Powell v. Warden (Unpublished Order)

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Tuesday, the 8th day of
November, 2005.

Paul Warner Powell, Petitioner,

against Record No. 042716

Warden of the Sussex I
State Prison, Respondent.

Upon a Petition for a Writ of Habeas Corpus

Upon consideration of the petition for a writ of habeas corpus

filed December 27, 2004, and the respondent's motion to dismiss, the

Court is of the opinion that the motion should be granted and the

writ should not issue.

Petitioner, Paul Warner Powell, was originally convicted in the

Circuit Court of Prince William County of the capital murder of

Stacey Lynn Reed, abduction, rape of Stacey's younger sister,

Kristie Reed, and attempted capital murder of Kristie Reed. The

jury fixed petitioner’s sentence at death for the capital murder

conviction and three terms of life imprisonment and fines totaling

$200,000 for the remaining convictions. Upon review of the capital

murder conviction and the death sentence imposed upon petitioner,

this Court reversed the capital murder conviction upon a finding

that the indictment charging petitioner with capital murder in the

commission of robbery and/or attempted robbery had been improperly

amended to include a charge of capital murder "during the commission

of or subsequent to rape and/or attempted rape and/or sodomy and/or
attempted sodomy." Powell v. Commonwealth, 261 Va. 512, 532, 552

S.E.2d 344, 355-56 (2001) (“Powell I”). This Court reversed

petitioner’s conviction for capital murder, affirmed the remaining

convictions, and remanded the case “for a new trial on a charge of

no greater than first degree murder for the killing of Stacey Reed,

if the Commonwealth be so advised.” Id. at 546, 552 S.E.2d at 363.

After the opinion issued and petitioner had been indicted for

first-degree murder, petitioner wrote a letter to the Commonwealth's

Attorney in which petitioner described how he had attempted to rape

Stacey Reed before he murdered her. Based on this new evidence, the

Commonwealth moved to enter a nolle prosequi of the indictment in

the remanded case, and sought a new indictment against petitioner

for capital murder. On December 3, 2001, the grand jury returned an

indictment charging petitioner with the capital murder of "Stacey

Lynn Reed during the commission of or subsequent to the attempted

rape of Stacey Lynn Reed."

Apart from the new evidence of petitioner's October 21, 2001

letter to the Commonwealth's Attorney in which petitioner confessed

to the attempted rape of Stacey, the evidence presented during the

guilt-determination phase of petitioner's second trial was not

markedly different from that received during the first trial. The

jury found petitioner guilty of capital murder and fixed his

sentence at death, finding both aggravating factors of future

dangerousness and vileness. The trial court confirmed the jury's

sentence of death. This Court affirmed petitioner’s conviction and

approved the sentence of death in Powell v. Commonwealth, 267 Va.
107, 590 S.E.2d 537 (2004), cert. denied, __ U.S. __, 125 S.Ct. 86
2
(2004) (“Powell II”).

Procedural Defaults

“A petition for writ of habeas corpus is not a substitute for

an appeal or a writ of error.” Morrisette v. Warden, 270 Va. 188,

___, 613 S.E.2d 551, 554 (2005) (citing Slayton v. Parrigan, 215 Va.

27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108

(1975); Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243, 246

(1969)). Further, claims that have been previously raised and

decided at trial and on direct appeal are not cognizable in a

petition for writ of habeas corpus. Henry v. Warden, 265 Va. 246,
249, 576 S.E.2d 495, 496 (2003).

In claim I(A), petitioner alleges that the Commonwealth

violated his right against double jeopardy by trying him twice for

the same offense. In the first portion of claim I(B), petitioner

alleges that the prosecutor’s animosity towards him demonstrates

that petitioner’s due process rights were violated and he was tried

a second time for capital murder because of prosecutorial

vindictiveness. In claim II(D), petitioner alleges that the
Commonwealth violated his right to counsel by eliciting

incriminating statements from him on November 2, 2001 while

petitioner was still represented by the attorney who had been

appointed to represent petitioner in his previous trial. In claim

IV(C), petitioner alleges that his due process rights and right to a

reliable sentencing proceeding were violated by the trial court’s

vague vileness jury instruction.

The Court holds that claims I(A), II(D), IV(C), and the first

3
portion of I(B) are barred because these issues were raised and

decided in the trial court and on direct appeal from the criminal

conviction and, therefore, they cannot be raised on habeas corpus.

Henry, 265 Va. at 249, 576 S.E.2d at 496.

In the second portion of claim I(B), petitioner alleges, for

the first time, that because the prosecutor sought a capital murder

charge after the petitioner had been successful on appeal, there is

a “presumption” that his second trial for capital murder was the

result of prosecutorial vindictiveness. In claim I(C), petitioner

alleges that his subsequent trial violated “the collateral estoppel

component of the Double Jeopardy Clause” and violated petitioner’s

right against double jeopardy.

In claim II(A), petitioner alleges the Commonwealth violated

his constitutional rights by taking statements from petitioner on

January 30 and 31, 1999 without obtaining a waiver of petitioner’s

Sixth Amendment right to counsel. Petitioner claims that his right

to counsel had attached because a magistrate had issued a warrant

for his arrest. In claim II(B), petitioner alleges that his

subsequent statements on February 4, 1999 were unconstitutionally

obtained as they were “fruits of the poisonous tree” as a result of

the Commonwealth illegally obtaining his January 30 and 31, 1999

statements. In claim II(C), petitioner alleges his February 4, 1999

statements were “per se invalid” as the police elicited the

statements from him without counsel being present even though

petitioner had requested counsel and counsel had been appointed on

February 1, 1999.

In claim II(E), petitioner alleges that the Commonwealth
4
violated his right to counsel by scheduling the November 2, 2001

interview before petitioner was formally indicted on December 3,

2001. In claim II(F), petitioner alleges that the prosecution

“unconstitutionally and unethically” communicated to him through the

police interview on November 2, 2001, violated Rules of Professional

Conduct 4.2 and 5.3, interfered with petitioner’s relationship with

counsel, and violated his right to counsel. In claim II(G),

petitioner alleges his Fourth and Fifth Amendment rights were

violated as petitioner’s waiver of his Miranda rights on November 2,

2001, was involuntarily given.

In claim III(A), petitioner alleges that the remarks made by

the Commonwealth’s Attorney in opening and closing arguments

violated his rights under the Fifth, Eight, and Fourteenth

Amendments as the “remarks vouched for the personal opinions of the

prosecutors that [petitioner] deserved the death penalty.” In claim

III(B), petitioner alleges that remarks made by the Commonwealth’s

Attorney in the penalty phase of the trial regarding the effect of

the death penalty in deterring other people from committing future

crimes violated his Fifth, Eighth, and Fourteenth Amendments rights.

In claim IV(A), petitioner alleges he was unconstitutionally

prosecuted because the indictment against him was deficient as it

did not allege either vileness or future dangerousness and neither

factor was proven beyond a reasonable doubt at trial. In claim

IV(B), petitioner alleges that the Commonwealth was collaterally

estopped from presenting the issue of future dangerousness at his

second trial because the jury at petitioner’s first trial returned a

finding only of vileness.
5
 In claim IV(D), petitioner alleges that his constitutional

rights were violated by the vague jury instruction on future

dangerousness. In claim IV(E), petitioner alleges that the jury

instruction on future dangerousness unconstitutionally “relieved the

Commonwealth of its burden to prove every element beyond a

reasonable doubt” because it told the jury that it only had to find

a “probability” of future dangerousness. In claim IV(F), petitioner

alleges that his due process rights and right to a reliable

sentencing proceeding were violated because the future dangerousness

aggravating factor excludes consideration of petitioner’s life in

prison.

In claim V(A), petitioner alleges that his right to due

process, his right to be able to participate in his trial, and his

right to “heightened reliability” in his trial were violated by the

medication administered to him in prison before trial and the stun

belt he wore at trial.

In claim VI(A), petitioner alleges that his rights to due

process and a reliable sentencing hearing were violated when the

Commonwealth knowingly introduced Exhibit 51 as evidence of his

criminal history at the penalty phase of the trial. In claim VI(B),

petitioner alleges that the Commonwealth violated his due process

rights by failing to inform petitioner that “some of the entries on

Commonwealth Exhibit 51 were false and misleading.” In a portion of

claim VI(C), petitioner alleges that the Commonwealth violated Code

§§ 19.2-295.1, -264.2, and -264.4 because Exhibit 51 was not a

“record of convictions” and listed charges which had been either

nolle prossed or of which petitioner was found not guilty. In
6
another portion of claim VI(C), petitioner alleges that the

Commonwealth violated Code § 19.2-264.3:2 because the Commonwealth

failed to give notice of its intent to present evidence of

unadjudicated criminal conduct. In claim VI(D), petitioner alleges

the Commonwealth violated his Sixth Amendment rights when it

introduced Exhibit 51 because there was no “foundational testimony

as to the personal knowledge of the record-keeper, the regularity of

its preparation, the reliance on the records, or any other

circumstance showing trustworthiness.”

In claim VII(A), petitioner alleges that his constitutional

rights to freedom of speech, freedom of association, due process and

“to a reliable individualized sentencing determination” were

violated by the Commonwealth’s introduction of racist statements and

documents that linked petitioner to certain groups and “broad

ideas.” In claim VII(B), petitioner alleges that the Commonwealth

violated his right to confront and cross-examine witnesses when it

introduced certificates of analysis in an attempt to authenticate

several letters allegedly written by petitioner. In claim X(A),

petitioner claims the trial court violated his rights under the

Fifth and Fourteenth Amendments as well as under Code § 19.2-298

when it failed to allow petitioner to allocute before he was

sentenced.

The Court holds that the second portion of claim I(B) and

claims I(C), II(A), II(B), II(C), II(E), II(F), II(G), III(A),

III(B), IV(A)1, IV(B), IV(D), IV(E), IV(F), V(A), VI(A), VI(B),

1
See Wolfe v. Commonwealth, 265 Va. 193, 223-24, 576 S.E.2d
471, 488-89 (2003) (failure to include aggravating factors in an
7
VI(C), VI(D), VII(A), VII(B) and X(A) are procedurally defaulted

because these non-jurisdictional issues could have been raised at

trial and on direct appeal and, thus, are not cognizable in a

petition for a writ of habeas corpus. Parrigan, 215 Va. at 29, 205

S.E.2d at 682.

Claims of Ineffective Assistance of Counsel

In a portion of claim I(D)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issues stated in claim I(A) and the first

portion of claim I(B). The Court holds that this portion of claim

I(D)(1) is without merit. The record demonstrates that counsel

raised these issues at trial.

In another portion of claim I(D)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, stated in the second portion of claim

I(B), that there is a “presumption” that his second trial for

capital murder was the result of prosecutorial vindictiveness

because the prosecutor sought a capital murder charge after the

petitioner had been successful on appeal.

The Court holds that this portion of claim I(D)(1) fails to

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

Strickland v. Washington, 466 U.S. 668, 687 (1984). The record

demonstrates that petitioner’s indictment for capital murder was

obtained after petitioner provided evidence, which had previously

indictment is not jurisdictional and is waived if not raised before
trial).
8
been unavailable and which supported the charge. This previously

unavailable evidence creates an objective justification in the

charging decision and rebuts any presumption of vindictiveness. See

United States v. Goodwin, 457 U.S. 368, 374, 376 n.8 (1982); Alabama

v. Smith, 490 U.S. 794, 798-799 (1989) (presumption of

vindictiveness which arises from an increased sentence on retrial

rebutted by objective information justifying the increase). Thus,

petitioner has failed to demonstrate that, but for counsel’s alleged

error, the result of the proceeding would have been different.

In another portion of claim I(D)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, stated in claim I(C), that his subsequent

trial violated “the collateral estoppel component of the Double

Jeopardy Clause” and violated petitioner’s right against double

jeopardy. The Court holds that this portion of claim I(D)(1) fails

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

Strickland. The record of petitioner’s criminal trial and direct

appeal demonstrates that petitioner argued his subsequent trial

violated the res judicata and law of the case components of the

Double Jeopardy Clause. The factual basis for his argument at trial

and on appeal is identical to that which he raises in his petition

for writ of habeas corpus. This Court rejected the petitioner’s

arguments and held that jeopardy had attached only to the capital

murder charge specified by the reading of both the indictment and

the bill of particulars. Powell II, 267 Va. at 135, 590 S.E.2d at
554. As such, res judicata is not implicated because, in

petitioner’s first trial, the jury was not charged with determining
9
whether petitioner raped or attempted to rape Stacey Reed and, thus,

could not have made a determination of fact on that matter. Thus,

petitioner has failed to demonstrate that, but for counsel’s alleged

error, the result of the proceeding would have been different.

In a portion of claim I(D)(2), petitioner alleges he was denied

the effective assistance of counsel because counsel failed to raise

on appeal the issues stated in claim I(A) and the first portion of

claim I(B). The Court holds that this portion of claim I(D)(2) is

without merit. The record demonstrates that counsel raised these

issues on appeal. In another portion of claim I(D)(2), petitioner

alleges he was denied the effective assistance of counsel because

counsel failed to raise on appeal the issues stated in the second

portion of claim I(B) and in claim I(C). The Court holds that this

portion of claim I(D)(2) satisfies neither the “performance” nor the

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

The record demonstrates that these issues were not raised at trial.

Therefore counsel was reasonable for choosing not to raise claims

which would have been barred under Rule 5:25. Further, petitioner

has articulated no reason why this Court would have invoked either

exception to Rule 5:25 and reached the merits of either issue.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel’s alleged error, the result of the proceeding

would have been different.

In a portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim II(A), that the
10
Commonwealth unconstitutionally obtained statements from him on

January 30 and 31, 1999 without obtaining a waiver of petitioner’s

Sixth Amendment right to counsel. Petitioner claims that his right

to counsel had attached because formal criminal proceedings had been

initiated against him when a magistrate had issued a warrant for his

arrest.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The right to counsel, under the

Sixth Amendment of the United States Constitution, exists at the

start of “adversar[ial] judicial criminal proceedings.” See United
States v. Gouveia, 467 U.S. 180, 189 (1984) (“we have never held

that the right to counsel attaches at the time of arrest”); Michigan

v. Jackson, 475 U.S. 625, 632 (1986) (“arraignment signals ‘the

initiation of adversary judicial proceedings’ and thus the

attachment of the Sixth Amendment”). As no judicial proceedings had

been initiated against petitioner at the time he gave his

statements, the right to counsel had not attached and, therefore,

trial counsel had no grounds to raise a Sixth Amendment claim.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceeding

would have been different.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim II(B), that his

statements on February 4, 1999 were unconstitutionally obtained as
11
they were “fruits of the poisonous tree” as a result of the

Commonwealth illegally obtaining his January 30 and 31, 1999

statements.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. As petitioner’s constitutional right

to counsel had not been violated when he provided the previous

statements to the police, the statements he made on February 4, 1999

could not have been the “fruit of the poisonous tree.”

Additionally, petitioner admits that he was advised of his Miranda
rights and orally waived those rights before the February 4, 1999

statements were made. Thus, petitioner has failed to demonstrate

that counsel’s performance was deficient or that there is a

reasonable probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim II(C), that his

February 4, 1999 statements were “per se invalid” as the police

elicited the statements from him without counsel being present even

though counsel had been appointed to represent petitioner on

February 1, 1999.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the transcript

of the suppression hearing held during petitioner’s first trial,

demonstrates that petitioner initiated contact with the police on
12
February 4, 1999. Further, as petitioner admits, he was re-advised

of his right to counsel and he knowingly and voluntarily waived that

right. Therefore, trial counsel had no viable grounds for raising a

Sixth Amendment claim regarding petitioner’s February 4, 1999

statements. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the result of

the proceeding would have been different.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue articulated in claim II(D). The Court

holds that this portion of claim II(H)(1) is without merit. The

record demonstrates that counsel raised this issue at trial.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim II(E), that the

Commonwealth violated his right to counsel by scheduling the

November 2, 2001 interview before petitioner was formally indicted

on December 3, 2001.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record demonstrates that

petitioner’s conversation with the police on November 2, 2001 was

part of the investigation into the authenticity of the October 21,

2001 letter which petitioner had sent to the Commonwealth’s

Attorney. Armed with the evidence provided by the petitioner in the

letter and in petitioner’s November 2, 2001 conversation with police
13
officers, the Commonwealth’s Attorney sought and obtained the

indictment for capital murder. Petitioner offers no evidence to

support his claim that the Commonwealth actively delayed seeking an

indictment in order to circumvent his Sixth Amendment right to

counsel. Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceeding

would have been different.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim II(F), that the

Commonwealth’s Attorney’s Office “unconstitutionally and

unethically” communicated to him through the police interview on

November 2, 2001 without the consent of the attorney who had

represented petitioner at his first trial. Petitioner contends that

the actions of the Commonwealth’s Attorney’s Office violated Rules

of Professional Conduct 4.2 and 5.3, interfered with his

relationship with counsel, and violated his right to counsel because

the Commonwealth knew petitioner was still represented by his

previous counsel on November 2, 2001.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. In Powell II, this Court “determined

that the crime for which [petitioner] was tried and convicted in the

present case was a separate offense from those for which he had been

previously convicted. [Petitioner] had not been formally charged

with that offense when he was interviewed on November 2, 2001, and,
14
thus, he was not entitled to have his counsel from his prior trial

present during that interview.” 267 Va. at 142, 590 S.E.2d at 558.

As petitioner’s right to counsel had not attached to the particular

crime being investigated and for which petitioner was charged and

convicted, it was not impacted by the alleged actions of the

Commonwealth’s Attorney’s Office and an objection on this basis

would have been frivolous. Thus, petitioner has failed to

demonstrate that counsel’s performance was deficient or that there

is a reasonable probability that, but for counsel's alleged errors,

the result of the proceeding would have been different.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel because counsel failed to

raise the issue, articulated in a portion of claim II(G), that his

Fourth and Fifth Amendment rights were violated as petitioner’s

waiver of his Miranda rights on November 2, 2001 was involuntarily

given because petitioner was allegedly under the influence of two

mood-altering drugs, Atarax and Depakote.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the motion to

suppress, the transcript of petitioner’s November 2, 2001 statement

to police, and the transcript of the motion to suppress hearing,

demonstrates that petitioner voluntarily and knowingly waived his

Miranda rights. Although petitioner was taking Depakote and Atarax,

the record demonstrates that petitioner was coherent and able to

understand the questions Detective Leonard was asking. Petitioner

fails to state what effects Atarax and Depakote had on his ability
15
to voluntarily waive his Miranda rights. Thus, petitioner has

failed to demonstrate that counsel’s performance was deficient or

that there is a reasonable probability that, but for counsel's

alleged errors, the result of the proceeding would have been

different.

In another portion of claim II(H)(1), petitioner alleges he was

denied the effective assistance of counsel because counsel failed to

raise the issue, articulated in another portion of claim II(G), that

his Fourth and Fifth Amendment rights were violated, as petitioner’s

waiver of his Miranda rights on November 2, 2001 was involuntarily
given because Detective Leonard violated his promise not to discuss

the murder during the interview by asking petitioner questions about

the murder.

The Court holds that this portion of claim II(H)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the motion to

suppress, the transcript of petitioner’s November 2, 2001 statement

to police, and the transcript of the motion to suppress hearing,

demonstrates that petitioner voluntarily and knowingly waived his

Miranda rights. Petitioner signed the waiver form and initialed

that no promises had been made to him and the record demonstrates

that petitioner was informed that he had the right to stop answering

questions at any time. Further, the record, including the

transcripts from the motion to suppress hearing, demonstrates that

petitioner never invoked his right to silence or his right to

counsel, and, therefore, there was no basis upon which counsel could

have raised the issue. Thus, petitioner has failed to demonstrate
16
that counsel’s performance was deficient or that there is a

reasonable probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.

In a portion of claim II(H)(2), petitioner alleges he was

denied the effective assistance of appellate counsel because counsel

failed to raise on appeal the issues stated in claims II(A), II(B),

II(C), II(E), II(F), and II(G). The Court holds that this portion

of claim II(H)(2) satisfies neither the “performance” nor the

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

The record demonstrates that these issues were not raised at trial.

Therefore, counsel was reasonable for choosing not to raise on

appeal claims which would have been barred under Rule 5:25.

Further, petitioner has articulated no reason why this Court would

have invoked either exception to Rule 5:25 and reached the merits of

any of these issues. Thus, petitioner has failed to demonstrate

that counsel’s performance was deficient or that there is a

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

result of the proceeding would have been different.

In another portion of claim II(H)(2), petitioner alleges

counsel was ineffective for failing to raise the issue, articulated

in claim II(D), that the Commonwealth violated his right to counsel

by eliciting incriminating statements from him on November 2, 2001,

while petitioner was still represented by the attorney who had been

appointed to represent petitioner at his first trial. The Court

holds that this portion of claim II(H)(2) is without merit. The

record demonstrates that counsel raised this issue on appeal.

In a portion of claim III(C)(1), petitioner alleges he was
17
denied the effective assistance of counsel at trial because counsel

failed to raise the issue articulated in claim III(A) that the

remarks made by the Commonwealth in opening and closing arguments at

both the guilt and penalty phases of his trial violated his rights

under the Fifth, Eighth, and Fourteenth Amendments as the “remarks

vouched for the personal opinions of the prosecutors that

[petitioner] deserved the death penalty.” Petitioner contends the

Commonwealth’s Attorney referred to himself in the first person as

he informed the jury that the death penalty would be sought in the

case and asked the jury to return a sentence of death against

petitioner.

The Court holds that this portion of claim III(C)(1) satisfies

neither the “performance” nor the "prejudice" prong of the two-part

test enunciated in Strickland. The record, including the trial

transcript, demonstrates that the remarks in question did not vouch

for the personal opinion of the Commonwealth’s Attorney but rather

were based upon the evidence the Commonwealth’s Attorney expected to

be presented and which had been presented at trial. Therefore, the

remarks were not improper and counsel did not act unreasonably for

failing to object. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the result of

the proceeding would have been different.

In another portion of claim III(C)(1), petitioner alleges he

was denied the effective assistance of counsel at trial because

counsel failed to raise the issue, articulated in claim III(B), that

remarks made by the Commonwealth’s Attorney in the penalty phase of
18
the trial regarding the effect the death penalty has in deterring

other people from committing future crimes violated his rights

pursuant to the Fifth, Eighth, and Fourteenth Amendments.

The Court holds that this portion of claim III(C)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. This Court has previously held that

“[w]hile considerations of deterrence should not be the basis for a

finding of guilt of the offense, such considerations may be argued

in connection with the punishment to be assessed for the crime."

Wilkins v. Commonwealth, 253 Va. 156, 157, 482 S.E.2d 837, 838
(1997) (citing Payne v. Commonwealth, 233 Va. 460, 468, 357 S.E.2d

500, 505, cert. denied, 484 U.S. 933 (1987)). Our review of the

record, including the trial transcript, demonstrates that the

deterrence argument was raised during the penalty phase of

petitioner’s trial and, therefore, did not provide counsel with

grounds for an objection. Thus, petitioner has failed to

demonstrate that counsel’s performance was deficient or that there

is a reasonable probability that, but for counsel's alleged errors,

the result of the proceeding would have been different.

In claim III(C)(2), petitioner alleges he was denied the

effective assistance of counsel on appeal because counsel did not

raise the issues articulated in claims III(A) and III(B). The Court

holds that claim III(C)(2) satisfies neither the “performance” nor

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

The record demonstrates that these issues were not raised at trial.

Therefore, counsel was reasonable for choosing not to raise on

appeal claims which would have been barred under Rule 5:25.
19
Further, petitioner has articulated no reason why this Court would

have invoked either exception to Rule 5:25 and reached the merits of

either issue. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

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

proceeding would have been different.

In a portion of claim IV(G)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim IV(A), that

petitioner was unconstitutionally prosecuted because the indictment

against him did not allege either vileness or future dangerousness

and neither factor was proven beyond a reasonable doubt at trial.

The Court holds that this portion of claim IV(G)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. There is no constitutional

requirement that a capital murder indictment include allegations

concerning aggravating factors. Ring v. Arizona, 536 U.S. 584, 597

n. 4 (2002) (noting that the Fourteenth Amendment has not been

construed to include the Fifth Amendment right to “presentment or

indictment of a Grand Jury”); Apprendi v. New Jersey, 530 U.S. 466,
477 n. 3 (2000). As such, this Court has previously held that

counsel is not ineffective for failing to raise this issue. See

Morrisette v. Warden, 270 Va. at ___, 613 S.E.2d at 556. Thus,

petitioner has failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that, but for

counsel’s alleged error, the result of the proceeding would have

been different.
20
 In another portion of claim IV(G)(1), petitioner alleges he was

denied the effective assistance of counsel because counsel failed to

raise the issue, articulated in claim IV(B), that the Commonwealth

was collaterally estopped from presenting the issue of future

dangerousness at his second trial because the jury at petitioner’s

first trial returned a finding only of vileness. Petitioner

contends that the jury at petitioner’s first trial returned a

finding only of vileness after being informed that it could find

either, both, or neither aggravating factor, and, therefore, that

the future dangerousness issue had been determined in his favor at

the end of the first trial.

The Court holds that this portion of claim IV(G)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. Collateral estoppel does not apply

in petitioner’s case because petitioner was being tried for a

different crime. The determination of future dangerousness depends

in part on and, as this Court has previously held, may be based

solely on “the circumstances surrounding the commission of the

offense of which he is accused.” See Code § 19.2-264.4(C); Murphy v.
Commonwealth, 246 Va. 136, 144, 431 S.E.2d 48, 53, cert. denied 510

U.S. 928 (1993). The evidence at petitioner’s second trial,

including petitioner’s attempted rape of Stacey Reed and letters

written by petitioner while in prison following his first trial, was

different than that which a jury considered in petitioner’s first

trial. Therefore, the issue of collateral estoppel was not

implicated because the jury at petitioner’s second trial was asked

to determine an issue that was neither considered nor available at
21
the previous trial. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the result of

the proceeding would have been different.

In another portion of claim IV(G)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue articulated in claim IV(C). The Court

holds that this portion of claim IV(G)(1) is without merit. The

record demonstrates that counsel raised this issue at trial.

In another portion of claim IV(G)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim IV(D), that his

constitutional rights were violated by the trial court’s vague

future dangerousness jury instruction. The instruction stated that

the jury had to find, beyond a reasonable doubt, that “. . . there

is a probability that he would commit criminal acts of violence that

would constitute a continuing serious threat to society.”

Petitioner claims that the juxtaposition of “beyond a reasonable

doubt” and “probability” made this instruction vague as one cannot

find a probability beyond a reasonable doubt.

The Court holds that this portion of claim IV(G)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. This Court has already held that

“the word, ‘probability,’ in the statutory context in which it is

used, is not ambiguous . . . [t]herefore, the "future dangerousness"

predicate is not unconstitutionally vague.” Mickens v.

Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684, vacated on
22
other grounds, 513 U.S. 922 (1994). The instruction petitioner

complains of followed the statute, as approved by this Court, and

therefore counsel was not unreasonable for failing to raise the

objection. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the result of

the proceeding would have been different.

In another portion of claim IV(G)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim IV(E), that the

future dangerousness jury instruction unconstitutionally “relieved

the Commonwealth of its burden to prove every element beyond a

reasonable doubt” because it told the jury that it only had to find

a “probability” of future dangerousness.

The Court holds that this portion of claim IV(G)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. Counsel is not unreasonable for

failing to object to jury instructions that follow the statute and

have previously been approved by this Court. Thus, petitioner has

failed to demonstrate that counsel’s performance was deficient or

that there is a reasonable probability that, but for counsel's

alleged errors, the result of the proceeding would have been

different.

In another portion of claim IV(G)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim IV(F), that his due

process rights and right to a reliable sentencing proceeding were
23
violated because the future dangerousness aggravating factor

excludes consideration of petitioner’s life in prison.

The Court holds that this portion of claim IV(G)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. This Court has previously held that

a determination of future dangerousness revolves
around an individual defendant and a specific crime.
Evidence regarding the general nature of prison life
in a maximum security facility is not relevant to
that inquiry, even when offered in rebuttal to
evidence of future dangerousness such as that
presented in this case.

Schmitt v. Commonwealth, 262 Va. 127, 146, 547 S.E.2d 186, 199-200

(2001), cert. denied, 534 U.S. 1094 (2002) (citing Burns v.

Commonwealth, 261 Va. 307, 339-40, 541 S.E.2d 872, 893 (2001), cert.

denied 534 U.S. 1043 (2001)). Thus, petitioner has failed to

demonstrate that counsel’s performance was deficient or that there

is a reasonable probability that, but for counsel's alleged errors,

the result of the proceeding would have been different.

In a portion of claim IV(G)(2), petitioner alleges he was

denied the effective assistance of appellate counsel because counsel
failed to raise on appeal the issues stated in claims IV(A), IV(B),

IV(D), IV(E), and IV(F). The Court holds that these portions of

claim IV(G)(2) satisfy neither the “performance” nor the “prejudice”

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

demonstrates that these issues were not raised at trial. Therefore,

counsel was reasonable for choosing not to raise on appeal claims

which would have been barred under Rule 5:25. Further, petitioner

has articulated no reason why this Court would have invoked either
24
exception to Rule 5:25 and reached the merits of either issue.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel’s alleged error, the result of the proceeding

would have been different.

In another portion of claim IV(G)(2), petitioner alleges he was

denied the effective assistance of counsel on appeal because counsel

failed to raise the issue articulated in claim IV(C). The Court

holds that this portion of claim IV(G)(2) is without merit. The

record demonstrates counsel raised this issue on appeal.

In claim V(B)(1), petitioner alleges he was denied the

effective assistance of counsel at trial because counsel failed to

raise the issues, articulated in claim V(A), that his right to due

process, his right to be able to participate in his trial, and his

right to “heightened reliability” in his trial were violated by the

medication administered to him in prison before trial and the stun

belt he wore at trial. Petitioner claims that the combination of

medication he was on, including Depakote, Paxil and Zoloft, caused

him to appear emotionless and expressionless during trial.

Petitioner claims that he was never found to be a security threat

and that the stun belt limited his communication with counsel,

distracted him during trial, and prejudiced him before the jury.

The Court holds that claim V(B)(1) satisfies neither the

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

enunciated in Strickland. Petitioner provides no evidence that he

was involuntarily medicated or that the medication he was taking

prior to and during the trial was the reason he appeared “cold,
25
expressionless, and remorseless during the trial.” Additionally,

petitioner is unable to demonstrate prejudice because, as was the

case in Lenz v. Warden, 265 Va. 373, 380, 579 S.E.2d 194, 198

(2003), there is “nothing in the record that indicates the jury

observed a stun belt on petitioner during the trial.” Thus,

petitioner has failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding would have

been different.

In claim V(B)(2), petitioner alleges he was denied the

effective assistance of appellate counsel because counsel failed to

raise on appeal the issues stated in claim V(A). The Court holds

that claim V(B)(2) satisfies neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.

Therefore, counsel was reasonable for choosing not to raise on

appeal claims which would have been barred under Rule 5:25.

Further, petitioner has articulated no reason why this Court would

have invoked either exception to Rule 5:25 and reached the merits of

either issue. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

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

proceeding would have been different.

In a portion of claim VI(E)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issues articulated in claim VI(A) that his

rights to due process and a reliable sentencing hearing were
26
violated when the Commonwealth knowingly introduced Exhibit 51 as

evidence of his criminal history at the penalty phase of the trial.

Petitioner claims that the Commonwealth falsely stated that Exhibit

51 was a certified copy of his criminal history, when it was neither

certified nor a copy of his criminal record. Further, according to

petitioner, the exhibit contained false and misleading information,

including, inter alia, information that petitioner had been found

guilty of capital murder when that conviction had been reversed by

this Court and later nolle prossed and that charges for felony

larceny and statutory burglary had been nolle prossed when the

charges had actually been dismissed.

The Court holds that this portion of claim VI(E)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. Petitioner has failed to demonstrate

what effect, if any, Exhibit 51 had on the jury. The record,

including the trial transcript, demonstrates that while Exhibit 51

indicated that petitioner had previously been found guilty of

capital murder, the jury was already aware of this information.

Petitioner’s own letters to the Commonwealth’s Attorney, which had

been introduced at trial, indicated that petitioner was on “death

row” after having already been found guilty of capital murder. When

Exhibit 51 was introduced, the Commonwealth mentioned only

petitioner’s prior convictions and did not say anything about the

capital murder conviction or about any of the charges for which

petitioner was not convicted. The Commonwealth did not mention the

exhibit again during the presentation of the evidence or during

argument. The Commonwealth’s argument that petitioner deserved the
27
death penalty was based not on petitioner’s criminal history, but on

the killing of Stacey Reed, the letters petitioner wrote after

Stacey Reed’s murder, and petitioner’s racist attitudes. Thus,

petitioner has failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding would have

been different.

In another portion of claim VI(E)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim VI(B), that the

Commonwealth failed to turn over exculpatory information by not

informing petitioner that “some of the entries on Commonwealth

Exhibit 51 were false and misleading.” Petitioner claims that the

Commonwealth’s actions violated his due process rights.

The Court holds that this portion of claim VI(E)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record demonstrates that on

December 23, 2002, the Commonwealth provided petitioner’s counsel

with a copy of the printout later identified as Exhibit 51.

Petitioner’s knowledge regarding his own criminal record is as

extensive, if not more so, as the Commonwealth’s. The inaccuracies

in the printout, therefore, were before petitioner prior to trial

and the Commonwealth did not violate its duty to disclose

exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83

(1963). Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceeding
28
would have been different.

In another portion of claim VI(E)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in a portion of claim VI(C),

that the Commonwealth violated Code §§ 19.2-295.1, -264.2, and -

264.4 because Exhibit 51 was not a “record of conviction” and showed

charges which had been either nolle prossed or for which petitioner

was found not guilty. Petitioner claims that the introduction of

Exhibit 51 “falsely led the jury to believe that [petitioner] had a

much more serious criminal record than he did” when deciding future

dangerousness.

The Court holds that this portion of claim VI(E)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the trial

transcript and the exhibits, demonstrates that the jury was already

aware that petitioner had previously been found guilty of capital

murder. Petitioner’s own letters to the Commonwealth’s Attorney,

which had been introduced at trial, indicated that petitioner had

been on “death row” after having been found guilty of capital

murder. When Exhibit 51 was introduced, the Commonwealth mentioned

only petitioner’s prior convictions, did not mention the previous

capital murder conviction or any of the charges for which petitioner

was not convicted. Finally, the Commonwealth focused the jury’s

determination for a sentence of death not on petitioner’s criminal

history, but rather on the killing of Stacey Reed, the letters

petitioner wrote while he was incarcerated, and how petitioner’s

racist attitudes showed him to be capable of violence. Thus,
29
petitioner has failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding would have

been different.

In another portion of claim VI(E)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in another portion of claim

VI(C), that the Commonwealth violated Code § 19.2-264.3:2 because

the Commonwealth failed to give notice of its intent to present

evidence of unadjudicated criminal conduct. Exhibit 51 contained

information regarding criminal charges that had been either nolle

prossed or of which petitioner had been found not guilty.

The Court holds that this portion of claim VI(E)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the trial

transcript, demonstrates that the Commonwealth complied with Code

§ 19.2-264:3.2 as counsel acknowledged that he had received the

document as required. Therefore, any objection counsel would have

made on this issue would have been frivolous. Thus, petitioner has

failed to demonstrate that counsel’s performance was deficient or

that there is a reasonable probability that, but for counsel's

alleged errors, the result of the proceeding would have been

different.

In another portion of claim VI(E)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim VI(D), that the

Commonwealth violated his Sixth Amendment rights when it introduced
30
Exhibit 51 because there was no “foundational testimony as to the

personal knowledge of the record-keeper, the regularity of its

preparation, the reliance on the records, or any other circumstance

showing trustworthiness.” The Court holds that this portion of

claim VI(E)(1) satisfies neither the “performance” nor the

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

Petitioner has failed to establish that had counsel objected, the

Commonwealth would not have been able to provide the appropriate

foundation or that Exhibit 51 would have been ruled inadmissible.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that, but for counsel's alleged errors,

the jury would not have considered Exhibit 51 and the result of the

proceeding would have been different.

In claim VI(E)(2), petitioner alleges he was denied the

effective assistance of appellate counsel because counsel failed to

raise on appeal the issues stated in claims VI(A), VI(B), VI(C), and

VI(D). The Court holds that claim VI(E)(2) satisfies neither the

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

enunciated in Strickland. The record demonstrates that these issues

were not raised at trial. Therefore, counsel was reasonable for

choosing not to raise on appeal claims which would have been barred

under Rule 5:25. Further, petitioner has articulated no reason why

this Court would have invoked either exception to Rule 5:25 and

reached the merits of either issue. Thus, petitioner has failed to

demonstrate that counsel’s performance was deficient or that there

is a reasonable probability that, but for counsel’s alleged error,

the result of the proceeding would have been different.
31
 In claim VI(F), petitioner alleges he was denied the effective

assistance of counsel because counsel failed to have the charges

listed on Exhibit 51, which had been nolle prossed or dismissed,

expunged pursuant to Code § 19.2-392.2. Petitioner claims that the

inclusion of these charges in a capital sentencing proceeding

constitutes a “manifest injustice” and that the charges were

eligible for expungement under the statute.

The Court holds that claim VI(F) fails to satisfy the

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

Petitioner fails to show that any motion for the expungement of his

record would have succeeded. Additionally, petitioner has failed to

show that a “manifest injustice” occurred because the information he

now complains of was listed in Exhibit 51. When Exhibit 51 was

introduced, the Commonwealth mentioned only petitioner’s prior

convictions and did not say anything about the capital murder

conviction or about any of the charges where petitioner was not

convicted. Exhibit 51 clearly identifies the disposition of each

charge and thus, the fact that some charges were nolle prossed or

dismissed was before the jury. Finally, the Commonwealth focused

the jury’s determination for a sentence of death not on petitioner’s

criminal history, but rather on the killing of Stacey Reed, the

letters petitioner wrote while he was incarcerated, and how

petitioner’s racist attitudes showed him to be capable of violence.

Thus, petitioner has failed to demonstrate that, but for counsel's

alleged errors, the result of the proceeding would have been

different.

In claim VI(G), petitioner alleges he was denied the effective
32
assistance of counsel because appellate counsel in petitioner’s

first trial failed to file a petition for writ of habeas corpus

challenging the convictions that arose from the first trial. The

Court rejects claim VI(G) because there is no constitutional right

to counsel in seeking habeas relief. Howard v. Warden, 232 Va. 16,

19, 348 S.E.2d 211, 213 (1986).

In a portion of claim VII(C)(1), petitioner alleges he was

denied the effective assistance of counsel at trial because counsel

failed to raise the issue, articulated in claim VII(A), that his

constitutional rights to freedom of speech, freedom of association,

due process and “to a reliable individualized sentencing

determination” were violated by the Commonwealth’s introduction of

racist statements and documents which linked petitioner to certain

groups and “broad ideas.”

The Court holds that this portion of claim VII(C)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. Petitioner’s racist beliefs and

writings were a significant and relevant part of the Commonwealth’s

case because they were evidence of petitioner’s motivation for

killing Stacey Reed. This evidence was also properly introduced at

sentencing to show that petitioner was a dangerous person. Further,

petitioner provides no evidentiary support for his speculation that

the evidence “tended to inflame the jury by linking [petitioner] to

certain abstract beliefs” and “caused the jury to sentence

[petitioner] for his abstract beliefs.” Petitioner does not allege

that had counsel objected this evidence would have been ruled

inadmissible and the jury’s determination would have been different.
33
Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceeding

would have been different.

In another portion of claim VII(C)(1), petitioner alleges he

was denied the effective assistance of counsel at trial because

counsel failed to raise the issue, articulated in claim VII(B), that

the Commonwealth violated his right to confront and cross-examine

witnesses when it introduced certificates of analysis in an attempt

to authenticate several letters allegedly written by petitioner.

Petitioner claims that the certificates of analysis were testimonial

in nature and without them the Commonwealth could not have

attributed the letters to him.

The Court holds that this portion of claim VII(C)(1) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record, including the

certificates of analysis, show that the Commonwealth complied with

the requirements of Code § 19.2-187 as the certificates were

attested to by the scientists who performed the handwriting analysis

and, therefore, the scientists were not required to appear at trial.

Additionally, the evidence at trial demonstrates that petitioner

admitted to the police that he wrote the letters. Thus, petitioner

has failed to demonstrate that counsel’s performance was deficient.

Further, petitioner claims only that counsel's alleged errors “had a

substantial and injurious effect on [petitioner’s] trial” but does

not claim that, had counsel objected, the letters would have been

ruled inadmissible or the result of the proceeding would have been
34
different.

In a portion of claim VII(C)(2), petitioner alleges he was

denied the effective assistance of counsel on appeal because counsel

did not raise the issues articulated in claims VII(A) and VII(B).

The Court holds that this portion of claim VII(C)(2) satisfies

neither the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland. The record demonstrates that these

issues were not raised at trial. Therefore, counsel was reasonable

for choosing not to raise on appeal claims which would have been

barred under Rule 5:25. Further, petitioner has articulated no

reason why this Court would have invoked either exception to Rule

5:25 and reached the merits of either issue. Thus, petitioner has

failed to demonstrate that counsel’s performance was deficient or

that there is a reasonable probability that, but for counsel’s

alleged error, the result of the proceeding would have been

different.

In claim VIII(A), petitioner alleges he was denied the

effective assistance of counsel during the penalty phase because

counsel failed to properly investigate petitioner’s background in

order to rebut the Commonwealth’s claim that petitioner had racist

beliefs and that petitioner tortured animals. Petitioner alleges

that had counsel conducted a proper investigation he would have

discovered that petitioner had once shared a cigarette with a “black

male;” that petitioner was known to make references to Satan in

order “to keep others at a safe distance” and to say things in order

to shock people, to gain acceptance and to garner attention to

himself; and that petitioner “wore racism like fashionable clothing”
35
in order to “gain acceptance from certain groups.” Petitioner

claims that counsel also would have discovered that he had lived

without any racial issues in environments where 75% of the occupants

were black; had “had good friends who were black;” was not

aggressive towards his cousin’s black boyfriend; that he told

stories about torturing animals to a classmate who had never seen

petitioner abuse any animals and did not believe the stories; and

that petitioner had acted nice to cats and dogs that belonged to

friends and family.

The Court holds that claim VIII(A) satisfies neither the

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

enunciated in Strickland. The evidence of petitioner’s character

and demeanor, which he argues should have been presented, would have

been damaging because evidence existed that petitioner had admitted

to the police that he was a racist and had tortured animals and

because the affidavits supplied by petitioner also demonstrate that

petitioner was known to make racist statements and tell stories

about abusing animals. None of the affidavits establish that

petitioner was either not racist or not abusive to animals. Thus,

petitioner has failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding would have

been different.

In claim VIII(B), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to rebut the

Commonwealth’s claim that petitioner had no remorse because counsel

did not properly investigate petitioner’s background, interview
36
relevant witnesses, or review the records in the possession of

petitioner’s prior counsel. Petitioner alleges that counsel would

have discovered that petitioner had cried during his January 30,

1999 police interview and stated that he wanted to tell Stacey

Reed’s parents he was sorry; that petitioner wanted to write a

letter to Stacey Reed’s family; that petitioner wanted to trade his

life for Stacey’s; that petitioner wanted to apologize to Kristie

Reed; that petitioner broke down and cried during his first trial

and that a probation officer had noted that petitioner was “confused

and sorry about committing the crime.”

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

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

enunciated in Strickland. The record demonstrates that there was

overwhelming evidence that petitioner lacked remorse. Petitioner

wrote letters to the Commonwealth’s Attorney in 2001, in which he

taunted the Commonwealth’s Attorney, admitted to stabbing Stacey

Reed and then “stomping on her throat,” and admitted to drinking

iced tea and smoking a cigarette after killing her, but in which he

never expressed remorse. Petitioner also stated he wanted Stacey

Reed’s parents to be ready to “relive it all again because if I have

to suffer for the next 50 or 60 years or however long then they can

suffer the torment of reliving what happened.” Additionally,

petitioner sent a letter to Stacey Reed’s parents two years after

the murder in which he compared Stacey Reed to pictures of a topless

model he included with the letter but did not express remorse.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability
37
that, but for counsel's alleged errors, the result of the proceeding

would have been different.

In claim VIII(C), petitioner alleges he was denied the

effective assistance of counsel because counsel failed to rebut the

Commonwealth’s claim that petitioner had above average intelligence

by failing to investigate his background, interview relevant

witnesses, or review the records in the possession of petitioner’s

prior counsel. Petitioner contends he had a full-scale IQ score of

102 in 1991 which placed him at the 54th percentile; that he had a

full-scale IQ of 87 in 1993; that experts had opined that

petitioner’s intelligence was “average or below,” and that he was

capable of functioning in the average range despite low average

range IQ scores.

The Court holds that claim VIII(C) satisfies neither the

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

enunciated in Strickland. The record demonstrates that at trial,

petitioner’s own expert testified on cross-examination that

petitioner’s IQ was “within the average range of intelligence.” The

reports cited by petitioner demonstrated that he was considered to

have average intelligence with psychologist William Brock commenting

that petitioner’s intelligence may not be indicative of his IQ

scores and psychologist Shayne Weir commenting that petitioner’s

intelligence was “probably brighter” than petitioner’s IQ score of

102. Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceeding

would have been different.
38
 In claim IX(1), petitioner alleges that he was denied the

effective assistance of counsel during the penalty phase of his

trial because counsel failed to prepare and present “a compelling

mitigation case.” Petitioner claims that counsel presented “weak

testimonial evidence” and no documentary evidence. In support of

this claim, petitioner submits affidavits from his mother, Cynthia

Powell, and one brother, Matthew Powell. Petitioner contends that

counsel met only once, briefly, with Matthew Powell, and only asked

him whether petitioner’s father had been abusive, and that counsel

did not prepare Cynthia Powell to testify. Further, petitioner has

submitted the affidavit of William Stejsall, a psychologist who

testified on petitioner’s behalf at trial. Dr. Stejsall states that

trial counsel deviated from the planned presentation of Dr.

Stejsall’s testimony and the jury never heard a large part of Dr.

Stejsall’s findings concerning the factors outside of petitioner’s

control during his adolescence which led to petitioner developing “a

self-destructive and antisocial adaptation to life.”

The Court holds that claim IX(1) satisfies neither the

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

enunciated in Strickland. The record, including the trial

transcript, demonstrates that trial counsel called seven witnesses

on petitioner’s behalf, including Matthew and Cynthia Powell, who

discussed various aspects of petitioner’s upbringing and childhood.

The jury heard evidence that petitioner’s father was abusive and had

a drinking problem; petitioner’s parents were incapable of

controlling petitioner; and at one point, petitioner’s parents

temporarily relinquished custody of petitioner to the Department of
39
Social Services. The jury was also informed that petitioner’s

social worker had recommended intensive family therapy after

petitioner returned home and a juvenile court psychologist, who

evaluated petitioner in late 1993, recommended that petitioner be

placed in a long-term treatment facility for at least six months.

Further, at trial, Dr. Stejsall testified that, as a result of

his home life, petitioner’s behavioral and mental health issues were

neglected and he received a variety of treatments with mixed results

and at various stages of his life petitioner received no treatment

at all. Dr. Stejsall opined that petitioner developed behaviors

described as oppositional defiant disorder, attention deficit

hyperactivity disorder, conduct disorder and serious depression

which, at times, resulted in petitioner becoming suicidal and

engaging in self-mutilation. Dr. Stejsall also testified that

petitioner had no “serious disciplinary infractions” while

incarcerated for Stacey Reed’s murder because petitioner had been on

medications and was receiving psychiatric care. Petitioner fails to

allege what additional information Matthew and Cynthia Powell would

have provided had counsel interviewed them more thoroughly or had

better prepared them or how additional testimony from Dr. Stejsall

would have affected the trial. Thus, petitioner has failed to

demonstrate that counsel’s performance was deficient or that there

is a reasonable probability that, but for counsel's alleged errors,

the result of the proceeding would have been different.

In claim IX(2), petitioner alleges that he was denied the

effective assistance of counsel because counsel failed to prepare

and present “a compelling mitigation case” regarding the “toxic
40
environment in which [he] grew up.” Petitioner points to the

following in support of his claim: a 1991 family assessment which

described his home life; the reports from a probation officer

documenting petitioner’s father’s abuse; petitioner’s mother’s

passivity; and the officer’s failed attempts to obtain intervention

for petitioner; a 1993 mental status evaluation which documented the

tension between petitioner and his father; and the sexual assault of

petitioner when he was seventeen years old.

The Court holds that claim IX(2) satisfies neither the

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

enunciated in Strickland. The record, including the trial

transcript, demonstrates that counsel presented testimony from

numerous witnesses regarding the abusive relationship between

petitioner and his father. Dr. Stejsall testified that petitioner

was raised in a “toxic” environment and that a severe beating by a

large group of young men while petitioner was confined in a juvenile

detention facility and the sexual assault upon petitioner when

petitioner was seventeen worsened the effects of petitioner’s mental

health problems. Petitioner has failed to assert how the

information he alleges counsel should have presented is not

cumulative in nature or how it would have affected the proceedings.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

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

would have been different.

In claim IX(3), petitioner alleges that he was denied the

effective assistance of counsel because counsel failed to
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investigate, review records, interview witnesses, or prepare and

present “a compelling mitigation case” regarding his psychological

problems. Petitioner cites a 1991 psychological evaluation, reports

from the Prince William County Public School Special Education

Department and the city of Manassas Public Schools Eligibility

Committee, and psychological evaluations of petitioner performed in

1993 and 1995 in support of his claim.

The Court holds that claim IX(3) satisfies neither the

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

enunciated in Strickland. The record, including the trial

transcript, demonstrates that Dr. Stejsall, who was initially

appointed to evaluate petitioner at his first trial and who re-

evaluated petitioner in preparation for his second trial, conducted

his initial evaluation of petitioner based upon a review of

petitioner’s “psychological evaluations,” “all of the medical and

mental-health records that have ever been written or generated in

connection with [petitioner]” including “three psychiatric

hospitalizations” and petitioner’s school records including the

records of “his eligibility and programming as a special education

student as a seriously, emotionally disturbed student.” Because Dr.

Stejsall based his opinion on his review of these materials, which

are the same materials petitioner claims counsel failed to review,

counsel acted properly by relying on Dr. Stejsall’s expert opinion

regarding petitioner’s psychological problems. Thus, petitioner has

failed to demonstrate that counsel’s performance was deficient or

that there is a reasonable probability that, but for counsel's

alleged errors, the result of the proceeding would have been
42
different.

In claim IX(4), petitioner alleges that he was denied the

effective assistance of counsel because counsel failed to prepare

and present “a compelling mitigation case” regarding the obstacles,

caused by petitioner’s family, to petitioner’s treatment. In

support of his claim, petitioner points to evidence of his father’s

refusal to participate in court-ordered counseling and to allow

petitioner back in the house. Further, petitioner cites evidence

that a probation officer believed that the inability of the family

to receive appropriate or timely services was preventing petitioner

and his family from successfully addressing their problems.

The Court holds that claim IX(4) satisfies neither the

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

enunciated in Strickland. Our review of the record, including the

trial transcript, demonstrates that the jury was made aware that

petitioner’s father often did not attend counseling with petitioner

and that petitioner often did not receive services due to money and

family problems and the lack of available organizations willing to

work with the family. Dr. Stejsall testified that petitioner’s

“toxic” home environment prevented petitioner from receiving

consistent treatment of his behavioral and mental-health issues.

The evidence petitioner presents is cumulative of that presented at

trial and petitioner has failed to assert how the use of any of this

evidence would have impacted the jury. Thus, petitioner has failed

to demonstrate that counsel’s performance was deficient or that

there is a reasonable probability that, but for counsel's alleged

errors, the result of the proceeding would have been different.
43
 In claim IX(5), petitioner alleges that he was denied the

effective assistance of counsel because counsel failed to prepare

and present “a compelling mitigation case” during the penalty phase

of the proceeding regarding the life petitioner was living before

the murder of Stacey Reed. Petitioner provides evidence in support

of his claim that indicates he was homeless, had lost his friends,

had all of his possessions stolen, and had recently broken up with

his girlfriend. Petitioner has also presented evidence that he was

drinking heavily and taking drugs around that time.

The Court holds that claim IX(5) satisfies neither the

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

enunciated in Strickland. The record, including the affidavits

provided by petitioner and the affidavit of counsel, demonstrates

that petitioner was homeless because his family was either afraid he

would steal from them or because the children in the home were

frightened of him and that petitioner’s friends had stopped spending

time with him because he would “brag a lot” and was acting “weird”

and “clingy” or “jealous” because of the relationship two of the

friends had with Stacey Reed. Counsel made a strategic decision not

to call any of these people as mitigation witnesses because their

testimony would have supported a finding of future dangerousness.

Counsel is not ineffective for failing to present evidence that

could be “cross-purpose evidence” capable of aggravation as well as

mitigation. Lenz v. Warden, 267 Va. 318, 337, 593 S.E.2d 292, 303

(2004); see also Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir.),
cert. denied, 516 U.S. 972 (1995). Thus, petitioner has failed to

demonstrate that counsel’s performance was deficient or that there
44
is a reasonable probability that, but for counsel's alleged errors,

the result of the proceeding would have been different.

In claim IX(6), petitioner alleges that he was denied the

effective assistance of counsel because counsel failed to prepare

and present “a compelling mitigation case” during the penalty phase

of the proceeding regarding petitioner’s lack of future

dangerousness while in prison. Petitioner claims counsel should

have presented a 1993 school report, a 1994 juvenile detention home

report, and evidence that he had earned his GED while incarcerated

in 1995 and had no disciplinary violations while incarcerated

awaiting his second trial.

The Court holds that claim IX(6) satisfies neither the

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

enunciated in Strickland. The record, including the trial

transcript, demonstrates that counsel presented evidence that

petitioner did not pose a future danger in prison. Dr. Stejsall

informed the jury that, as a result of the medications and

psychiatric care petitioner received while incarcerated for Stacey

Reed’s murder, petitioner had no serious disciplinary infractions

while in prison. The Commonwealth’s evidence that petitioner posed

a future danger, however, was overwhelming. Petitioner admitted

that he was a racist; claimed that “everybody that ain’t white ...

needs to die” and stated that if he had waited until he was old

enough to buy a gun he would have “kill[ed] a lot of somebodies.”

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the proceeding
45
would have been different.

In claim X(B)(1), petitioner alleges he was denied the

effective assistance of counsel at trial because counsel failed to

raise the issue articulated in claim X(A) that the trial court

violated his rights under the Fifth and Fourteenth Amendments as

well as under Code § 19.2-298 when it failed to allow petitioner to

allocute before he was sentenced.

The Court holds that claim X(B)(1) satisfies neither the

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

enunciated in Strickland. There is no constitutional “right” to an

allocution before sentencing. Hill v. United States, 368 U.S. 424,

428 (1962)(deprivation of allocution before sentencing is “an error

which is neither jurisdictional nor constitutional”). The record

demonstrates that petitioner was prone to making statements

detrimental to his case. Further, petitioner has not alleged what

he would have said if he had been given the opportunity to address

the court or how such a statement would have impacted the sentence

he received. Thus, petitioner has failed to demonstrate that

counsel’s performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the result of

the proceeding would have been different.

In claim X(B)(2), petitioner alleges he was denied the

effective assistance of counsel on appeal because counsel failed to

raise the issue articulated in claim X(A). The Court holds that

claim X(B)(2) satisfies neither the “performance” nor the

“prejudice” prong of the two-part test enunciated in Strickland.
The record demonstrates that these issues were not raised at trial.
46
Therefore counsel was reasonable for choosing not to raise claims

which would have been barred under Rule 5:25. Further, petitioner

has articulated no reason why this Court would have invoked either

exception to Rule 5:25 and reached the merits of either issue.

Thus, petitioner has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable probability

that, but for counsel’s alleged error, the result of the proceeding

would have been different.

In claim XI, petitioner alleges that various stages of

Virginia’s post-conviction process are insufficient to protect his

constitutional rights. First, petitioner claims that the statute of

limitations for filing a petition for writ of habeas corpus provided

him insufficient time to investigate and brief all of his claims.

Second, petitioner claims that the trial court failed to appoint

counsel for petitioner’s habeas petition within the time period

prescribed by Code § 19.2-163.7. Third, petitioner was refused his

applications for the appointment of experts to assist with the

preparation of his petition for writ of habeas corpus. Finally,

petitioner claims that his motions for a copy of his record

maintained by the Prince William Juvenile and Domestic Relations

Court were denied.

The Court holds that the issues raised in claim XI are not

cognizable in a petition for a writ of habeas corpus. “The writ is

available only where the release of the prisoner from his immediate

detention will follow as a result of an order in his favor. It is

not available to secure a judicial determination of any question

which, even if determined in the prisoner's favor, could not affect
47
the lawfulness of his immediate custody and detention.” Virginia

Parole Board v. Wilkins, 255 Va. 419, 420-421, 498 S.E.2d 695, 696

(1998).

In claim XII, petitioner alleges his rights under the Sixth,

Eighth and Fourteenth Amendments as well as Article I, Sections 8, 9

and 11 of the Constitution of Virginia were violated because the

jurors were exposed to an extraneous influence, namely a Bible,

during the trial. Petitioner claims that at least one unidentified

juror carried a Bible during the trial and specifically referred to

it during the penalty phase. The Court holds that the petitioner

has failed to allege facts that establish that the jurors were

“exposed” to a Bible “during the course of the trial” and,

therefore, claim XII is speculative.

Accordingly, the petition is dismissed.

A Copy,

Teste:

Patricia L. Harrington, Clerk

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