Lenz v. Warden of the Sussex I State Prison

UPON REHEARING

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, Lemons,
and Agee, JJ.

MICHAEL W. LENZ

v. Record No. 012883 OPINION BY JUSTICE ELIZABETH B. LACY
March 5, 2004
WARDEN OF THE SUSSEX I
STATE PRISON

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

In this case we granted a rehearing to the Warden to

consider whether trial counsel were ineffective because they

did not object to the verdict form given to the jury in the

sentencing phase of petitioner's capital murder trial. The

Warden argues that the verdict form the jury considered was

proper under this Court's holding in Atkins v. Commonwealth,

257 Va. 160, 178, 510 S.E.2d 445, 456 (1999), and that trial

counsel could not have been ineffective for failing to

anticipate this Court's subsequent decision in Powell v.

Commonwealth, 261 Va. 512, 545, 552 S.E.2d 344, 363 (2001),

requiring that the jury receive a verdict form that

specifically states that a life sentence may be imposed even

after finding one or both aggravating circumstances. The

Warden is correct.

In Atkins the jury was not given a verdict form that

allowed it to impose a life sentence if the Commonwealth

proved neither of the aggravating factors beyond a reasonable
doubt. 257 Va. at 178-79, 510 S.E.2d at 456-57. The defense

had offered the statutory verdict form, Code § 19.2-264.4,

that allowed this sentencing option, but the trial court

refused that form. Id. at 171-72, 510 S.E.2d at 452. We held

that the total absence of any jury verdict form allowing

imposition of a life sentence if neither of the aggravating

factors was proven was reversible error. Id. at 179, 510

S.E.2d at 457. We noted that, had the trial judge selected

the statutory verdict form Atkins' counsel offered, the

missing sentencing option would have been submitted to the

jury. Id. at 178, 510 S.E.2d at 456. That issue is not

present in this case, however, because the jury received the

statutory verdict form absent in Atkins.1

The issue petitioner raises here is whether the verdict

form must specifically provide the option of imposing a

sentence of life when the Commonwealth has established one or

both aggravating factors. We addressed that issue for the

1
The verdict form before the jury in the sentencing phase
of petitioner's capital murder trial comports with the
language contained in Code § 19.2-264.4(D):

We, the Jury, on the issue joined, having
found the defendant guilty of Capital
Murder, as charged in the indictment, and
having considered the evidence in
aggravation and mitigation of the offense,
fix his punishment at imprisonment for life.

2
first time in Powell. 261 Va. at 542, 552 S.E.2d at 361.

Powell was not decided until after petitioner's capital murder

trial concluded. Therefore, trial counsel could not have been

ineffective for failing to anticipate this Court's subsequent

decision in Powell, Kornahrens v. Evatt, 66 F.3d 1350, 1360

(4th Cir. 1995), and petitioner is not entitled to a new

sentencing hearing on that basis.

In light of this holding, we must address the claims in

petitioner's petition for writ of habeas corpus relating to

the sentencing phase of his capital murder trial.2 These

claims are allegations of improper jury contacts and

communications in connection with his sentencing hearing,

Claims I and II, and various allegations of ineffective

assistance of counsel in the sentencing proceeding, Claim VII.

CLAIMS I AND II

In Claim I, petitioner asserted that the bailiff in his

trial provided ex parte answers to jurors' questions about the

court's sentencing instructions and, in Claim II, that Juror

Anita J. Durrett was improperly seated and that one or more

jurors consulted a Bible in the jury room during sentencing

2
Petitioner raised ten claims in his petition for writ of
habeas corpus. In our original opinion we specifically
declined to address petitioner's claims relating to his prior
sentencing hearing and dismissed all his claims except the
claim involving the verdict form. Lenz v. Warden, 265 Va.
373, 379, 381-82, 579 S.E.2d 194, 197-99 (2003).

3
deliberations. We referred Claims I and II to the Circuit

Court of Augusta County for an evidentiary hearing by order

entered June 17, 2002.

Following the evidentiary hearing on August 9, 2002, the

circuit court issued a letter opinion stating its findings of

fact, conclusions of law, and recommendations. The circuit

court recommended rejecting both claims, finding that the

petitioner did not carry his burden of proof to establish that

the jury had asked the bailiff questions concerning their

sentencing instructions, that there was no evidence that Juror

Durrett was biased in favor of the death penalty, and that

there was "no reasonable possibility that the jury verdict was

influenced by an improper communication in the form of a

quotation from the Bible."

Petitioner filed a brief with this Court raising a number

of objections to the findings and conclusions of the circuit

court. The Commonwealth filed a brief responding to

petitioner's arguments and supporting the circuit court's

conclusions. Petitioner filed a reply brief.3

We begin by addressing two preliminary matters: the

Commonwealth's assertion that Claims I and II are procedurally

barred by the rule in Slayton v. Parrigan, 215 Va. 27, 205

3
Petitioner also filed a supplemental brief that was
rejected by order dated February 23, 2003.

4
S.E.2d 680 (1974), and petitioner's complaint that the circuit

court erred by limiting the evidentiary value of affidavits

submitted in the case.

A. Procedural Bar

The Commonwealth asserts that Slayton precludes

consideration of petitioner's Claims I and II in this habeas

corpus proceeding because petitioner did not raise those

claims at trial and on direct appeal. We disagree.

Slayton holds that one may not use a habeas corpus

proceeding as a substitute for appeal. 215 Va. at 29, 205

S.E.2d at 682. Slayton makes clear, however, that this

procedural bar operates when the petitioner "has been afforded

a fair and full opportunity to raise and have adjudicated" the

constitutional issue at trial and on appeal. Id. If the

petitioner did not have that "fair and full opportunity"

during his criminal trial and direct appeal, the rule in

Slayton does not apply. See DiPaola v. Riddle, 581 F.2d 1111,

1113-14 (4th Cir. 1978).

In this case, the Commonwealth asserts that the Slayton

bar operates because the petitioner could have procured

information from the jurors regarding communications with the

bailiff and the presence and use of the Bible during sentence

deliberations "sooner − immediately after trial, in fact."

Adopting the Commonwealth's rationale for applying the Slayton

5
bar in this case would in effect impose a requirement on

defense counsel to poll jurors and any other persons involved

with the criminal trial immediately following the trial, often

at the same time that counsel is involved in filing post-trial

motions and preparing for appeal. Failure to conduct such a

poll or investigation in every case would then subject counsel

to an ineffective assistance of counsel claim in a habeas

corpus proceeding. We decline to impose such a requirement.

Absent any indication that counsel or petitioner knew or

should have known of the complained of conduct at a time when

the trial court could address the misconduct allegations, the

procedural bar in Slayton does not apply.

In this case there is no evidence that trial counsel or

petitioner had any information indicating that counsel should

have interviewed the jury members or the bailiff, and the

Commonwealth suggests none. Accordingly, we conclude that

Slayton does not bar petitioner's Claims I and II.

B. Affidavits

In its opinion letter, the circuit court stated that it

based its findings on the testimony of the witnesses at the

hearing and that it relied on the affidavits the petitioner

and respondent filed only as they affected the credibility of

the witnesses.

6
 Petitioner asserts that the trial court erred in not

considering the affidavits as substantive evidence. He

suggests that because Code § 8.01-660 allows the use of

affidavits as evidence in a habeas corpus proceeding and

because at least some of the affiants did testify, the circuit

court should have either found that the affidavits were

credible testimony or resolved any credibility questions he

had through cross-examination of the testifying affiants.

Code § 8.01-660 provides that

In the discretion of the court or judge before whom
the petitioner is brought, the affidavits of
witnesses taken by either party, on reasonable
notice to the other, may be read as evidence.

This statute makes consideration of affidavits as substantive

evidence a matter in the court's discretion. Accordingly, we

apply an abuse of discretion standard when reviewing the

circuit court's decision regarding the use of the affidavits

in this case.

The circuit court identified a number of reasons why it

did not consider the affidavits as substantive evidence,

including that they had no indicia of inherent credibility,

were taken without benefit of a transcript, and were taken a

significant time after the events occurred. Based on this

record, we cannot say that the circuit court abused its

7
discretion in refusing to consider the affidavits as

substantive evidence.

We now turn to the circuit court's findings of fact and

conclusions of law regarding the claims that were the subject

of the evidentiary hearing. When we refer a petition for a

writ of habeas corpus involving a capital murder case to a

circuit court for an evidentiary hearing, we give deference to

the circuit court's factual findings and consider those

findings binding upon this Court unless they are plainly wrong

or without evidence to support them. Hedrick v. Warden, 264

Va. 486, 496, 570 S.E.2d 840, 847 (2002). We review de novo

any questions of law or mixed questions of fact and law that

the circuit court addressed. Id.

C. Improper Communications with the Bailiff

Responding to jury inquiries regarding sentencing

instructions without notifying defendant or his counsel

violates a defendant's Sixth Amendment right to counsel.

Rogers v. United States, 422 U.S. 35, 39-40 (1975); Remington

v. Commonwealth, 262 Va. 333, 360, 551 S.E.2d 620, 636-37

(2001); Palmer v. Commonwealth, 143 Va. 592, 605, 130 S.E.

398, 402 (1925). Petitioner claimed that he was deprived of

his Sixth Amendment right because the bailiff provided ex

parte responses to juror questions regarding the instructions

the jurors received in the sentencing phase of his capital

8
murder trial. Petitioner has the burden to establish that

such improper contact occurred. Stockton v. Virginia, 852

F.2d 740, 743 (4th Cir. 1988).

As recited above, the circuit court found no credible

evidence to support petitioner's allegations of improper

contact and rejected petitioner's misconduct claim.

Petitioner challenges these findings, asserting that the "most

credible evidence" shows that the jurors had questions about

the sentencing instructions during deliberations and the

bailiff answered some of their questions. Petitioner's attack

on the sufficiency of the evidence relies wholly on statements

in petitioner's affidavits; however, as we stated above, the

circuit court did not and was not required to consider those

affidavits as substantive evidence.

A review of the record shows that some of the jurors and

the bailiff could not recall whether the bailiff was asked any

questions at all; other jurors recalled that they asked the

bailiff some questions. No juror testified that any of the

questions that may have been asked related to the trial

court's instructions. Thus, the circuit court's factual

findings are neither plainly wrong nor without evidence to

support them and therefore are binding on us. Hedrick, 264

Va. at 496, 570 S.E.2d at 847.

9
 Accordingly, we find that petitioner failed to carry his

burden to show that an improper contact occurred, and we

reject this claim.

D. Extraneous Influence

The second claim we referred to the circuit court for an

evidentiary hearing was that petitioner was denied his rights

under the Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution because jurors read from and relied

upon passages in the Bible in making their sentencing

determination. The United States Supreme Court set out the

following standard for evaluating a claim of extraneous jury

contact:

In a criminal case, any private communication,
contact or tampering, directly or indirectly, with
a juror during a trial about the matter pending
before the jury is, for obvious reasons, deemed
presumptively prejudicial, if not made in pursuance
of known rules of the court and the instructions
and directions of the court made during the trial,
with full knowledge of the parties. The
presumption is not conclusive, but the burden rests
heavily upon the Government to establish, after
notice to and hearing of the defendant, that such
contact with the juror was harmless to the
defendant.

Remmer v. United States, 347 U.S. 227, 229 (1954).

The circuit court found as a matter of fact that one

juror "had at least one Bible and perhaps a 'Woman's

Devotional' with her in the jury room during the deliberations

in the penalty phase of the trial." The circuit court also

10
found that the Bible was open during deliberations, that one

juror read from it, and that other jurors looked at it. The

circuit court assumed that those jurors who looked at the

Bible did read from it but found that there was no evidence

showing what Bible passage or passages were read.

The circuit court, applying Remmer, Burch v. Corcoran,

273 F. 3d 577 (4th Cir. 2001), and Stockton, concluded that,

absent any probative evidence that a juror relied on the

contents of a passage in the Bible in making the sentencing

decision, there was "no reasonable possibility that the jury

verdict was influenced by an improper communication in the

form of a quotation from the Bible."

Petitioner asserts that the circuit court erred in a

number of particulars in finding that there was no indication

that the "jury verdict was influenced by an improper

communication in the form of a quotation from the Bible." The

petitioner first complains that the circuit court's factual

findings ignore various jurors' testimony that the Bible was

read aloud and was consulted for purposes of determining what

punishment was appropriate for the crime of murder. As with

his complaints regarding the factual findings regarding

communications with the bailiff, the petitioner bases this

challenge on statements in the petitioner's affidavits, not on

testimony at the evidentiary hearing. As we have previously

11
stated, the trial court was not required to credit the

statements in the affidavits. Our review of the record shows

that the circuit court's factual findings are consistent with

the hearing testimony and are not plainly wrong. Thus, those

factual findings are binding upon us. Hedrick, 264 Va. at

496, 570 S.E.2d at 847.

The petitioner also complains that the circuit court

improperly misallocated the burden of proof in his claim of

extraneous jury contact. The Remmer presumption of prejudice

arises upon a showing of two elements: that an extraneous

contact with or by a member of the jury took place and that

such contact was "about the matter pending before the jury."

Remmer, 347 U.S. at 229. The character of the extraneous

contact must "reasonably draw into question the integrity of

the verdict." Stockton, 852 F.2d at 743. Once the petitioner

shows both elements, the presumption arises, the petitioner is

relieved of proving actual prejudice, and the burden shifts to

the government to establish that the potentially prejudicial

contact was harmless. Remmer, 347 U.S. at 229.

In this case, the petitioner established the first

element but did not establish the second: the relevance of

the contact to the pending matter. The circuit court found

that extraneous material, the Bible, was present in the jury

room during deliberations, but the circuit court also found

12
that there was no evidence of what Bible passages were read.

Implicit in this finding is a determination that no evidence

showed that jurors read Bible passages relating to the

sentencing decision. Thus, petitioner did not establish that

the "contact" with the Bible was "about the matter pending

before the jury."

Petitioner concedes that no evidence shows which Bible

passages were read. Nevertheless, petitioner argued

strenuously to this Court that "the evidence clearly

established that several of the jurors read passages regarding

the appropriate punishment for murder." Our review of the

record indicates otherwise.

At the evidentiary hearing, petitioner read Juror Durrett

a portion of the affidavit she gave to the petitioner in which

she stated that she had a Bible with her during the trial and

that while deliberating on the sentence "some jurors were able

to point to passages in the Bible that support the death

penalty for anyone who kills another person." In response to

petitioner's questions about these statements, Juror Durrett

testified that she could not recall which jurors had asked

about the Bible, that another juror had identified a book of

the Bible which contained information about death, that jurors

had referred to the location of passages in the Bible from

memory, that she had her Bible in the room but did not think

13
that she had it open during deliberations, and that no one had

"read out loud" from the Bible.

Juror Sallie Zirkle testified that a "female juror" did

read from the Bible, but Juror Zirkle could not remember which

juror did the reading, what verse was read, why it was read,

or if the reading occurred during the jury's deliberations

regarding guilt or sentencing.

Juror Barbara Pack testified that, while a Bible was on

the table in the jury room, she did not know if anyone other

than the owner of the Bible read or looked at the Bible.

Juror Pack "assumed" the owner of the Bible was reading it

when she "looked" at it.

Juror John M. Harmon testified that nothing was read

aloud from the Bible. He did not know what the owner of the

Bible read, if anything, when "looking through" it. Juror

Joan Lafferty testified that the Bible was a Women's

Devotional Bible and that neither the owner nor any other

juror read from this book.

The only reference to a matter related to the sentencing

decision was Juror Durrett's testimony that a juror recited,

by memory, the location of a Bible passage relating to the

appropriate punishment for murder. This is not evidence that

the jury consulted, read aloud, or discussed the referenced

passage or any other Bible passage.

14
 The circuit court's implicit and explicit factual

findings – that there was no evidence establishing that the

jurors' contact with extraneous material involved the "subject

matter" before the jury – are supported by the record and not

plainly wrong. Based on these factual findings, we agree that

the petitioner failed to carry his burden of showing an

extraneous contact with the jury about the pending sentencing

decision such that the integrity of the jury's verdict was

reasonably drawn into question. Therefore, petitioner has not

made the threshold showing entitling him to the presumption of

prejudice. See Burch, 273 F.3d at 591.

Petitioner also challenged the seating of Juror Durrett

based on the statement in her affidavit that the "Bible says

that the death penalty is the appropriate punishment for

murder." This statement, he asserts, shows that seating her

violated the principles set forth in Morgan v. Illinois, 504

U.S. 719, 729 (1992), because she would automatically vote for

the death penalty in every case. The circuit court rejected

this claim. After reviewing Juror Durrett's voir dire

testimony during the capital murder trial, the circuit court

found that she "was specifically asked whether she would

consider both alternatives available to her, either life

without parole or death, and that she answered she would."

Based on this finding, the circuit court concluded that there

15
was no support for the proposition that Juror Durrett was

biased in support of the death penalty and recommended that

this claim be denied.

We also reject petitioner's claim that Juror Durrett was

biased in support of the death penalty. The record supports

the circuit court's findings of fact. The single statement in

her affidavit regarding an "appropriate punishment" is

insufficient evidence upon which to find that Juror Durrett

herself concurred with the statement and that she would

automatically apply this "appropriate punishment" in every

capital murder case. During voir dire, Juror Durrett was

specifically asked whether she had any religious,

philosophical, or moral beliefs that would prevent her from

imposing the death sentence and she responded "no." She was

also asked if she would consider both life imprisonment

without parole and death as alternative penalties and she

responded that she would. Accordingly, we conclude that

seating Juror Durrett did not violate the requirements of

Morgan v. Illinois.

Accordingly, we reject Claim II.

CLAIM VII

In Claim VII, petitioner asserted that he was denied

effective assistance of counsel in the sentencing phase of his

capital murder trial because counsel failed to investigate and

16
present the circumstances of the offense, evidence regarding

petitioner's religion, and evidence regarding petitioner's

background; failed to develop relevant evidence regarding

petitioner's mental illness, to investigate the implications

of petitioner's medications, and to obtain the assistance of

an independent expert; and unreasonably failed to seek

additional time to investigate, all of which individually and

collectively prejudiced him.

To prevail on these claims, petitioner bears the burden

of showing that his counsel's performance was objectively

deficient and that the deficient performance prejudiced him.

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

applying the performance prong of this test, the issue is

whether counsel's acts or omissions were unreasonable in light

of all the circumstances. Id. at 688. That determination

begins with a strong presumption that counsel's actions fall

within the wide range of adequate professional assistance, and

this presumption bars an inadequate assistance claim if the

complained of conduct might have been the result of tactics or

strategy. Id. at 689; Darden v. Wainwright, 477 U.S. 168,

185-86 (1986).

The "prejudice" prong of the Strickland test requires the

petitioner to show that there is a "reasonable probability

that, but for counsel's unprofessional errors, the result of

17
the proceeding would have been different." 466 U.S. at 694.

A "reasonable probability" is more than a "possibility" of

prejudice; it is a "probability sufficient to undermine

confidence in the outcome." Id. The errors must have

"actually had an adverse effect on the defense." Id. at 693.

Further, in applying this two-prong test, we need not

determine whether counsel's performance was deficient before

addressing the prejudice prong. If the petitioner fails to

show the requisite prejudice, we need not scrutinize counsel's

performance. Id. at 697.

A. Failure to Seek Additional Time to Investigate

On April 17, 2000, counsel for petitioner requested a

continuance based on difficulties they were experiencing in

meeting with petitioner and contacting other potential

witnesses. The trial court granted a two-month continuance.

Counsel did not seek a second continuance. Petitioner asserts

that his counsel should have sought a second continuance

because of difficulties in obtaining information and testing

regarding petitioner's background. We reject this claim.

Petitioner recites that "the trial court would have likely

granted" a second continuance if counsel had sought one and

that without the continuance counsel "were . . . unable to

investigate and present all relevant evidence" regarding

petitioner's background, religion, and mental health history.

18
The evidence petitioner proffers in support of this claim is

that some experts were not appointed until shortly before

trial, and affidavits from his trial counsel and mitigation

specialist explaining difficulties in meeting with petitioner

and expressing the opinion that "[e]veryone . . . could have

used" more time.

Many of the difficulties the mitigation expert

experienced in meeting with petitioner were the result of her

schedule and location. Even in light of those difficulties,

the mitigation expert affirmed counsel's mitigation strategy.

There is no evidence that any of petitioner's experts told his

counsel that they needed more time. Under these circumstances

we cannot say that counsel's failure to seek a second

continuance was unreasonable under the circumstances and,

accordingly, we reject this claim. Strickland, 466 U.S. at

689.

B. Failure to Investigate and Present Circumstances of
the Offense

Citing affidavits his fellow inmates submitted,

petitioner asserts that his trial counsel should have

investigated and introduced evidence regarding petitioner's

dedication to the Asatru religion, including his belief in,

and fear of, "life-threatening black magic," which the victim,

Brent H. Parker, allegedly was using against petitioner. Such

19
evidence, petitioner claims, would have demonstrated to the

jury that he did not kill Parker because of a depraved mind

but because he feared for his life.4

We reject this claim. First, the petitioner presented

this evidence to the jury through his own testimony.

Petitioner testified about the nature of the Asatru religion

and his dedication to it as well as his relationship with the

victim and the threats the victim made toward him.

Petitioner also asserts that the inmate's testimony would

have shown that the killing was not related to petitioner's

depravity of mind, one of the grounds for establishing the

vileness aggravating factor. However, this assertion does not

address the other grounds supporting a finding of vileness –

torture and aggravated battery. The evidence that the victim

was stabbed 68 times supports a finding of vileness based on

torture or aggravated battery. Furthermore, the jury also

found that petitioner would be a future danger to society.

Nothing in the alleged missing testimony would have affected

that finding.

Accordingly, we reject petitioner's claim because he

failed to show that, had the additional testimony he cites

4
We do not treat petitioner's arguments as asserting a
claim of self-defense. At issue here is the sentencing
proceeding, at which point the jury had already rejected such
claim.

20
been presented to the jury, there would have been a reasonable

probability of a different result. Strickland, 466 U.S. at

694.

C. Failure to Investigate and Present Relevant Evidence
Regarding Petitioner's Religion

Petitioner claims that presenting evidence of the Asatru

religion and his immersion in it solely through his own

testimony was insufficient to inform the jury of the true

nature of the religion and its significance in his life.

Without receiving this information from other witnesses such

as fellow inmates or acquiring an understanding of prison

dynamics from an expert in prison life, petitioner asserts,

the jury was left with the "sole impression that Lenz's

religion was nothing more than a dangerous and scary cult."

If the jury had such information, petitioner concludes, "there

is a reasonable probability that the jury would not have

sentenced Lenz to death."

We reject this claim. Nothing in the record suggests

that the prison life expert petitioner asserts counsel should

have called, James E. Aiken, had any knowledge of the Asatru

religion or of petitioner's involvement in it. The record

shows only that Aiken had qualified as an expert in "prison

operations and classifications" and would have testified

21
regarding the probability of petitioner's future

dangerousness.

The record does show that petitioner called as a witness

the prison psychologist who had interviewed him following the

murder. The witness described some of the tenets of the

Asatru religion. The witness testified that he believed

petitioner was sincere in his dedication to this religion.

The record shows that petitioner's trial counsel did

attempt to put on the dynamics of the prison atmosphere and

religious groups through the prison psychologist. Counsel

ceased that line of questioning when the witness' answer

indicated a lack of violence connected with the Asatru

religious group and when the trial court barred further

inquiries regarding violent acts by other religious groups in

the prison. Counsel's decision to end this line of

questioning apparently was a strategic decision based on the

court's ruling and the testimony of the prison psychologist.

Similarly, the inmate testimony petitioner asserts that

the jury should have heard did not involve the substance of

the Asatru religion. That testimony described the contrast

between petitioner's immersion in his religion and the

victim's aggressive, bullying, non-religious character, as

well as the relationship between petitioner and his victim.

Petitioner himself testified to this evidence, and as

22
previously stated, other testimony related to the sincerity of

petitioner's religious beliefs.

This record does not support a finding that petitioner's

counsel acted unreasonably in light of all the circumstances

or that the failure to present testimony of other inmates and

James Aiken raises a reasonable probability that the result of

the sentencing proceeding would have been different.

Strickland, 466 U.S. at 689, 694.

D. Failure to Properly Investigate and Present Relevant
Evidence Regarding Petitioner's Background

Petitioner complains, in part, that trial counsel were

ineffective because they failed to investigate and develop

information about petitioner's family history of alcoholism,

drug abuse, and mental illness. We reject this part of the

claim.

Petitioner obtained an affidavit from trial counsel

stating that efforts were made to locate petitioner's

biological father but that they "never located [petitioner's]

biological father, or any other members of his biological

paternal family." Counsel did not make a decision that finding

these persons was unnecessary, compare Wiggins v. Smith,

___U.S. ___, 123 S.Ct. 2527 (2003); rather their investigation

of these matters was unsuccessful. Under these circumstances,

23
we cannot say that counsel's actions "fell below an objective

standard of reasonableness." Strickland, 466 U.S. at 688.

Petitioner also complains that his trial counsel were

ineffective because they did not present detailed information

regarding his psychiatric institutionalizations, diagnoses,

and treatments. We reject this claim also.

First, petitioner does not assert that counsel were

deficient in failing to investigate his background.

Petitioner acknowledges that counsel had obtained the records

relevant to the evidence he now asserts should have been

presented to the jury. "[C]ounsel had . . . stacks of records

regarding Lenz's treatment and diagnoses." He also

acknowledges that both petitioner and his mother testified

regarding his childhood and institutionalizations. That

testimony provided the jury with the following information.

Petitioner's mother met his biological father, Michael W.

Stagenga, while Stagenga was a student at the United States

Naval Academy, and they married upon Stagenga's graduation.

When petitioner was born in 1964, Stagenga was stationed in

Vietnam. Petitioner's parents divorced in 1967, in part

because his mother was concerned that his father had a

drinking problem.

Petitioner and his mother returned to Virginia. His

mother married Bill Lenz, a Navy helicopter pilot, in April

24
1968. Bill Lenz wanted to and eventually did adopt

petitioner. Mrs. Lenz testified that Bill Lenz never told

petitioner that "he loved him" and was intense and strict with

petitioner. Bill Lenz told Mrs. Lenz not to "hug" petitioner

all the time.

The Lenz family moved a number of times as Bill Lenz's

station assignments changed. In first grade, Mrs. Lenz was

told that her son was "rough on the play ground" and "fidgety

in class." When he was in second grade, petitioner's brother

Lance was born.

When petitioner was in fourth grade, his parents sent him

to San Diego Children's Home, a day school, because he was

having trouble controlling his anger. The family went to

counseling although Bill Lenz "didn't like it." The next year

the family returned to Virginia when Bill Lenz left the Navy

and joined the Secret Service. Petitioner attended public

schools in Woodbridge and needed no special help. He was

involved in scouting, soccer, and church activities. Mrs.

Lenz testified that petitioner and Bill Lenz had no close

father-son relationship and that Bill Lenz disciplined

petitioner by making him go to his room for long periods of

time. There was no physical abuse.

When petitioner was 14 years-of-age, his mother was

looking after a neighbor's house and car while the neighbor

25
was away. Petitioner and a friend took the car keys and drove

the car around. When confronted, petitioner was "scared",

and, according to Mrs. Lenz, held a kitchen knife and

threatened to take his own life. As a result of this

incident, petitioner's parents admitted him to Potomac

Hospital, a crisis center, in Woodbridge, Virginia. He was

transferred to Dominion Psychiatric Treatment Center

(Dominion) in Falls Church, Virginia, a few weeks later

because he was showing depression and repressing anger. The

family participated in counseling, although Bill Lenz was

embarrassed "about it" and didn't like doing it.

A few months after petitioner was released from Dominion,

he and a boy he had met at Dominion burglarized a home and

stole some jewelry. Petitioner was returned to Potomac Crisis

Center at the insistence of Bill Lenz. At the hearing on the

burglary charges, the juvenile court judge sent petitioner to

Commonwealth Psychiatric Hospital (Commonwealth) in Richmond

as an alternative to jail. The family participated in

counseling while petitioner was at Commonwealth.

When released from Commonwealth, petitioner was enrolled

in Gladden School, a school for boys with behavioral problems.

That school closed. Petitioner again got "into trouble" and

this time was sent to Beaumont Learning Center. He acquired

his general equivalency diploma while at Beaumont. After one

26
trip home from Beaumont, petitioner did not return to Beaumont

as required. He went to Virginia Beach for two days.

When petitioner was released from Beaumont, his parents

had moved to New Jersey. He went to New Jersey and enrolled in

a small college. After a "short time," petitioner was in

"trouble" again and sentenced to jail in New Jersey. When

released, his mother, who had moved to Iowa, returned to New

Jersey and helped him find a place to stay there. Eventually

petitioner returned to Virginia.

Petitioner complains that this evidence is inadequate

because it does not recite the specific diagnoses and

treatments he underwent in the various institutions. However,

those records show that at age 14 petitioner tested at or above

grade level in all tested areas but spelling, had a verbal IQ

of 112, a performance IQ of 117 and a full scale IQ of 116. He

was classified in the bright to normal range. His

psychological evaluations showed that he had poor impulse

control, exhibited destructive behavior, had been using "pot"

for over a year, had used LSD, and had used cocaine for five

months before he was placed in Dominion. Petitioner also

admitted he was "dealing" to finance his drug supply. He was

evaluated as not psychotic but "demanding, infantile, depressed

and angry." The evaluator recommended help in improving his

self-esteem and controlling his anger. Later evaluations

27
reinforced the notion that petitioner was "above average" in

intelligence but continued to abuse drugs and alcohol.

In light of the information contained in the reports and

evaluations from the various institutions in which petitioner

received treatment, counsel's decision not to present more

detail regarding those reports was not unreasonable. The

particulars of those reports would have represented a "two

edged sword" that counsel often confront when constructing the

strategy most likely to assist rather than harm a client.

Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir. 1995)(cross-

purpose evidence capable of aggravation and mitigation).

Finally, petitioner has failed to show what the jury

could have heard that would have had a reasonable probability

of changing the sentencing result. The jury heard about

petitioner's unloving and demanding step-father, his natural

father's drinking problem, his suicidal tendencies, his low

self-esteem and feelings of worthlessness, and his own

extensive drug and alcohol use. The possibility that

description of these facts could have been presented in more

detail does not support a finding of a reasonable probability

that the jury would have reached a different result.

Strickland, 466 U.S. at 694.

E. Failure to Develop Relevant Evidence Regarding
Petitioner's Mental Illness

28
 Petitioner claims that his social and psychiatric history

indicates that he suffers from a "cognitive dysfunction" and

that this dysfunction leads to low self-esteem, suspiciousness,

paranoia, and eccentric behavior – actions that were documented

by prior evaluations of petitioner. Such dysfunction,

petitioner asserts, "helps explain" petitioner's loss of

control and extreme reaction to the victim's behavior. Thus,

petitioner concludes, his counsel were ineffective because they

did not sufficiently develop this information regarding his

mental illness.

Again we reject this claim. We note that petitioner is

not asserting that counsel failed to engage in any

investigation of petitioner's mental state; rather,

petitioner's complaint is that counsel's development and

presentation of the evidence was inadequate.

Petitioner's argument relies primarily on the affidavit

of a clinical neuropsychologist who tested petitioner and

reviewed his records years after the capital murder trial. At

the time of trial, petitioner had never been diagnosed with a

mental illness of any type. Petitioner's psychiatric

evaluations had identified psychological problems but never

suggested a mental illness or "cognitive dysfunction" amounting

to a mental illness.

29
 Counsel cannot be considered ineffective for failing to

develop a "mental illness" theory to use in mitigation when

such a condition had not even been suggested by any expert or

individual who had evaluated petitioner. See Poyner v. Murray,

964 F.2d 1404, 1418-19 (4th Cir. 1992).

F. Failure to Obtain Assistance of an Independent Expert

At trial, petitioner sought the assistance of James

Aiken as an expert witness on the operation and classification

of inmates in the Virginia prison system. The trial court

denied petitioner's motion to appoint this expert, saying that

the services of the expert were "expensive" and that the

information petitioner sought was available from persons who

were in Virginia and who could "tell you better how it's done."

Counsel for petitioner noted his objection but made no further

argument. At trial, petitioner called the Virginia Department

of Corrections Director of Operations and the Assistant Warden

of Operations at Red Onion Prison to testify on the system of

prisoner classification and security.

Petitioner argues that under Ake v. Oklahoma, 470 U.S. 68

(1985), he was entitled to an independent expert and that the

expert petitioner sought could have assisted in "preparing a

defense to the Commonwealth's case for future dangerousness" in

the context of a prison environment. Such assistance,

petitioner argues, would not have been forthcoming from

30
employees of the Commonwealth's prison system. Counsel's

failure to advise the trial court of the need for this

independent expert constituted ineffective assistance of

counsel, according to petitioner.

We reject this claim. Trial counsel appealed the denial

of petitioner's motion for the appointment of the expert at

issue on direct appeal. This Court resolved the issue, holding

that Ake did not require the trial court to appoint the expert.

Lenz v. Commonwealth, 261 Va. 451, 462, 544 S.E.2d 299, 305

(2001).

To the extent petitioner is complaining that counsel's

ineffectiveness is based on their failure to make the argument

that the expert would be testifying not only to prison

classifications and operation but also opining on petitioner's

future dangerousness in the context of a prison setting, we

also reject the claim. We have held that Code § 19.2-264.2

does not limit the consideration of whether the defendant would

pose a continuing threat to society to a "prison society"

because a defendant would be sentenced to life imprisonment

without parole. Lovitt v. Commonwealth, 260 Va. 497, 517, 537

S.E.2d 866, 879 (2000). While Lovitt was decided one month

after petitioner's sentencing proceeding, we cannot conclude

that counsel was ineffective for failing to advance an argument

that we have subsequently rejected.

31
 G. Failure to Investigate Implications
of Petitioner's Medications

Petitioner asserts that he was being treated with the

steroid prednisone and the antihistamine Benadryl at the time

of the murder and that trial counsel was ineffective for

failing to seek expert assistance to determine if these

medications negatively affected petitioner.

We reject this claim. Petitioner's mitigation theory

revolved around the sincerity of his religious beliefs and his

feelings of low esteem and repressed anger stemming from his

relationship with his step-father. Petitioner never suggested

that he was not in control of his actions when he stabbed and

killed Parker or that the sincerity of his religious beliefs

was the product of some adverse reaction to medication.

Decisions regarding trial strategy often require rejection of

other potential strategies. The course of actions petitioner

suggests in this habeas proceeding is inconsistent with the

trial strategy his trial counsel elected. We cannot conclude

that trial counsel's actions were deficient for failing to make

the argument petitioner suggests. Strickland, 466 U.S. at 689.

H. Cumulative Prejudice

Lastly, petitioner complains that the cumulative effect

of trial counsel's actions and omissions during the sentencing

phase "individually and cumulatively, prejudiced Lenz." We

32
reject this claim. Having rejected each of petitioner's

individual claims, there is no support for the proposition that

such actions when considered collectively have deprived

petitioner of his constitutional right to effective assistance

of counsel. Mueller v. Angelone, 181 F.3d 557, 586 n.22 (4th

Cir. 1999), Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir.

1998).

CONCLUSION

For these reasons, we deny the petition for a writ of

habeas corpus.

Writ denied.

JUSTICE KOONTZ, with whom CHIEF JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.

I respectfully dissent. At its core, the issue that

Michael W. Lenz raises in this habeas corpus case ultimately

evolves from our recent consideration of a defendant’s rights

in view of the awesome responsibility statutorily entrusted to

the jury in a capital murder case to determine whether a

defendant shall be sentenced to death or life imprisonment.

The jury’s determination is aided by two fundamental and

pertinent principles. A death sentence may not be imposed

unless the jury finds beyond a reasonable doubt that one or

both of the so-called aggravating factors of future

dangerousness or vileness have been proven. However, the jury

33
may fix the defendant’s punishment at life imprisonment even

when it finds that one or both of these aggravating factors

have been proven. Code §§ 19.2-264.2 and 19.2-264.4. In this

context, our decision in Atkins v. Commonwealth, 257 Va. 160,

178, 510 S.E.2d 445, 456 (1999), was premised upon the well

established rule that “it is materially vital to the defendant

in a criminal case that the jury have a proper verdict form”

reflecting all of its sentencing options. In my view, the

majority either ignores the rationale of Atkins or unduly

limits that rationale to the specific facts of that case. Our

subsequent decision in Powell v. Commonwealth, 261 Va. 512,

552 S.E.2d 344 (2001), illustrates the point that it is

reversible error when the jury is not given complete or

adequate verdict forms that comport with the correct statement

of the law given to the jury by the trial court in its

sentencing instructions regarding the sentencing options

available to the jury, regardless of the specific manner in

which those forms are incomplete or inadequate. For the

reasons that follow, I would vacate Lenz’s death sentence and

remand the case to the trial court for a new sentencing

hearing.

Beyond question, the jury in Lenz’s case was not given a

verdict form that specifically reflected the jury’s option of

imposing a life sentence, or a life sentence and a fine of not

34
more than $100,000, even if the jury found that the

Commonwealth had proven beyond a reasonable doubt one or both

of the aggravating factors necessary for imposing a sentence

of death. The trial court was required to provide the jury

with a verdict form expressly providing this sentencing

option, and we expressly so held in Powell, 261 Va. at 545,

552 S.E.2d at 363.

The Warden in this case misses the mark when arguing

essentially that there is no “Atkins error” in the verdict

forms given to Lenz’s jury because unlike Atkins the jury in

Lenz’s case was given the statutory verdict form provided by

Code § 19.2-264.4. That statutory verdict form was also given

to the jury in Powell and there we explained:

The issue is not whether the jury was provided with
the means to discharge its obligation. If that were
the only goal, it could be achieved by providing the
jury with a generic verdict form and advising the
jury to fill in the particulars of the sentence from
the instructions. Rather, the issue is whether the
jury is likely to be confused where it is instructed
that it may impose a sentence other than death if it
finds one or both of the aggravating factors have
been proven beyond a reasonable doubt, but receives
verdict forms that do not expressly state that the
jury is allowed to fix a sentence of life
imprisonment even though one or both aggravating
factors are present.

Id. at 545, 552 S.E.2d at 363. We applied the rationale of

Atkins in Powell and the specific deficiency in the verdict

35
forms given to the jury in the former case was not material to

our analysis in the latter case. Id.

The majority does not dispute that, in the absence of the

procedural differences in the two cases, Powell would control

the verdict form issue raised by Lenz in this case. In

Powell, the inadequacy of the jury verdict forms was an issue

raised at trial and preserved for appeal. Id. In Lenz’s

case, the very same issue was not raised at trial and

preserved for appeal. In Lenz’s direct appeal we raised the

issue, sua sponte, and asked the parties to address it in view

of our decision in Atkins. We ultimately held, however, that

the issue was procedurally defaulted under Rule 5:25 because

Lenz had neither raised the issue in the trial court nor

assigned error to the verdict forms before this Court. Lenz

v. Commonwealth, 261 Va. 451, 472, 544 S.E.2d 299, 311 (2001).

The issue is now before this Court on Lenz’s claim that his

counsel was ineffective in not preserving the issue of the

inadequate jury verdict forms used in his capital murder

trial.

Adopting the position asserted by the Warden in Lenz’s

habeas corpus case, the majority concludes that Lenz’s counsel

was not ineffective because “trial counsel could not have been

ineffective for failing to anticipate this Court’s subsequent

decision in Powell.” I agree, but counsel did not need to

36
anticipate our decision in Powell. In my view, trial counsel

was ineffective in not recognizing after our decision in

Atkins, which was rendered one and one half years prior to

Lenz’s trial, that it was materially vital to Lenz that the

jury be given a proper verdict form reflecting all of its

sentencing options. Specifically, any reasonably effective

counsel would have recognized after Atkins that a jury form

that did not specifically reflect the jury’s option of

imposing a life sentence, or a life sentence and a fine of not

more than $100,000, even if the jury found that the

Commonwealth had proven beyond a reasonable doubt one or both

of the aggravating factors necessary for imposing the death

sentence, would not comport with the correct statement of law

given to the jury by the trial court in its sentencing

instructions. In such a case, the jury would be presented

“with a confusing situation in which the trial court’s

instructions and the form the jury was given to use in

discharging its obligations [would be] in conflict.” Atkins,

257 Va. at 179, 510 S.E.2d at 457. Indeed, that was the

reason we raised this issue sua sponte in Lenz’s direct

appeal. Our concern was the application of the rationale of

Atkins, not the specific manner in which the verdict forms

were inadequate in that case, and not the decision we would

render in Powell.

37
 In short, in view of this Court’s decision in Atkins,

Lenz’s counsel was ineffective in failing to object to the

inadequate verdict form given to the jury at Lenz’s capital

murder trial. That failure precluded Lenz from having his

sentence determined by a jury with verdict forms that

reflected all of its sentencing options under the law or

receiving relief on direct appeal. Lenz obviously was

prejudiced by counsel’s failure. Accordingly, I would vacate

Lenz’s death sentence and remand the case to the trial court

for a new sentencing hearing.*

*
Because I would remand the case for a new sentencing
hearing based upon the claim of ineffective assistance of
counsel with respect to the failure to object to the improper
verdict form, I would not reach the other issues addressed by
the majority and express no opinion thereon.

38