Thursday 16th June, 2005.
Kent Jermaine Jackson, No. 318275, Petitioner,
against Record No. 042706
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 2, 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.
Kent Jermaine Jackson was convicted in the Circuit Court of the
City of Newport News of capital murder in the commission of a
robbery or attempted robbery, robbery, felony stabbing, and
statutory burglary. The jury found the aggravating factor of
vileness and fixed a sentence of death for the capital murder
conviction and fixed sentences totaling life imprisonment plus 25
years and a $100,000 fine for the non-capital offenses. The trial
court imposed the sentences fixed by the jury. This Court
unanimously affirmed Jackson’s convictions and upheld the sentence
of death in Jackson v. Commonwealth, 266 Va. 423, 587 S.E.2d 532
(2003), cert. denied, ___ U.S. ___, 125 S. Ct. 281 (2004).
In claim (I)(A), petitioner alleges that Alfred Masters, one of
his two appointed counsel, “deserted” him prior to trial.
Petitioner alleges that he was left with only one counsel to perform
all the work of his defense and that he was deprived of a second
counsel’s intellect and trial talents in prejudice to his right to
the effective assistance of counsel.
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 withdrawal hearing transcript,
demonstrates that Masters filed a motion to withdraw on the basis
of irreconcilable differences with petitioner and the trial court
granted the unopposed motion. James Ellenson, petitioner’s
remaining counsel, represented to the court that Masters had done
an extensive amount of preparation on the technical aspects of the
case and was providing all of that information to Ellenson.
Petitioner was present at the hearing and agreed with Ellenson’s
assessment that a second trial counsel was not required.
Petitioner has alleged no specific error caused by Master’s
withdrawal and has not articulated how Master’s presence would have
affected the proceedings against him. 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 (I)(B), petitioner alleges that trial counsel’s
failure to object to the trial court’s approval of Master’s motion
to withdraw and to move for the appointment of a second counsel
constituted a failure of representation. The Court holds that claim
(I)(B) satisfies neither the "performance" nor the "prejudice" prong
of the two-part test enunciated in Strickland. At the time of
petitioner’s trial, Va. Code § 19.2-163.7 provided, in pertinent
part, that a trial court appoint “one or more” attorneys. As stated
above, counsel had received ample assistance from Masters who shared
his work-product with trial counsel when he withdrew. Petitioner
agreed that it was not necessary to appoint a second counsel.
Further, the record demonstrates that the trial court was prepared
to appoint co-counsel if trial counsel felt that to be necessary.
2
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient. Further, petitioner has failed to
articulate how any alleged error of counsel was caused by the lack
of co-counsel at trial or how the presence of co-counsel would have
affected the proceedings. 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.
In claim (I)(C), petitioner alleges that the trial court’s
granting of co-counsel’s motion to withdraw was a denial of the
right to adequate counsel. The Court holds that claim (I)(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 v.
Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied,
419 U.S. 1108 (1975).
In a portion of claim (II), petitioner alleges that the
indictment failed to state a death-eligible capital offense by not
including the specific aggravating factors listed in Code § 19.2-
264.2. Petitioner argues that there are two separate capital
offenses in Virginia: death-eligible capital murder under Code §
18.2-31 and a finding of future dangerousness or vileness, or both;
and the lesser-included offense of capital murder under § 18.2-31
with no finding of either aggravating factor. Petitioner argues
that death is only an option in the former case, and because proof
of the aggravating factors increases the applicable punishment, it
is an element of the offense and must be set forth in the
indictment.
The failure to include aggravating factors in an indictment is
not a jurisdictional defect and is waived by the failure to object
to the indictment before trial. Wolfe v. Commonwealth, 265 Va. 193,
223-24, 576 S.E.2d 471, 488-89 (2003); Rule 3A:9(b),(c). The Court
3
holds that this portion of claim (II) 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. Parrigan, 215 Va. at 29, 205
S.E.2d at 682.
In another portion of claim (II), petitioner alleges that trial
counsel was ineffective for not challenging the capital murder
indictment on the grounds that it failed to identify the aggravating
factors. The Court holds that this portion of claim (II) 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). 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, counsel cannot be held ineffective for failing to
make a frivolous argument. Furthermore, 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.
In claim (III)(A), petitioner alleges that trial counsel was
ineffective for failing to interview or call Jacqueline Cruz as an
alibi witness. Petitioner alleges that Cruz, petitioner’s
girlfriend, would have testified that petitioner was with her in
4
King George, Virginia from April 14, 2000 until 5:00 p.m. on April
16, 2000. The Court holds that claim (III)(A) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including petitioner’s
statements to the police and the affidavit of trial counsel,
demonstrates that the indictment charged the murder occurred between
April 16 and 18, 2000; that petitioner admitted to the police and to
his counsel that he was present when the murder took place; and that
petitioner never provided any alibi information to counsel.
Counsel’s representation does not fall “below an objective standard
of reasonableness” when counsel relies upon information supplied by
his client and “[does] not also investigate alternative defenses.”
Curo v. Becker, 254 Va. 486, 493, 493 S.E.2d 368, 371 (1997)(citing
Strickland, 466 U.S. at 688, 691). Furthermore, 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.
In claim (III)(B), petitioner alleges that trial counsel was
ineffective for failing to interview Jacqueline Cruz and to have
her testify as to petitioner’s character and demeanor “in the weeks
and months after the murder.” Cruz allegedly would have testified
that petitioner “did not appear worried or haunted by anything”
while he lived with her after April 2000. The Court holds that
claim (III)(B) satisfies neither the "performance" nor the
"prejudice" prong of the two-part test enunciated in Strickland.
Self-serving evidence of petitioner’s character and demeanor after
April 2000 is irrelevant because he admitted to the police and to
his counsel that he was present at the murder. Thus, petitioner has
failed to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for counsel’s
5
alleged errors, the result of the proceeding would have been
different.
In claim (III)(C), petitioner alleges that trial counsel was
ineffective for failing to have Jacqueline Cruz sequestered at
trial, thus forfeiting the opportunity to use her as a witness.
The Court holds that claim (III)(C) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the affidavit of
trial counsel, demonstrates that petitioner’s investigator
interviewed Cruz, that she never suggested that petitioner had been
with her at the time of the murder, and that counsel thus never
contemplated calling her as a witness. 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 (IV), petitioner alleges that trial counsel was
ineffective for failing to establish, through the medical examiner,
the date and time of the victim’s death, which was “crucial
information” given Jacqueline Cruz’s ability to provide an alibi
for Sunday. The Court holds that claim (IV) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. As discussed above, the record
demonstrates that petitioner admitted that he was present at the
murder and never provided alibi information. The indictment
specified that the crime occurred between April 16 and 18, 2000.
Counsel had no independent reason for establishing April 16 as the
time of death. Furthermore, petitioner does not allege that the
medical examiner would have been able to more precisely narrow the
6
time of death from the period specified in the indictment. 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 (V)(A), petitioner alleges that he was
denied the effective assistance of counsel during jury selection
because counsel failed to make proper challenges to juror Brooke
Wright who allegedly favored the Commonwealth. Petitioner argues
that Wright should have been challenged for cause because she
indicated during voir dire that she felt petitioner should testify,
stated she would believe a law-enforcement officer over other
witnesses, and said she believed “essentially” in “an eye for an
eye.” While Wright was later rehabilitated by the Commonwealth,
petitioner contends “she was never asked to back down from her
prejudicial statement that she would give preference to” an
officer’s testimony.
The Court holds that this portion of claim (V)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the transcript
of voir dire, demonstrates that Wright, upon further questioning,
would be fair and impartial, and would follow the trial court’s
instructions. Wright stated that she understood a defendant had a
right not to testify and she would follow the court’s instructions
not to draw unfavorable inferences if that right were exercised.
Wright also confirmed that if she was instructed that the testimony
of all witnesses, whether or not law-enforcement, had to be taken
equally she could set aside her individual belief as to law-
enforcement officers and would follow the instruction. Finally,
Wright indicated that she would follow the law and could sentence
petitioner to life. The voir dire, taken as a whole, demonstrates
7
that there was no valid basis for moving to strike Wright. 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 (V)(A), petitioner alleges that he
was denied the effective assistance of counsel during jury selection
because counsel failed to make proper challenges to juror Shera
Price, who allegedly favored the Commonwealth. Petitioner argues
Price should have been challenged for cause because she indicated
during voir dire that she believed a defendant should prove that he
did not deserve the death penalty.
The Court holds that this portion of claim (V)(A) satisfies
neither the "performance" nor the "prejudice" prong of the two-part
test enunciated in Strickland. The record, including the
transcript of voir dire, demonstrates that Price, upon further
questioning, would be fair and impartial, and would follow the
trial court’s instructions. Price stated that she could follow the
trial court’s instructions that the Commonwealth must prove certain
factors beyond a reasonable doubt before the jury can give the
death penalty and that she would be able to follow the law. The
voir dire, taken as a whole, demonstrates that there was no valid
basis for moving to strike Price. 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), petitioner alleges that trial counsel was
ineffective for failing to rehabilitate prospective juror Danis
Lensch who the court sua sponte struck for cause. Lensch stated she
would hold the court and the prosecution to a higher standard and
8
would expect proof higher than “beyond a reasonable doubt” before
agreeing to sentence someone to death. Petitioner concedes that
Lensch’s views were troublesome, but argues that counsel could have
rehabilitated Lensch by making it clear that “reasonable doubt” was
in fact a high standard of proof.
The Court holds that claim (V)(B) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the transcript of
voir dire, demonstrates that Lensch indicated several times that she
would hold the Commonwealth and the trial judge to a higher standard
than “beyond a reasonable doubt” and that she did not know whether
she could follow the court’s instructions on the “reasonable doubt”
standard. Counsel’s representation does not fall “below an
objective standard of reasonableness” for declining to attempt to
rehabilitate a witness who has unequivocally expressed doubts as to
her ability to follow the trial court’s instructions. Further,
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.
In claim (V)(C), petitioner alleges that he was denied the
effective assistance of counsel during jury selection because
counsel failed to rehabilitate five prospective jurors who stated
their opposition to the death penalty and counsel failed to object
to their dismissal on the grounds that petitioner was entitled to a
jury of his peers and that dismissing persons who disagree with the
death penalty would deprive petitioner of that right. Petitioner
concedes that it is proper to dismiss for cause prospective jurors
who oppose the death penalty. Petitioner, however, argues that this
is an issue that should be “asserted again and again” and, thus,
claims counsel should have objected to the dismissal of the five
jurors in order to preserve the issue for appeal.
9
The Court holds that claim (V)(C) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the transcript of
voir dire, demonstrates that the five prospective jurors were
unequivocally opposed to the death penalty. Therefore, there was
no valid basis for counsel to object when the trial court struck
the five prospective jurors. Further, petitioner cites no
authority which supports his position that striking jurors who
oppose the death penalty deprives a defendant of a jury of his
peers and, thus, cannot demonstrate any likelihood that an appeal
as to this issue would have been successful. Petitioner has not
articulated any basis for his speculation that any of the jurors
could have been rehabilitated. 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 (VI), petitioner alleges that trial counsel,
“apparently intimidated by the Trial Court,” was ineffective for
deciding not to call Dr. Steven Ganderson as a trial witness. The
trial court held that Dr. Ganderson would not be allowed to testify
as to petitioner’s veracity or the reliability of his confession.
Petitioner asserts that Dr. Ganderson, however, would have been
allowed to testify about antecedents concerning isolation, police
pressure, distress, and cognitive and situational factors that
could affect the reliability of a defendant’s statements.
The Court holds that claim (VI) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the trial
10
transcript and the affidavit of trial counsel, demonstrates that the
Commonwealth was prepared to rebut Dr. Ganderson’s testimony by
presenting the testimony of Dr. Don Killian who had examined the
petitioner. Trial counsel’s decision was not based on intimidation
by the trial court, but on a tactical decision that not calling Dr.
Ganderson would bar Dr. Killian’s “contrary testimony.” A tactical
decision on the use of a witness is an area of trial strategy left
to the discretion of counsel. See Strickland, 466 U.S. at 689-90.
Further, 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.
In claim (VII), petitioner alleges that trial counsel was
ineffective for failing to object when the trial court further
defined for the jury the definition of “willful and deliberate.”
The record demonstrates that the jury had received an instruction
defining “willful, deliberate, and premeditated.” During
deliberations, the jury asked for a dictionary in order to obtain
the definition for “willful and deliberate.” The trial court
prepared an additional instruction amplifying the terms and trial
counsel requested the court to give the new instruction. Petitioner
now argues that the jury “almost certainly” had resolved the issue
of premeditation in favor of the Commonwealth. The petitioner
claims that the jury’s question with “‘willful and deliberate’ was
almost certainly a question in favor of the defense” and that the
additional instruction encouraged the jury to consider “willful and
deliberate” as being the same as “premeditated.”
The Court holds that claim (VII) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. Petitioner proffers no basis for his
speculation that prior to being given the new instruction the jury
was predisposed to find in favor of the petitioner concerning the
terms “willful and deliberate.” Petitioner does not challenge the
11
additional instruction as being an inaccurate statement of the law.
Counsel’s representation does not fall “below an objective standard
of reasonableness” when he requests an instruction that properly
states the law. Further, 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.
In claim (VIII), petitioner alleges that trial counsel was
ineffective for failing to object to the trial court’s issuance of
a revised finding instruction on “stabbing in the commission of a
felony.” Petitioner asserts counsel improperly agreed to a change
that made it easier for the jury to resolve its questions and
expanded the range of behavior that justified a finding. The
record reflects that petitioner was indicted on a charge of
unlawfully stabbing, cutting or wounding the victim in the
commission of a felony. The initial finding instruction referenced
“using a knife in the commission of a felony.” During
deliberations, the jury asked the court whether the offense
required a knife only. Trial counsel then agreed with a substitute
finding instruction that described the offense as “guilty of
stabbing, cutting or wounding in the commission of a felony, as
charged in the indictment.”
The Court holds that claim (VIII) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The Court finds that the substitute
finding instruction accurately described the offense charged in the
indictment, and counsel’s representation did not fall “below an
objective standard of reasonableness” for agreeing to a proper
instruction. Further, petitioner has failed to demonstrate that
there is a reasonable probability that, but for counsel's alleged
12
error, the result of the proceeding would have been different.
In claim (IX), petitioner alleges that trial counsel was
ineffective for failing to preserve for direct appeal the pre-trial
motion for a change of venue based on extensive publicity about the
murder. On direct appeal, the Court held that counsel’s failure to
preserve the continuing motion before the jury was impaneled
constituted a waiver pursuant to Rule 5:25. Jackson, 266 Va. at
430-31, 587 S.E.2d at 539.
The Court holds that claim (IX) fails to satisfy the
“prejudice” prong of Strickland. The trial court struck all the
members of the venire who were aware of the murder based on media
accounts or personal knowledge, except for Sandra Peiffer whose
participation as a juror was upheld on direct appeal. Jackson, 266
Va. at 435, 587 S.E.2d at 541-42. Furthermore, a panel of 24 jurors
was selected after voir dire of only 42 prospective jurors. Thus,
jury selection in this case was accomplished with relative ease.
See Kasi v. Commonwealth, 256 Va. 407, 420, 508 S.E.2d 57, 64
(1998), cert. denied, 527 U.S. 1038 (1999) (holding that jury
selection was accomplished with relative ease when a panel of 24
jurors was selected after voir dire of only 58 prospective jurors).
The ease of seating a jury is a relevant factor in determining
whether a motion for a change of venue should be granted. Thomas v.
Commonwealth, 263 Va. 216, 232, 559 S.E.2d 652, 661 (2002). On this
record, the attorney’s performance was not deficient because the
motion, even if made, would not have been successful. Furthermore,
petitioner has failed to prove that, but for counsel’s alleged
error, there is a reasonable probability that the result of the
proceeding would have been different. See Strickland, 466 U.S. at
687.
In claim (X), petitioner alleges that trial counsel was
ineffective for failing to preserve for direct appeal the pre-trial
motion to limit the Commonwealth’s presentation of crime scene and
13
autopsy photographs of the victim. The trial court held that the
motion was premature because the Commonwealth had not identified
which of the photographs it intended to use. On direct appeal, the
Court held that counsel’s failure to object at trial to the
admission of the fourteen photographs constituted a waiver pursuant
to Rule 5:25. Jackson, 266 Va. at 431, 587 S.E.2d at 539.
The Court holds that claim (X) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. The record, including the pre-trial
motion to limit the photographs and the transcripts, demonstrates
that counsel moved to exclude photographs which were either
cumulative or of the autopsy. The motion was dismissed as
premature. At the time of trial, however, the Commonwealth had
selected fourteen photographs and trial counsel had no objections.
Counsel then used several of the photographs during jury selection
as a tactical decision to identify jurors who could be adversely
affected by the photographs and other evidence. Such tactical
decisions are an area of trial strategy left to the discretion of
counsel. See Strickland, 466 U.S. at 689-90. Petitioner has not
identified any photographs that were cumulative or unduly
prejudicial. On direct appeal, the Court held in its
proportionality review that the pictures “accurately depicted the
condition of the victim....” and noted “the jury was entitled to use
the photographs to make an informed decision on the [petitioner’s]
guilt.” Jackson, 266 Va. at 441, 587 S.E.2d at 545. Thus,
petitioner has failed to demonstrate how 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 trial counsel was
ineffective for failing to request the trial court to conduct a
proportionality review of the jury’s imposition of the death penalty
14
to determine whether it was based upon passion and prejudice. The
Court holds that claim (XI) satisfies neither the "performance" nor
the "prejudice" prong of the two-part test enunciated in Strickland.
Proportionality review is entirely a creature of statute and is not
required by either the federal or Virginia constitutions. Winston
v. Commonwealth, 268 Va. 564, 620, 604 S.E.2d 21, 53 (2004). Code §
17.1-313 imposes the requirement to conduct such a review upon this
Court, not upon the trial court. Id.; Jackson, 266 Va. at 431-32,
587 S.E.2d at 540. Counsel is not deficient for failing to assert a
claim that has no merit. See Kimmelman v. Morrison, 477 U.S. 365,
375 (1986). Further, having conducted the statutorily required
proportionality review, this Court concluded that the sentence was
not the result of passion or prejudice and was not disproportionate.
Jackson, 266 Va. at 441-42, 587 S.E.2d at 545-46. Thus, 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.
In claim (XII), petitioner alleges that trial counsel was
ineffective for failing to object to the Commonwealth Attorney’s
penalty phase argument to the jury comparing the worth of the
petitioner and the victim. The record reflects that the
Commonwealth referred to the victim as “a gift to the community” and
to petitioner as someone “who was given everything and only sought
to take more.” The Commonwealth then argued that the jury should,
“[w]eigh the life he had against what he has taken, and when you do
you will know that the appropriate punishment for capital murder is
death.” Petitioner alleges counsel “should have protected
[p]etitioner from these comparisons” by objecting to this argument.
The Court holds that claim (XII) satisfies neither the
"performance" nor the "prejudice" prong of the two-part test
enunciated in Strickland. This Court has previously held that
15
“victim impact testimony is relevant to punishment in a capital
murder prosecution in Virginia." Weeks v. Commonwealth, 248 Va.
460, 476, 450 S.E.2d 379, 389-90 (1994). The record, including the
trial transcript, demonstrates that the Commonwealth’s comments
about the victim and petitioner were based on evidence already in
the record. Petitioner does not argue that the comments, standing
alone, were factually inaccurate or unsupported by the record.
Petitioner concedes that the United States Supreme Court approved
the use of victim impact evidence in Payne v. Tennessee, 501 U.S.
808 (1991), but argues there is a judicial movement towards
recognizing that victim impact statements and argument could be “so
unduly prejudicial that it renders the trial fundamentally unfair.”
Id. at 825. In support of this argument, petitioner asks this Court
to consider Humphries v. Ozmint, 366 F.3d 266 (4th Cir. 2004). The
United States Court of Appeals, however, has since vacated that
panel opinion and affirmed the judgment of the district court,
holding that the South Carolina Supreme Court did not err when it
held that the solicitor’s comparison of the defendant’s life to that
of the victim in closing argument during the sentencing phase did
not render the trial fundamentally unfair. Humphries v. Ozmint, 397
F.3d 206, 226 (4th Cir. 2005) (en banc). 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 (XIII), petitioner alleges that trial counsel was
ineffective for failing to adequately challenge the unconstitutional
character of the death penalty in Virginia. Petitioner presents an
argument relying upon various reports including a 2000 report of the
American Civil Liberties Union on the death penalty in Virginia and
a 2001 study of Virginia’s system of capital punishment by the
Commonwealth’s Joint Legislative Audit and Review Commission, which
16
he contends counsel should have raised “to the extent that the
factual basis...existed at the time of petitioner’s trial and direct
appeal proceedings.” This new argument cites four factors that have
purportedly rendered the imposition of the death penalty in Virginia
“unconstitutionally random and arbitrary:” the locus of the crime;
the disproportionate application for female victims and where the
races of the victim and defendant differ; the disproportionate
impact on indigent defendants represented by appointed counsel; and
the ineffectiveness of Virginia’s direct and collateral review
processes in detecting trial errors.
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
filed a pre-trial motion challenging the constitutionality of the
death penalty on various grounds including due process, equal
protection, and cruel and unusual punishment. Counsel’s supporting
memorandum contained arguments that the death penalty is
discriminatorily imposed; that the statutes deny defendants
meaningful review on direct appeal; and that the statutes deny the
effective assistance of counsel because of the manner in which
Virginia appoints counsel for the indigent and because the
collateral review of ineffective assistance of counsel claims is not
meaningful. This Court rejected petitioner’s constitutional
challenges on direct appeal. Jackson, 266 Va. at 429-30, 587 S.E.
2d at 538-39. Counsel is not ineffective for making strategic
decisions on the selection of arguments that advance a meaningful
constitutional attack on a statute. See Strickland, 466 U.S. at
689-90. Further, the constitutionality of the death penalty has
been upheld repeatedly by this Court. Lovitt v. Commonwealth, 260
Va. 497, 508, 537 S.E.2d 866, 873-74 (2000), cert. denied, 534 U.S.
815 (2001). Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient, or that there is a reasonable
17
probability that, but for counsel’s alleged error, the result of the
proceeding would have been different.
In an unenumerated claim, petitioner alleges that all of the
“foregoing claims” of ineffective assistance of counsel constitute
separate claims for relief “based on the direct violations of his
said constitutionally protected rights.” The Court holds that this
claim is 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.
Finally, petitioner recites, “The Newport News Circuit Court
interfered with petitioner’s investigation of possible juror
improprieties.” Petitioner further states that he filed with this
Court an appeal of the circuit court’s order denying him a copy of
the “jury list” containing the addresses and telephone numbers of
the jury panel and “for the purposes of this petition, Petitioner
prays this Court to preserve the issue of juror misconduct until
Petitioner’s counsel may have access to the information allowing
them to locate and question the jurors.” The Court declines “to
preserve the issue of juror misconduct.” Despite habeas counsel’s
representation of having spoken with three jurors (one of whom
refused to speak) and one alternate juror, the petition contains no
factual allegations regarding, or even indicating, any type of juror
misconduct.
Petitioner’s requests for a plenary hearing, for leave to
conduct discovery, for reasonable litigation expenses, and for leave
to amend the petition are denied.
Accordingly, the petition is dismissed.
A Copy,
Teste:
Clerk
18