VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, March 4, 2011.
Present: Kinser, C.J., Lemons, Goodwyn and Millette, JJ., and
Carrico, Russell and Koontz, S.JJ.
Anthony Bernard Juniper, Petitioner,
against Record No. 062556
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 11, 2006, and the May 1, 2007 petition for a writ of
habeas corpus filed in compliance with the Court's March 2, 2007
order, the respondent's motion to dismiss and petitioner's
opposition to the motion to dismiss, the Court is of the opinion
that the motion to dismiss should be granted and the writ should
not issue.
Anthony Bernard Juniper was convicted in the Circuit Court of
the City of Norfolk of four counts of capital murder, one count of
statutory burglary, and four counts of use of a firearm in the
commission of a felony. The jury fixed Juniper's punishment at
death for each of the four capital murder convictions and at life
plus eighteen years' imprisonment for the remaining convictions.
The trial court sentenced Juniper in accordance with the jury
verdict. This Court affirmed Juniper's convictions and upheld the
sentences of death in Juniper v. Commonwealth, 271 Va. 362, 375-76,
626 S.E.2d 383, 393, cert. denied, 549 U.S. 960 (2006).
In claim (I), petitioner alleges that the Commonwealth failed
to disclose exculpatory information to petitioner as required by
Brady v. Maryland, 373 U.S. 83, 87 (1963), presented false
testimony or allowed it to go uncorrected in violation of Napue v.
Illinois, 360 U.S. 264, 269-70 (1959) and Giglio v. United States,
405 U.S. 150, 153 (1972), and made misleading representations to
jurors.
As the Court has stated previously:
In Brady [], the United States Supreme Court held
that "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of
the prosecution." Id. at 87. Whether evidence is material
and exculpatory and, therefore, subject to disclosure
under Brady is a decision left to the prosecution.
Inherent in making this decision is the possibility that
the prosecution will mischaracterize evidence, albeit in
good faith, and withhold material exculpatory evidence
which the defendant is entitled to have under the dictates
of Brady. If the defendant does not receive such evidence,
or if the defendant learns of the evidence at a point in
the proceedings when he cannot effectively use it, his due
process rights as enunciated in Brady are violated.
. . . .
Exculpatory evidence is material if there is a
reasonable probability that the outcome of the proceeding
would have been different had the evidence been disclosed
to the defense. "A reasonable probability" is one which is
sufficient to undermine confidence in the outcome of the
proceeding.
Muhammad v. Warden, 274 Va. 3, 3, 646 S.E.2d 182, 186 (2007)
(internal citations omitted) (quoting Muhammad v. Commonwealth, 269
2
Va. 451, 510, 619 S.E.2d 16, 49-50 (2005) (quoting Bowman v.
Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111-12 (1994)).
When considering the failure to disclose pretrial statements by
witnesses, this Court has recognized that such information
constitutes favorable evidence to the accused to the extent that it
is useful for impeachment purposes. Correll v. Commonwealth, 232
Va. 454, 465, 352 S.E.2d 352, 358 (1987).
The nondisclosure of such evidence, however, requires
reversal "only if the evidence is material in the sense that
its suppression undermines confidence in the outcome of the
trial." Evidence is material in this sense "only if there is
a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different."
Id. (internal citations omitted).
Furthermore, this Court has previously held that, "[i]n order
to find that a violation of Napue occurred . . ., we must determine
first that the testimony [at issue] was false, second that the
prosecution knew of the falsity, and finally that the falsity
affected the jury's judgment." Teleguz v. Commonwealth, 273 Va. 458,
492, 643 S.E.2d 708, 729 (2007).
In the first portion of claim (I), petitioner contends that the
Commonwealth failed to disclose the promise to informant Ernest
Smith that the prosecutor would "try and do something after [Smith]
testified to help [him] with [his] sentence." Additionally,
petitioner contends that the Commonwealth told Smith to "say
whatever [he] had worked out with the detectives." In support of
his claim, petitioner relies on the affidavit of Smith, the motion
for a reconsideration of Smith's sentences filed after Smith's
testimony, and the hearing on that motion, in which the Commonwealth
3
joined, held shortly after petitioner was sentenced to death.
The Court holds that this portion of claim (I) is without
merit. The record, including Smith's affidavit, the affidavit of
the prosecutor and the transcript of the reconsideration hearing,
demonstrates that Smith asked for a deal but that the prosecutor
made no promises or deals with Smith in exchange for his testimony.
Subsequently, the Commonwealth joined Smith's motion to reconsider
sentence because Smith testified twice at petitioner's trial and
because Smith was receiving threats as a result of his cooperation.
In the second portion of claim (I), petitioner alleges that the
Commonwealth failed to disclose to petitioner that Keon Murray
testified falsely against him. Petitioner alleges that police
detectives created the story that Murray related at trial and
threatened to charge him with being an accessory after the fact if
Murray did not comply. Petitioner further contends that after
Murray invoked his Fifth Amendment right and refused to testify,
Murray was removed from the courtroom and the prosecutor threatened
Murray by telling him that if he did "not testify as instructed" he
would be charged with capital murder and would face the death
penalty.
The record reveals that none of the alleged evidence was
favorable to petitioner. The record, including the trial
transcripts, demonstrates that Murray was removed from the courtroom
while the prosecutor and defense counsel discussed whether the
prosecutor would offer Murray immunity, and was returned only after
the court accepted the prosecutor's plan to grant immunity to
Murray. In addition, the trial transcript and the affidavits of the
4
prosecutor and the detectives demonstrate that the prosecutor did
not threaten Murray with criminal charges related to the murder.
Murray's taped statement to police implicated petitioner and thus
was not exculpatory.
In the third portion of claim (I), petitioner alleges that the
Commonwealth failed to disclose to petitioner that Terence
Fitzgerald was "directed ... to conceal certain information when
testifying." Relying on the affidavit of Fitzgerald, petitioner
contends that Fitzgerald was told to conceal his sexual relationship
with Keshia Stephens, one of the victims, and his knowledge of the
"foot traffic" at Keshia's apartment. Petitioner contends further
that "[p]rosecutors failed to reveal that Fitzgerald reported to
police that the only person he thought could have committed the
crimes 'was someone who had been pistol whipped by some friends of
Keshia's brother'" and that Fitzgerald had seen "a car parked on the
corner of [Keshia's] street with three black men in it who were
watching him and the kids closely as they left for school" on the
day of the murders. Petitioner contends the prosecution "also
unconstitutionally failed to reveal that they told Fitzgerald that,
in exchange for his testimony against Juniper, they would not 'make
trouble for [him]' concerning other charges."
The record reveals that none of the alleged evidence was
favorable to petitioner or it was known to petitioner prior to
trial. The record, including the trial transcript and Fitzgerald's
affidavit, demonstrates that there is no evidence that Fitzgerald
told police about "a very bad feeling" he had about the car or the
5
men inside it, or that the information the prosecutor allegedly
wanted him to conceal included his sexual relationship with Keshia
or the "foot traffic" at her apartment. Petitioner fails to
articulate how the sexual nature of Fitzgerald's relationship with
Keshia would have been relevant, and the record, including notes
prepared by petitioner's investigator, Wayne Kennedy ("Investigator
Kennedy"), demonstrates that defense counsel was aware of the
"foot traffic" and that Fitzgerald was considered to be Keshia's
"sugar daddy."
Furthermore, Fitzgerald's theory, expressed during the
investigation, that Keshia was killed by "someone who had been
pistol whipped by some friends of Keshia's brother," was disclosed
to petitioner in the pre-sentence report. This claim, therefore, is
barred because this non-jurisdictional issue could have been raised
in a motion for a new trial and on direct appeal and, thus, is not
cognizable in a petition for a writ of habeas corpus. Slayton v.
Parrigan, 215 Va. 27, 29-30, 205 S.E.2d 680, 682 (1974), cert.
denied, 419 U.S. 1108 (1975).
In addition, petitioner alleges that Fitzgerald was at the
apartment the day after the murders and that he noticed what
appeared to be blood on the carpet in the hallway between the living
room and the bathroom as well as in the bathtub in one of the
bathrooms. Petitioner contends that this information would have
undermined the Commonwealth's theory that "the murders occurred
solely in the bedroom and that the incident occurred in a very
6
compressed time frame."
The record reveals that none of this alleged evidence was
favorable to petitioner. The record, including the trial transcript,
Fitzgerald's affidavit, and the affidavits of co-counsel,
demonstrates that the jury was presented with evidence concerning
where blood was found on the day of the murders, including the
testimony of several forensic investigators, photographs, and a
video tape of the crime scene as it existed on the day of the
murders. How the crime scene appeared the following day after the
apartment was no longer secure would not have been relevant.
In the fourth portion of claim (I), petitioner alleges that the
Commonwealth failed to disclose to petitioner that Tyrone Mings had
provided inconsistent accounts about what he had seen at Keshia's
apartment, including his initial failure to report that he had seen
petitioner inside the apartment with a gun, and that Mings' account
that both 911 telephone calls were made from Melinda Bowser's
apartment was inconsistent with the timeline based on information
reported in 911 telephone calls related to the shooting. Petitioner
asserts that the 911 telephone call log would have shown that the
first call took place at a pay phone about a half-mile away from the
apartment instead of in Bowser's apartment, as Mings had testified.
Petitioner contends that Mings could not have made the phone call
from the pay phone and have returned to the apartment in order to
see the police leaving.
The Court holds that this portion of claim (I) is without
merit. Pursuant to Brady, there is no obligation to produce
information known to the defense. See Fullwood v. Lee, 290 F.3d
7
663, 686 (4th Cir. 2002), cert. denied 537 U.S. 1120 (2003); Cherrix
v. Commonwealth, 257 Va. 292, 303, 513 S.E.2d 642, 649, cert.
denied, 528 U.S. 873 (1999). The record, including the trial
transcripts and Investigator Kennedy's notes, demonstrates that
Mings told Investigator Kennedy, petitioner's investigator, that he
and Bowser walked to a nearby convenience store and used a pay phone
to make the initial call. Furthermore, Mings told Investigator
Kennedy that he had seen petitioner with the gun in his hand in the
apartment. The trial transcript demonstrates that counsel was aware
of Mings' failure to mention seeing Juniper in the apartment in his
first statement to police, as demonstrated by counsel's cross-
examination of Mings on this issue. Counsel knew of the
information, and consequently there was no Brady violation.
In the fifth portion of claim (I), petitioner alleges that the
Commonwealth failed to disclose to petitioner that John Jones
provided "crucially inconsistent statements" to the police, where he
first denied any knowledge of the murders, then later implicated
petitioner, and that he was "released on conditions requiring [his]
extensive cooperation with the police." Petitioner contends that
this "exculpatory" evidence could have established Jones'
involvement in the crime.
The Court holds that this portion of claim (I) is without
merit. The record, including the trial transcripts and a newspaper
article published prior to Juniper's arrest, demonstrates that
information was publicly available prior to trial, that the police
had questioned Jones, and that Jones had initially denied any
involvement. Furthermore, Jones did not testify, and consequently
8
could not have been impeached. Therefore, no Brady violation
occurred.
In the sixth portion of claim (I), petitioner alleges that the
Commonwealth failed to disclose to petitioner Chaunte Hodge's
identity and the statements Hodge and her mother-in-law, Mrs.
Frazier, made to police that Mrs. Frazier did not hear any unusual
noises from the apartment during the time that the murders occurred.
The record, including Investigator Kennedy's notes,
demonstrates that defense counsel were aware of Chaunte Hodge and
had attempted to contact her. Petitioner has not alleged that Mrs.
Frazier's alleged failure to hear anything unusual on that date
establishes that the murders did not occur or that petitioner was
not the perpetrator. Therefore, any failure to disclose the
evidence does not constitute a Brady violation.
Petitioner argues that all of the allegedly exculpatory
evidence must be considered in its totality when determining the
materiality of the evidence. Petitioner is correct that when
considering materiality, we consider suppressed evidence as a whole,
not item by item. See Workman v. Commonwealth, 272 Va. 633, 645, 636
S.E.2d 368, 375 (2006); Kyles v. Whitley, 514 U.S. 419, 436 (1995).
The Court holds that all of the allegedly exculpatory evidence upon
which petitioner relies was either available to petitioner or was
not favorable. See Workman, 272 Va. at 644-45, 636 S.E.2d at 374;
Muhammad, 274 Va. at 13, 646 S.E.2d at 191.
In the first portion of claim (II)(A), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to investigate Renee Rashid's pretrial statements to police.
9
Petitioner contends that Rashid's statements were inconsistent and
contradictory and that counsel should have investigated them. In
addition, petitioner argues that counsel should have used
impeachment evidence against Rashid, including Michael Lassiter's
opinion that Rashid was a compulsive liar and drug addict.
The Court holds that this portion of claim (II)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland v. Washington, 466 U.S. 668, 687
(1984). The record, including the affidavits of counsel and the
trial transcripts, demonstrates that counsel cross-examined Rashid
regarding inconsistencies in Rashid's statements to police.
Although petitioner suggested Lassiter as an alibi witness, Lassiter
could not provide counsel with an alibi for petitioner. Moreover,
if Lassiter had testified during the guilt phase of the trial, the
prosecution could have impeached him with an audiotape of a
telephone conversation between petitioner, who was in jail, and
Lassiter, which revealed a plot to concoct an alibi for petitioner.
Counsel made a tactical decision, based upon the unlikelihood that
the court would permit testimony about Rashid's drug use for
impeachment purposes, to preserve the viability of Lassiter as a
witness during the sentencing phase, rather than put him on the
stand at trial and risk the possibility that he might be perceived
negatively. 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 the second portion of claim (II)(A), petitioner alleges he
10
was denied the effective assistance of counsel because counsel
failed to investigate Keon Murray more fully. Petitioner first
contends that counsel were ineffective for failing to discover the
information that he contends the Commonwealth withheld, specifically
evidence "that police told Murray that they knew he committed the
murders and identified other co-suspects, that Murray failed a
polygraph test about the crimes, that police provided Murray with
details about the crimes, and that Murray agreed to testify as
directed by police in order to avoid threatened criminal charges."
The Court holds that the portion of claim (II)(A) concerning
petitioner's allegation that counsel was ineffective for failing to
discover certain evidence regarding the interrogation tactics used
by police when Murray was being interviewed satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the affidavits of
counsel, the trial transcript and Investigator Kennedy's notes,
demonstrates that Investigator Kennedy spoke with Murray on multiple
occasions. Murray told Investigator Kennedy that he had not been
involved in the crime and did not know the individuals involved, and
that "if a Keon is involved in this investigation it is most likely
another Keon." Murray also told Investigator Kennedy that he was
providing to Investigator Kennedy the same answers he had given to
the police. Counsel cross-examined Murray about the inconsistencies
between his testimony and his statements to Investigator Kennedy.
Moreover, Murray testified that it was Investigator Kennedy, and not
the police investigators, who threatened him that he could be
charged with being an accessory to murder if he did not testify.
11
Petitioner fails to articulate what additional actions counsel could
have taken or how counsel could have used the information concerning
the police investigators' tactics. Consequently, 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 petitioner's claim that he was denied the
effective assistance of counsel concerning counsel's handling of the
investigation of Murray and use of information for impeachment
purposes, petitioner alleges that counsel were on notice concerning
Murray's poor reputation for honesty and failed to investigate the
inconsistencies in Murray's statements to defense investigators,
including statements that he had participated in a two-hour taped
interrogation session and that he had never given any type of
written or recorded statement. Petitioner contends that counsel
also failed to object on Sixth Amendment Confrontation Clause
grounds to the court's decision to permit the prosecution to grant
him immunity to compel his testimony.
The Court holds that this portion of claim (II)(A) 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 unsuccessfully objected on due
process grounds to the grant of immunity to Murray. Petitioner
fails to assert a valid legal basis upon which he contends counsel
could or should have objected to the prosecutor's request or the
trial court's grant of immunity. Furthermore, petitioner's right to
12
confront this witness was not violated because Murray testified and
was subject to cross-examination. Moreover, Murray was fully cross-
examined by counsel regarding his inconsistent statements to
Investigator Kennedy. 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 the third portion of claim (II)(A), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to investigate Tyrone Mings more fully, although "counsel
maintained that Mings was lying," and to develop circumstantial
evidence that Mings was involved in the murders. Petitioner also
contends that counsel failed to use available information to impeach
Mings, such as using information that Keshia "did not work at the
Tinee Giant at the time the crimes occurred" to impeach Mings'
testimony that "he was trying to contact [Keshia] on the day of the
shootings to retrieve [Melinda] Bowser's paycheck." In addition,
petitioner contends that counsel should have presented evidence that
"it was well known in the neighborhood that Mings frequented the
apartment" and should have pointed out in argument that Mings'
ability to go "straight to the bedroom" was the result of "his
familiarity with the apartment." Petitioner contends that phone
records prove that Mings called petitioner's house shortly after his
call to "911." Petitioner argues that counsel should have used this
evidence, along with "Mings' materially contradictory statements to
police," and Bowser's account to police, to impeach Mings' testimony
and "to expose Mings and his asserted fear of reprisal from
13
[petitioner]."
The Court holds that this portion of claim (II)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. Petitioner speculates, but does not
proffer any evidence, that Keshia could not have had Bowser's check
simply because she no longer worked at Tinee Giant. Furthermore,
the record, including the trial transcript, demonstrates that Mings
went to Keshia's apartment because Murray called and told Mings that
a shooting had occurred. The diagram of the apartment demonstrates
that the apartment was small and that the hallway led directly to
the bedrooms. In support of his claim that Mings had previously
been inside petitioner's apartment, petitioner relies on the
affidavit of Michael Lassiter, who claims that Mings would buy drugs
from Keshia. Lassiter does not articulate how he knew about Ming's
alleged drug purchases and, in any event, counsel made a tactical
decision not to call Lassiter because petitioner had asked Lassiter
to help him develop an alibi, which conversation had been recorded.
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 the fourth portion of claim (II)(A), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to investigate Ernest Smith more fully after petitioner
informed counsel and Investigator Kennedy that Smith had contacted
homicide detectives and was trying to "get into" petitioner's case.
Petitioner argues counsel should have spoken with other inmates "who
14
knew that Smith spoke openly about fabricating evidence against
Juniper." Petitioner contends that, had counsel investigated Smith,
they would have learned that Juniper never confessed to Smith.
The Court holds that this portion of claim (II)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavits
of counsel, Investigator Kennedy's notes, counsel's notes, and the
trial transcript, demonstrates that counsel did not have reason to
believe that Smith would testify against petitioner at the guilt
phase of the trial, because when counsel confronted petitioner about
Smith and other witnesses, whose names were on the Commonwealth's
witness list, petitioner "claimed that these witnesses were
unimportant third parties or jail house snitches who would not
testify." Additionally, the record, including the Commonwealth's
Supplemental Notice of Intent to Present Evidence of Unadjudicated
Criminal Conduct and the trial transcript, demonstrates that counsel
was informed prior to trial that petitioner had attacked Smith and
threatened to kill him while he and Smith were in the medical pod
together and, therefore, counsel had no reason to believe Smith
would have voluntarily spoken to them about the case. Additionally,
the record contains no evidence to support petitioner's claim that
there were other inmates who would testify that Smith spoke about
fabricating evidence against Juniper. 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 the fifth portion of claim (II)(A), petitioner alleges he
15
was denied the effective assistance of counsel because counsel
failed to investigate Terence Fitzgerald more fully. Petitioner
contends that had counsel investigated more fully, counsel would
have learned that Fitzgerald was "having sex with [Keshia] and using
the apartment as a base of operations to sell drugs." In addition,
counsel would have learned of Fitzgerald's statements to police that
"'the only people who might have wanted to do this was someone who
had been pistol whipped by some friends of Keshia's brother,' and
that he saw 'a gray automobile with a missing tag in the parking
lot.'" Petitioner contends that had counsel obtained these
statements, counsel could have used them at trial and would have
learned that the police had suspected and accused Fitzgerald of the
crime. In addition, petitioner contends that counsel should have
asked Fitzgerald about his personal knowledge concerning the "foot
traffic" at Keshia's apartment, which petitioner contends was the
result of Keshia and her brother "selling drugs for Fitzgerald from
the apartment." Furthermore, petitioner contends counsel should
have discovered that Fitzgerald had been at the apartment the day
after the murders and that he had seen blood in the hallway and
bathroom.
The Court holds that this portion of claim (II)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavits
of counsel and Investigator Kennedy's notes, the trial transcripts
and the exhibits offered at trial, demonstrates that counsel had no
reason to believe that additional investigation of Fitzgerald would
have revealed the sexual nature of his relationship with Keshia, as
16
Fitzgerald had explained to Investigator Kennedy that he felt sorry
for Keshia when he discussed the rumors that he was her "sugar
daddy." The trial court ruled that evidence concerning the "foot
traffic" at the apartment was inadmissible because it was
irrelevant. Counsel had no right to review Fitzgerald's statements
to police unless they contained exculpatory evidence, which
petitioner fails to allege was the case. Fitzgerald's speculation
that someone "who had been pistol whipped by some friends of
Keshia's brother," may have been responsible for the murders is
unsupported by any evidence. Fitzgerald does not state that he told
police about the men in a car, and Investigator Kennedy's notes
reveal that Fitzgerald did not share this information with
Investigator Kennedy. Finally, Fitzgerald does not state that he
told anyone about the blood he saw in the apartment the day after
the murders, and his observations would have had little relevance as
there was ample evidence presented at trial concerning the location
of blood at the time the murders were discovered. 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 the sixth portion of claim (II)(A), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to investigate John Jones more fully. In support of this
claim, petitioner proffers that "Renee Archibald told counsel that
Jones was a violent, controlling person who hated [Keshia]; Jones
was possessive of Juniper and resented the fact that Juniper let
17
[Keshia] come before him." Petitioner contends that had counsel
more fully investigated Jones, counsel could have used this
information to support petitioner's "alibi defense and challenge the
Commonwealth's evidence and theory that [petitioner] alone committed
the murders and bore sole culpability." Petitioner notes that
evidence indicating he did not act alone, or that a sole perpetrator
did not commit the crimes, would have undermined confidence in the
jury's determination that death was the appropriate sentence.
The Court holds that this portion of claim (II)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavits
of counsel, the trial transcripts and the police reports,
demonstrates that Jones did not testify at trial, but told the
police shortly after his initial interrogation that he had, in fact,
seen petitioner emerging from the apartment with a gun in his hand.
Although Archibald was interviewed prior to trial, neither counsel's
nor Investigator Kennedy's notes mention Archibald ever stating that
Jones was violent or hated Keshia. Petitioner does not explain how
Jones' reputation for violence or his hatred of Keshia would have
supported an alibi defense, or undermined evidence that petitioner,
alone, committed the murders. 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 the seventh portion of claim (II)(A), petitioner alleges he
was denied the effective assistance of counsel because counsel were
on notice, pursuant to the presentence report, that Bowser,
18
Fitzgerald, and Jones had given statements to the police.
Petitioner contends that the Commonwealth concealed these statements
and that counsel "unreasonably failed to develop and present this
evidence – after being put on notice by the presentence report –
through motion for mistrial, continuance, or other appropriate
vehicle."
The Court holds that this portion of claim (II)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. Petitioner fails to articulate what
information counsel would have developed, the basis upon which
counsel should have moved for a mistrial, or that the statements
contained exculpatory or impeachment evidence. 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 (II)(B), petitioner alleges he was denied
the effective assistance of counsel because counsel failed to
adequately investigate Michael Lassiter, who purportedly could have
provided an alibi defense.
The Court holds that this portion of claim (II)(B) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavits
of counsel, demonstrates that counsel spoke with Lassiter, but
Lassiter never provided petitioner an alibi. Counsel chose not to
present Lassiter as a witness during the guilt phase of the trial
because the Commonwealth possessed an audio recording of a
conversation between Lassiter and petitioner, in which the two were
19
attempting to fabricate an alibi. 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 the second portion of claim (II)(B), petitioner alleges he
was denied the effective assistance of counsel because counsel
failed to adequately investigate Keshia Stephens. Petitioner
contends counsel failed to discover that Keshia "had stolen at least
two kilos from a drug dealer she was involved with," and asserts
that "[w]hether true or not, this rumor alone would have made her a
target." Petitioner contends further that Keshia "was a regular
drug user, [who] would rob people and have sex for money and drugs."
Petitioner alleges that Keshia's "brother, Ruben Harrison III, also
engaged in behavior that put him at risk," and that Mings
"frequented the apartment because he was selling some of the drugs
stashed there."
The Court holds that this portion of claim (II)(B) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavits
of counsel, demonstrates that counsel chose not to present evidence
attacking the victims' lifestyles, because counsel did not believe
this evidence would have exculpated petitioner, and because counsel
did not want to risk offending the jury. 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 the third portion of claim (II)(B), petitioner alleges that
20
he was denied the effective assistance of counsel because counsel
failed to adequately investigate Kevin Waterman, one of Keshia's
neighbors, who told police that he heard four gunshots in Keshia's
apartment around 1:30 p.m.
The Court holds that this portion of claim (II)(B) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavits
of counsel and Waterman, demonstrates that counsel made a tactical
decision not to call Waterman as a witness. Even accepting
Waterman's affidavit that he heard gunshots in the general vicinity
of the apartment building between 1:30 and 2:00 p.m. on the day of
the murders, counsel could not reconcile this information with the
other evidence that the murders occurred earlier in the day.
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 (II)(C), petitioner alleges he was denied the
effective assistance of counsel because "counsel unreasonably failed
to investigate and present evidence from the letters and other
documents of Keshia Stephens." Petitioner contends that if counsel
had investigated these letters they would have determined that
Keshia "was dishonest and willing to cheat people," and "was leading
an increasingly dangerous lifestyle defined by multiple sex
partners, drugs, and duplicity." In support of this claim,
petitioner submits a letter written by Keshia "explaining
(untruthfully) why she was terminated from her job at the Tinee
21
Giant." Petitioner contends that counsel could have used this
letter in cross-examination of Mings, who testified that he had gone
to Keshia's apartment in part to get a check for Bowser, who worked
at the Tinee Giant. In addition, petitioner relies on a copy of "an
opened letter to Fitzgerald from his probation officer, setting up a
meeting time for January 5, 2004," which petitioner contends would
have rebutted Fitzgerald's testimony that he had stopped going to
the apartment.
The Court holds that claim (II)(C) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the letters upon
which petitioner relies and the affidavits of counsel, demonstrates
that the letters had little value to petitioner's case. As for
Keshia's letter, the letter does not negate Mings' reasons for going
to the apartment and counsel made a tactical decision not to attack
Keshia's lifestyle at trial. The Fitzgerald letter upon which
petitioner relies contains no recipient address and was dated weeks
before the murders. Petitioner proffers no other letters or
documents in support of this claim. 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 (II)(D), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to
investigate the time of the shootings. Petitioner contends that a
time of death was not established by the medical examiner, and
petitioner's alibi, together with Keith Waterman's testimony that he
22
heard shots between 1:30 p.m. and 2:00 p.m., would have refuted
evidence that petitioner was in the apartment at the time of the
murders. Although police first arrived on the scene at 12:50 p.m.
and left at 1:12 p.m., they did not go into the apartment or confirm
that anyone had been killed. Petitioner contends that evidence that
the murders occurred at the time Waterman heard the shots would have
created reasonable doubt as to petitioner's involvement in the
crime.
The Court holds that this portion of claim (II)(D) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript and the affidavits of counsel, demonstrates that
counsel's failure to establish a timeline did not constitute
ineffective assistance where neither the police, medical examiner,
forensic laboratory, nor prosecutor could, based upon the evidence,
eliminate all uncertainty as to the time of the shootings.
Petitioner never provided counsel an alibi, and he cannot show that
he was prejudiced by his counsel's inability to establish a timeline
for the commission of the murders. 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 (II)(E), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to
investigate the forensic evidence. He contends that counsel should
have investigated whether the two different brands of nine
millimeter bullets recovered from the scene "came from more than one
23
gun," as well as certain unidentified fingerprint and DNA evidence
found at the scene, by hiring their own forensic expert to conduct
independent fingerprint, ballistics and DNA testing or to review the
work of the state's lab. Further, he contends that counsel should
have fully investigated Fitzgerald to discover the blood evidence
that refuted the Commonwealth's theory concerning how the murders
occurred.
The Court holds that this portion of claim (II)(E) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the affidavit
of petitioner's counsel, demonstrates that counsel determined that
there was not a particularized need for a forensic expert in this
case, and therefore did not request one. Petitioner has not
identified a particularized need for the expert, or set forth any
reason to believe that a forensic expert would be able to obtain
fingerprint or DNA results that the Commonwealth's forensic
laboratory would not. The fact that two different brands of bullets
were recovered does not refute the Commonwealth's evidence that both
brands of bullets were fired from the same gun. 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 (II)(F), petitioner alleges he was denied the
effective assistance of counsel because counsel "failed to follow
through on" certain theories of defense. Petitioner contends that
counsel did not present evidence from Michael Lassiter that
24
petitioner had an alibi, and that "others were present at the crime
scene that morning." Petitioner contends further that counsel
should have investigated "possible motives of others for the
murders," and discovered that "several of the players involved were
cold and calculating individuals, capable of committing a crime like
this." Petitioner alleges that, had counsel "investigated possible
motives," they would have developed "critical evidence bolstering
and substantiating" their theory "that there was drug dealing and
prostitution going on inside the apartment." Counsel also would
have been able to present evidence of Ruben Harrison's recent rape
conviction and that Harrison's "friends had recently pistol-whipped
an individual." Petitioner contends further that counsel would have
discovered that "the police did a bad job [of] collecting evidence."
The Court holds that this portion of claim (II)(F) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the trial
transcript and the affidavits of counsel, demonstrates that neither
petitioner nor Lassiter provided an alibi for petitioner and that
petitioner's numerous theories and alleged motives for the murders
were not supported by any evidence. Furthermore, counsel made a
tactical decision not to "make an issue" of Harrison's rape
conviction, because details of the offense did not provide a motive
for the murders and counsel did not want to appear to "smear one of
the victims." 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.
25
In claim (II)(G), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to renew
petitioner's motion for a change of venue. Petitioner contends he
was "entitled to a change of venue because media coverage was
intense" and counsel had met the burden of presenting numerous
prejudicial news accounts of petitioner and the crimes with which he
was charged. The record, including the pre-trial transcripts,
demonstrates that counsel moved for a change of venue a few weeks
prior to trial, and the trial court took the matter under
advisement. Petitioner cites the opinion from his direct appeal,
where we held the issue to be barred on appeal because counsel did
not timely renew the motion or bring it to the attention of the
trial court. Juniper, 271 Va. at 384, 626 S.E.2d at 398.
Petitioner contends that had counsel renewed the motion, "there is a
reasonable probability of a different outcome."
The Court holds that claim (II)(G) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcripts, demonstrates that the evidence did not support a
finding that the media coverage had been extensive or warranted a
change in venue. Petitioner fails to allege that his motion would
have been granted had he renewed it or even that he could have met
his burden to establish that the media coverage at the time of trial
was so pervasive "as to make it reasonably certain" that he could
not receive a fair trial. Mackall v. Commonwealth, 236 Va. 240, 250,
372 S.E.2d 759, 766 (1988). Petitioner has failed to demonstrate
that counsel's performance was deficient. Furthermore, petitioner
26
has failed to demonstrate that a renewed motion for a change of
venue would have been successful or that, in a different venue, the
result of the criminal proceeding would have been different.
In claim (II)(H), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to object
when the trial court changed the questions it used in voir dire.
Petitioner contends that counsel did not object when the trial court
"simplified 'substantially impair' to 'very difficult.'" Petitioner
alleges that the two terms are defined differently and that "very
difficult" is a higher burden than "substantially impair."
Petitioner argues that jurors whose beliefs "substantially impaired"
their decision making would not have admitted so if their beliefs
did not also make their decision making "very difficult."
Petitioner contends further that this Court did not reach the issue
on direct appeal because counsel failed to preserve the claim.
Juniper, 271 Va. at 385-86, 626 S.E.2d at 399.
The Court holds that claim (II)(H) fails to satisfy the
"prejudice" prong of the two-part test enunciated in Strickland.
Petitioner fails to allege that any juror held beliefs that
"substantially impaired" his or her decision-making process, and
fails to allege that the issue would have had merit on appeal had it
been properly preserved at trial. Petitioner has failed to
demonstrate that, but for counsel's alleged error, the result of the
proceeding would have been different.
In claim (II)(I), petitioner alleges he was denied the
effective assistance of counsel because counsel "failed to seek
files from the Commonwealth." Petitioner contends that counsel
27
requested "police files" pertaining to petitioner's "unadjudicated
criminal conduct and to Ruben Harrison III's recent rape
conviction." According to petitioner, counsel cited no valid legal
principles that would have required the release of the files.
Petitioner contends that, if counsel had raised the appropriate
arguments, either the trial court would have ordered the police to
share these exculpatory files or the issue would have been preserved
for appeal.
The Court holds that claim (II)(I) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. A defendant in a capital case is entitled
to notice of the Commonwealth's intention to rely on unadjudicated
criminal conduct at sentencing. Code § 19.2-264.3:2 requires,
concerning the Commonwealth's intention to rely on unadjudicated
criminal conduct, that the Commonwealth give written notice,
including a description of the conduct and, "to the extent such
information is available, the time and place such conduct will be
alleged to have occurred." Petitioner has failed to identify the
legal authority upon which he contends counsel could have argued for
the underlying police files regarding his unadjudicated criminal
conduct and has failed to establish that he was entitled to the
underlying police files of the victim's rape conviction. Petitioner
has failed to demonstrate that, but for counsel's alleged error, the
result of the proceeding would have been different.
In claim (III), petitioner alleges his trial counsel suffered
from an unconstitutional conflict of interest. Petitioner contends
28
that the investigator hired to work with his defense team had
previously "represented" Ernest Smith on an unrelated
"rape/abduction case." Petitioner argues that counsel should have
investigated and discovered the conflict and should have revealed
that conflict to petitioner.
The Court holds that claim (III) is barred by Code § 8.01-
654(B)(2) and Dorsey v. Angelone, 261 Va. 601, 604, 544 S.E.2d 350,
352 (2001), as well as by the applicable statute of limitations set
forth in Code § 8.01-654.1. Pursuant to Code § 8.01-654.1,
petitioner had until December 11, 2006 to file his petition for a
writ of habeas corpus. Petitioner filed a petition for a writ of
habeas corpus on that date that did not comply with the page
limitations found in Rule 5:7A(g), along with a motion for leave to
file an oversized petition. Petitioner was ordered on January 24,
2007 to file a petition in compliance with Rule 5:7A(g) no later
than January 29, 2007.
On January 26, 2007, petitioner filed a request for an
emergency stay of the Court's January 24, 2007 order because his
habeas counsel had determined that a potential conflict existed.
Habeas counsel learned on January 24, 2007 that she formerly
represented informant Ernest Smith in a criminal matter in 2001, and
that Investigator Kennedy, who was hired as petitioner's habeas
investigator, also investigated the case on behalf of Smith.
On January 29, 2007, petitioner filed a 50-page petition for a
writ of habeas corpus that did not include a claim related to the
investigator's alleged conflict of interest. On February 1, 2007,
29
this Court denied the motion to stay the Court's January 24, 2007
order as moot and directed the parties to brief the conflict issue.
Thereafter, counsel moved to withdraw and requested the appointment
of new counsel and the opportunity to file a new petition for a
writ of habeas corpus. On March 2, 2007, this Court granted
counsel's request to withdraw, appointed new counsel, and granted
petitioner 60 days in which to file an amended petition, if
necessary.
On May 1, 2007, petitioner filed the instant petition for a
writ of habeas corpus pursuant to the Court's March 2, 2007 order,
in which claim (III) was raised for the first time. Claim (III),
therefore, the facts of which were known prior to petitioner's
January 29, 2007 petition for a writ of habeas corpus, was not
previously raised, and was not raised until after the expiration of
the applicable statute of limitations.
In claim (IV)(A), petitioner alleges he was denied the
effective assistance of counsel during the sentencing phase of his
trial because counsel failed to "discover all reasonably available
mitigating evidence and evidence to rebut any aggravating evidence
that may be introduced by the prosecutor." See Wiggins v. Smith,
539 U.S. 510, 524 (2003). Petitioner contends that counsel failed
to adequately investigate petitioner's family and social background
and, as a result, failed to discover that petitioner has a family
history of serious mental illness.
The Court holds that claim (IV)(A) satisfies neither the
30
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the affidavits of
counsel and a memorandum counsel wrote to petitioner's client file
on January 25, 2005, demonstrates that both petitioner and his
family members were uncooperative. Petitioner insisted, "he would
rather be executed than spend his life behind bars," and
"discouraged potential mitigation witnesses from providing counsel
with useful information." When approached by counsel, petitioner's
relatives, including his mother, refused to cooperate or testify.
Moreover, petitioner never mentioned to his trial counsel a possible
mitigation witness who he contends could have provided information
regarding his family's or his alleged mental health issues.
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 (IV)(B), petitioner alleges he was denied the
effective assistance of counsel during the sentencing phase because
counsel failed to present rebuttal evidence to the aggravating
evidence introduced by the prosecution. He contends that counsel
failed to investigate the alleged prior acts of violence against
Keshia, including an incident where petitioner allegedly bound her
with duct tape and tortured her with a stun gun, and did not present
evidence, including the testimony of witnesses, to rebut the
prosecution's allegations.
The Court holds that claim (IV)(B) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
31
enunciated in Strickland. The record, including the trial
transcript, demonstrates that counsel presented evidence at trial
consistent with what petitioner told police as to how Keshia's
previous injuries occurred, including testimony of a police
investigator that petitioner made a comment and then said "that she
duct taped herself," which the officer understood to mean that
Keshia "could charge [petitioner] with abduction and he could get 50
years." 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 (IV)(C), petitioner alleges he was denied the
effective assistance of counsel during the sentencing phase because
counsel encouraged the jury to impose the harshest penalty possible
when she argued, "If the goal here is to punish him, then make him
suffer . . . . Don't put him to death like a sick animal and put him
out of his misery. The ultimate punishment here is time."
Petitioner contends that this statement was equivalent to asking the
jury not to have sympathy or mercy on petitioner but to impose the
harshest penalty possible, which in counsel's opinion was life
imprisonment.
The Court holds that claim (IV)(C) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
transcript, demonstrates that, taken in context, counsel's argument
sought to humanize petitioner by invoking images of the abuse
petitioner suffered as a child and by asking the jury to show mercy
32
on him by considering any evidence that "in fairness or mercy may
extenuate or reduce the degree of moral culpability and punishment."
In addition, counsel asked the jury, if it were to seek the ultimate
punishment, to do so by sentencing petitioner to life. 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 (IV)(D), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to object to
Virginia's only available means of execution, which he contends
violates his "Eighth Amendment guarantees as contrary to
contemporary norms and standards and offending the dignity of the
person and society because they create an unreasonable risk of
unnecessary physical and psychological pain." The Court holds that
claim (IV)(D) satisfies neither the "performance" nor the
"prejudice" prong of the two-part test enunciated in Strickland.
This Court has held that a Virginia prisoner has no constitutional
claim regarding lethal injection because he can choose execution by
electrocution, which this Court has repeatedly held does not violate
the Eighth Amendment. Orbe v. Johnson, 267 Va. 560, 562, 601 S.E.2d
547, 549 (2004). 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 (IV)(E), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to protect
33
his confidentiality when counsel requested petitioner's school
records via a subpoena duces tecum rather than by using a release
signed by Juniper. Petitioner contends that because the documents
were sent to both defense counsel and to the prosecution, the
prosecution discovered that Juniper had several incidents of
unadjudicated criminal conduct while he was incarcerated at the
Hampton Roads Regional Jail.
The Court holds that claim (IV)(E) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record demonstrates that counsel knew
that the Commonwealth either had obtained or was in the process of
obtaining petitioner's school records, thus there was no need for
secrecy. Petitioner, therefore, was not prejudiced by counsel's
decision to pursue receipt of the records through the issuance of a
subpoena. 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 (IV)(F), petitioner alleges he was denied the
effective assistance of counsel at the sentencing phase because
counsel failed to ensure that the jurors were properly instructed.
He contends that the verdict form was improper in that it required
only that the jurors unanimously find that "either" aggravating
circumstance was proven beyond a reasonable doubt, without requiring
jurors to agree on which of the aggravating factors existed.
The Court holds that claim (IV)(F) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
34
enunciated in Strickland. The record, including the trial
transcript, written jury instructions, and verdict forms,
demonstrates that the jury was properly instructed and that the
verdict forms gave the jury the option to find either or both
aggravating factors beyond a reasonable doubt. See Prieto v.
Commonwealth, 278 Va. 366, 406, 682 S.E.2d 910, 931 (2009), cert.
denied, ___ U.S. ___, 130 S.Ct. 3419 (2010). Jurors are presumed to
follow the trial court's instructions. Muhammad, 269 Va. at 524,
619 S.E.2d at 58. Furthermore, the jury unanimously found beyond a
reasonable doubt that petitioner "would commit criminal acts of
violence that would constitute a continuing serious threat to
society" and unanimously found beyond a reasonable doubt that
petitioner's "conduct in committing the offense was outrageously or
wantonly vile, horrible, or inhuman in that it involved depravity of
mind and/or aggravated battery to the victim beyond the minimum
necessary to accomplish the act of murder." 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 (IV)(G), petitioner alleges he was denied the
effective assistance of counsel in the sentencing phase because
counsel failed to object to the prosecutor's closing argument that
"the only just verdict is the ultimate punishment of death" and
that Juniper had written "his own death warrant." Petitioner
contends that the prosecutor's statements were improper because
they expressed his personal opinion that petitioner deserved the
35
death penalty.
The Court holds that claim (IV)(G) 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 prosecutor's statements did not
express his personal opinion, misstate the evidence or mislead the
jury. 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 (IV)(H), petitioner alleges he was denied the
effective assistance of counsel in the sentencing phase because
counsel failed to object to the trial court's future dangerousness
instruction. He contends that the word "probability" in the
instruction allows for more uncertainty than the "beyond a
reasonable doubt" standard, and that the instruction creates an
unacceptable risk that the jury used a "probability" standard in
judging future dangerousness.
The Court holds that claim (IV)(H) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including trial transcript
and jury instructions, demonstrates that the instruction followed
the "future dangerousness" language of Code § 19.2-264.4 which this
Court has held is not unconstitutionally vague. See, e.g., Stockton
v. Commonwealth, 227 Va. 124, 134-35, 314 S.E.2d 371, 378 (1984).
Petitioner has failed to demonstrate that counsel's performance was
36
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proceeding would have
been different.
In claim (V), petitioner alleges the trial court
unconstitutionally prohibited petitioner from putting on proper
evidence of his lack of future dangerousness.
The Court holds that claim (V) is procedurally defaulted
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Slayton, 215 Va. at 29-30,
205 S.E.2d at 682.
In a portion of claim (VI), petitioner alleges he was denied
his right to counsel of his choice.
The Court holds that this portion of claim (VI) is barred
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus. Id.
In another portion of claim (VI), petitioner alleges that
counsel's actions created an actual conflict of interest between
counsel and petitioner, prejudiced him, and denied him the effective
assistance of counsel. Petitioner contends that counsel made "a
self-serving proffer" regarding whether to put on evidence at the
guilt phase of the trial, revealed attorney work product and
attorney-client privileged communications, refused to pursue the
course of action petitioner had chosen, and made incomplete
representations to the court, thus concealing facts from the court's
consideration. Petitioner contends counsel failed to tell the court
37
that Lassiter could confirm petitioner's alibi when counsel were
expressing their decision not to call Lassiter during the guilt
phase of the trial.
The Court holds that this portion of claim (VI) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The Sixth Amendment does not
guarantee a "meaningful relationship" between an accused and his
counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983). The record,
including the affidavits of counsel and the trial transcript,
demonstrates that counsel discussed with petitioner their decisions
regarding presenting evidence during the guilt phase and strategic
decisions not to call certain witnesses. Furthermore, counsel
informed petitioner of his right to testify and his right to decide
whether to testify. The trial court explored this issue with
petitioner, who informed the court that he had decided not to
testify. As discussed previously, neither petitioner nor Lassiter
ever provided counsel with an alibi and, therefore, counsel were not
being "incomplete" by failing to inform the court of Lassiter's
potential alibi testimony. Petitioner contends that counsel's
proffers to the court created a conflict of interest, but petitioner
does not identify how counsel's loyalties had been divided, or how
he was prejudiced. Petitioner has failed to establish either an
actual conflict of interest or an adverse effect on counsel's
performance. See Mickens v. Taylor, 535 U.S. 162, 171-72 (2002).
Therefore, 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
38
would have been different.
In claim (VII), petitioner alleges "[c]ounsel unreasonably
failed to argue that an emerging national consensus opposing the
authorization and practice of executing people with serious mental
illness makes Juniper's death sentence unconstitutional."
The Court holds that claim (VII) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the petition,
demonstrates that there is no evidence in the record that petitioner
suffers "serious" mental illness and, therefore, such an argument
would have been improper if made to a jury. Petitioner fails to
provide the argument or controlling authority he contends counsel
should have raised in such an argument to a judge. Therefore,
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), petitioner alleges he is actually innocent of
capital murder.
The Court holds that claim (VIII) is barred because assertions
of actual innocence are governed by Code §§ 19.2-327.1 through -
327.6, and Code §§ 19.2–327.10 through -327.14, and are outside the
scope of habeas corpus review. Lovitt v. Warden, 266 Va. 216, 259,
585 S.E.2d 801, 827 (2003).
Upon consideration thereof, petitioner's "motion for leave to
depose the department of forensic science," "motion for funds to
hire a psychologist or psychiatrist," "motions for appointment of a
39
DNA expert and discovery of electronic data," "motion for
discovery," and motion for an evidentiary hearing are denied.
Upon further consideration thereof, respondent's motions to
strike petitioner's original appendix and supplemental appendix are
denied. The exhibits contained in the appendices are considered
pursuant to the appropriate evidentiary rules. Petitioner's motion
to strike respondents' affidavits is denied. The affidavits are
considered pursuant to the appropriate evidentiary rules.
Finally, respondent's motion to strike petitioner's third
supplemental appendix, volume X, is granted. This appendix is
stricken as barred by Code § 8.01-654(B)(2) and Dorsey v. Angelone,
261 Va. 601, 604, 544 S.E.2d 350, 352 (2001), as the exhibits
contained therein relate to claims known to petitioner but not
presented in either of the previous petitions for a writ of habeas
corpus, including the claim relating to trial counsel's prior
representation of Ernest Smith, and that petitioner suffered from
sleep apnea.
Accordingly, for the reasons stated, the petition is
dismissed.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
40