Jackson v. WARDEN OF SUSSEX I STATE PRISON

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme
Court Building in the City of Richmond, on Friday, the 24th
day of March, 2006.

Jerry Terrell Jackson, Petitioner,

against Record No. 042751

Warden of the Sussex I State Prison, Respondent.

Upon a Petition for a Writ of Habeas Corpus

Upon consideration of the petition for a writ of

habeas corpus filed January 4, 2005, the respondent’s

motion to dismiss, and the petitioner’s reply to that

motion, the Court is of the opinion that the motion should

be granted and the writ should not be issued.

Jerry Terrell Jackson was convicted in the Circuit

Court of the City of Williamsburg and James City County of

one count each of statutory burglary, robbery, rape, petit

larceny and two counts of capital murder for the

premeditated killing of Ruth Phillips during the commission

of a rape, and during the commission of a robbery. Finding

that the Commonwealth had proven the aggravating factor of

“future dangerousness” beyond a reasonable doubt, see Code

§ 19.2-264.2, the jury fixed Jackson’s sentence at death on

each of the capital murder convictions and fixed sentences

totaling two life sentences plus 20 years’ imprisonment and

1
12 months in jail for the non-capital convictions. The

trial court sentenced Jackson in accordance with the jury’s

verdict. This Court unanimously affirmed Jackson’s

convictions and the sentences of death. Jackson v.

Commonwealth, 267 Va. 178, 208-09, 590 S.E.2d 520, 537

(2004), cert. denied, 543 U.S. 891 (2004).

In claim I(A), petitioner alleges that he was denied

the effective assistance of counsel because counsel relied

on impermissible and unreasonable factors in determining

which questions to ask individual jurors during voir dire.

Counsel did not ask four potential jurors, Lewis Samuels,

Alfonso LaFalce, June Brown, and Joyce Griffith: (1)

whether they believe death is the appropriate punishment

for murder unless the defendant convinces them otherwise;

(2) whether they believe everyone who commits murder will

be dangerous in the future; and (3) whether they would

automatically vote to impose death on a person they

determined to be a future danger. Petitioner contends that

in determining not to pose these questions to these four

potential jurors, counsel unreasonably relied on racial

stereotypes, geographic stereotypes, and “tips” from the

bailiff. Petitioner further asserts that had counsel asked

the questions, there was a reasonable probability that one

2
of the jurors would have revealed that he or she was

unqualified to serve.

The Court holds that claim I(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 trial transcripts

and affidavit of trial counsel, demonstrates that the court

asked significant voir dire questions and the four jurors,

along with other members of the venire, demonstrated that

they would be fair and impartial. Counsel averred that,

based upon the court’s questioning and the information

obtained as to each of the jurors, counsel made a strategic

decision not to ask these jurors any additional questions.

Furthermore, petitioner does not allege that any of these

jurors were, in fact, unqualified or that any of these

jurors failed to follow the instructions given to them by

the trial 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. See id. at 687, 694.

In claim I(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel

violated the holding in Batson v. Kentucky, 476 U.S. 79

3
(1986) when he chose not to exercise a peremptory strike as

to juror Holly Minkins because she was an African-American

woman. Petitioner acknowledges that counsel’s decision to

retain Minkins was a tactical decision but nevertheless

contends that Minkins’ answers during voir dire

demonstrated that she was not qualified to serve on the

jury. Thus, counsel’s decision to retain Minkins was

unconstitutional because it was based solely on Minkins’

race. Petitioner further contends that counsel’s failure

to strike Minkins is presumptively prejudicial. However,

even if prejudice is not presumed, petitioner claims he can

demonstrate prejudice because absent counsel’s error, the

composition of the jury would have been different.

Petitioner argues that, in light of the scant evidence on

the issue of premeditation and the fact that the jury

conducted sentencing deliberations for two days, there is a

reasonable probability that a difference in the jury

composition would have resulted in a different outcome.

The Court holds that claim I(B) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. First, counsel’s failure to

strike Minkins is not a “structural error.” As this Court

stated in Morrisette v. Warden of the Sussex I State

Prison, 270 Va. 188, 613 S.E.2d 551 (2005):

4
 A “structural error” is a “defect affecting the
framework within which the trial proceeds, rather
than simply an error in the trial process
itself.” Arizona v. Fulminante, 499 U.S. 279,
310 (1991); see Emmett v. Warden, 269 Va. 164,
168, 609 S.E.2d 602, 605 (2005). As such, it is
the constitutional magnitude of the error that
defies “harmless error review.” Neder v. United
States, 527 U.S. 1, 8 (1999). Examples of errors
which affect the framework of a trial include the
denial of a public trial, the denial of counsel,
the denial of an impartial trial judge, the
systematic exclusion of members of the
defendant’s race from the grand jury, the
infringement upon a defendant’s right to
represent himself, and the improper instruction
to a jury as to reasonable doubt and the burden
of proof. See Johnson v. United States, 520 U.S.
461, 466-67 (1997) (discussion of “limited class
of cases” in which structural error found); Green
v. Young, 264 Va. 604, 611-12, 571 S.E.2d 135,
140 (2002) (holding an instruction stating the
jury shall find the defendant guilty if the
Commonwealth failed to prove each element beyond
a reasonable doubt to be structural error).

Id. at 192, 613 S.E.2d at 556. Thus, any prejudice is

not presumed.

The record, including the trial transcript of the voir

dire of Minkins, also demonstrates that Minkins was

qualified to serve on the jury. The holding in Batson

applies to the impermissible exclusion of members of a

particular race from a jury pursuant to the exercise of a

peremptory strike. 476 U.S. at 87-88. Petitioner has

failed to demonstrate that counsel’s tactical decision

regarding the selection of jurors was of a constitutional

dimension, as petitioner does not claim that counsel

5
excluded members of a particular race in violation of

Batson. Furthermore, petitioner has failed to demonstrate

that the empanelled jury was not impartial. 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. See

Strickland, 466 U.S. at 687, 694.

In claim II(A), petitioner alleges that the trial

court failed to ensure the selection of an impartial jury

because the court did not inform the venire that the victim

was 88 years old and did not inform the venire of “other

circumstances of her life.” Petitioner contends that

without this information, the court could not determine

whether the venire, which included several venire persons

who were 65 and older, could be impartial. The Court holds

that claim II(A) is procedurally defaulted because this

non-jurisdictional issue could have been raised at trial

and on direct appeal and, thus, is not cognizable in a

petition for a writ of habeas corpus. Slayton v. Parrigan,

215 Va. 27, 29-30, 205 S.E.2d 680, 682 (1974), cert.

denied, 419 U.S. 1108 (1975).

In claim II(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel failed

6
to object to the inadequacy of the information given to the

venire and failed to cure the trial court’s error.

Petitioner contends that the “facts” were undisputed and

did not go to any element of any offense that was charged.

Petitioner asserts that had counsel ensured that the

victim’s age and other circumstances were provided to the

venire, there is a reasonable probability that one of the

potential jurors would have revealed that he or she was

unqualified.

The Court holds that claim II(B) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the

trial transcripts, demonstrates that counsel asked the

jurors whether any sorrow or sympathy they might feel

towards the victim would affect their ability to judge the

case fairly. Moreover, the court instructed the jurors,

“You must not be influenced in any degree by any personal

feeling of sympathy for or prejudice against any party.”

Petitioner also fails to identify any information,

other than the victim’s age, that he contends should have

been provided to the venire. Moreover, petitioner does not

allege that he was actually denied an impartial jury or

that any of the jurors seated would have been deemed

unqualified to serve had the victim’s age and other unknown

7
information been provided to them. 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. See Strickland, 466

U.S. at 687, 694.

In claim III, petitioner alleges that he was denied

the effective assistance of counsel because counsel failed

to adequately redact portions of the videotaped police

interrogation of the petitioner and failed to adequately

redact portions of the interrogation transcript.

Petitioner contends that counsel failed to redact

references to home burglaries, suspicion that petitioner

“hung out with” drug dealers, petitioner’s heavy

consumption of alcoholic beverages, petitioner’s confession

to a break-in at the victim’s apartment complex the night

prior to the victim’s murder, and police suspicion that

petitioner had committed an unrelated rape. Petitioner

further contends that counsel’s performance was

“explosively prejudicial” because there was a reasonable

probability that “the jurors found [him] guilty of capital

murder because of his prior crimes.”

The Court holds that claim III satisfies neither the

“performance” nor the “prejudice” prong of the two-part

8
test enunciated in Strickland. The record, including the

trial transcripts, demonstrates that petitioner’s counsel,

Patrick D. Kelley, reviewed the videotape, provided the

Commonwealth with proposed redactions prior to opening

statements, discussed the proposed redactions on the record

prior to the videotape being introduced into evidence, and

finally agreed to a satisfactory redacted version. The

record further demonstrates that petitioner’s other

counsel, Andrew A. Protogyrou, reviewed the transcript and

objected to the use of the transcript. Furthermore, the

unredacted portions of the videotape support the

petitioner’s theory of defense that he was a burglar, not a

rapist or a murderer, and that he did not intend to commit

murder when he entered the victim’s apartment. 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. See

Strickland, 466 U.S. at 687, 694.

In claim IV(A), petitioner alleges that the

Commonwealth failed to disclose the exculpatory information

that Alex Meekins and Jasper Meekins are only half brothers

and falsely argued that because mitochondrial DNA (mtDNA)

analysis evidence excluded Alex as a contributor of the

9
hairs found on the victim’s body, Jasper was also excluded.

Petitioner contends that if Alex and Jasper are not from

the same maternal line, they would have different mtDNA,

and the exclusion of Alex would have provided no meaningful

information about Jasper. The Court holds that claim IV(A)

is procedurally defaulted. Petitioner concedes that Andrew

Protogyrou’s trial notes confirm that trial counsel were

aware that Alex and Jasper were half brothers.

Furthermore, Alex Meekins had been subpoenaed to appear at

trial and could have verified his lineage. Thus, the

allegedly exculpatory information concerning both Meekins’

parental history was available to petitioner at trial.

Because this non-jurisdictional issue could have been

raised at trial and on direct appeal, it 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 claim IV(B), petitioner alleges that he was

denied the effective assistance of counsel because

counsel unreasonably failed to investigate and to

inform the jury that Alex and Jasper Meekins are only

half brothers. Petitioner contends that counsel

should have called Alex to testify that he and Jasper

were half brothers and should have sought DNA testing

of Jasper. Petitioner asserts that counsel’s errors

10
prevented counsel from arguing that another person

raped and killed the victim after petitioner left.

Thus, petitioner contends that he was prejudiced

because the jury was left with an impression that

petitioner was the only person that could have left

the pubic hairs found on the victim’s body.

The Court holds that claim IV(B) satisfies

neither the “performance” nor the “prejudice” prong of

the two-part test enunciated in Strickland. The

record, including expert testimony at trial and the

certificates of analysis entered into evidence,

demonstrates that mtDNA testing excluded Alex Meekins

as a contributor of the pubic hairs found on the

victim’s body and in her bed. According to the expert

testimony presented at trial, mtDNA is shared,

identically, by a mother and her offspring. Juvenile

records, submitted by the Warden in this proceeding,

for both Alex and Jasper Meekins demonstrate that the

brothers share the same mother. Consequently,

petitioner’s claim that Jasper would have different

mtDNA than his half brother is factually without

merit.

The record further demonstrates that petitioner

admitted to raping the victim and that mtDNA testing

11
of the pubic hairs found on the victim were determined

to be consistent with the petitioner’s mtDNA to the

exclusion of 99.998% of the population with a 95%

degree of confidence. In light of the petitioner’s

confessions to police and counsel’s theory that the

killing was accidental, counsel engaged in sound trial

strategy when they chose not to argue that some

unidentified individual killed the victim. 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. See Strickland, 466 U.S. at 687, 694.

In claim V(A), petitioner alleges that the prosecutor

improperly used demonstrative evidence in his closing

argument when he impermissibly demonstrated the manner in

which petitioner held the pillow down over the victim.

Petitioner contends that the prosecutor’s demonstration was

improper because no evidence was presented at trial to

prove petitioner pressed the pillow down continuously with

both hands, at a steep angle, with force, or “with [a]

single-minded fixation.” The Court holds that claim V(A)

is barred because this issue was raised and decided on

direct appeal from the criminal convictions, and therefore,

12
it cannot be raised on habeas corpus. Henry v. Warden, 265

Va. 246, 249, 576 S.E.2d 495, 496-97 (2003).

In claim V(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel

unreasonably failed to raise an appropriate objection to

the pillow demonstration and failed to request a curative

instruction. Although petitioner does not dispute the

prosecutor’s right to use the pillow to demonstrate the

passage of time necessary to cause death by suffocation,

petitioner claims the prosecutor was not permitted to

“present a concocted portrayal” of the petitioner’s

conduct. Petitioner contends that had counsel objected to

the prosecutor’s improper demonstration, there is a

reasonable probability that the jury would not have

unanimously found that the killing was willful.

The Court holds that claim V(B) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. On direct appeal, this

Court reviewed the record of petitioner’s trial and held

that “the Commonwealth’s demonstration did not distort the

evidence concerning the manner of Mrs. Phillips’ death.”

Jackson, 267 Va. at 203, 590 S.E.2d at 534. Thus,

petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable

13
probability that, but for counsel’s alleged errors, the

result of the proceeding would have been different. See

Strickland, 466 U.S. at 687, 694.

In a portion of claim VI(A), petitioner alleges that

he was denied the effective assistance of counsel because

counsel unreasonably failed to object to the substance of

Richard Phillips’ testimony during the penalty phase of the

trial. Following his testimony during the guilt phase,

Richard Phillips, the victim’s son, was permitted to remain

in the courtroom. At that time, the prosecutor stated that

he did not intend to have Mr. Phillips testify again. The

trial court allowed Mr. Phillips to testify a second time,

however, during the sentencing phase and over counsel’s

objection, finding that Mr. Phillips did not hear anything

“during the trial on guilt or innocence that would change

his [victim impact] testimony.” Petitioner contends that

the content of Mr. Phillips’ testimony was, in fact,

altered by what he had heard during the guilt phase of the

trial and that counsel should have objected when Mr.

Phillips commented how impressed he was with the jury

process and that he could not imagine how the jurors could

listen to something that would remain with them all of

their lives.

14
 The Court holds that this portion of claim VI(A)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland. In

petitioner’s direct appeal, this Court held that, pursuant

to Code § 19.2-265.01, the trial court did not abuse its

discretion by allowing Mr. Phillips to testify during the

penalty phase even though he had remained in the courtroom

after his guilt phase testimony. Jackson, 267 Va. at 205,

590 S.E.2d at 535. This Court noted that Mr. Phillips did

not learn anything that affected his victim impact

testimony and held that the defendant was not prejudiced by

Mr. Phillips’ penalty phase testimony. Id.

In his petition for a writ of habeas corpus, the

petitioner has presented Mr. Phillips’ comments about the

jury process in an incomplete fashion. When considered in

context, Mr. Phillips’ comments were not comments on

evidence he heard as to petitioner’s guilt, were not

objectionable, and were not prejudicial. 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. See Strickland, 466

U.S. at 687, 694.

15
 In another portion of claim VI(A), petitioner alleges

that he was denied the effective assistance of counsel

because counsel failed to object to the exclusion of

Jackson’s family from the courtroom during the guilt phase.

Since Jackson’s family members were expected to testify

during the penalty phase, the trial court excluded

petitioner’s family from the courtroom during the guilt

phase. Petitioner claims that counsel’s failure to object

sent a false message that petitioner’s family did not care

enough to be with petitioner during his trial.

The Court holds that this portion of claim VI(A)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland.

Petitioner cannot demonstrate that an objection would have

been successful because Code § 19.2-265.01 does not provide

an exemption that would have allowed petitioner’s family

members to remain in the courtroom during the guilt phase

of the trial and later testify at the penalty phase. In

addition, petitioner has not alleged that any juror

actually believed his family “did not care” or that the

presence of any members of his family during trial would

have affected the jury’s determination. Thus, petitioner

has failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that,

16
but for counsel’s alleged errors, the result of the

proceeding would have been different. See Strickland, 466

U.S. at 687, 694.

In claim VI(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel

unreasonably failed to object to Mr. Phillips’ testimony at

the post-verdict sentencing hearing held before the trial

court on April 3, 2003 pursuant to Code § 19.2-264.5.

Petitioner claims counsel should have objected that Mr.

Phillips’ testimony exceeded the scope of permissible

victim impact evidence and improperly referred to

petitioner’s other crimes.

The Court holds that claim VI(B) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The limitations and

requirements relating to victim impact evidence do not

apply at the post-verdict sentencing hearing and the trial

court has the discretion to determine the admissibility of

such evidence. Remington v. Commonwealth, 262 Va. 333,

354-55, 551 S.E.2d 620, 633 (2001), cert. denied, 535 U.S.

1062 (2002). Moreover, evidence regarding the other crimes

to which Mr. Phillips briefly referred had been admitted

into evidence during the guilt and penalty phases of the

trial. Therefore, petitioner fails to demonstrate that

17
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. See Strickland, 466 U.S. at 687.

In claim VI(C), and in a portion of claim VI(D),

petitioner alleges that he was denied the effective

assistance of counsel because counsel unreasonably failed

to object to additional, cumulative victim impact evidence

presented by Richard Phillips at the post-verdict

sentencing hearing. The Court holds that claim VI(C) and

this portion of claim VI(D) satisfy neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. Petitioner argues that the

victim does not have a statutory “right” to testify at the

post-verdict sentencing hearing; however, he does not

provide any authority for his claim that victim impact

testimony during the post-verdict sentencing hearing is

impermissible. Furthermore, petitioner does not attempt to

demonstrate how the cumulative nature of the evidence

prejudiced him during the post-verdict sentencing

proceeding.

As opposed to the jury’s sentencing role, see Code

§ 19.2-264.4, in a post-verdict sentencing proceeding, the

trial court’s role is to determine whether good cause

18
exists to reduce a jury’s verdict of death. Code § 19.2-

264.5. The record, including the transcripts of

petitioner’s trial and sentencing hearings, demonstrates

that the trial court exercised its discretion to determine

the relevance and admissibility of the evidence and that

the trial court’s sentence of death was based upon that

court’s consideration of the evidence in mitigation and

aggravation, including petitioner’s significant criminal

history. 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. See Strickland, 466 U.S. at 687, 694.

In another portion of claim VI(D), petitioner alleges

he was denied the effective assistance of counsel because

the jury was permitted to hear victim impact evidence from

Mr. Phillips twice. Petitioner contends that there is a

reasonable probability that if defense counsel had properly

objected to Mr. Phillips’ second testimony during the

penalty phase at least one juror would have held out for a

life sentence.

The Court holds that this portion of claim VI(D) is

without merit. The record, including the guilt and penalty

phase transcripts, demonstrates that Mr. Phillips guilt

19
phase testimony was factual testimony concerning the

circumstances surrounding his discovery of his mother’s

body and did not constitute “victim impact evidence.”

Thus, the jury did not twice hear victim impact evidence

from Mr. Phillips.

In another portion of claim VI(D), petitioner alleges

counsel’s failure to object to victim impact evidence at

the sentencing phase and at the post-verdict sentencing

hearing cumulatively prejudiced petitioner. The Court

holds that this portion of claim VI(D) is without merit.

“Having rejected each of petitioner’s individual claims,

there is no support for the proposition that such actions

when considered collectively have deprived petitioner of

his constitutional right to effective assistance of

counsel.” Lenz v. Warden of the Sussex I State Prison, 267

Va. 318, 340, 593 S.E.2d 292, 305 (2004).

In claim VII(A)(1), petitioner alleges that he was

denied the effective assistance of counsel because counsel

failed to adequately investigate and present available

mitigation evidence concerning his childhood abuse, in

particular, testimony from petitioner’s siblings.

Petitioner contends that it is unreasonable to believe that

petitioner’s parents, as the alleged abusers, would have

offered substantial evidence of child abuse, and yet

20
counsel called only petitioner’s parents to testify as to

this issue. Petitioner has attached several affidavits to

his petition for a writ of habeas corpus in support of his

contention that counsel should have called additional

witnesses to testify as to this issue. Petitioner contends

that counsel’s failure to elicit testimony on this issue

from other sources prevented the jury from hearing “how or

why Jackson’s abusive childhood extenuated his moral

culpability.”

The Court holds that claim VII(A)(1) does not satisfy

the “prejudice” prong of the two-part test enunciated in

Strickland. The record, including the guilt and penalty

phase transcripts and the affidavit of trial counsel,

demonstrates that counsel presented ample evidence,

including the testimony of physicians, psychologists,

social workers, and a pastor who had treated, evaluated,

and/or counseled petitioner and his family, to substantiate

that petitioner was the victim of child abuse. This

evidence included information that petitioner’s stepfather

received a suspended jail sentence for physically abusing

petitioner; hospital and doctor’s office records indicating

petitioner had been physically disciplined with a belt

resulting in lasting bruises; records that petitioner had

suffered various fractures of unknown origin to his

21
extremities; that petitioner often appeared bruised; that

reports of abuse were made to the James City County

Department of Social Services and that twice the abuse was

determined to be “founded;” that petitioner was allowed to

drink beer as a young child; that petitioner and his

stepfather had a bad relationship and that, even during

counseling, petitioner’s stepfather constantly berated

petitioner by calling petitioner “evil;” that petitioner’s

“problems were compounded by the weakness of [his] parental

subsystem” and lack of “material resources” which required

petitioner to be left unsupervised; that petitioner’s

family did not follow through with counseling or

recommendations; and that on at least one occasion,

petitioner had been sexually abused. In addition, counsel

elicited testimony from the police officer who investigated

the charges of child abuse against petitioner’s stepfather

and from several of petitioner’s neighbors, friends, and

family members, including his mother, father, and

stepfather.

The evidence that petitioner contends counsel should

have presented is largely cumulative of that considered by

the jury. The only new information proffered by petitioner

consists of anecdotal evidence of specific instances of the

abuse from the perspective of petitioner’s siblings. The

22
affidavit of trial counsel demonstrates that counsel made a

strategic decision not to call petitioner’s brother, Damien

Jackson, to testify because Damien’s successful transition

from the abusive environment into a military career would

have diminished the mitigating effect of petitioner’s

abusive upbringing. Counsel were aware of the child abuse

suffered by the petitioner when counsel decided not to call

Damien as a witness. Nothing in the record demonstrates

that counsel’s decision would have been altered by knowing

the specific details of the abuse that petitioner’s

siblings now provide. Thus, petitioner has failed to

demonstrate that there is a reasonable probability that,

but for counsel’s alleged errors, the result of the

proceeding would have been different. See Strickland, 466

U.S. at 687, 694.

In claim VII(A)(2), petitioner alleges that he was

denied the effective assistance of counsel because counsel

failed to adequately investigate and present available

mitigation evidence concerning his good character.

Petitioner contends that Marie Simons, petitioner’s

girlfriend, and Constance Howard, another friend, were

available to testify as character witnesses and would have

testified that petitioner was a good man who was kind, had

dreams and aspirations, and was devoted to his grandmother.

23
Petitioner further contends that, as a result of counsel’s

failure to call these witnesses, the jurors did not hear

testimony that Jackson responded in a positive manner when

he was not living in a traumatic and threatening

environment, and had the jurors heard this information, the

jury may have returned a verdict of life imprisonment.

The Court holds that claim VII(A)(2) satisfies neither

the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the

transcript of the sentencing phase, demonstrates that the

jury heard evidence of petitioner’s good qualities,

including evidence that petitioner was well-mannered and

cooperative, followed directions, was motivated and

ambitious, and had positive relationships outside of his

immediate family environment. In addition, counsel

elicited testimony that despite two particularized

incidents, petitioner had adjusted positively to

confinement. Petitioner has not attempted to demonstrate

how additional evidence of his good character, such as his

love for his grandmother and his desire that his parents

reunite, would have affected the jury’s determination.

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

24
result of the proceeding would have been different. See

Strickland, 466 U.S. at 687, 694.

In claim VIII(A), the petitioner claims that jurors

Wendy Berube and Dana Metheny indicated that they would not

consider age and background as mitigation evidence unless

the trial court instructed them to do so. Petitioner

contends that both jurors were not qualified to sit because

the court failed to give such an instruction or to excuse

them. The Court holds that claim VIII(A) is procedurally

defaulted because this non-jurisdictional issue could have

been raised at trial and on direct appeal and, thus, is not

cognizable in a petition for a writ of habeas corpus.

Slayton, 215 Va. at 29-30, 205 S.E.2d at 682.

In claim VIII(B), petitioner alleges that he was

denied the effective assistance of counsel because counsel

unreasonably failed to request the trial court to give the

necessary instruction regarding age and background as

mitigation evidence, failed to object when the court did

not give the instruction, and failed to move to dismiss

jurors Berube and Metheny as unqualified. Petitioner

further claims that prejudice is presumed under these

circumstances and that if the jurors had been given the

necessary instruction, there is a reasonable probability

25
that one of the jurors would have voted for a life

sentence.

The Court holds that claim VIII(B) satisfies neither

the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. Petitioner’s contention

that qualification of these jurors was “conditioned” upon

the giving of a specific instruction is not supported in

fact or in law. Both jurors were qualified upon the trial

court’s determination that they would be fair and

impartial. Petitioner is unable to establish that

counsel’s failure to seek the particular instruction at

issue was unreasonable because an instruction emphasizing

individual mitigating factors would have been properly

refused. George v. Commonwealth, 242 Va. 264, 283, 411

S.E.2d 12, 23 (1991); LeVasseur v. Commonwealth, 225 Va.

564, 595, 304 S.E.2d 644, 661 (1983). Furthermore, the

record demonstrates that the jury was instructed to

consider petitioner’s history, background, and mitigating

factors in determining whether petitioner posed a future

danger to society and, if so, whether to impose a sentence

of life imprisonment or death. 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

26
would have been different. See Strickland, 466 U.S. at

687, 694.

In claim VIII(C), petitioner alleges that the

prosecutor engaged in “misconduct” by failing to ensure

Berube remained qualified. Petitioner contends that

because the prosecutor opposed counsel’s motion to strike

Berube, arguing that she would be qualified if instructed

to consider petitioner’s age and background in mitigation,

the prosecutor had a duty to ensure that Berube received

the instruction. The Court holds that claim VIII(C) 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 claim IX(A), petitioner alleges that the penalty

phase instructions interfered with the jurors’ ability to

give full effect to mitigating evidence. Petitioner

contends that his right to a reliable determination of

punishment was violated by the trial court’s instruction

that “[a]ny decision you make regarding punishment must be

unanimous” and the court’s failure to instruct jurors that

their findings on mitigation did not have to be unanimous.

The Court holds that claim IX(A) is procedurally defaulted

27
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 claim IX(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel failed

to request an instruction stating that findings regarding

mitigating factors did not have to be unanimous.

Petitioner alleges that counsel should have objected when

the trial court instructed the jurors that they had to be

unanimous in their decision regarding punishment and should

have argued that the Constitution required the trial court

to instruct the jurors that their determination of

mitigating factors did not have to be unanimous.

Petitioner contends that if the jurors had known that they

did not have to be unanimous as to the mitigating factors,

there is a reasonable probability that at least one juror

would have held out for a life sentence.

The Court holds that claim IX(B) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. “[T]he Virginia sentencing

scheme does not require juries to make findings as to

specific mitigating factors. Instead, juries are

instructed to consider all possible mitigating

circumstances before rendering their sentence decision.”

28
Roach v. Angelone, 176 F.3d 210, 223 (4th Cir. 1999). In

this case, the trial court instructed the jury to “consider

any mitigation evidence presented of circumstances which do

not justify or excuse the offense but which in fairness or

mercy may extenuate or reduce the degree of moral

culpability and punishment.” The trial court’s instruction

that the jury’s decision regarding punishment must be

unanimous did not preclude the jury from considering

mitigating evidence. Id. Counsel are not unreasonable for

failing to request an instruction that was not necessary or

required. Joseph v. Commonwealth, 249 Va. 78, 90-91, 452

S.E.2d 862, 870 (1995). 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. See Strickland, 466 U.S. at

687, 694.

In claim X(A), petitioner alleges that the verdict

forms were defective because they did not state that life

imprisonment meant life imprisonment “without the

possibility of parole.” Petitioner concedes that jurors

were twice instructed that life imprisonment meant life

without the possibility of parole, but, nonetheless,

contends that the verdict forms denied him the right to due

29
process of law and a fair trial. The Court holds that

claim X(A) is procedurally defaulted because this non-

jurisdictional issue could have been raised at trial and on

direct appeal and, thus, is not cognizable in a petition

for a writ of habeas corpus. Slayton, 215 Va. at 29-30,

205 S.E.2d at 682.

In claim X(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel

unreasonably failed to object to the verdict forms on the

grounds that they did not contain the language qualifying

the definition of life imprisonment as life without the

possibility of parole. The Court holds that claim X(B)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland. The

record demonstrates, and petitioner concedes, that the jury

was properly instructed that “imprisonment for life” meant

“imprisonment for life without the possibility of parole.”

As required by statute, the verdict forms included all the

requisite options. Code § 19.2-264.4; Morrisette, 270 Va.

at 202-03, 613 S.E.2d at 562. There is no requirement that

a verdict form contain the instruction that imprisonment

for life means “imprisonment for life without the

possibility of parole.” Lenz, 267 Va. at 324 n.1, 593

S.E.2d at 295 n.1. Thus, counsel’s failure to make a

30
meritless objection was not deficient, and petitioner has

failed to demonstrate that there is a reasonable

probability that, but for counsel’s alleged error, the

result of the proceeding would have been different. See

Strickland, 466 U.S. at 687, 694.

In claim XI(A), petitioner alleges that the

prosecutor’s argument improperly nullified the effect of

petitioner’s mitigation evidence. The Court holds that

claim XI(A) is procedurally defaulted because this non-

jurisdictional issue could have been raised at trial and on

direct appeal and, thus, is not cognizable in a petition

for a writ of habeas corpus. Slayton, 215 Va. at 29-30,

205 S.E.2d at 682.

In claim XI(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel

unreasonably failed to object to the prosecutor’s argument

regarding the mitigation evidence. Petitioner contends

that the prosecutor improperly nullified the mitigation

evidence when he argued that petitioner and his brother

grew up in the same environment and petitioner’s brother

“corrected himself,” inferring that petitioner also could

have overcome his adverse childhood environment if he had

wanted to do so. Petitioner further contends that counsel

unreasonably failed to investigate his brother’s

31
circumstances and was, therefore, unprepared to rebut the

prosecutor’s argument. Petitioner claims that there is a

reasonable probability that had counsel been prepared to

object to or rebut the prosecutor’s argument, the jurors

would have given full consideration to the mitigation

evidence and at least one juror would have voted for life.

The Court holds that claim XI(B) 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 merely

reminded the jurors of the evidence that petitioner’s

brother had overcome his childhood environment, while

petitioner did not. The prosecutor has “a right to combat,

and to argue the evidence and the fair inferences from it

with respect both to the defendant’s guilt and to a fitting

punishment.” Martinez v. Commonwealth, 241 Va. 557, 559-

60, 403 S.E.2d 358, 359 (1991), (quoting Jackson v.

Commonwealth, 193 Va. 664, 70 S.E.2d 322 (1952)). The

affidavit of counsel demonstrates that counsel, aware that

petitioner’s brother had a successful adult life, chose not

to subpoena the brother in order to minimize the contrast

between the brother and petitioner. Moreover, petitioner

has failed to establish that the jurors did not give the

mitigation evidence full effect despite the prosecutor’s

32
argument. 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. See Strickland, 466 U.S. at 687, 694.

In claim XII(A), petitioner alleges that this Court

unreasonably and erroneously induced counsel to withdraw on

direct appeal his Assignment of Error Number Eight, which

stated that “[t]he trial court erred in denying defendant’s

motion to dismiss capital murder indictment for failure to

allege aggravating elements.” Petitioner contends that

this Court violated his rights to due process and the

effective assistance of counsel when it improperly elicited

a withdrawal of Assignment of Error Number Eight during

oral argument, and when the Court, thereafter, failed to

address the Assignment of Error in its opinion. The Court

holds that claim XII(A) is procedurally defaulted because

this non-jurisdictional issue could have been raised in a

petition for rehearing 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 claim XII(B), petitioner alleges that he was denied

the effective assistance of counsel because counsel

unreasonably withdrew Assignment of Error Number Eight and

33
unreasonably failed to correct his error. Petitioner

contends that counsel was unfamiliar with the contents of

the petition for appeal and was therefore unprepared to

adequately argue that petitioner actually had made an

argument for Assignment of Error Number Eight. Petitioner

further contends that had counsel not waived this issue,

the Court would have ruled in petitioner’s favor and

petitioner would have prevailed on appeal.

The Court holds that claim XII(B) fails to satisfy the

“prejudice” prong of the two-part test enunciated in

Strickland. Even if counsel had properly preserved this

assignment of error, there is not a reasonable probability

that the result of the appeal would have been any

different. Petitioner asserted in Assignment of Error

Number Eight that “[t]he trial court erred in denying

defendant’s motion to dismiss capital murder indictment for

failure to allege aggravating elements.” 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).

34
 Furthermore, this Court has held that a defendant

charged with capital murder is not entitled to a bill of

particulars delineating the Commonwealth’s intended

aggravating factors when the indictment specifying the

crime gives the defendant notice of the nature and

character of the offense charged. Roach v. Commonwealth,

251 Va. 324, 340, 468 S.E.2d 98, 107 (1996). The

indictment in this case gave petitioner notice of the

nature and character of the offense. Thus, the trial court

correctly denied counsel’s motion to dismiss the indictment

and counsel cannot be held ineffective for withdrawing,

even unintentionally, a frivolous argument. Thus,

petitioner has failed to demonstrate that there is a

reasonable probability that, but for counsel’s alleged

errors, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 687, 694.

In claim XIII, petitioner alleges that he was denied

the effective assistance of counsel because counsel

unreasonably waived Assignment of Error Number Seven on

direct appeal. Assignment of Error Number Seven alleged,

“[t]he trial court erred in denying defendant’s motion to

transfer venue.” Counsel waived arguing this assignment of

error in favor of raising the venue issue in conjunction

with the appellate argument that petitioner’s sentence was

35
the result of passion and prejudice. Petitioner further

contends that had counsel not waived this assignment of

error, there is a reasonable probability that the result of

the appeal would have been different.

The Court holds that claim XIII satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record demonstrates

that counsel’s decision to argue venue as part of the

prejudice and passion argument was a matter of appellate

strategy. “[T]he process of ‘winnowing out weaker claims

on appeal and focusing on’ those more likely to prevail,

far from being evidence of incompetence, is the hallmark of

effective . . . advocacy.” Burger v. Kemp, 483 U.S. 776,

784 (1987); see also Smith v. Murray, 477 U.S. 527, 536

(1986) (what claims to raise on appeal, and how to raise

them, are matters entrusted to the discretion of appellate

counsel). Furthermore, this Court noted that the trial

court was able to seat a jury with relative ease. Jackson,

267 Va. at 207 n.8, 590 S.E.2d at 537 n.8. The ease with

which a jury is selected is a critical element in

determining whether venue is proper. Jackson, 267 Va. at

207 n.8, 590 S.E.2d at 537 n.8; Thomas v. Commonwealth, 263

Va. 216, 231, 559 S.E.2d 652, 660 (2002). Thus, petitioner

has failed to demonstrate that counsel’s performance was

36
deficient or that there is a reasonable probability that,

but for counsel’s alleged errors, the result of the

proceeding would have been different. See Strickland, 466

U.S. at 687, 694.

In claim XIV, petitioner alleges that the cumulative

character of counsel’s performance and resulting

prejudicial impact deprived him of his constitutionally

guaranteed assistance of counsel. The Court holds that

claim XIV is without merit. As addressed previously,

petitioner has failed to demonstrate that counsel’s

performance was deficient or that petitioner suffered

prejudice as a result of counsel’s alleged errors. “Having

rejected each of petitioner’s individual claims, there is

no support for the proposition that such actions when

considered collectively have deprived petitioner of his

constitutional right to effective assistance of counsel.”

Lenz, 267 Va. at 340, 593 S.E.2d at 305.

Accordingly, the petition is dismissed.

This order shall be published in the Virginia Reports.

A Copy,

Teste:

Patricia L. Harrington, Clerk

37