development. The Supreme Court
of Virginia did not explicitly address this point, which Jackson again
raised in his federal habeas petition.
JACKSON v. KELLY 7
igation evidence in the form of seventeen mitigation
witnesses. The court noted that the jury had heard "the testi-
mony of physicians, psychologists, social workers, and a pas-
tor who had treated, evaluated, and/or counseled [Jackson]
and his family, to substantiate that [he] was the victim of child
abuse."3 Jackson II, 627 S.E.2d at 786. The court also cited
counsel’s elicitation of testimony from "the police officer who
investigated the charges of child abuse against petitioner’s
stepfather and from several of petitioner’s neighbors, friends,
and family members, including his mother, father, and stepfa-
ther." Id. at 786-87. In light of this mitigating evidence of
Jackson’s traumatic childhood, the court deemed the testi-
mony that would have been offered by Jackson’s siblings
"largely cumulative,"4 reasoning that it amounted to mere "an-
ecdotal evidence of specific instances of the abuse from the
perspective of [the] siblings." Id. at 787.
3
The court discussed this testimony in detail, noting that it
included information that petitioner’s stepfather received a sus-
pended jail sentence for physically abusing petitioner; hospital
and doctor’s office records indicating petitioner had been physi-
cally disciplined with a belt resulting in lasting bruises; records
that petitioner had suffered various fractures of unknown origin
to his extremities; that petitioner often appeared bruised; that
reports of abuse were made to the James City County Department
of Social Services and that twice the abuse was determined to be
"founded;" that petitioner was allowed to drink beer as a young
child; that petitioner and his stepfather had a bad relationship and
that, even during counseling, petitioner’s stepfather constantly
berated petitioner by calling petitioner "evil;" that petitioner’s
"problems were compounded by the weakness of [his] parental
subsystem" and lack of "material resources" which required peti-
tioner to be left unsupervised; that petitioner’s family did not fol-
low through with counseling or recommendations; and that on at
least one occasion, petitioner had been sexually abused.
Jackson II, 627 S.E.2d at 786.
4
Jackson’s habeas petition included an eight-page affidavit from
Damien Jackson and a five-page affidavit from Chandal Jackson, which
detailed the testimony they would have offered at trial.
8 JACKSON v. KELLY
As a second, related basis for its holding, the court found
that talking to Jackson’s siblings would not have altered coun-
sel’s trial strategy. The court cited counsel’s "strategic deci-
sion not to call . . . Damien [] to testify because Damien’s
successful transition from the abusive environment into a mil-
itary career would have diminished the mitigating effect of
[Jackson’s] abusive upbringing." Id. Observing that counsel
was aware of Jackson’s abusive background when he opted
not to have Damien testify, the court found no suggestion in
the record that counsel’s strategy "would have been altered by
knowing the specific details of the abuse." Id. As a result, the
court held that Jackson had "failed to demonstrate . . . a rea-
sonable probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different." Id. (cit-
ing Strickland, 466 U.S. at 687, 694).
The state court also rejected Jackson’s claim that counsel
"had failed to adequately investigate and present available
mitigation evidence concerning [Jackson’s] good character,"
holding that it satisfied neither prong of the Strickland analy-
sis. Id. With regard to counsel’s performance, the court found
that the record of the penalty-phase proceedings "demon-
strate[d] that the jury heard evidence of petitioner’s good
qualities, including evidence that petitioner was well-
mannered and cooperative, followed directions, was moti-
vated and ambitious, and had positive relationships outside of
his immediate family environment." Id. As for the second
prong, the court noted that Jackson had not shown that "addi-
tional evidence of his good character, such as his love for his
grandmother and his desire that his parents reunite, would
have affected the jury’s determination," and, as a result, could
not demonstrate prejudice. Id.The Supreme Court of Virginia further held that Jackson’s
claims arising out of alleged instructional error lacked merit.
It first rejected Jackson’s argument that two jurors were not
qualified for service because they "indicated that they would
not consider age and background as mitigation evidence
JACKSON v. KELLY 9
unless the trial court instructed them to do so" and were not
specifically given such an instruction.5 Id. The court found the
claim procedurally defaulted, as Jackson had not raised it at
trial or on direct appeal. Id. Jackson’s related argument that
the government’s failure to request an instruction that empha-
sized age and background as mitigation evidence amounted to
prosecutorial misconduct was also deemed defaulted. Id. at
788.
The Supreme Court of Virginia denied on its merits Jack-
son’s non-defaulted argument that his counsel’s failure to
request an age-and-background instruction constituted inef-
fective assistance of counsel. Id. at 787. In doing so, the court
explicitly rejected Jackson’s underlying assertion that both
jurors’ qualification had been "conditioned" upon the delivery
of a particular instruction. Id. at 787. To the contrary, the
court explained, "[b]oth jurors were qualified upon the trial
court’s determination that they would be fair and impartial."
Id. As a result, the court reasoned, the failure to request an
instruction could not have been prejudicial. Id.The state court cited additional reasons why Jackson’s
claim satisfied neither prong of the Strickland analysis. It
observed that a request by defense counsel for a particularized
instruction "would have been properly refused" under Vir-
ginia law. Id. at 788 (citing George v. Commonwealth, 411
S.E.2d 12, 23 (Va. 1991); LeVasseur v. Commonwealth, 304
S.E.2d 644, 661 (Va. 1983)). Consequently, the court rea-
soned, counsel’s omission was not unreasonable. Id. The
court further noted that "the jury was instructed to consider
petitioner’s history, background, and mitigating factors," in
the context of its assessment of "whether petitioner posed a
future danger to society." Id. (emphasis added).
5
We provide additional detail on the jurors’ statements below in the
context of our discussion of Jackson’s claims of alleged instructional
error.
10 JACKSON v. KELLY
Having rejected these arguments, along with Jackson’s
other habeas claims, the Supreme Court of Virginia denied his
petition for relief. The United States Supreme Court again
denied certiorari in January 2007. Jackson v. Kelly, 549 U.S.
1122 (2007).
C.
The federal district court for the Eastern District of Virginia
granted Jackson a stay of execution in September 2006, and
appointed habeas counsel in early December of that year. On
December 11, 2006, Jackson moved for an extension of the
deadline for his federal habeas petition, to a date "not later
than April 17, 2007." J.A. 1310. Jackson asserted that April
17 was when the statutory one-year limitation period—which
had been tolled by his filing of his state habeas petition on
December 3, 2004—would expire. See 28 U.S.C.
§ 2244(d)(1)-(2).
The court granted an extension to March 16, 2007, explain-
ing that it did not count the tolling period from December 3,
2004, but instead from January 4, 2005—the date that Jackson
filed his amended petition. The court noted that the Supreme
Court of Virginia’s habeas decision had identified January 4
as the date Jackson’s petition was filed. On December 18,
2006, Jackson filed a "Notice," asserting once again that the
tolling period should be counted from December 3, 2004.
Jackson provided his "Notice" to the government, but the gov-
ernment did not respond.
Three days later, on December 21, 2006, the government
filed a motion for reconsideration of the extension to March
16, urging that no extension was warranted. The government
made no mention of Jackson’s "Notice" nor did it otherwise
address the tolling period. The court denied the government’s
motion for reconsideration on January 19, 2007, reaffirming
that Jackson had until March 16 to file his petition.
JACKSON v. KELLY 11
On March 8, 2007, Jackson filed a second motion to extend
the deadline to April 17. Again, the government opted not to
respond. The district court granted the motion the next day,
concluding that Jackson’s calculation, which treated Decem-
ber 3, 2004, as the date his state habeas petition was filed,
reflected "a correct statement of the law." J.A. 1356. On April
17, 2007, Jackson filed his petition for federal habeas relief.
Jackson’s petition included a request for an evidentiary
hearing, which the court granted on February 28, 2008. The
court’s initial order did not specify why the request had been
granted but stated generally that Jackson’s mitigation claim
"ha[d] not been adequately developed in the record." Id. at
1516. In response to a government motion to reconsider the
evidentiary hearing, the court clarified that the proceeding
was warranted because Jackson’s filings "alleged sufficient
facts that, if fully established, would entitle him to relief on
two of the 17 claims raised in his federal habeas petition." Id.
at 1527-28.
The court held the evidentiary hearing on April 30 and May
1, 2008. Nine witnesses testified, including Jackson’s siblings
and the two attorneys who had represented Jackson at trial.
On August 14, 2008, the court denied Jackson relief as to the
guilt phase of his trial.
Some eighteen months later, on March 29, 2010, the court
granted Jackson relief as to the penalty phase, finding that
counsel rendered ineffective assistance by failing to investi-
gate and argue key mitigation evidence and by failing to chal-
lenge the lack of a jury instruction on age and background.
See Jackson v. Kelly, 699 F. Supp. 2d 838 (E.D. Va. 2010)
("Jackson III"). The court recognized "the extremely deferen-
tial standards for collateral review of a state court judgment"
but concluded that the Supreme Court of Virginia had erred
by denying relief. Id. at 843. We review the court’s lengthy
analysis, which is the subject of both the government’s appeal
and Jackson’s cross-appeal. In light of Cullen’s admonition
12 JACKSON v. KELLY
that our review is limited "to the record that was before the
state court that adjudicated the claim on the merits," 2011 WL
1225705, at *8, we avoid discussion of the evidence taken in
the federal evidentiary hearing.
1.
The district court first assessed Jackson’s claims that his
counsel had provided ineffective assistance at the penalty
phase by failing to (1) interview Jackson’s siblings, (2) pre-
sent scientific evidence linking childhood abuse to adult
behavior, or (3) present evidence of Jackson’s positive traits.
The court began with counsel’s failure to interview Jack-
son’s brother and sister. As the Supreme Court of Virginia
had not addressed whether counsel’s omission satisfied the
ineffectiveness prong of the Strickland analysis, the district
court assessed that portion of his claim de novo. Id. at 844
(citing Porter v. McCollum, 130 S. Ct. 447, 452 (2009)).
The court discussed counsel’s efforts to develop mitigation
evidence related to Jackson’s abusive upbringing. The court
noted that counsel had pursued that goal by "assembl[ing] a
collection of Jackson’s medical, social, and educational
records, which contained references to numerous instances of
abuse." Id. It further observed that counsel had interviewed
Jackson, as well as his mother, father, stepfather, godmother,
uncle, cousin, and pastor. Id. at 847-48 & n.13.
While recognizing the steps that counsel had taken, the
court held that additional research had been warranted. The
court rested its conclusion on the contents of the records
counsel had assembled, which it discussed in some detail.6 Id.(Text continued on page 14)
6
The court summarized the records that it concluded "should have
prompted further investigation" as follows (all citations are to the joint
appendix that was before the district court):
JACKSON v. KELLY 13
[A] report generated after a particularly severe beating by Tim
Knight [Jackson’s stepfather], when Jackson was twelve years
old, notes, "There is a previous history of abuse by [redacted] and
this incident appears to be much more severe. In addition, neither
of the victims reported the abuse; Jerry’s injuries were discovered
by accident and he was reluctant to cooperate with the investiga-
tion." Id. at 539. The "planned, calculated" nature of that incident
also leads to the conclusion that more abuse was occurring: "Both
boys indicated that [redacted] made them strip naked and exer-
cise so that they would be too tired to run from him during their
punishment; [redacted] then beat both of them with his belt while
they were naked." Id. at 625, 538. Another report of the same
incident states: "This is the 3rd incident of known physical abuse
of Jerry by Mr. Knight and the 1st resulted in maiming charges,"
Id. at 625 (emphasis in original), and estimating "the likelihood
of reoccurance [sic][is] high. The children did not report the
abuse, & Jerry was afraid to cooperate w/ DSS. They appeared
to accept their parents’ decision that they deserved the beatings."
Id. Another report contains a passing reference to a beating with
a two-by-four. Id. at 617. A report made when Jackson was nine
years old states, "Worker asked if similar incidents had occurred
& he stated that about two weeks earlier he had gotten his
[redacted]." Id. at 670. A social worker later wrote of Jackson,
then age thirteen, "I get the impression that Jerry has been physi-
cally beaten by all the adults in his life, starting with his natural
father." Id. at 533. Another record notes that Jackson’s mother
and stepfather "seem[ed] to be confused about how to handle
Jerry, since the Court has mandated that Tim cannot use physical
punishment." Id. at 2727.
The records also contain indications of serious neglect at an early
age, which should have been explored further. See, e.g., id. at 652
(A police report from 1988, when Jackson was seven years old,
states "neighbors called the police when they found 2 children
huddled in the stairwell—not the first time . . . . [redacted] locked
them out of the apt."); id. at 2729 (referring to Jackson’s "weak
parental subsystem"); id. at 2677-79 (referring to "lack of paren-
tal attention"); id. at 2769 (referring to Jackson feeling "loss and
abandonment").
The records in counsel’s possession also contained leads to other
types of mitigation evidence. One report, for instance, contains a
reference to Jackson "drinking alcohol" at age twelve, id. at 619,
14 JACKSON v. KELLY
at 846-47. In doing so, it identified numerous reports docu-
menting severe abuse and neglect, as well as allegations of
sexual abuse. Id. at 846-47.
The court emphasized, moreover, that the records’ trou-
bling contents reflected only "incomplete, limited snapshots
of Jackson’s childhood, documenting only four or five
instances of abuse and providing mental health assessments
from a few isolated time periods." Id. at 846. Faced with these
glimpses into Jackson’s background, the court reasoned, "a
reasonable attorney would have realized that a thorough
investigation into Jackson’s home life was essential." Id. at
847. In this regard, the court noted, Jackson’s parents were
unreliable sources of information, as Jackson’s father and
stepfather had been implicated in incidents of abuse, and his
mother had at least tacitly "endorse[d]" it. Id. at 848.
Against this backdrop, the court held that counsel’s deci-
sion not to speak to Jackson’s siblings "was a critical and
glaring omission." Id. at 849. The court observed that both
siblings were older than Jackson and had lived in the same
household as Jackson for significant stretches of his child-
another to an allegation of sexual abuse by a relative, id., and
another to an unexplored allegation that Jackson, at age seven,
had been "outright raped" by a visitor at his grandmother’s house.
Id. at 2799-2800. These pieces of information, together with
Jackson’s report to his attorney (reflected in counsel’s notes) that
someone forced Jackson and his brother to masturbate in front of
them, Tr. at 237 ("Made him + brother masturbate in front of
him."), that he was "molested for years", id. at 236, and that his
brother was raped by an uncle while Jackson hid in the closet
fearing he would be raped next, id. at 357, indicate the likely
existence of a wealth of mitigating evidence completely unex-
plored by trial counsel. Those records also document that Damien
would have direct knowledge of the abuse because he was refer-
enced in the reports as well.
Jackson III, 699 F. Supp. 2d at 846-47 (alterations in original and footnote
omitted). The court also cited "passing references to diagnosable depres-
sion." Id. at 847.
JACKSON v. KELLY 15
hood. Id. at 849. As a result, the court found, both "were the
only credible witnesses" regarding the incidents of abuse doc-
umented in the record. Id. In the court’s view, "Damien or
Chandal could have offered detail to the reported abuse,
described the nature of Jackson’s relationship with his father
and stepfather, or indicated whether there were other unre-
ported problems." Id.The court rejected the notion that counsel’s investigation
reflected a "strategic choice" to avoid "the jury drawing unfa-
vorable comparisons between Jackson and his siblings" for
two reasons. Id. First, it found that "counsel did not rely on
this ‘strategy’ at trial," citing instances on direct examination
in which counsel "opened the door" to cross-examination
about Damien, as well as counsel’s own comparison of Jack-
son to his brother in closing argument. Id. at 849-50. Second,
the court concluded that counsel could not have made a rea-
sonable strategic choice without first speaking to Jackson’s
siblings to assess what testimony they could offer. Id. at 850.
The court next reviewed counsel’s failure to present expert
testimony to link Jackson’s abusive childhood to his adult
behavior. Id. at 851. The court observed that determining
whether this omission constituted ineffective assistance was
"difficult," as counsel’s failure to "discover and present the
crucial evidence of Jackson’s abusive childhood" precluded
his establishing "the basis for introducing scientific evidence
linking the effects of such a childhood abuse to adult behav-
ior." Id. Despite this obstacle, the court found, without further
explanation, that "counsel’s . . . failure to connect the dots
between childhood abuse and adult behavior must be viewed
as yet another instance of deficient performance under Strick-
land." Id. at 851-52.
The court then turned to Jackson’s claim that counsel had
failed to investigate and adduce evidence of his positive traits.
The court rejected the Supreme Court of Virginia’s factual
conclusion that such evidence had been presented. Id. at 852.
16 JACKSON v. KELLY
It explained that much of the evidence cited by the state court
"consisted of hearsay statements recited by a psychologist
who had never treated Jackson personally, but read from
reports describing Jackson’s demeanor during a counseling
session when he was approximately twelve years old." Id. It
also found that the state court had treated "isolated state-
ments" by a prison guard and Jackson’s mother as positive
character evidence. Id. (citing the guard’s statement that he
had not had problems with Jackson until a particular incident
and Jackson’s mother’s testimony that she had been "able to
communicate better and talk more" with Jackson while he was
in prison).
The district court deemed the Supreme Court of Virginia’s
factual finding "an unreasonable determination of the facts in
light of the evidence," id. (quoting 28 U.S.C. § 2254(d)(2)),
reasoning that "[t]hese bland, hearsay comments offered no
real insight into Jackson’s character or personality," id. The
court further found that Jackson had shown by "‘clear and
convincing evidence,’ that no evidence of his positive traits
was ever presented to the jury." Id. (quoting 28 U.S.C.
§ 2254(e)(1)). The court also rejected the possibility that the
paucity of positive character evidence presented reflected the
absence of such evidence or a strategy to avoid evidence "in-
consistent with the defense’s mitigation theme." Id. at 852-53.
Having concluded that counsel’s performance was constitu-
tionally deficient in the three respects described above, the
court turned to the prejudice prong of the Strickland analysis.
Id. at 854. To assess the impact of counsel’s behavior on
Jackson’s sentence, the court reviewed the evidence presented
at the penalty phase of his trial. See id. at 855.
The court first described the government’s presentation,
which it found consisted of testimony from Mrs. Phillips’s
son, two prison officers, and "a victim of a burglary Jackson
committed the evening before Phillips was murdered." Id. The
court observed that the government had introduced evidence
JACKSON v. KELLY 17
of Jackson’s "extensive" criminal history,7 but noted that his
record "consisted mostly of property crimes and contempt
violations." Id. at 855. The court did not reference the evi-
dence of Jackson’s rape and murder that the government had
presented to the jury in the penalty phase. See id.The court then briefly reviewed the testimony of the seven-
teen witnesses defense counsel had called during the penalty
phase. Id. at 855-57. These witnesses included: (1) an emer-
gency room doctor who had examined Jackson when he was
eleven; (2) a clinical psychologist whose associate had evalu-
ated Jackson when he was eleven; (3) a records custodian
from the Newport News Health Department; (4) a child psy-
chologist who had evaluated Jackson when he was fourteen;
(5) a pediatrician who had examined Jackson when he was
fourteen; (6) a records custodian from the New Horizon Fam-
ily Counseling Center; (7) a clinical psychologist who had
interviewed Jackson when he was fifteen; (8) a police officer
who investigated an assault and battery on Jackson by his
stepfather when Jackson was eleven; and (9) a social services
official who had investigated multiple allegations of child
abuse against Jackson. Id. at 855-57.
The district court also noted mitigating testimony from
three individuals who had interacted with Jackson and his
family when he was a child: (10) the family’s pastor; (11)
Jackson’s neighbor and godmother; and (12) Jackson’s cousin
and godsister. Id. at 857. The court cited additional testimony
from four members of Jackson’s family: (13) Jackson’s uncle;
(14) Jackson’s biological father; (15) Jackson’s stepfather;
and (16) Jackson’s mother. Id. at 857-58. Jackson himself was
the seventeenth and final mitigation witness. Id. at 858.
7
The government introduced "18 orders showing Jackson’s convictions
or adjudications of delinquency for such offenses as grand larceny, petit
larceny, trespassing, drug possession, receiving stolen property, contempt
of court, identity fraud, statutory burglary, credit card theft, and obtaining
money under false pretenses." Jackson, 590 S.E.2d at 525.
18 JACKSON v. KELLY
The court measured the testimony of these seventeen miti-
gation witnesses against the testimony elicited at the evidenti-
ary hearing. See id. at 858-61. In light of its assessment of that
material, the court flatly rejected the Supreme Court of Vir-
ginia’s determination that the failure to interview Jackson’s
siblings did not satisfy Strickland’s prejudice prong. See id. at
862. It noted that the Supreme Court of Virginia did not hold
an evidentiary hearing and found that the state court erred by
deferring to "trial counsel’s premature, uninformed ‘strategic’
choice."8 Id.
The court also rejected the Supreme Court of Virginia’s
determination "that the new evidence of abuse proffered by
Jackson was cumulative." Id. The court emphasized that an
assessment of prejudice arising out of counsel’s performance
during a capital case’s penalty phase "is not a rote cataloging
exercise" to "ensure[] that counsel presented some testimony
on each potential area of mitigation." Id. at 863. Given its
determination that the Supreme Court of Virginia’s inquiry
had amounted to such an exercise, the court found that the
state court had unreasonably applied federal law by failing to
consider "the ‘entire evidentiary picture’ presented to the
jury." Id. (quoting Strickland, 466 U.S. at 696).
In the district court’s view, counsel’s presentation
amounted to "a parade of ineffective record witnesses," "con-
tradictory testimony from character witnesses who reported
8
The court reasoned in particular that the state court had mistakenly
viewed as dispositive its determination that speaking with Jackson’s sib-
lings would not have altered counsel’s strategy. Id. (citing Jackson II, 626
S.E.2d at 786-87). The court observed that, under the Supreme Court’s
standard articulated in Wiggins v. Smith, 539 U.S. 510 (2003), the perti-
nent "question is not whether, subjectively, Jackson’s own counsel would
have introduced the evidence," but instead "whether, objectively, ‘a com-
petent attorney, aware of this evidence, would have introduced it.’" Id.(emphasis added) (quoting Wiggins, 539 U.S. at 535). As a result, it
deemed the state court’s analysis "contrary to, and an unreasonable appli-
cation of, Wiggins." Id.JACKSON v. KELLY 19
little or no abuse," and "unchallenged testimony" from Jack-
son’s abusers that his problems "were his own fault." Id. The
court concluded that this evidentiary showing prejudiced
Jackson, id. at 863-64, and that prejudice "was compounded"
by the absence of testimony linking childhood trauma to psy-
chological development, id. at 864. The court deemed it
unnecessary to decide whether Jackson had shown indepen-
dent prejudice arising out of the failure to present evidence of
his positive traits, as that omission was prejudicial when
viewed "in combination with" the failure to interview Jack-
son’s siblings. Id. As a result, the court found habeas relief
warranted on all three of Jackson’s claims related to counsel’s
development and presentation of mitigation evidence.
2.
The court then addressed Jackson’s assertion that counsel’s
failure to challenge the lack of a particularized mitigation
instruction amounted to constitutionally deficient representa-
tion.9 Id. at 864. The court recounted the colloquies of two
jurors at voir dire, which it concluded showed that "[t]rial
counsel and the trial court knew . . . that [these] jurors felt that
neither age nor troubled background were mitigating factors."
Id. at 865. The court found that, under these circumstances,
the failure to specifically instruct the jury to consider age and
background in mitigation "tr[od] on the guarantees of the
Eighth Amendment." Id. In support of its conclusion, it cited
the Supreme Court’s admonition that although "[t]he sen-
tencer . . . may determine the weight to be given relevant miti-
gating evidence," it "may not give it no weight by excluding
9
We do not summarize the district court’s analysis of Jackson’s second
claim of instructional error, which challenged counsel’s failure to ask the
district court to clarify for the jury that mitigation factors need not be
unanimously found. Jackson has abandoned this argument, in light of the
Supreme Court’s decision that relief on this issue is foreclosed on collat-
eral review. See Appellee’s Br. at 69 (citing Smith v. Spisak, 130 S. Ct.
676, 684 (2010)).
20 JACKSON v. KELLY
such evidence from . . . consideration." Id. (quoting Eddings
v. Oklahoma, 455 U.S. 104, 114-15 (1982)).
The court recognized that "failure to instruct a jury as to
specific mitigating factors is generally not constitutional
error." Id. at 866 (citing Buchanan v. Angelone, 522 U.S. 269,
278 (1998)). Nevertheless, it found that the "entire context in
which the instructions were given," id. (quoting Buchanan,
522 U.S. at 278), suggested "a defect of constitutional propor-
tion," id. The court cited three factors as creating a "context"
in which a particularized instruction was mandated: the two
jurors’ responses during voir dire, the fact that Jackson was
twenty years old when he raped and murdered Mrs. Phillips,
and the evidence of Jackson’s abusive background presented
during mitigation. Id.The court rejected the Supreme Court of Virginia’s conclu-
sion that Jackson’s claim of instructional error did not satisfy
the first prong of the Strickland analysis. The court noted that
the state court’s finding that counsel’s performance was rea-
sonable relied on its conclusion that the trial court would have
"properly refused" any request for a particularized instruction.
Id. at 867 n.31 (quoting Jackson II, 627 S.E.2d at 787). The
court found this assessment so unsupported by the record as
to not merit AEDPA deference. Id. at 867 (citing Uttecht v.
Brown, 551 U.S. 1, 20 (2007)). The court cited the trial
court’s statement that jurors would consider age "when
they’re told it’s a factor" as indisputable evidence that the trial
court appreciated "the need for a clarifying instruction," and
would have provided one if asked to do so. Id. The court simi-
larly rejected the Supreme Court of Virginia’s determination
that the future dangerousness instruction’s charge to jurors to
consider Jackson’s history and background precluded a find-
ing of prejudice on Strickland’s second prong, finding the
court’s reasoning "contrary to" Supreme Court caselaw. Id. at
867-68. (citing Penry v. Lynaugh, 492 U.S. 302, 323-24
(1989)).
JACKSON v. KELLY 21
Having rejected the Supreme Court of Virginia’s Strickland
analysis, the court conducted its own assessment of whether
counsel’s failure to request a "proper instruction" constituted
ineffective assistance of counsel. See id. at 866. On the first
prong, the court held that counsel’s behavior was objectively
unreasonable, as counsel had conceded that his failure to chal-
lenge the instructions was not a strategic choice and counsel
"was unquestionably aware" of at least one juror’s need for a
specific instruction. Id. at 866-67. With regard to the second
prong, the court cited the "clear constitutional mandate that
the jury consider age and troubled background" in mitigation,
as well as "the specific voir dire in this case" as showing "a
strong likelihood" that the trial court would have provided a
specific mitigation instruction "had counsel only asked for it."
Id. at 867. On the basis of these findings, the court found
habeas relief warranted on this claim as well. Id.
In light of its determination that penalty-phase relief was
appropriate on several of Jackson’s claims, the district court
vacated his death sentence. Id. at 870. In April of 2010 the
government filed notice of appeal. Jackson filed notice of
cross-appeal on May 3, 2010. On August 6, 2010, the district
court denied Jackson a certificate of appealability, holding
that he had not shown that Virginia courts’ resolution of those
claims "was debatable or wrong." J.A. 2510. We granted
Jackson a certificate of appealability for his cross-appeal
claims on November 4, 2010.
II.
Before turning to the substantive claims on appeal and
cross-appeal, we address two procedural arguments made by
the government: (1) that Jackson’s federal habeas petition was
barred by the statute of limitations and (2) that the district
court abused its discretion by holding an evidentiary hearing.10
10
Because we hold that the writ was improvidently granted, we bypass
the government’s argument that some of the claims on which the district
court granted relief were procedurally defaulted.
22 JACKSON v. KELLY
We conclude that Jackson’s federal habeas petition was not
time barred, but that the district court erred by relying on evi-
dence it obtained from its own hearing when assessing Jack-
son’s mitigation-related Strickland claims, which had been
adjudicated on their merits by the Supreme Court of Virginia.
A.
The government argues that Jackson’s federal habeas peti-
tion was time-barred, urging that the district court’s grant of
an extension to April 17, 2007 erroneously extended Jack-
son’s filing deadline beyond the one-year statutory deadline.
See 28 U.S.C. § 2244(d)(1). The government concedes that
the statute of limitations is tolled during the period in "which
a properly filed application for State post-conviction or other
collateral review . . . is pending." Id. § 2244(d)(2). However,
it urges that Jackson’s oversized brief, which he submitted on
December 3, 2004, did not constitute a "properly filed appli-
cation." Counting from January 4, 2005, the date that Jack-
son’s corrected petition was filed, the government argues that
the statute of limitations expired on March 16, 2007. We dis-
agree.
Jackson’s submission of an oversized habeas brief and a
motion to permit the extra pages to the Supreme Court of Vir-
ginia constituted "delivery and acceptance . . . in compliance
with the applicable laws and rules governing filings." Artuz v.
Bennett, 531 U.S. 4, 8 (2000). Jackson’s initial petition was
neither rejected nor dismissed by the Supreme Court of Vir-
ginia. Jackson was instead directed to file a "corrected peti-
tion" in a timely manner. J.A. 1140. The Supreme Court of
Virginia’s emphasis on "correction" indicates to us that the
requested alteration constituted an amendment to Jackson’s
initial filing.
In any event, it is apparent from the record that Jackson
relied on the federal district court’s grant of an extension to
April 17, 2007 when timing the submission of his federal
JACKSON v. KELLY 23
habeas brief. Significantly, the government raised no objec-
tion to Jackson’s statute-of-limitations calculations prior to
that deadline, nor did it otherwise suggest that Jackson’s fed-
eral habeas petition should be time-barred. Even if the gov-
ernment were correct that Jackson’s oversized petition was
not "properly filed," under these circumstances, Jackson
would undoubtedly be entitled to equitable tolling. See Green
v. Johnson, 515 F.3d 290, 304 (4th Cir. 2008) (noting that
equitable tolling is appropriate when "due to circumstances
external to the party’s own conduct—it would be unconscio-
nable to enforce the limitation period against the party and
gross injustice would result").
B.
The government also urges that the district court erred by
holding an evidentiary hearing. We consider that argument in
light of the Supreme Court’s recent delineation of such hear-
ings’ limited role in federal habeas proceedings.
In Cullen v. Pinholster, the Supreme Court clarified that
AEDPA limits federal habeas review "to the record that was
before the state court that adjudicated the claim on the mer-
its." 2011 WL 1225705, at *8. In other words, when a habeas
petitioner’s claim has been adjudicated on the merits in state
court, a federal court is precluded from supplementing the
record with facts adduced for the first time at a federal evi-
dentiary hearing. See id. at *9 ("It would be strange to ask
federal courts to analyze whether a state court’s adjudication
resulted in a decision that unreasonably applied federal law to
facts not before the state court.").
The district court did not have the benefit of Cullen’s guid-
ance when it determined that a hearing was warranted because
Jackson had "alleged sufficient facts that, if fully established,
would entitle him to relief on two of the 17 claims raised in
his federal habeas petition." J.A. 1527-28. It is now clear,
however, that the court’s reliance on material developed at the
24 JACKSON v. KELLY
federal evidentiary hearing was at odds with AEDPA’s place-
ment of "primary responsibility [for habeas review] with the
state courts," and illustrated the difficulties inherent in "allow-
[ing] a petitioner to overcome an adverse state-court decision
with new evidence introduced in a federal habeas court and
reviewed by that court in the first instance effectively de
novo." Cullen, 2011 WL 1225705, at *8. Mindful that "evi-
dence introduced in federal court has no bearing on
§2254(d)(1) review," id. at *10, we proceed to assess Jack-
son’s petition on the basis of the facts contained in the state-
court record.
III.
We turn to the standards by which we evaluate the merits
of the issues before us on appeal and cross-appeal. Our review
is bounded by the familiar contours of AEDPA deference,
which, as recently reinforced by the Supreme Court’s unani-
mous decision in Harrington v. Richter, 131 S. Ct. 770(2011), helps to ensure "confidence in the writ and the law it
vindicates." Id. at 780. We may grant habeas relief on claims
adjudicated on their merits in state court only if that
adjudication resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States or resulted in a
decision that was based on an unreasonable determi-
nation of the facts in light of the evidence presented
in the State court proceeding.
Appleby v. Warden, 595 F.3d 532, 535 (4th Cir. 2010) (inter-
nal quotations omitted) (citing 28 U.S.C. § 2254(d)).
A state court’s holding is "contrary to" clearly established
federal law "if the state court arrives at a conclusion opposite
to that reached by th[e Supreme] Court on a question of law"
or "confronts facts that are materially indistinguishable from
JACKSON v. KELLY 25
a relevant Supreme Court precedent and arrives at" an oppo-
site result. Lewis v. Wheeler, 609 F.3d 291, 300 (4th Cir.
2010) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)).
By contrast, a "state court unreasonably applies federal law
when it ‘identifies the correct governing legal rule from th[e]
Court’s cases but unreasonably applies it to the facts of the
particular . . . case,’" or "unreasonably extends a legal princi-
ple from [the Court’s] precedent to a new context where it
should not apply or unreasonably refuses to extend that prin-
ciple to a new context where it should apply." Id. at 300-01
(quoting Williams, 529 U.S. at 407) (alterations in original).
In short, to obtain federal habeas relief, "a state prisoner must
show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement." Har-
rington, 131 S. Ct. at 786-87; see also Schriro v. Landrigan,
550 U.S. 465, 474 (2007) (noting that on AEDPA review, the
pertinent question "is not whether a federal court believes the
state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher
threshold").
To demonstrate ineffective assistance of counsel, Jackson
must show "that counsel’s performance was deficient, and
that the deficiency prejudiced the defense." Wiggins v. Smith,
539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687).
This two-part analysis presents a "high bar" to petitioners, and
we must assess their efforts to surmount it with "scrupulous
care, lest intrusive post-trial inquiry threaten the integrity of
the very adversary process the right to counsel is meant to
serve." Harrington, 131 S. Ct. at 788 (internal quotations
omitted).
Even if Jackson could satisfy the "difficult standard" of
Strickland’s first prong, James v. Harrison, 389 F.3d 450, 457
(4th Cir. 2004), he would still be required to show prejudice.
In a capital case, "the prejudice inquiry centers on ‘whether
26 JACKSON v. KELLY
there is a reasonable probability that, absent [counsel’s]
errors, the sentencer . . . would have concluded that the bal-
ance of aggravating and mitigating circumstances did not war-
rant death.’" Williams v. Ozmint, 494 F.3d 478, 484 (4th Cir.
2007) (quoting Strickland, 466 U.S. at 695) (alterations in
Ozmint). Such a showing "requires a substantial, not just con-
ceivable, likelihood of a different result." Cullen, 2011 WL
1225705, at *12 (internal quotations omitted). When making
this determination we review the "totality of the evidence
before the . . . jury." Ozmint, 494 F.3d at 484.
IV.
Against the backdrop of these highly deferential standards
we proceed to the issues before us. We begin with the govern-
ment’s challenge to the grant of federal habeas relief on Jack-
son’s mitigation-related claims. We then turn to the
government’s appeal of the district court’s grant of relief on
Jackson’s claims of instructional error and to Jackson’s
related claims on cross-appeal. For the reasons described
below, we conclude the writ was improvidently granted.
A.
Like the Supreme Court of Virginia, we bypass whether
defense counsel’s performance was deficient and proceed
directly to the prejudice prong of the Strickland analysis. See
Strickland, 466 U.S. at 688; see also McHone, 392 F.3d at
704. We conclude that the state court’s finding that Jackson
had not shown prejudice arising from any alleged mitigation-
related deficiencies was not "clearly unreasonable" and that
the district court erred by holding otherwise.
We first address Jackson’s claim that counsel’s failure to
interview his siblings had a substantial likelihood of affecting
the outcome of penalty-phase proceedings. Given the array of
evidence of childhood abuse presented to the jury, nothing in
the state-court record shows that the Supreme Court of Vir-
JACKSON v. KELLY 27
ginia unreasonably determined that the failure to develop and
present testimony from Jackson’s siblings did not constitute
Strickland prejudice.
As described above, counsel called seventeen mitigation
witnesses, including nine professionals, many of whom had
treated or worked with Jackson when he was a child, five
family members, Jackson’s godmother, the family’s pastor,
and Jackson himself. These mitigation witnesses’ testimony
shed considerable light on Jackson’s traumatic childhood. For
instance, in response to probing inquiries from counsel, the
social worker who had researched multiple instances of Jack-
son’s childhood abuse read an account of her investigation
suggesting that Jackson and his brother had been "outright
raped." J.A. 899. The jury also heard record evidence that
Jackson’s stepfather harangued him in the midst of counseling
sessions, stating that "he hate[d] him and that [Jackson wa]s
evil." Id. at 825. These are just two of many, striking exam-
ples of physical and emotional abuse presented to the jury at
the penalty phase.11
Even the district court’s selective summary12 of the pro-
11
The district court noted that this disturbing language appeared in the
written records assembled by counsel; indeed, it cited these two statements
as data reviewed by counsel that should have prompted further investiga-
tion. Jackson III, 699 F. Supp. 2d at 847. However, the court failed to
mention that these same accounts were read to the jury. In summarizing
the witnesses’ presentations of these reports, the court blandly alluded to
the former incident as an alleged sexual assault and to the latter as "ver-
bal[] abus[e]." Id. at 856-57.
12
The district court’s minimization of the potency of mitigation evi-
dence at trial is notably illustrated by its assertion that the trial court
"warned" defense counsel about the dryness of his evidence. See Jackson
III, 699 F. Supp. 2d at 845. The pertinent statement was not a "warning."
It was instead offered as a rationale for continuing with mitigation wit-
nesses after counsel noted that Jackson had not taken his medication,
which Jackson explained "help[ed him] to stay awake." J.A. 887. The trial
court noted that he had seen Jackson "looking down and looking around,"
but reasoned that such behavior was understandable given the nature of
the witnesses’ testimony. J.A. 888.
28 JACKSON v. KELLY
ceedings at trial illustrates the severity of the accounts of
abuse presented to the jury in mitigation. See Jackson III, 699
F. Supp. 2d. at 855-58. Testimony from Jackson’s trial
recounted by the district court included descriptions of Jack-
son suffering a broken arm when he was less than two years
old (an injury which neither of his parents could explain);
being sexually assaulted; receiving medical treatment on mul-
tiple occasions for severe bruising; finding himself locked out
of his apartment by his biological father at a young age; being
struck with a belt; enduring a beating in the eye and chest
with a large stick; and, on at least one occasion, having to
strip naked and perform exercises before being beaten. See
Jackson III, 699 F. Supp. 2d. at 855-58. The district court also
cited testimony that Jackson’s father "had a reputation for
alcohol consumption" and that his stepfather had been crimi-
nally prosecuted for child abuse, which resulted in a sus-
pended sentence, a protective order, and mandatory
counseling. Id.Against the backdrop of this mitigation evidence, the
Supreme Court of Virginia supportably found that the testi-
mony described in Jackson’s siblings’ affidavits would have
been "largely cumulative" of material already before the jury,
as they amounted to "anecdotal evidence of specific instances
of the abuse from the perspective of [Jackson’s] siblings."
Jackson II, 627 S.E.2d at 787. As a result, the state court rea-
soned, the failure to develop and present Jackson’s siblings as
witnesses was not substantially likely to have affected the out-
come of penalty-phase proceedings. Given the breadth and
depth of evidence of childhood abuse provided to the jury, we
cannot say that determination was clearly unreasonable. See
Harrington, 131 S. Ct. at 791.
We also see no basis on which to conclude that counsel’s
alleged failure to present positive character evidence preju-
diced Jackson. The district court’s contrary finding reflected
a lack of deference to the Supreme Court of Virginia’s thresh-
old factual conclusion "that the jury heard evidence of [Jack-
JACKSON v. KELLY 29
son’s] good qualities." Jackson II, 627 S.E.2d at 787. The
district court’s dismissal of the statements on which the
Supreme Court of Virginia relied as "bland, hearsay com-
ments," which "offered no real insight into Jackson’s charac-
ter or personality," Jackson III, 699 F. Supp. 2d at 852,
constituted an assessment of the potency of the positive miti-
gation evidence rather than the existence of such evidence.
Put otherwise, the bare insistence that the positive statements
cited by the Supreme Court of Virginia did not constitute
"genuine" evidence was far from a refutation by clear and
convincing evidence of the Supreme Court of Virginia’s fac-
tual conclusion. See 28 U.S.C. § 2254(e)(1). Although it
invoked AEDPA’s language, the district court did not give
that standard sufficient "operation or function in its reason-
ing." Harrington, 131 S. Ct at 787.
More fundamentally, the district court’s "reweigh[ing of]
the evidence in aggravation against the totality of available
mitigating evidence," was conspicuously one-sided. Wiggins,
539 U.S. at 534; see also Emmett v. Kelly, 474 F.3d 154, 170
(4th Cir. 2007). Specifically, the district court failed to men-
tion considerable evidence regarding the horrific circum-
stances of Jackson’s rape and murder of Mrs. Phillips. This
omission was particularly striking in light of the government’s
careful emphasis on the disturbing details of Jackson’s crimes
at closing.
The troubling circumstances highlighted by the government
included the fact that Jackson intruded upon the "sanctity of
[Mrs. Phillips’s] home," despite the fact that her car was
parked outside; that he had entered through a window that she
had left "open just a little bit so she did not have to use [her]
air conditioner, so she could save some money," J.A. 960; that
he ignored her plea to take what he wanted and leave; that
after raping and murdering her, he absconded with her car;
that he left his victim with her dress pulled up and her body
grotesquely twisted; and that he used the money he took from
her purse to buy drugs.
30 JACKSON v. KELLY
The government also pointedly emphasized Jackson’s own
testimony during the guilt phase, noting that his retreat from
his earlier videotaped statement "absolutely showed no
remorse." Id. at 961. The government further observed that
Jackson "had the audacity" to claim that Mrs. Phillips had not
been raped and to attempt to shift blame to his alleged accom-
plices. Id. at 961-62. This body of aggravating evidence only
reinforces our determination that the Supreme Court of Vir-
ginia was not clearly unreasonable in determining that Jack-
son had failed "to demonstrate how additional evidence of his
good character, such as his love for his grandmother and his
desire that his parents reunite, would have affected the jury’s
determination." Jackson II, 627 S.E.2d at 787.
Finally, we turn to Jackson’s assertion that counsel failed
to present expert testimony linking childhood abuse to adult
behavior. The Supreme Court of Virginia did not address this
claim, see supra n. 2, and the district court declined to make
an independent finding of prejudice arising from the absence
of psychological testimony, see Jackson III, 699 F. Supp. 2d
at 864. In light of the balance of aggravating and mitigating
evidence discussed above, we are unconvinced that such
expert testimony would have yielded "a ‘substantial’ . . . like-
lihood of a different result." Cullen, 2011 WL 1225705, at
*12 (quoting Harrington, 131 S. Ct. at 791).
In sum, we find that even if counsel’s development and
presentation of mitigation evidence was deficient, any defi-
ciencies did not amount to prejudice under Strickland’s sec-
ond prong.
B.
The remaining claims on which the district court granted
relief, as well as Jackson’s claims on cross-appeal, all involve
alleged instructional error, arising out of the trial court’s fail-
ure to specifically instruct the jury on particular mitigating
factors. We begin with the claim on which habeas relief was
JACKSON v. KELLY 31
granted, i.e., that counsel’s failure to object to the lack of a
specific mitigation instruction constituted constitutionally
deficient representation. As this argument was adjudicated on
a complete factual record in state court, we review it through
the "doubly" deferential lens of AEDPA and Strickland, Cul-
len, 2011 WL 1225705, at *12; Harrington, 131 S. Ct. at 788,
and conclude that it lacks merit.
We briefly recount the disputed jurors’ colloquies at voir
dire. Juror Dana Metheny initially responded "No" when
asked by defense counsel whether she would "be able to con-
sider the age of Mr. Jackson in making a decision on whether
to impose life without the possibility of parole, or death." J.A.
639. She repeated her answer after counsel clarified that the
question was whether she would consider "age or any other
evidence that we may put before you if we so elect . . . in mit-
igation that you may consider; family, doctors, past, the way
he grew up." Id. at 639-40. However, she repeatedly
responded "Yes" when asked if she would consider such
issues if instructed to do so by the court. E.g., id. ("If the
Court tells you to consider issues in mitigation, such as age,
such as background, such as family, such as psychological or
psychiatric issues, would you consider those issues in mitiga-
tion before you voted for death?" "Yes.").
Juror Wendy Berube expressed similar reluctance to con-
sider age as mitigating evidence. When asked whether she
would consider factors in mitigation, she responded "Yes. I
mean, I would consider everything," adding "I don’t think that
age matters, if that is what you’re asking." Id. at 665-66
(emphasis added). When queried "If the Court instructs you
age matters, would you then consider it?" she responded
"Yes." Id. at 666. She gave the same response when asked if
she would "follow the Court’s instructions?" Id. In deeming
both jurors qualified to serve, the trial court stated: "They
don’t know whether [age is] a factor for them to consider or
not . . . [B]ut when they’re told that it’s a factor they must
32 JACKSON v. KELLY
consider or they should consider, not what weight they’d give
to it, they all agree that they’ll consider it." Id. at 671.
The district court’s grant of habeas relief was anchored in
its reading of the jurors’ colloquies and the trial court’s state-
ment as a clear indication that neither juror was qualified to
serve unless they were "specifically instructed" to consider
various types of mitigation evidence. Jackson III, 699 F.
Supp. 2d at 866. However, the Supreme Court of Virginia
supportably found that the "contention that qualification of
these jurors was ‘conditioned’ upon the giving of a specific
instruction is not supported in fact or in law." Jackson II, 627
S.E.2d at 788. Neither the district court’s analysis nor Jack-
son’s argument on appeal shows that the state court’s conclu-
sion was clearly unreasonable. As a result, AEDPA mandates
that we defer to the state court’s assessment.13
Both jurors plainly expressed their willingness to consider
any and all mitigation evidence if instructed to do so by the
judge. The trial court provided just such an instruction,
admonishing the jury that "in determining the appropriate
punishment you shall consider any mitigation evidence pre-
sented of circumstances which do not justify or excuse the
13
The district court erred when it declined to afford such deference to
the state court’s fact finding. Jackson III, 699 F. Supp. 2d at 853. The
Supreme Court of Virginia found that any request for a specific instruction
"would have been properly refused." Jackson II, 627 S.E.2d at 788. In
support of its holding the state court cited Virginia precedents illustrating
the appropriateness of general instructions. See id.; see also Gray v. Com-
monwealth, 356 S.E.2d 157, 178 (Va. 1987) ("[F]ailure to list mitigating
factors inures to the benefit of a defendant."); LeVasseur v. Common-
wealth, 304 S.E.2d 644, 661 (Va. 1983) ("We have repeatedly held that
an instruction is improper which singles out one portion of the evidence
for special emphasis.").
This body of caselaw may be why the trial court did not present an
itemized instruction on its own initiative. In any event, Virginia precedent
on this point, as well as the trial court’s decision to proceed with a general
instruction, provided sufficient support for the state court’s determination
so as to warrant AEDPA deference.
JACKSON v. KELLY 33
offense but which in fairness or mercy may extenuate or
reduce the degree of moral culpability and punishment." J.A.
617 (emphasis added). Significantly, both age and back-
ground had been expressly presented to the jury by defense
counsel as mitigating factors. We have already described
counsel’s argument that Jackson’s traumatic childhood should
be weighed in mitigation. Counsel also specifically empha-
sized Jackson’s relative youth at the time he committed the
rape and murder. See, e.g., Id. at 972 ("[Y]ou have a video-
tape back there [of Jackson’s confession] . . . [W]atch that 19-
year-old kid talk."); id. at 973 ("Life for a 20-year-old man
without the possibility of parole. Ever. That’s what we ask.").
More fundamentally, there is simply no factual or legal
basis for the district court’s apparent assumption that either
juror was "conditionally" qualified and that a specific mitiga-
tion instruction was therefore constitutionally mandated. Tell-
ingly, in his brief and at oral argument, Jackson could not cite
a single case in which such conditional qualification had been
recognized. Nor were we able to find one. As the Supreme
Court of Virginia found, "[b]oth jurors were qualified upon
the trial court’s determination that they would be fair and
impartial." Jackson II, 627 S.E.2d at 788; see also Bell v.
Cone, 543 U.S. 447, 456 (2005) (noting "the presumption that
state courts know and follow the law" (internal quotation
omitted)). Nothing more was required.
By the same token, the district court’s reliance on cases in
which factfinders declined to give any consideration to miti-
gating evidence was misplaced. As explained above, there is
no evidence here that either of the jurors refused to consider
such evidence following the trial court’s instruction. Cf. Mor-
gan v. Illinois, 504 U.S. 719, 736 (1992) (discussing jurors
who "obviously deem mitigating evidence to be irrelevant to
their decision to impose the death penalty"); Eddings v. Okla-
homa, 455 U.S. 104, 113 (1982) (noting trial judge’s errone-
ous conclusion that "as a matter of law he was unable even
to consider the [mitigating] evidence" of defendant’s family
34 JACKSON v. KELLY
history). Both jurors stated that they would listen to an
instruction to consider mitigating evidence; they were ulti-
mately admonished to do just that. Absent any indication that
the Supreme Court of Virginia’s analysis was clearly unrea-
sonable, counsel’s failure to object to the lack of a specific
mitigating instruction cannot support a claim for habeas relief.
For the same reasons, Jackson’s claims on cross-appeal
lack merit. Jackson argues that (1) Juror Berube should not
have been seated in the first place because she would not con-
sider age as a mitigating factor, (2) both disputed jurors were
rendered unfit for service when no specific instruction was
given and the trial court erred by not removing them on its
own motion, and (3) defense counsel’s failure to move to
strike the jurors when a specific mitigating instruction was not
provided was unreasonable. However, as the Supreme Court
of Virginia supportably found, the jurors’ service was not
"conditional." Any concerns the jurors expressed were ade-
quately addressed by the general mitigation instruction.
V.
For the foregoing reasons we reverse the district court’s
grant of habeas relief in this case.
REVERSED