Powell v. Warden (Unpublished Order)

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Tuesday, the 8th day of
November, 2005.
Paul Warner Powell, Petitioner,
against Record No. 042716
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 December 27, 2004, and the respondent's motion to dismiss, the
Court is of the opinion that the motion should be granted and the
writ should not issue.
Petitioner, Paul Warner Powell, was originally convicted in the
Circuit Court of Prince William County of the capital murder of
Stacey Lynn Reed, abduction, rape of Stacey's younger sister,
Kristie Reed, and attempted capital murder of Kristie Reed. The
jury fixed petitioner’s sentence at death for the capital murder
conviction and three terms of life imprisonment and fines totaling
$200,000 for the remaining convictions. Upon review of the capital
murder conviction and the death sentence imposed upon petitioner,
this Court reversed the capital murder conviction upon a finding
that the indictment charging petitioner with capital murder in the
commission of robbery and/or attempted robbery had been improperly
amended to include a charge of capital murder "during the commission
of or subsequent to rape and/or attempted rape and/or sodomy and/or
attempted sodomy." Powell v. Commonwealth, 261 Va. 512, 532, 552
S.E.2d 344, 355-56 (2001) (“Powell I”). This Court reversed
petitioner’s conviction for capital murder, affirmed the remaining
convictions, and remanded the case “for a new trial on a charge of
no greater than first degree murder for the killing of Stacey Reed,
if the Commonwealth be so advised.” Id. at 546, 552 S.E.2d at 363.
After the opinion issued and petitioner had been indicted for
first-degree murder, petitioner wrote a letter to the Commonwealth's
Attorney in which petitioner described how he had attempted to rape
Stacey Reed before he murdered her. Based on this new evidence, the
Commonwealth moved to enter a nolle prosequi of the indictment in
the remanded case, and sought a new indictment against petitioner
for capital murder. On December 3, 2001, the grand jury returned an
indictment charging petitioner with the capital murder of "Stacey
Lynn Reed during the commission of or subsequent to the attempted
rape of Stacey Lynn Reed."
Apart from the new evidence of petitioner's October 21, 2001
letter to the Commonwealth's Attorney in which petitioner confessed
to the attempted rape of Stacey, the evidence presented during the
guilt-determination phase of petitioner's second trial was not
markedly different from that received during the first trial. The
jury found petitioner guilty of capital murder and fixed his
sentence at death, finding both aggravating factors of future
dangerousness and vileness. The trial court confirmed the jury's
sentence of death. This Court affirmed petitioner’s conviction and
approved the sentence of death in Powell v. Commonwealth, 267 Va.
107, 590 S.E.2d 537 (2004), cert. denied, __ U.S. __, 125 S. Ct. 862
(2004) (“Powell II”).
Procedural Defaults
“A petition for writ of habeas corpus is not a substitute for
an appeal or a writ of error.” Morrisette v. Warden, 270 Va. 188,
___, 613 S.E.2d 551, 554 (2005) (citing Slayton v. Parrigan, 215 Va.
27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108(1975); Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243, 246
(1969)). Further, claims that have been previously raised and
decided at trial and on direct appeal are not cognizable in a
petition for writ of habeas corpus. Henry v. Warden, 265 Va. 246,
249, 576 S.E.2d 495, 496 (2003).
In claim I(A), petitioner alleges that the Commonwealth
violated his right against double jeopardy by trying him twice for
the same offense. In the first portion of claim I(B), petitioner
alleges that the prosecutor’s animosity towards him demonstrates
that petitioner’s due process rights were violated and he was tried
a second time for capital murder because of prosecutorial
vindictiveness. In claim II(D), petitioner alleges that the
Commonwealth violated his right to counsel by eliciting
incriminating statements from him on November 2, 2001 while
petitioner was still represented by the attorney who had been
appointed to represent petitioner in his previous trial. In claim
IV(C), petitioner alleges that his due process rights and right to a
reliable sentencing proceeding were violated by the trial court’s
vague vileness jury instruction.
The Court holds that claims I(A), II(D), IV(C), and the first
3
portion of I(B) are barred because these issues were raised and
decided in the trial court and on direct appeal from the criminal
conviction and, therefore, they cannot be raised on habeas corpus.
Henry, 265 Va. at 249, 576 S.E.2d at 496.
In the second portion of claim I(B), petitioner alleges, for
the first time, that because the prosecutor sought a capital murder
charge after the petitioner had been successful on appeal, there is
a “presumption” that his second trial for capital murder was the
result of prosecutorial vindictiveness. In claim I(C), petitioner
alleges that his subsequent trial violated “the collateral estoppel
component of the Double Jeopardy Clause” and violated petitioner’s
right against double jeopardy.
In claim II(A), petitioner alleges the Commonwealth violated
his constitutional rights by taking statements from petitioner on
January 30 and 31, 1999 without obtaining a waiver of petitioner’s
Sixth Amendment right to counsel. Petitioner claims that his right
to counsel had attached because a magistrate had issued a warrant
for his arrest. In claim II(B), petitioner alleges that his
subsequent statements on February 4, 1999 were unconstitutionally
obtained as they were “fruits of the poisonous tree” as a result of
the Commonwealth illegally obtaining his January 30 and 31, 1999
statements. In claim II(C), petitioner alleges his February 4, 1999
statements were “per se invalid” as the police elicited the
statements from him without counsel being present even though
petitioner had requested counsel and counsel had been appointed on
February 1, 1999.
In claim II(E), petitioner alleges that the Commonwealth
4
violated his right to counsel by scheduling the November 2, 2001
interview before petitioner was formally indicted on December 3,
2001. In claim II(F), petitioner alleges that the prosecution
“unconstitutionally and unethically” communicated to him through the
police interview on November 2, 2001, violated Rules of Professional
Conduct 4.2 and 5.3, interfered with petitioner’s relationship with
counsel, and violated his right to counsel. In claim II(G),
petitioner alleges his Fourth and Fifth Amendment rights were
violated as petitioner’s waiver of his Miranda rights on November 2,
2001, was involuntarily given.
In claim III(A), petitioner alleges that the remarks made by
the Commonwealth’s Attorney in opening and closing arguments
violated his rights under the Fifth, Eight, and Fourteenth
Amendments as the “remarks vouched for the personal opinions of the
prosecutors that [petitioner] deserved the death penalty.” In claim
III(B), petitioner alleges that remarks made by the Commonwealth’s
Attorney in the penalty phase of the trial regarding the effect of
the death penalty in deterring other people from committing future
crimes violated his Fifth, Eighth, and Fourteenth Amendments rights.
In claim IV(A), petitioner alleges he was unconstitutionally
prosecuted because the indictment against him was deficient as it
did not allege either vileness or future dangerousness and neither
factor was proven beyond a reasonable doubt at trial. In claim
IV(B), petitioner alleges that the Commonwealth was collaterally
estopped from presenting the issue of future dangerousness at his
second trial because the jury at petitioner’s first trial returned a
finding only of vileness.
5
In claim IV(D), petitioner alleges that his constitutional
rights were violated by the vague jury instruction on future
dangerousness. In claim IV(E), petitioner alleges that the jury
instruction on future dangerousness unconstitutionally “relieved the
Commonwealth of its burden to prove every element beyond a
reasonable doubt” because it told the jury that it only had to find
a “probability” of future dangerousness. In claim IV(F), petitioner
alleges that his due process rights and right to a reliable
sentencing proceeding were violated because the future dangerousness
aggravating factor excludes consideration of petitioner’s life in
prison.
In claim V(A), petitioner alleges that his right to due
process, his right to be able to participate in his trial, and his
right to “heightened reliability” in his trial were violated by the
medication administered to him in prison before trial and the stun
belt he wore at trial.
In claim VI(A), petitioner alleges that his rights to due
process and a reliable sentencing hearing were violated when the
Commonwealth knowingly introduced Exhibit 51 as evidence of his
criminal history at the penalty phase of the trial. In claim VI(B),
petitioner alleges that the Commonwealth violated his due process
rights by failing to inform petitioner that “some of the entries on
Commonwealth Exhibit 51 were false and misleading.” In a portion of
claim VI(C), petitioner alleges that the Commonwealth violated Code
§§ 19.2-295.1, -264.2, and -264.4 because Exhibit 51 was not a
“record of convictions” and listed charges which had been either
nolle prossed or of which petitioner was found not guilty. In
6
another portion of claim VI(C), petitioner alleges that the
Commonwealth violated Code § 19.2-264.3:2 because the Commonwealth
failed to give notice of its intent to present evidence of
unadjudicated criminal conduct. In claim VI(D), petitioner alleges
the Commonwealth violated his Sixth Amendment rights when it
introduced Exhibit 51 because there was no “foundational testimony
as to the personal knowledge of the record-keeper, the regularity of
its preparation, the reliance on the records, or any other
circumstance showing trustworthiness.”
In claim VII(A), petitioner alleges that his constitutional
rights to freedom of speech, freedom of association, due process and
“to a reliable individualized sentencing determination” were
violated by the Commonwealth’s introduction of racist statements and
documents that linked petitioner to certain groups and “broad
ideas.” In claim VII(B), petitioner alleges that the Commonwealth
violated his right to confront and cross-examine witnesses when it
introduced certificates of analysis in an attempt to authenticate
several letters allegedly written by petitioner. In claim X(A),
petitioner claims the trial court violated his rights under the
Fifth and Fourteenth Amendments as well as under Code § 19.2-298
when it failed to allow petitioner to allocute before he was
sentenced.
The Court holds that the second portion of claim I(B) and
claims I(C), II(A), II(B), II(C), II(E), II(F), II(G), III(A),
III(B), IV(A)1, IV(B), IV(D), IV(E), IV(F), V(A), VI(A), VI(B),
1
See Wolfe v. Commonwealth, 265 Va. 193, 223-24, 576 S.E.2d
471, 488-89 (2003) (failure to include aggravating factors in an
7
VI(C), VI(D), VII(A), VII(B) and X(A) 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. Parrigan, 215 Va. at 29, 205
S.E.2d at 682.
Claims of Ineffective Assistance of Counsel
In a portion of claim I(D)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issues stated in claim I(A) and the first
portion of claim I(B). The Court holds that this portion of claim
I(D)(1) is without merit. The record demonstrates that counsel
raised these issues at trial.
In another portion of claim I(D)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, stated in the second portion of claim
I(B), that there is a “presumption” that his second trial for
capital murder was the result of prosecutorial vindictiveness
because the prosecutor sought a capital murder charge after the
petitioner had been successful on appeal.
The Court holds that this portion of claim I(D)(1) fails to
satisfy the “prejudice” prong of the two-part test enunciated in
Strickland v. Washington, 466 U.S. 668, 687 (1984). The record
demonstrates that petitioner’s indictment for capital murder was
obtained after petitioner provided evidence, which had previously
indictment is not jurisdictional and is waived if not raised before
trial).
8
been unavailable and which supported the charge. This previously
unavailable evidence creates an objective justification in the
charging decision and rebuts any presumption of vindictiveness. See
United States v. Goodwin, 457 U.S. 368, 374, 376 n.8 (1982); Alabama
v. Smith, 490 U.S. 794, 798-799 (1989) (presumption of
vindictiveness which arises from an increased sentence on retrial
rebutted by objective information justifying the increase). Thus,
petitioner has failed to demonstrate that, but for counsel’s alleged
error, the result of the proceeding would have been different.
In another portion of claim I(D)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, stated in claim I(C), that his subsequent
trial violated “the collateral estoppel component of the Double
Jeopardy Clause” and violated petitioner’s right against double
jeopardy. The Court holds that this portion of claim I(D)(1) fails
to satisfy the “prejudice” prong of the two-part test enunciated in
Strickland. The record of petitioner’s criminal trial and direct
appeal demonstrates that petitioner argued his subsequent trial
violated the res judicata and law of the case components of the
Double Jeopardy Clause. The factual basis for his argument at trial
and on appeal is identical to that which he raises in his petition
for writ of habeas corpus. This Court rejected the petitioner’s
arguments and held that jeopardy had attached only to the capital
murder charge specified by the reading of both the indictment and
the bill of particulars. Powell II, 267 Va. at 135, 590 S.E.2d at
554. As such, res judicata is not implicated because, in
petitioner’s first trial, the jury was not charged with determining
9
whether petitioner raped or attempted to rape Stacey Reed and, thus,
could not have made a determination of fact on that matter. Thus,
petitioner has failed to demonstrate that, but for counsel’s alleged
error, the result of the proceeding would have been different.
In a portion of claim I(D)(2), petitioner alleges he was denied
the effective assistance of counsel because counsel failed to raise
on appeal the issues stated in claim I(A) and the first portion of
claim I(B). The Court holds that this portion of claim I(D)(2) is
without merit. The record demonstrates that counsel raised these
issues on appeal. In another portion of claim I(D)(2), petitioner
alleges he was denied the effective assistance of counsel because
counsel failed to raise on appeal the issues stated in the second
portion of claim I(B) and in claim I(C). The Court holds that this
portion of claim I(D)(2) satisfies neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.
Therefore counsel was reasonable for choosing not to raise claims
which would have been barred under Rule 5:25. Further, petitioner
has articulated no reason why this Court would have invoked either
exception to Rule 5:25 and reached the merits of either issue.
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 II(H)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim II(A), that the
10
Commonwealth unconstitutionally obtained statements from him on
January 30 and 31, 1999 without obtaining a waiver of petitioner’s
Sixth Amendment right to counsel. Petitioner claims that his right
to counsel had attached because formal criminal proceedings had been
initiated against him when a magistrate had issued a warrant for his
arrest.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The right to counsel, under the
Sixth Amendment of the United States Constitution, exists at the
start of “adversar[ial] judicial criminal proceedings.” See United
States v. Gouveia, 467 U.S. 180, 189 (1984) (“we have never held
that the right to counsel attaches at the time of arrest”); Michigan
v. Jackson, 475 U.S. 625, 632 (1986) (“arraignment signals ‘the
initiation of adversary judicial proceedings’ and thus the
attachment of the Sixth Amendment”). As no judicial proceedings had
been initiated against petitioner at the time he gave his
statements, the right to counsel had not attached and, therefore,
trial counsel had no grounds to raise a Sixth Amendment claim.
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the proceeding
would have been different.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim II(B), that his
statements on February 4, 1999 were unconstitutionally obtained as
11
they were “fruits of the poisonous tree” as a result of the
Commonwealth illegally obtaining his January 30 and 31, 1999
statements.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. As petitioner’s constitutional right
to counsel had not been violated when he provided the previous
statements to the police, the statements he made on February 4, 1999
could not have been the “fruit of the poisonous tree.”
Additionally, petitioner admits that he was advised of his Miranda
rights and orally waived those rights before the February 4, 1999
statements were made. Thus, petitioner has failed to demonstrate
that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel's alleged errors, the
result of the proceeding would have been different.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim II(C), that his
February 4, 1999 statements were “per se invalid” as the police
elicited the statements from him without counsel being present even
though counsel had been appointed to represent petitioner on
February 1, 1999.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the transcript
of the suppression hearing held during petitioner’s first trial,
demonstrates that petitioner initiated contact with the police on
12
February 4, 1999. Further, as petitioner admits, he was re-advised
of his right to counsel and he knowingly and voluntarily waived that
right. Therefore, trial counsel had no viable grounds for raising a
Sixth Amendment claim regarding petitioner’s February 4, 1999
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 errors, the result of
the proceeding would have been different.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue articulated in claim II(D). The Court
holds that this portion of claim II(H)(1) is without merit. The
record demonstrates that counsel raised this issue at trial.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim II(E), that the
Commonwealth violated his right to counsel by scheduling the
November 2, 2001 interview before petitioner was formally indicted
on December 3, 2001.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record demonstrates that
petitioner’s conversation with the police on November 2, 2001 was
part of the investigation into the authenticity of the October 21,
2001 letter which petitioner had sent to the Commonwealth’s
Attorney. Armed with the evidence provided by the petitioner in the
letter and in petitioner’s November 2, 2001 conversation with police
13
officers, the Commonwealth’s Attorney sought and obtained the
indictment for capital murder. Petitioner offers no evidence to
support his claim that the Commonwealth actively delayed seeking an
indictment in order to circumvent his Sixth Amendment right to
counsel. Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the proceeding
would have been different.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim II(F), that the
Commonwealth’s Attorney’s Office “unconstitutionally and
unethically” communicated to him through the police interview on
November 2, 2001 without the consent of the attorney who had
represented petitioner at his first trial. Petitioner contends that
the actions of the Commonwealth’s Attorney’s Office violated Rules
of Professional Conduct 4.2 and 5.3, interfered with his
relationship with counsel, and violated his right to counsel because
the Commonwealth knew petitioner was still represented by his
previous counsel on November 2, 2001.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. In Powell II, this Court “determined
that the crime for which [petitioner] was tried and convicted in the
present case was a separate offense from those for which he had been
previously convicted. [Petitioner] had not been formally charged
with that offense when he was interviewed on November 2, 2001, and,
14
thus, he was not entitled to have his counsel from his prior trial
present during that interview.” 267 Va. at 142, 590 S.E.2d at 558.
As petitioner’s right to counsel had not attached to the particular
crime being investigated and for which petitioner was charged and
convicted, it was not impacted by the alleged actions of the
Commonwealth’s Attorney’s Office and an objection on this basis
would have been frivolous. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have been different.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel because counsel failed to
raise the issue, articulated in a portion of claim II(G), that his
Fourth and Fifth Amendment rights were violated as petitioner’s
waiver of his Miranda rights on November 2, 2001 was involuntarily
given because petitioner was allegedly under the influence of two
mood-altering drugs, Atarax and Depakote.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the motion to
suppress, the transcript of petitioner’s November 2, 2001 statement
to police, and the transcript of the motion to suppress hearing,
demonstrates that petitioner voluntarily and knowingly waived his
Miranda rights. Although petitioner was taking Depakote and Atarax,
the record demonstrates that petitioner was coherent and able to
understand the questions Detective Leonard was asking. Petitioner
fails to state what effects Atarax and Depakote had on his ability
15
to voluntarily waive his Miranda rights. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
In another portion of claim II(H)(1), petitioner alleges he was
denied the effective assistance of counsel because counsel failed to
raise the issue, articulated in another portion of claim II(G), that
his Fourth and Fifth Amendment rights were violated, as petitioner’s
waiver of his Miranda rights on November 2, 2001 was involuntarily
given because Detective Leonard violated his promise not to discuss
the murder during the interview by asking petitioner questions about
the murder.
The Court holds that this portion of claim II(H)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the motion to
suppress, the transcript of petitioner’s November 2, 2001 statement
to police, and the transcript of the motion to suppress hearing,
demonstrates that petitioner voluntarily and knowingly waived his
Miranda rights. Petitioner signed the waiver form and initialed
that no promises had been made to him and the record demonstrates
that petitioner was informed that he had the right to stop answering
questions at any time. Further, the record, including the
transcripts from the motion to suppress hearing, demonstrates that
petitioner never invoked his right to silence or his right to
counsel, and, therefore, there was no basis upon which counsel could
have raised the issue. Thus, petitioner has failed to demonstrate
16
that counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel's alleged errors, the
result of the proceeding would have been different.
In a portion of claim II(H)(2), petitioner alleges he was
denied the effective assistance of appellate counsel because counsel
failed to raise on appeal the issues stated in claims II(A), II(B),
II(C), II(E), II(F), and II(G). The Court holds that this portion
of claim II(H)(2) satisfies neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.
Therefore, counsel was reasonable for choosing not to raise on
appeal claims which would have been barred under Rule 5:25.
Further, petitioner has articulated no reason why this Court would
have invoked either exception to Rule 5:25 and reached the merits of
any of these issues. 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 II(H)(2), petitioner alleges
counsel was ineffective for failing to raise the issue, articulated
in claim II(D), that the Commonwealth violated his right to counsel
by eliciting incriminating statements from him on November 2, 2001,
while petitioner was still represented by the attorney who had been
appointed to represent petitioner at his first trial. The Court
holds that this portion of claim II(H)(2) is without merit. The
record demonstrates that counsel raised this issue on appeal.
In a portion of claim III(C)(1), petitioner alleges he was
17
denied the effective assistance of counsel at trial because counsel
failed to raise the issue articulated in claim III(A) that the
remarks made by the Commonwealth in opening and closing arguments at
both the guilt and penalty phases of his trial violated his rights
under the Fifth, Eighth, and Fourteenth Amendments as the “remarks
vouched for the personal opinions of the prosecutors that
[petitioner] deserved the death penalty.” Petitioner contends the
Commonwealth’s Attorney referred to himself in the first person as
he informed the jury that the death penalty would be sought in the
case and asked the jury to return a sentence of death against
petitioner.
The Court holds that this portion of claim III(C)(1) satisfies
neither the “performance” nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that the remarks in question did not vouch
for the personal opinion of the Commonwealth’s Attorney but rather
were based upon the evidence the Commonwealth’s Attorney expected to
be presented and which had been presented at trial. Therefore, the
remarks were not improper and counsel did not act unreasonably for
failing to object. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
In another portion of claim III(C)(1), petitioner alleges he
was denied the effective assistance of counsel at trial because
counsel failed to raise the issue, articulated in claim III(B), that
remarks made by the Commonwealth’s Attorney in the penalty phase of
18
the trial regarding the effect the death penalty has in deterring
other people from committing future crimes violated his rights
pursuant to the Fifth, Eighth, and Fourteenth Amendments.
The Court holds that this portion of claim III(C)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. 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)). Our review of the
record, including the trial transcript, demonstrates that the
deterrence argument was raised during the penalty phase of
petitioner’s trial and, therefore, did not provide counsel with
grounds for an objection. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have been different.
In claim III(C)(2), petitioner alleges he was denied the
effective assistance of counsel on appeal because counsel did not
raise the issues articulated in claims III(A) and III(B). The Court
holds that claim III(C)(2) satisfies neither the “performance” nor
the “prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.
Therefore, counsel was reasonable for choosing not to raise on
appeal claims which would have been barred under Rule 5:25.
19
Further, petitioner has articulated no reason why this Court would
have invoked either exception to Rule 5:25 and reached the merits of
either issue. 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 IV(G)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim IV(A), that
petitioner was unconstitutionally prosecuted because the indictment
against him did not allege either vileness or future dangerousness
and neither factor was proven beyond a reasonable doubt at trial.
The Court holds that this portion of claim IV(G)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. There is no constitutional
requirement that a capital murder indictment include allegations
concerning aggravating factors. Ring v. Arizona, 536 U.S. 584, 597
n. 4 (2002) (noting that the Fourteenth Amendment has not been
construed to include the Fifth Amendment right to “presentment or
indictment of a Grand Jury”); Apprendi v. New Jersey, 530 U.S. 466,
477 n. 3 (2000). As such, this Court has previously held that
counsel is not ineffective for failing to raise this issue. See
Morrisette v. Warden, 270 Va. at ___, 613 S.E.2d at 556. 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.
20
In another portion of claim IV(G)(1), petitioner alleges he was
denied the effective assistance of counsel because counsel failed to
raise the issue, articulated in claim IV(B), that the Commonwealth
was collaterally estopped from presenting the issue of future
dangerousness at his second trial because the jury at petitioner’s
first trial returned a finding only of vileness. Petitioner
contends that the jury at petitioner’s first trial returned a
finding only of vileness after being informed that it could find
either, both, or neither aggravating factor, and, therefore, that
the future dangerousness issue had been determined in his favor at
the end of the first trial.
The Court holds that this portion of claim IV(G)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Collateral estoppel does not apply
in petitioner’s case because petitioner was being tried for a
different crime. The determination of future dangerousness depends
in part on and, as this Court has previously held, may be based
solely on “the circumstances surrounding the commission of the
offense of which he is accused.” See Code § 19.2-264.4(C); Murphy v.
Commonwealth, 246 Va. 136, 144, 431 S.E.2d 48, 53, cert. denied 510
U.S. 928 (1993). The evidence at petitioner’s second trial,
including petitioner’s attempted rape of Stacey Reed and letters
written by petitioner while in prison following his first trial, was
different than that which a jury considered in petitioner’s first
trial. Therefore, the issue of collateral estoppel was not
implicated because the jury at petitioner’s second trial was asked
to determine an issue that was neither considered nor available at
21
the previous trial. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
In another portion of claim IV(G)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue articulated in claim IV(C). The Court
holds that this portion of claim IV(G)(1) is without merit. The
record demonstrates that counsel raised this issue at trial.
In another portion of claim IV(G)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim IV(D), that his
constitutional rights were violated by the trial court’s vague
future dangerousness jury instruction. The instruction stated that
the jury had to find, beyond a reasonable doubt, that “. . . there
is a probability that he would commit criminal acts of violence that
would constitute a continuing serious threat to society.”
Petitioner claims that the juxtaposition of “beyond a reasonable
doubt” and “probability” made this instruction vague as one cannot
find a probability beyond a reasonable doubt.
The Court holds that this portion of claim IV(G)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. This Court has already held that
“the word, ‘probability,’ in the statutory context in which it is
used, is not ambiguous . . . [t]herefore, the "future dangerousness"
predicate is not unconstitutionally vague.” Mickens v.
Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684, vacated on
22
other grounds, 513 U.S. 922 (1994). The instruction petitioner
complains of followed the statute, as approved by this Court, and
therefore counsel was not unreasonable for failing to raise the
objection. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
In another portion of claim IV(G)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim IV(E), that the
future dangerousness jury instruction unconstitutionally “relieved
the Commonwealth of its burden to prove every element beyond a
reasonable doubt” because it told the jury that it only had to find
a “probability” of future dangerousness.
The Court holds that this portion of claim IV(G)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Counsel is not unreasonable for
failing to object to jury instructions that follow the statute and
have previously been approved by this Court. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
In another portion of claim IV(G)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim IV(F), that his due
process rights and right to a reliable sentencing proceeding were
23
violated because the future dangerousness aggravating factor
excludes consideration of petitioner’s life in prison.
The Court holds that this portion of claim IV(G)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. This Court has previously held that
a determination of future dangerousness revolves
around an individual defendant and a specific crime.
Evidence regarding the general nature of prison life
in a maximum security facility is not relevant to
that inquiry, even when offered in rebuttal to
evidence of future dangerousness such as that
presented in this case.
Schmitt v. Commonwealth, 262 Va. 127, 146, 547 S.E.2d 186, 199-200
(2001), cert. denied, 534 U.S. 1094 (2002) (citing Burns v.
Commonwealth, 261 Va. 307, 339-40, 541 S.E.2d 872, 893 (2001), cert.
denied 534 U.S. 1043 (2001)). Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have been different.
In a portion of claim IV(G)(2), petitioner alleges he was
denied the effective assistance of appellate counsel because counsel
failed to raise on appeal the issues stated in claims IV(A), IV(B),
IV(D), IV(E), and IV(F). The Court holds that these portions of
claim IV(G)(2) satisfy neither the “performance” nor the “prejudice”
prong of the two-part test enunciated in Strickland. The record
demonstrates that these issues were not raised at trial. Therefore,
counsel was reasonable for choosing not to raise on appeal claims
which would have been barred under Rule 5:25. Further, petitioner
has articulated no reason why this Court would have invoked either
24
exception to Rule 5:25 and reached the merits of either issue.
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 IV(G)(2), petitioner alleges he was
denied the effective assistance of counsel on appeal because counsel
failed to raise the issue articulated in claim IV(C). The Court
holds that this portion of claim IV(G)(2) is without merit. The
record demonstrates counsel raised this issue on appeal.
In claim V(B)(1), petitioner alleges he was denied the
effective assistance of counsel at trial because counsel failed to
raise the issues, articulated in claim V(A), that his right to due
process, his right to be able to participate in his trial, and his
right to “heightened reliability” in his trial were violated by the
medication administered to him in prison before trial and the stun
belt he wore at trial. Petitioner claims that the combination of
medication he was on, including Depakote, Paxil and Zoloft, caused
him to appear emotionless and expressionless during trial.
Petitioner claims that he was never found to be a security threat
and that the stun belt limited his communication with counsel,
distracted him during trial, and prejudiced him before the jury.
The Court holds that claim V(B)(1) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Petitioner provides no evidence that he
was involuntarily medicated or that the medication he was taking
prior to and during the trial was the reason he appeared “cold,
25
expressionless, and remorseless during the trial.” Additionally,
petitioner is unable to demonstrate prejudice because, as was the
case in Lenz v. Warden, 265 Va. 373, 380, 579 S.E.2d 194, 198
(2003), there is “nothing in the record that indicates the jury
observed a stun belt on petitioner during the trial.” Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In claim V(B)(2), petitioner alleges he was denied the
effective assistance of appellate counsel because counsel failed to
raise on appeal the issues stated in claim V(A). The Court holds
that claim V(B)(2) satisfies neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.
Therefore, counsel was reasonable for choosing not to raise on
appeal claims which would have been barred under Rule 5:25.
Further, petitioner has articulated no reason why this Court would
have invoked either exception to Rule 5:25 and reached the merits of
either issue. 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(E)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issues articulated in claim VI(A) that his
rights to due process and a reliable sentencing hearing were
26
violated when the Commonwealth knowingly introduced Exhibit 51 as
evidence of his criminal history at the penalty phase of the trial.
Petitioner claims that the Commonwealth falsely stated that Exhibit
51 was a certified copy of his criminal history, when it was neither
certified nor a copy of his criminal record. Further, according to
petitioner, the exhibit contained false and misleading information,
including, inter alia, information that petitioner had been found
guilty of capital murder when that conviction had been reversed by
this Court and later nolle prossed and that charges for felony
larceny and statutory burglary had been nolle prossed when the
charges had actually been dismissed.
The Court holds that this portion of claim VI(E)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Petitioner has failed to demonstrate
what effect, if any, Exhibit 51 had on the jury. The record,
including the trial transcript, demonstrates that while Exhibit 51
indicated that petitioner had previously been found guilty of
capital murder, the jury was already aware of this information.
Petitioner’s own letters to the Commonwealth’s Attorney, which had
been introduced at trial, indicated that petitioner was on “death
row” after having already been found guilty of capital murder. When
Exhibit 51 was introduced, the Commonwealth mentioned only
petitioner’s prior convictions and did not say anything about the
capital murder conviction or about any of the charges for which
petitioner was not convicted. The Commonwealth did not mention the
exhibit again during the presentation of the evidence or during
argument. The Commonwealth’s argument that petitioner deserved the
27
death penalty was based not on petitioner’s criminal history, but on
the killing of Stacey Reed, the letters petitioner wrote after
Stacey Reed’s murder, and petitioner’s racist attitudes. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In another portion of claim VI(E)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim VI(B), that the
Commonwealth failed to turn over exculpatory information by not
informing petitioner that “some of the entries on Commonwealth
Exhibit 51 were false and misleading.” Petitioner claims that the
Commonwealth’s actions violated his due process rights.
The Court holds that this portion of claim VI(E)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record demonstrates that on
December 23, 2002, the Commonwealth provided petitioner’s counsel
with a copy of the printout later identified as Exhibit 51.
Petitioner’s knowledge regarding his own criminal record is as
extensive, if not more so, as the Commonwealth’s. The inaccuracies
in the printout, therefore, were before petitioner prior to trial
and the Commonwealth did not violate its duty to disclose
exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83(1963). Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the proceeding
28
would have been different.
In another portion of claim VI(E)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in a portion of claim VI(C),
that the Commonwealth violated Code §§ 19.2-295.1, -264.2, and -
264.4 because Exhibit 51 was not a “record of conviction” and showed
charges which had been either nolle prossed or for which petitioner
was found not guilty. Petitioner claims that the introduction of
Exhibit 51 “falsely led the jury to believe that [petitioner] had a
much more serious criminal record than he did” when deciding future
dangerousness.
The Court holds that this portion of claim VI(E)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript and the exhibits, demonstrates that the jury was already
aware that petitioner had previously been found guilty of capital
murder. Petitioner’s own letters to the Commonwealth’s Attorney,
which had been introduced at trial, indicated that petitioner had
been on “death row” after having been found guilty of capital
murder. When Exhibit 51 was introduced, the Commonwealth mentioned
only petitioner’s prior convictions, did not mention the previous
capital murder conviction or any of the charges for which petitioner
was not convicted. Finally, the Commonwealth focused the jury’s
determination for a sentence of death not on petitioner’s criminal
history, but rather on the killing of Stacey Reed, the letters
petitioner wrote while he was incarcerated, and how petitioner’s
racist attitudes showed him to be capable of violence. Thus,
29
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In another portion of claim VI(E)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in another portion of claim
VI(C), that the Commonwealth violated Code § 19.2-264.3:2 because
the Commonwealth failed to give notice of its intent to present
evidence of unadjudicated criminal conduct. Exhibit 51 contained
information regarding criminal charges that had been either nolle
prossed or of which petitioner had been found not guilty.
The Court holds that this portion of claim VI(E)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript, demonstrates that the Commonwealth complied with Code
§ 19.2-264:3.2 as counsel acknowledged that he had received the
document as required. Therefore, any objection counsel would have
made on this issue would have been frivolous. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
In another portion of claim VI(E)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim VI(D), that the
Commonwealth violated his Sixth Amendment rights when it introduced
30
Exhibit 51 because there was no “foundational testimony as to the
personal knowledge of the record-keeper, the regularity of its
preparation, the reliance on the records, or any other circumstance
showing trustworthiness.” The Court holds that this portion of
claim VI(E)(1) satisfies neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland.
Petitioner has failed to establish that had counsel objected, the
Commonwealth would not have been able to provide the appropriate
foundation or that Exhibit 51 would have been ruled inadmissible.
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that, but for counsel's alleged errors,
the jury would not have considered Exhibit 51 and the result of the
proceeding would have been different.
In claim VI(E)(2), petitioner alleges he was denied the
effective assistance of appellate counsel because counsel failed to
raise on appeal the issues stated in claims VI(A), VI(B), VI(C), and
VI(D). The Court holds that claim VI(E)(2) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record demonstrates that these issues
were not raised at trial. Therefore, counsel was reasonable for
choosing not to raise on appeal claims which would have been barred
under Rule 5:25. Further, petitioner has articulated no reason why
this Court would have invoked either exception to Rule 5:25 and
reached the merits of either issue. 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.
31
In claim VI(F), petitioner alleges he was denied the effective
assistance of counsel because counsel failed to have the charges
listed on Exhibit 51, which had been nolle prossed or dismissed,
expunged pursuant to Code § 19.2-392.2. Petitioner claims that the
inclusion of these charges in a capital sentencing proceeding
constitutes a “manifest injustice” and that the charges were
eligible for expungement under the statute.
The Court holds that claim VI(F) fails to satisfy the
“prejudice” prong of the two-part test enunciated in Strickland.
Petitioner fails to show that any motion for the expungement of his
record would have succeeded. Additionally, petitioner has failed to
show that a “manifest injustice” occurred because the information he
now complains of was listed in Exhibit 51. When Exhibit 51 was
introduced, the Commonwealth mentioned only petitioner’s prior
convictions and did not say anything about the capital murder
conviction or about any of the charges where petitioner was not
convicted. Exhibit 51 clearly identifies the disposition of each
charge and thus, the fact that some charges were nolle prossed or
dismissed was before the jury. Finally, the Commonwealth focused
the jury’s determination for a sentence of death not on petitioner’s
criminal history, but rather on the killing of Stacey Reed, the
letters petitioner wrote while he was incarcerated, and how
petitioner’s racist attitudes showed him to be capable of violence.
Thus, petitioner has failed to demonstrate that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
In claim VI(G), petitioner alleges he was denied the effective
32
assistance of counsel because appellate counsel in petitioner’s
first trial failed to file a petition for writ of habeas corpus
challenging the convictions that arose from the first trial. The
Court rejects claim VI(G) because there is no constitutional right
to counsel in seeking habeas relief. Howard v. Warden, 232 Va. 16,
19, 348 S.E.2d 211, 213 (1986).
In a portion of claim VII(C)(1), petitioner alleges he was
denied the effective assistance of counsel at trial because counsel
failed to raise the issue, articulated in claim VII(A), that his
constitutional rights to freedom of speech, freedom of association,
due process and “to a reliable individualized sentencing
determination” were violated by the Commonwealth’s introduction of
racist statements and documents which linked petitioner to certain
groups and “broad ideas.”
The Court holds that this portion of claim VII(C)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. Petitioner’s racist beliefs and
writings were a significant and relevant part of the Commonwealth’s
case because they were evidence of petitioner’s motivation for
killing Stacey Reed. This evidence was also properly introduced at
sentencing to show that petitioner was a dangerous person. Further,
petitioner provides no evidentiary support for his speculation that
the evidence “tended to inflame the jury by linking [petitioner] to
certain abstract beliefs” and “caused the jury to sentence
[petitioner] for his abstract beliefs.” Petitioner does not allege
that had counsel objected this evidence would have been ruled
inadmissible and the jury’s determination would have been different.
33
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the proceeding
would have been different.
In another portion of claim VII(C)(1), petitioner alleges he
was denied the effective assistance of counsel at trial because
counsel failed to raise the issue, articulated in claim VII(B), that
the Commonwealth violated his right to confront and cross-examine
witnesses when it introduced certificates of analysis in an attempt
to authenticate several letters allegedly written by petitioner.
Petitioner claims that the certificates of analysis were testimonial
in nature and without them the Commonwealth could not have
attributed the letters to him.
The Court holds that this portion of claim VII(C)(1) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record, including the
certificates of analysis, show that the Commonwealth complied with
the requirements of Code § 19.2-187 as the certificates were
attested to by the scientists who performed the handwriting analysis
and, therefore, the scientists were not required to appear at trial.
Additionally, the evidence at trial demonstrates that petitioner
admitted to the police that he wrote the letters. Thus, petitioner
has failed to demonstrate that counsel’s performance was deficient.
Further, petitioner claims only that counsel's alleged errors “had a
substantial and injurious effect on [petitioner’s] trial” but does
not claim that, had counsel objected, the letters would have been
ruled inadmissible or the result of the proceeding would have been
34
different.
In a portion of claim VII(C)(2), petitioner alleges he was
denied the effective assistance of counsel on appeal because counsel
did not raise the issues articulated in claims VII(A) and VII(B).
The Court holds that this portion of claim VII(C)(2) satisfies
neither the “performance” nor the “prejudice” prong of the two-part
test enunciated in Strickland. The record demonstrates that these
issues were not raised at trial. Therefore, counsel was reasonable
for choosing not to raise on appeal claims which would have been
barred under Rule 5:25. Further, petitioner has articulated no
reason why this Court would have invoked either exception to Rule
5:25 and reached the merits of either issue. 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 VIII(A), petitioner alleges he was denied the
effective assistance of counsel during the penalty phase because
counsel failed to properly investigate petitioner’s background in
order to rebut the Commonwealth’s claim that petitioner had racist
beliefs and that petitioner tortured animals. Petitioner alleges
that had counsel conducted a proper investigation he would have
discovered that petitioner had once shared a cigarette with a “black
male;” that petitioner was known to make references to Satan in
order “to keep others at a safe distance” and to say things in order
to shock people, to gain acceptance and to garner attention to
himself; and that petitioner “wore racism like fashionable clothing”
35
in order to “gain acceptance from certain groups.” Petitioner
claims that counsel also would have discovered that he had lived
without any racial issues in environments where 75% of the occupants
were black; had “had good friends who were black;” was not
aggressive towards his cousin’s black boyfriend; that he told
stories about torturing animals to a classmate who had never seen
petitioner abuse any animals and did not believe the stories; and
that petitioner had acted nice to cats and dogs that belonged to
friends and family.
The Court holds that claim VIII(A) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The evidence of petitioner’s character
and demeanor, which he argues should have been presented, would have
been damaging because evidence existed that petitioner had admitted
to the police that he was a racist and had tortured animals and
because the affidavits supplied by petitioner also demonstrate that
petitioner was known to make racist statements and tell stories
about abusing animals. None of the affidavits establish that
petitioner was either not racist or not abusive to animals. Thus,
petitioner has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In claim VIII(B), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to rebut the
Commonwealth’s claim that petitioner had no remorse because counsel
did not properly investigate petitioner’s background, interview
36
relevant witnesses, or review the records in the possession of
petitioner’s prior counsel. Petitioner alleges that counsel would
have discovered that petitioner had cried during his January 30,
1999 police interview and stated that he wanted to tell Stacey
Reed’s parents he was sorry; that petitioner wanted to write a
letter to Stacey Reed’s family; that petitioner wanted to trade his
life for Stacey’s; that petitioner wanted to apologize to Kristie
Reed; that petitioner broke down and cried during his first trial
and that a probation officer had noted that petitioner was “confused
and sorry about committing the crime.”
The Court holds that claim VIII(B) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record demonstrates that there was
overwhelming evidence that petitioner lacked remorse. Petitioner
wrote letters to the Commonwealth’s Attorney in 2001, in which he
taunted the Commonwealth’s Attorney, admitted to stabbing Stacey
Reed and then “stomping on her throat,” and admitted to drinking
iced tea and smoking a cigarette after killing her, but in which he
never expressed remorse. Petitioner also stated he wanted Stacey
Reed’s parents to be ready to “relive it all again because if I have
to suffer for the next 50 or 60 years or however long then they can
suffer the torment of reliving what happened.” Additionally,
petitioner sent a letter to Stacey Reed’s parents two years after
the murder in which he compared Stacey Reed to pictures of a topless
model he included with the letter but did not express remorse.
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
37
that, but for counsel's alleged errors, the result of the proceeding
would have been different.
In claim VIII(C), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to rebut the
Commonwealth’s claim that petitioner had above average intelligence
by failing to investigate his background, interview relevant
witnesses, or review the records in the possession of petitioner’s
prior counsel. Petitioner contends he had a full-scale IQ score of
102 in 1991 which placed him at the 54th percentile; that he had a
full-scale IQ of 87 in 1993; that experts had opined that
petitioner’s intelligence was “average or below,” and that he was
capable of functioning in the average range despite low average
range IQ scores.
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 demonstrates that at trial,
petitioner’s own expert testified on cross-examination that
petitioner’s IQ was “within the average range of intelligence.” The
reports cited by petitioner demonstrated that he was considered to
have average intelligence with psychologist William Brock commenting
that petitioner’s intelligence may not be indicative of his IQ
scores and psychologist Shayne Weir commenting that petitioner’s
intelligence was “probably brighter” than petitioner’s IQ score of
102. Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the proceeding
would have been different.
38
In claim IX(1), petitioner alleges that he was denied the
effective assistance of counsel during the penalty phase of his
trial because counsel failed to prepare and present “a compelling
mitigation case.” Petitioner claims that counsel presented “weak
testimonial evidence” and no documentary evidence. In support of
this claim, petitioner submits affidavits from his mother, Cynthia
Powell, and one brother, Matthew Powell. Petitioner contends that
counsel met only once, briefly, with Matthew Powell, and only asked
him whether petitioner’s father had been abusive, and that counsel
did not prepare Cynthia Powell to testify. Further, petitioner has
submitted the affidavit of William Stejsall, a psychologist who
testified on petitioner’s behalf at trial. Dr. Stejsall states that
trial counsel deviated from the planned presentation of Dr.
Stejsall’s testimony and the jury never heard a large part of Dr.
Stejsall’s findings concerning the factors outside of petitioner’s
control during his adolescence which led to petitioner developing “a
self-destructive and antisocial adaptation to life.”
The Court holds that claim IX(1) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that trial counsel called seven witnesses
on petitioner’s behalf, including Matthew and Cynthia Powell, who
discussed various aspects of petitioner’s upbringing and childhood.
The jury heard evidence that petitioner’s father was abusive and had
a drinking problem; petitioner’s parents were incapable of
controlling petitioner; and at one point, petitioner’s parents
temporarily relinquished custody of petitioner to the Department of
39
Social Services. The jury was also informed that petitioner’s
social worker had recommended intensive family therapy after
petitioner returned home and a juvenile court psychologist, who
evaluated petitioner in late 1993, recommended that petitioner be
placed in a long-term treatment facility for at least six months.
Further, at trial, Dr. Stejsall testified that, as a result of
his home life, petitioner’s behavioral and mental health issues were
neglected and he received a variety of treatments with mixed results
and at various stages of his life petitioner received no treatment
at all. Dr. Stejsall opined that petitioner developed behaviors
described as oppositional defiant disorder, attention deficit
hyperactivity disorder, conduct disorder and serious depression
which, at times, resulted in petitioner becoming suicidal and
engaging in self-mutilation. Dr. Stejsall also testified that
petitioner had no “serious disciplinary infractions” while
incarcerated for Stacey Reed’s murder because petitioner had been on
medications and was receiving psychiatric care. Petitioner fails to
allege what additional information Matthew and Cynthia Powell would
have provided had counsel interviewed them more thoroughly or had
better prepared them or how additional testimony from Dr. Stejsall
would have affected the trial. Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have been different.
In claim IX(2), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to prepare
and present “a compelling mitigation case” regarding the “toxic
40
environment in which [he] grew up.” Petitioner points to the
following in support of his claim: a 1991 family assessment which
described his home life; the reports from a probation officer
documenting petitioner’s father’s abuse; petitioner’s mother’s
passivity; and the officer’s failed attempts to obtain intervention
for petitioner; a 1993 mental status evaluation which documented the
tension between petitioner and his father; and the sexual assault of
petitioner when he was seventeen years old.
The Court holds that claim IX(2) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that counsel presented testimony from
numerous witnesses regarding the abusive relationship between
petitioner and his father. Dr. Stejsall testified that petitioner
was raised in a “toxic” environment and that a severe beating by a
large group of young men while petitioner was confined in a juvenile
detention facility and the sexual assault upon petitioner when
petitioner was seventeen worsened the effects of petitioner’s mental
health problems. Petitioner has failed to assert how the
information he alleges counsel should have presented is not
cumulative in nature or how it 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 errors, the result of the proceeding
would have been different.
In claim IX(3), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to
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investigate, review records, interview witnesses, or prepare and
present “a compelling mitigation case” regarding his psychological
problems. Petitioner cites a 1991 psychological evaluation, reports
from the Prince William County Public School Special Education
Department and the city of Manassas Public Schools Eligibility
Committee, and psychological evaluations of petitioner performed in
1993 and 1995 in support of his claim.
The Court holds that claim IX(3) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that Dr. Stejsall, who was initially
appointed to evaluate petitioner at his first trial and who re-
evaluated petitioner in preparation for his second trial, conducted
his initial evaluation of petitioner based upon a review of
petitioner’s “psychological evaluations,” “all of the medical and
mental-health records that have ever been written or generated in
connection with [petitioner]” including “three psychiatric
hospitalizations” and petitioner’s school records including the
records of “his eligibility and programming as a special education
student as a seriously, emotionally disturbed student.” Because Dr.
Stejsall based his opinion on his review of these materials, which
are the same materials petitioner claims counsel failed to review,
counsel acted properly by relying on Dr. Stejsall’s expert opinion
regarding petitioner’s psychological problems. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
42
different.
In claim IX(4), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to prepare
and present “a compelling mitigation case” regarding the obstacles,
caused by petitioner’s family, to petitioner’s treatment. In
support of his claim, petitioner points to evidence of his father’s
refusal to participate in court-ordered counseling and to allow
petitioner back in the house. Further, petitioner cites evidence
that a probation officer believed that the inability of the family
to receive appropriate or timely services was preventing petitioner
and his family from successfully addressing their problems.
The Court holds that claim IX(4) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. Our review of the record, including the
trial transcript, demonstrates that the jury was made aware that
petitioner’s father often did not attend counseling with petitioner
and that petitioner often did not receive services due to money and
family problems and the lack of available organizations willing to
work with the family. Dr. Stejsall testified that petitioner’s
“toxic” home environment prevented petitioner from receiving
consistent treatment of his behavioral and mental-health issues.
The evidence petitioner presents is cumulative of that presented at
trial and petitioner has failed to assert how the use of any of this
evidence would have impacted the jury. Thus, petitioner has failed
to demonstrate that counsel’s performance was deficient or that
there is a reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been different.
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In claim IX(5), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to prepare
and present “a compelling mitigation case” during the penalty phase
of the proceeding regarding the life petitioner was living before
the murder of Stacey Reed. Petitioner provides evidence in support
of his claim that indicates he was homeless, had lost his friends,
had all of his possessions stolen, and had recently broken up with
his girlfriend. Petitioner has also presented evidence that he was
drinking heavily and taking drugs around that time.
The Court holds that claim IX(5) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the affidavits
provided by petitioner and the affidavit of counsel, demonstrates
that petitioner was homeless because his family was either afraid he
would steal from them or because the children in the home were
frightened of him and that petitioner’s friends had stopped spending
time with him because he would “brag a lot” and was acting “weird”
and “clingy” or “jealous” because of the relationship two of the
friends had with Stacey Reed. Counsel made a strategic decision not
to call any of these people as mitigation witnesses because their
testimony would have supported a finding of future dangerousness.
Counsel is not ineffective for failing to present evidence that
could be “cross-purpose evidence” capable of aggravation as well as
mitigation. Lenz v. Warden, 267 Va. 318, 337, 593 S.E.2d 292, 303
(2004); see also Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir.),
cert. denied, 516 U.S. 972 (1995). Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or that there
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is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have been different.
In claim IX(6), petitioner alleges that he was denied the
effective assistance of counsel because counsel failed to prepare
and present “a compelling mitigation case” during the penalty phase
of the proceeding regarding petitioner’s lack of future
dangerousness while in prison. Petitioner claims counsel should
have presented a 1993 school report, a 1994 juvenile detention home
report, and evidence that he had earned his GED while incarcerated
in 1995 and had no disciplinary violations while incarcerated
awaiting his second trial.
The Court holds that claim IX(6) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that counsel presented evidence that
petitioner did not pose a future danger in prison. Dr. Stejsall
informed the jury that, as a result of the medications and
psychiatric care petitioner received while incarcerated for Stacey
Reed’s murder, petitioner had no serious disciplinary infractions
while in prison. The Commonwealth’s evidence that petitioner posed
a future danger, however, was overwhelming. Petitioner admitted
that he was a racist; claimed that “everybody that ain’t white ...
needs to die” and stated that if he had waited until he was old
enough to buy a gun he would have “kill[ed] a lot of somebodies.”
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable probability
that, but for counsel's alleged errors, the result of the proceeding
45
would have been different.
In claim X(B)(1), petitioner alleges he was denied the
effective assistance of counsel at trial because counsel failed to
raise the issue articulated in claim X(A) that the trial court
violated his rights under the Fifth and Fourteenth Amendments as
well as under Code § 19.2-298 when it failed to allow petitioner to
allocute before he was sentenced.
The Court holds that claim X(B)(1) satisfies neither the
“performance” nor the “prejudice” prong of the two-part test
enunciated in Strickland. There is no constitutional “right” to an
allocution before sentencing. Hill v. United States, 368 U.S. 424,
428 (1962)(deprivation of allocution before sentencing is “an error
which is neither jurisdictional nor constitutional”). The record
demonstrates that petitioner was prone to making statements
detrimental to his case. Further, petitioner has not alleged what
he would have said if he had been given the opportunity to address
the court or how such a statement would have impacted the sentence
he received. Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
In claim X(B)(2), petitioner alleges he was denied the
effective assistance of counsel on appeal because counsel failed to
raise the issue articulated in claim X(A). The Court holds that
claim X(B)(2) satisfies neither the “performance” nor the
“prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.
46
Therefore counsel was reasonable for choosing not to raise claims
which would have been barred under Rule 5:25. Further, petitioner
has articulated no reason why this Court would have invoked either
exception to Rule 5:25 and reached the merits of either issue.
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 XI, petitioner alleges that various stages of
Virginia’s post-conviction process are insufficient to protect his
constitutional rights. First, petitioner claims that the statute of
limitations for filing a petition for writ of habeas corpus provided
him insufficient time to investigate and brief all of his claims.
Second, petitioner claims that the trial court failed to appoint
counsel for petitioner’s habeas petition within the time period
prescribed by Code § 19.2-163.7. Third, petitioner was refused his
applications for the appointment of experts to assist with the
preparation of his petition for writ of habeas corpus. Finally,
petitioner claims that his motions for a copy of his record
maintained by the Prince William Juvenile and Domestic Relations
Court were denied.
The Court holds that the issues raised in claim XI are not
cognizable in a 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
47
the lawfulness of his immediate custody and detention.” Virginia
Parole Board v. Wilkins, 255 Va. 419, 420-421, 498 S.E.2d 695, 696
(1998).
In claim XII, petitioner alleges his rights under the Sixth,
Eighth and Fourteenth Amendments as well as Article I, Sections 8, 9
and 11 of the Constitution of Virginia were violated because the
jurors were exposed to an extraneous influence, namely a Bible,
during the trial. Petitioner claims that at least one unidentified
juror carried a Bible during the trial and specifically referred to
it during the penalty phase. The Court holds that the petitioner
has failed to allege facts that establish that the jurors were
“exposed” to a Bible “during the course of the trial” and,
therefore, claim XII is speculative.
Accordingly, the petition is dismissed.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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