Jackson v. Kelly

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1

JERRY TERRELL JACKSON,

Petitioner - Appellee,

v.

LORETTA K. KELLY, Warden, Sussex I State Prison,

Respondent - Appellant.

No. 10-3

JERRY TERRELL JACKSON,

Petitioner - Appellant,

v.

LORETTA K. KELLY, Warden, Sussex I State Prison,

Respondent - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:06-cv-01097-LMB-TCB)

Argued: January 26, 2011 Decided: April 25, 2011

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Reversed by published opinion. Judge Duncan wrote the opinion,
in which Judge Davis and Judge Wynn joined.

ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Loretta K. Kelly, Warden,
Sussex I State Prison. Michele Jill Brace, Washington, D.C.,
for Jerry Terrell Jackson. ON BRIEF: Kenneth T. Cuccinelli, II,
Attorney General of Virginia, Richmond, Virginia, for Loretta K.
Kelly, Warden, Sussex I State Prison. Philip E. Holladay, Jr.,
Taryn Koball, KING & SPALDING LLP, Atlanta, Georgia, for Jerry
Terrell Jackson.

2
DUNCAN, Circuit Judge:

In the fall of 2002, a jury found petitioner Jerry Jackson

guilty of breaking into 88-year-old Ruth Phillips’s home, raping

her, and smothering her to death with a pillow from her bed.

Jackson was sentenced to death. Jackson’s direct and collateral

appeals were denied by the Supreme Court of Virginia. Jackson

sought federal habeas relief, which the district court granted

as to his penalty-phase claims following an evidentiary hearing.

The government appealed, urging that the district court

abused its discretion by holding the evidentiary hearing and

that relief was erroneously granted on Jackson’s claims that

counsel’s development and presentation of mitigation evidence,

as well as his failure to object to alleged instructional error,

were constitutionally deficient. Jackson has cross-appealed,

asserting additional claims arising out of alleged instructional

error.

We assess the merits of Jackson’s petition under the

deferential standards spelled out in Strickland v. Washington,

466 U.S. 668 (1984), and the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (“AEDPA”). Our review is

informed by the Supreme Court’s recent guidance in Cullen v.

Pinholster, No. 09-1088, 2011 WL1225705 (U.S. April 4, 2011).

For the reasons described below, we conclude that, based on the

3
record available to the state court that adjudicated Jackson’s

claims on the merits, the writ was improvidently granted.

I.

A.

On Sunday, August 26, 2001, 88-year-old Ruth Phillips did

not show up to church. Jackson v. Commonwealth, 590 S.E.2d 520,

524 (Va. 2004) (“Jackson I”). Concerned by her absence, Mrs.

Phillips’s son tried reaching her by telephone. Id. When there

was no answer, he went to her Williamsburg, Virginia, apartment

to check on her. Id. After letting himself in, he found his

mother’s body “lying ‘twisted and exposed’ on a bed in her

bedroom.” Id. As he later described it, her “leg was twisted

around, and her pubic region was exposed[; h]er breast was

exposed[; and h]er nightgown was up around her neck.” Id.

(alterations in original).

Mrs. Phillips’s autopsy showed that she had died of

asphyxia, which “occurs when the brain is without a supply of

oxygen for four to six minutes.” Id. The autopsy also found a

bruise on her nose and lacerations on the exterior and interior

of her vagina. Id. A crime scene investigator recovered a hair

from Mrs. Phillips’s chest and another from the bed underneath

her stomach; more hairs were found in the vicinity of her left

thigh. Id. Forensic analysis revealed that several of the

4
hairs were pubic hair that was inconsistent with samples taken

from Mrs. Phillips. Id. These hairs were later found “to be

consistent with [Jackson’s] mtDNA to the exclusion of 99.998% of

the population with a 95% degree of confidence.” Jackson v.

Warden of the Sussex I State Prison, 627 S.E.2d 776, 783 (Va.

2006) (“Jackson II”).

In December 2001, investigators conducted a videotaped

interview with Jackson. Jackson I, 590 S.E.2d at 524. After

waiving his Miranda rights, he “admitted entering Mrs. Phillips’

apartment, searching through and taking money out of her purse.”

Id. Jackson claimed he did not know Mrs. Phillips was home when

he flipped on the light and began to sift through her purse.

Id. As a result, he was “scared” when Mrs. Phillips, who had

been lying in bed, exclaimed: “What do you want? I’ll give you

whatever, just get out.” Id.

Jackson acknowledged that when he realized Mrs. Phillips

had seen him, “he held a pillow over her face for two or three

minutes and tried to make her ‘pass out’ so she could not

identify him” and further “admitted that he inserted his penis

into her vagina while he was holding the pillow over her face.”

Id. at 524-25. Jackson added that after exiting through a back

window, he drove away in Mrs. Phillips’s car, which he

ultimately abandoned. Id. at 524-25. He also reported that he

used the sixty dollars he stole from Mrs. Phillips’s purse to

5
buy marijuana. Id. at 525. Jackson repeatedly insisted that he

had not intended to kill Mrs. Phillips. Id.

A Virginia grand jury indicted Jackson in March 2002 and

charged him, inter alia, with two counts of capital murder for

the premeditated killing of Phillips in the commission of rape

or attempted rape and in the commission of robbery or attempted

robbery. Id. at 523.

Jackson’s trial was bifurcated into a guilt and a penalty

phase. During the guilt phase, Jackson retreated from his

earlier statement to law enforcement, testifying that he had

confessed to investigators because he believed “that was what

[they] wanted to hear” and that an accomplice had in fact

smothered Phillips. Id. at 525. Jackson further “denied having

any knowledge about who raped Mrs. Phillips or about how his

pubic hairs got on her body.” Id.

The jury found Jackson guilty of both capital counts and of

various other state crimes. Id. at 523. Following penalty-

phase proceedings--which we discuss in greater detail below--the

jury found a “probability that [Jackson] would commit criminal

acts of violence that would constitute a continuing threat to

society” and recommended a death sentence on both capital

counts. J.A. 983-85. In April 2003 the state circuit court

accepted the jury’s recommendation and imposed a death sentence.

Jackson appealed his convictions. The Supreme Court of

6
Virginia affirmed in January 2004. See Jackson I, 90 S.E.2d at

520. The United States Supreme Court declined review. Jackson

v. Virginia, 543 U.S. 891 (2004).

B.

On December 3, 2004, Jackson “filed an oversized habeas

petition with the [Supreme Court of Virginia] along with a

motion for leave to exceed the court’s 50-page limit.” J.A.

2384. The Supreme Court of Virginia denied the motion for extra

pages and directed Jackson to file a “corrected petition.” Id.

at 1140. Jackson filed an amended petition on January 4, 2005,

alleging fourteen distinct claims of constitutional error.

The Supreme Court of Virginia rejected each of Jackson’s

habeas arguments and denied his petition on its merits on March

24, 2006. See Jackson II, 627 S.E.2d at 780. We briefly review

the state court’s analysis of Jackson’s claims at issue in this

appeal: (1) that defense counsel 1 provided constitutionally

deficient representation by failing to interview Jackson’s

siblings and by failing to present evidence of Jackson’s

1
Jackson was represented at trial by two attorneys, Patrick
Kelley and Andrew A. Protogyrou. Jackson v. Kelly, 699 F. Supp.
2d 838, 843 n.6 (E.D. Va. 2010) (“Jackson III”). All references
to defense counsel with respect to the penalty phase of
Jackson’s trial are to Protogyrou, who was responsible for that
portion of the trial.

7
positive traits; 2 and (2) that the participation of two jurors

who indicated they would not consider certain mitigating factors

unless instructed to do so--coupled with the absence of a

specific mitigation instruction--constituted constitutional

error on the part of the prosecutor, defense counsel, and the

trial court.

The Supreme Court of Virginia rejected Jackson’s argument

that counsel’s failure to interview his brother and sister,

Damien and Chandal Jackson, constituted ineffective assistance

of counsel. The court reasoned that Jackson’s claim did not

satisfy the “prejudice” prong of the Supreme Court’s two-part

Strickland test for constitutionally deficient representation.

Jackson II, 627 S.E.2d at 786 (citing Strickland, 466 U.S. at

687). It did not address whether his claim satisfied the first

prong of the test, i.e., whether “counsel’s representation fell

below an objective standard of reasonableness.” Strickland, 466

U.S. at 688; see also McHone v. Polk, 392 F.3d 691, 704 (4th

Cir. 2004) (noting that when a defendant “fails to demonstrate

sufficient prejudice from certain acts or omissions” a court

2
As part of his claim that counsel’s development and
presentation of mitigation evidence was constitutionally
deficient, Jackson’s state-court habeas petition also asserted
that counsel failed to present expert evidence about the impact
of childhood abuse on development. The Supreme Court of
Virginia did not explicitly address this point, which Jackson
again raised in his federal habeas petition.

8
“need not decide whether counsel’s performance in those respects

was, in fact, deficient under Strickland”).

The court anchored its determination in two related

findings. First, it concluded that counsel had presented ample

mitigation evidence in the form of seventeen mitigation

witnesses. The court noted that the jury had heard “the

testimony of physicians, psychologists, social workers, and a

pastor who had treated, evaluated, and/or counseled [Jackson]

and his family, to substantiate that [he] was the victim of

child abuse.” 3 Jackson II, 627 S.E.2d at 786. The court also

3
The court discussed this testimony in detail, noting that
it

included information that petitioner’s stepfather
received a suspended jail sentence for physically
abusing petitioner; hospital and doctor’s office
records indicating petitioner had been physically
disciplined with a belt resulting in lasting bruises;
records that petitioner had suffered various fractures
of unknown origin to his extremities; that petitioner
often appeared bruised; that reports of abuse were
made to the James City County Department of Social
Services and that twice the abuse was determined to be
“founded;” that petitioner was allowed to drink beer
as a young child; that petitioner and his stepfather
had a bad relationship and that, even during
counseling, petitioner’s stepfather constantly berated
petitioner by calling petitioner “evil;” that
petitioner’s “problems were compounded by the weakness
of [his] parental subsystem” and lack of “material
resources” which required petitioner to be left
unsupervised; that petitioner’s family did not follow
through with counseling or recommendations; and that
on at least one occasion, petitioner had been sexually
abused.
(Continued)
9
cited counsel’s elicitation of testimony from “the police

officer who investigated the charges of child abuse against

petitioner’s stepfather and from several of petitioner’s

neighbors, friends, and family members, including his mother,

father, and stepfather.” Id. at 786-87. In light of this

mitigating evidence of Jackson’s traumatic childhood, the court

deemed the testimony that would have been offered by Jackson’s

siblings “largely cumulative,” 4 reasoning that it amounted to

mere “anecdotal evidence of specific instances of the abuse from

the perspective of [the] siblings.” Id. at 787.

As a second, related basis for its holding, the court found

that talking to Jackson’s siblings would not have altered

counsel’s trial strategy. The court cited counsel’s “strategic

decision not to call . . . Damien [] to testify because Damien’s

successful transition from the abusive environment into a

military career would have diminished the mitigating effect of

[Jackson’s] abusive upbringing.” Id. Observing that counsel

was aware of Jackson’s abusive background when he opted not to

Jackson II, 627 S.E.2d at 786.
4
Jackson’s habeas petition included an eight-page affidavit
from Damien Jackson and a five-page affidavit from Chandal
Jackson, which detailed the testimony they would have offered at
trial.

10
have Damien testify, the court found no suggestion in the record

that counsel’s strategy “would have been altered by knowing the

specific details of the abuse.” Id. As a result, the court

held that Jackson had “failed to demonstrate . . . a reasonable

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

of the proceeding would have been different.” Id. (citing

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

The state court also rejected Jackson’s claim that counsel

“had failed to adequately investigate and present available

mitigation evidence concerning [Jackson’s] good character,”

holding that it satisfied neither prong of the Strickland

analysis. Id. With regard to counsel’s performance, the court

found that the record of the penalty-phase proceedings

“demonstrate[d] that the jury heard evidence of petitioner’s

good qualities, including evidence that petitioner was well-

mannered and cooperative, followed directions, was motivated and

ambitious, and had positive relationships outside of his

immediate family environment.” Id. As for the second prong,

the court noted that Jackson had not shown that “additional

evidence of his good character, such as his love for his

grandmother and his desire that his parents reunite, would have

affected the jury’s determination,” and, as a result, could not

demonstrate prejudice. Id.

11
 The Supreme Court of Virginia further held that Jackson’s

claims arising out of alleged instructional error lacked merit.

It first rejected Jackson’s argument that two jurors were not

qualified for service because they “indicated that they would

not consider age and background as mitigation evidence unless

the trial court instructed them to do so” and were not

specifically given such an instruction. 5 Id. The court found

the claim procedurally defaulted, as Jackson had not raised it

at trial or on direct appeal. Id. Jackson’s related argument

that the government’s failure to request an instruction that

emphasized age and background as mitigation evidence amounted to

prosecutorial misconduct was also deemed defaulted. Id. at 788.

The Supreme Court of Virginia denied on its merits

Jackson’s non-defaulted argument that his counsel’s failure to

request an age-and-background instruction constituted

ineffective assistance of counsel. Id. at 787. In doing so,

the court explicitly rejected Jackson’s underlying assertion

that both jurors’ qualification had been “conditioned” upon the

delivery of a particular instruction. Id. at 787. To the

contrary, the court explained, “[b]oth jurors were qualified

upon the trial court’s determination that they would be fair and

5
We provide additional detail on the jurors’ statements
below in the context of our discussion of Jackson’s claims of
alleged instructional error.

12
impartial.” Id. As a result, the court reasoned, the failure

to request an instruction could not have been prejudicial. Id.

The state court cited additional reasons why Jackson’s

claim satisfied neither prong of the Strickland analysis. It

observed that a request by defense counsel for a particularized

instruction “would have been properly refused” under Virginia

law. Id. at 788 (citing George v. Commonwealth, 411 S.E.2d 12,

23 (Va. 1991); LeVasseur v. Commonwealth, 304 S.E.2d 644, 661

(Va. 1983)). Consequently, the court reasoned, counsel’s

omission was not unreasonable. Id. The court further noted

that “the jury was instructed to consider petitioner’s history,

background, and mitigating factors,” in the context of its

assessment of “whether petitioner posed a future danger to

society.” Id. (emphasis added).

Having rejected these arguments, along with Jackson’s other

habeas claims, the Supreme Court of Virginia denied his petition

for relief. The United States Supreme Court again denied

certiorari in January 2007. Jackson v. Kelly, 549 U.S. 1122

(2007).

C.

The federal district court for the Eastern District of

Virginia granted Jackson a stay of execution in September 2006,

and appointed habeas counsel in early December of that year. On

December 11, 2006, Jackson moved for an extension of the

13
deadline for his federal habeas petition, to a date “not later

than April 17, 2007.” J.A. 1310. Jackson asserted that April

17 was when the statutory one-year limitation period--which had

been tolled by his filing of his state habeas petition on

December 3, 2004--would expire. See 28 U.S.C. § 2244(d)(1)-(2).

The court granted an extension to March 16, 2007,

explaining that it did not count the tolling period from

December 3, 2004, but instead from January 4, 2005--the date

that Jackson filed his amended petition. The court noted that

the Supreme Court of Virginia’s habeas decision had identified

January 4 as the date Jackson’s petition was filed. On December

18, 2006, Jackson filed a “Notice,” asserting once again that

the tolling period should be counted from December 3, 2004.

Jackson provided his “Notice” to the government, but the

government did not respond.

Three days later, on December 21, 2006, the government

filed a motion for reconsideration of the extension to March 16,

urging that no extension was warranted. The government made no

mention of Jackson’s “Notice” nor did it otherwise address the

tolling period. The court denied the government’s motion for

reconsideration on January 19, 2007, reaffirming that Jackson

had until March 16 to file his petition.

On March 8, 2007, Jackson filed a second motion to extend

the deadline to April 17. Again, the government opted not to

14
respond. The district court granted the motion the next day,

concluding that Jackson’s calculation, which treated December 3,

2004, as the date his state habeas petition was filed, reflected

“a correct statement of the law.” J.A. 1356. On April 17,

2007, Jackson filed his petition for federal habeas relief.

Jackson’s petition included a request for an evidentiary

hearing, which the court granted on February 28, 2008. The

court’s initial order did not specify why the request had been

granted but stated generally that Jackson’s mitigation claim

“ha[d] not been adequately developed in the record.” Id. at

1516. In response to a government motion to reconsider the

evidentiary hearing, the court clarified that the proceeding was

warranted because Jackson’s filings “alleged sufficient facts

that, if fully established, would entitle him to relief on two

of the 17 claims raised in his federal habeas petition.” Id. at

1527-28.

The court held the evidentiary hearing on April 30 and May

1, 2008. Nine witnesses testified, including Jackson’s siblings

and the two attorneys who had represented Jackson at trial. On

August 14, 2008, the court denied Jackson relief as to the guilt

phase of his trial.

Some eighteen months later, on March 29, 2010, the court

granted Jackson relief as to the penalty phase, finding that

counsel rendered ineffective assistance by failing to

15
investigate and argue key mitigation evidence and by failing to

challenge the lack of a jury instruction on age and background.

See Jackson v. Kelly, 699 F. Supp. 2d 838 (E.D. Va. 2010)

(“Jackson III”). The court recognized “the extremely

deferential standards for collateral review of a state court

judgment” but concluded that the Supreme Court of Virginia had

erred by denying relief. Id. at 843. We review the court’s

lengthy analysis, which is the subject of both the government’s

appeal and Jackson’s cross-appeal. In light of Cullen’s

admonition that our review is limited “to the record that was

before the state court that adjudicated the claim on the

merits,” 2011 WL 1225705, at *8, we avoid discussion of the

evidence taken in the federal evidentiary hearing.

1.

The district court first assessed Jackson’s claims that his

counsel had provided ineffective assistance at the penalty phase

by failing to (1) interview Jackson’s siblings, (2) present

scientific evidence linking childhood abuse to adult behavior,

or (3) present evidence of Jackson’s positive traits.

The court began with counsel’s failure to interview

Jackson’s brother and sister. As the Supreme Court of Virginia

had not addressed whether counsel’s omission satisfied the

ineffectiveness prong of the Strickland analysis, the district

16
court assessed that portion of his claim de novo. Id. at 844

(citing Porter v. McCollum, 130 S. Ct. 447, 452 (2009)).

The court discussed counsel’s efforts to develop mitigation

evidence related to Jackson’s abusive upbringing. The court

noted that counsel had pursued that goal by “assembl[ing] a

collection of Jackson’s medical, social, and educational

records, which contained references to numerous instances of

abuse.” Id. It further observed that counsel had interviewed

Jackson, as well as his mother, father, stepfather, godmother,

uncle, cousin, and pastor. Id. at 847-48 & n.13.

While recognizing the steps that counsel had taken, the

court held that additional research had been warranted. The

court rested its conclusion on the contents of the records

counsel had assembled, which it discussed in some detail. 6 Id.

6
The court summarized the records that it concluded “should
have prompted further investigation” as follows (all citations
are to the joint appendix that was before the district court):

[A] report generated after a particularly severe
beating by Tim Knight [Jackson’s stepfather], when
Jackson was twelve years old, notes, “There is a
previous history of abuse by [redacted] and this
incident appears to be much more severe. In addition,
neither of the victims reported the abuse; Jerry’s
injuries were discovered by accident and he was
reluctant to cooperate with the investigation.” Id.
at 539. The “planned, calculated” nature of that
incident also leads to the conclusion that more abuse
was occurring: “Both boys indicated that [redacted]
made them strip naked and exercise so that they would
(Continued)
17
 be too tired to run from him during their punishment;
[redacted] then beat both of them with his belt while
they were naked.” Id. at 625, 538. Another report of
the same incident states: “This is the 3rd incident
of known physical abuse of Jerry by Mr. Knight and the
1st resulted in maiming charges,” Id. at 625 (emphasis
in original), and estimating “the likelihood of
reoccurance [sic][is] high. The children did not
report the abuse, & Jerry was afraid to cooperate w/
DSS. They appeared to accept their parents’ decision
that they deserved the beatings.” Id. Another report
contains a passing reference to a beating with a two-
by-four. Id. at 617. A report made when Jackson was
nine years old states, “Worker asked if similar
incidents had occurred & he stated that about two
weeks earlier he had gotten his [redacted].” Id. at
670. A social worker later wrote of Jackson, then age
thirteen, “I get the impression that Jerry has been
physically beaten by all the adults in his life,
starting with his natural father.” Id. at 533.
Another record notes that Jackson’s mother and
stepfather “seem[ed] to be confused about how to
handle Jerry, since the Court has mandated that Tim
cannot use physical punishment.” Id. at 2727.
The records also contain indications of serious
neglect at an early age, which should have been
explored further. See, e.g., id. at 652 (A police
report from 1988, when Jackson was seven years old,
states “neighbors called the police when they found 2
children huddled in the stairwell--not the first time
.... [redacted] locked them out of the apt.”); id. at
2729 (referring to Jackson's “weak parental
subsystem”); id. at 2677-79 (referring to “lack of
parental attention”); id. at 2769 (referring to
Jackson feeling “loss and abandonment”).

The records in counsel’s possession also contained
leads to other types of mitigation evidence. One
report, for instance, contains a reference to Jackson
“drinking alcohol” at age twelve, id. at 619, another
to an allegation of sexual abuse by a relative, id.,
and another to an unexplored allegation that Jackson,
at age seven, had been “outright raped” by a visitor
at his grandmother’s house. Id. at 2799-2800. These
(Continued)
18
at 846-47. In doing so, it identified numerous reports

documenting severe abuse and neglect, as well as allegations of

sexual abuse. Id. at 846-47.

The court emphasized, moreover, that the records’ troubling

contents reflected only “incomplete, limited snapshots of

Jackson’s childhood, documenting only four or five instances of

abuse and providing mental health assessments from a few

isolated time periods.” Id. at 846. Faced with these glimpses

into Jackson’s background, the court reasoned, “a reasonable

attorney would have realized that a thorough investigation into

Jackson’s home life was essential.” Id. at 847. In this

regard, the court noted, Jackson’s parents were unreliable

sources of information, as Jackson’s father and stepfather had

pieces of information, together with Jackson’s report
to his attorney (reflected in counsel’s notes) that
someone forced Jackson and his brother to masturbate
in front of them, Tr. at 237 (“Made him + brother
masturbate in front of him.”), that he was “molested
for years”, id. at 236, and that his brother was raped
by an uncle while Jackson hid in the closet fearing he
would be raped next, id. at 357, indicate the likely
existence of a wealth of mitigating evidence
completely unexplored by trial counsel. Those records
also document that Damien would have direct knowledge
of the abuse because he was referenced in the reports
as well.

Jackson III, 699 F. Supp. 2d at 846-47 (alterations in original
and footnote omitted). The court also cited “passing references
to diagnosable depression.” Id. at 847.

19
been implicated in incidents of abuse, and his mother had at

least tacitly “endorse[d]” it. Id. at 848.

Against this backdrop, the court held that counsel’s

decision not to speak to Jackson’s siblings “was a critical and

glaring omission.” Id. at 849. The court observed that both

siblings were older than Jackson and had lived in the same

household as Jackson for significant stretches of his childhood.

Id. at 849. As a result, the court found, both “were the only

credible witnesses” regarding the incidents of abuse documented

in the record. Id. In the court’s view, “Damien or Chandal

could have offered detail to the reported abuse, described the

nature of Jackson’s relationship with his father and stepfather,

or indicated whether there were other unreported problems.” Id.

The court rejected the notion that counsel’s investigation

reflected a “strategic choice” to avoid “the jury drawing

unfavorable comparisons between Jackson and his siblings” for

two reasons. Id. First, it found that “counsel did not rely on

this ‘strategy’ at trial,” citing instances on direct

examination in which counsel “opened the door” to cross-

examination about Damien, as well as counsel’s own comparison of

Jackson to his brother in closing argument. Id. at 849-50.

Second, the court concluded that counsel could not have made a

reasonable strategic choice without first speaking to Jackson’s

siblings to assess what testimony they could offer. Id. at 850.

20
 The court next reviewed counsel’s failure to present expert

testimony to link Jackson’s abusive childhood to his adult

behavior. Id. at 851. The court observed that determining

whether this omission constituted ineffective assistance was

“difficult,” as counsel’s failure to “discover and present the

crucial evidence of Jackson’s abusive childhood” precluded his

establishing “the basis for introducing scientific evidence

linking the effects of such a childhood abuse to adult

behavior.” Id. Despite this obstacle, the court found, without

further explanation, that “counsel’s . . . failure to connect

the dots between childhood abuse and adult behavior must be

viewed as yet another instance of deficient performance under

Strickland.” Id. at 851-52.

The court then turned to Jackson’s claim that counsel had

failed to investigate and adduce evidence of his positive

traits. The court rejected the Supreme Court of Virginia’s

factual conclusion that such evidence had been presented. Id.

at 852. It explained that much of the evidence cited by the

state court “consisted of hearsay statements recited by a

psychologist who had never treated Jackson personally, but read

from reports describing Jackson’s demeanor during a counseling

session when he was approximately twelve years old.” Id. It

also found that the state court had treated “isolated

statements” by a prison guard and Jackson’s mother as positive

21
character evidence. Id. (citing the guard’s statement that he

had not had problems with Jackson until a particular incident

and Jackson’s mother’s testimony that she had been “able to

communicate better and talk more” with Jackson while he was in

prison).

The district court deemed the Supreme Court of Virginia’s

factual finding “an unreasonable determination of the facts in

light of the evidence,” id. (quoting 28 U.S.C. § 2254(d)(2)),

reasoning that “[t]hese bland, hearsay comments offered no real

insight into Jackson’s character or personality,” id. The court

further found that Jackson had shown by “‘clear and convincing

evidence,’ that no evidence of his positive traits was ever

presented to the jury.” Id. (quoting 28 U.S.C. § 2254(e)(1)).

The court also rejected the possibility that the paucity of

positive character evidence presented reflected the absence of

such evidence or a strategy to avoid evidence “inconsistent with

the defense’s mitigation theme.” Id. at 852-53.

Having concluded that counsel’s performance was

constitutionally deficient in the three respects described

above, the court turned to the prejudice prong of the Strickland

analysis. Id. at 854. To assess the impact of counsel’s

behavior on Jackson’s sentence, the court reviewed the evidence

presented at the penalty phase of his trial. See id. at 855.

22
 The court first described the government’s presentation,

which it found consisted of testimony from Mrs. Phillips’s son,

two prison officers, and “a victim of a burglary Jackson

committed the evening before Phillips was murdered.” Id. The

court observed that the government had introduced evidence of

Jackson’s “extensive” criminal history, 7 but noted that his

record “consisted mostly of property crimes and contempt

violations.” Id. at 855. The court did not reference the

evidence of Jackson’s rape and murder that the government had

presented to the jury in the penalty phase. See id.

The court then briefly reviewed the testimony of the

seventeen witnesses defense counsel had called during the

penalty phase. Id. at 855-57. These witnesses included: (1) an

emergency room doctor who had examined Jackson when he was

eleven; (2) a clinical psychologist whose associate had

evaluated Jackson when he was eleven; (3) a records custodian

from the Newport News Health Department; (4) a child

psychologist who had evaluated Jackson when he was fourteen; (5)

a pediatrician who had examined Jackson when he was fourteen;

7
The government introduced “18 orders showing Jackson’s
convictions or adjudications of delinquency for such offenses as
grand larceny, petit larceny, trespassing, drug possession,
receiving stolen property, contempt of court, identity fraud,
statutory burglary, credit card theft, and obtaining money under
false pretenses.” Jackson, 590 S.E.2d at 525.

23
(6) a records custodian from the New Horizon Family Counseling

Center; (7) a clinical psychologist who had interviewed Jackson

when he was fifteen; (8) a police officer who investigated an

assault and battery on Jackson by his stepfather when Jackson

was eleven; and (9) a social services official who had

investigated multiple allegations of child abuse against

Jackson. Id. at 855-57.

The district court also noted mitigating testimony from

three individuals who had interacted with Jackson and his family

when he was a child: (10) the family’s pastor; (11) Jackson’s

neighbor and godmother; and (12) Jackson’s cousin and godsister.

Id. at 857. The court cited additional testimony from four

members of Jackson’s family: (13) Jackson’s uncle; (14)

Jackson’s biological father; (15) Jackson’s stepfather; and (16)

Jackson’s mother. Id. at 857-58. Jackson himself was the

seventeenth and final mitigation witness. Id. at 858.

The court measured the testimony of these seventeen

mitigation witnesses against the testimony elicited at the

evidentiary hearing. See id. at 858-61. In light of its

assessment of that material, the court flatly rejected the

Supreme Court of Virginia’s determination that the failure to

interview Jackson’s siblings did not satisfy Strickland’s

prejudice prong. See id. at 862. It noted that the Supreme

Court of Virginia did not hold an evidentiary hearing and found

24
that the state court erred by deferring to “trial counsel’s

premature, uninformed ‘strategic’ choice.” 8 Id.

The court also rejected the Supreme Court of Virginia’s

determination “that the new evidence of abuse proffered by

Jackson was cumulative.” Id. The court emphasized that an

assessment of prejudice arising out of counsel’s performance

during a capital case’s penalty phase “is not a rote cataloging

exercise” to “ensure[] that counsel presented some testimony on

each potential area of mitigation.” Id. at 863. Given its

determination that the Supreme Court of Virginia’s inquiry had

amounted to such an exercise, the court found that the state

court had unreasonably applied federal law by failing to

consider “the ‘entire evidentiary picture’ presented to the

jury.” Id. (quoting Strickland, 466 U.S. at 696).

In the district court’s view, counsel’s presentation

amounted to “a parade of ineffective record witnesses,”

8
The court reasoned in particular that the state court had
mistakenly viewed as dispositive its determination that speaking
with Jackson’s siblings would not have altered counsel’s
strategy. Id. (citing Jackson II, 626 S.E.2d at 786-87). The
court observed that, under the Supreme Court’s standard
articulated in Wiggins v. Smith, 539 U.S. 510 (2003), the
pertinent “question is not whether, subjectively, Jackson’s own
counsel would have introduced the evidence,” but instead
“whether, objectively, ‘a competent attorney, aware of this
evidence, would have introduced it.’” Id. (emphasis added)
(quoting Wiggins, 539 U.S. at 535). As a result, it deemed the
state court’s analysis “contrary to, and an unreasonable
application of, Wiggins.” Id.

25
“contradictory testimony from character witnesses who reported

little or no abuse,” and “unchallenged testimony” from Jackson’s

abusers that his problems “were his own fault.” Id. The court

concluded that this evidentiary showing prejudiced Jackson, id.

at 863-64, and that prejudice “was compounded” by the absence of

testimony linking childhood trauma to psychological development,

id. at 864. The court deemed it unnecessary to decide whether

Jackson had shown independent prejudice arising out of the

failure to present evidence of his positive traits, as that

omission was prejudicial when viewed “in combination with” the

failure to interview Jackson’s siblings. Id. As a result, the

court found habeas relief warranted on all three of Jackson’s

claims related to counsel’s development and presentation of

mitigation evidence.

2.

The court then addressed Jackson’s assertion that counsel’s

failure to challenge the lack of a particularized mitigation

instruction amounted to constitutionally deficient

representation. 9 Id. at 864. The court recounted the colloquies

9
We do not summarize the district court’s analysis of
Jackson’s second claim of instructional error, which challenged
counsel’s failure to ask the district court to clarify for the
jury that mitigation factors need not be unanimously found.
Jackson has abandoned this argument, in light of the Supreme
Court’s decision that relief on this issue is foreclosed on
(Continued)
26
of two jurors at voir dire, which it concluded showed that

“[t]rial counsel and the trial court knew . . . that [these]

jurors felt that neither age nor troubled background were

mitigating factors.” Id. at 865. The court found that, under

these circumstances, the failure to specifically instruct the

jury to consider age and background in mitigation “tr[od] on the

guarantees of the Eighth Amendment.” Id. In support of its

conclusion, it cited the Supreme Court’s admonition that

although “[t]he sentencer . . . may determine the weight to be

given relevant mitigating evidence,” it “may not give it no

weight by excluding such evidence from . . . consideration.”

Id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982)).

The court recognized that “failure to instruct a jury as to

specific mitigating factors is generally not constitutional

error.” Id. at 866 (citing Buchanan v. Angelone, 522 U.S. 269,

278 (1998)). Nevertheless, it found that the “entire context in

which the instructions were given,” id. (quoting Buchanan, 522

U.S. at 278), suggested “a defect of constitutional proportion,”

id. The court cited three factors as creating a “context” in

which a particularized instruction was mandated: the two jurors’

responses during voir dire, the fact that Jackson was twenty

collateral review. See Appellee’s Br. at 69 (citing Smith v.
Spisak, 130 S. Ct. 676, 684 (2010)).

27
years old when he raped and murdered Mrs. Phillips, and the

evidence of Jackson’s abusive background presented during

mitigation. Id.

The court rejected the Supreme Court of Virginia’s

conclusion that Jackson’s claim of instructional error did not

satisfy the first prong of the Strickland analysis. The court

noted that the state court’s finding that counsel’s performance

was reasonable relied on its conclusion that the trial court

would have “properly refused” any request for a particularized

instruction. Id. at 867 n.31 (quoting Jackson II, 627 S.E.2d at

787). The court found this assessment so unsupported by the

record as to not merit AEDPA deference. Id. at 867 (citing

Uttecht v. Brown, 551 U.S. 1, 20 (2007)). The court cited the

trial court’s statement that jurors would consider age “when

they’re told it’s a factor” as indisputable evidence that the

trial court appreciated “the need for a clarifying instruction,”

and would have provided one if asked to do so. Id. The court

similarly rejected the Supreme Court of Virginia’s determination

that the future dangerousness instruction’s charge to jurors to

consider Jackson’s history and background precluded a finding of

prejudice on Strickland’s second prong, finding the court’s

reasoning “contrary to” Supreme Court caselaw. Id. at 867-68.

(citing Penry v. Lynaugh, 492 U.S. 302, 323-24 (1989)).

28
 Having rejected the Supreme Court of Virginia’s Strickland

analysis, the court conducted its own assessment of whether

counsel’s failure to request a “proper instruction” constituted

ineffective assistance of counsel. See id. at 866. On the

first prong, the court held that counsel’s behavior was

objectively unreasonable, as counsel had conceded that his

failure to challenge the instructions was not a strategic choice

and counsel “was unquestionably aware” of at least one juror’s

need for a specific instruction. Id. at 866-67. With regard to

the second prong, the court cited the “clear constitutional

mandate that the jury consider age and troubled background” in

mitigation, as well as “the specific voir dire in this case” as

showing “a strong likelihood” that the trial court would have

provided a specific mitigation instruction “had counsel only

asked for it.” Id. at 867. On the basis of these findings, the

court found habeas relief warranted on this claim as well. Id.

In light of its determination that penalty-phase relief was

appropriate on several of Jackson’s claims, the district court

vacated his death sentence. Id. at 870. In April of 2010 the

government filed notice of appeal. Jackson filed notice of

cross-appeal on May 3, 2010. On August 6, 2010, the district

court denied Jackson a certificate of appealability, holding

that he had not shown that Virginia courts’ resolution of those

claims “was debatable or wrong.” J.A. 2510. We granted Jackson

29
a certificate of appealability for his cross-appeal claims on

November 4, 2010.

III.

Before turning to the substantive claims on appeal and

cross-appeal, we address two procedural arguments made by the

government: (1) that Jackson’s federal habeas petition was

barred by the statute of limitations and (2) that the district

court abused its discretion by holding an evidentiary hearing. 10

We conclude that Jackson’s federal habeas petition was not time

barred, but that the district court erred by relying on evidence

it obtained from its own hearing when assessing Jackson’s

mitigation-related Strickland claims, which had been adjudicated

on their merits by the Supreme Court of Virginia.

A.

The government argues that Jackson’s federal habeas

petition was time-barred, urging that the district court’s grant

of an extension to April 17, 2007 erroneously extended Jackson’s

filing deadline beyond the one-year statutory deadline. See 28

U.S.C. § 2244(d)(1). The government concedes that the statute

10
Because we hold that the writ was improvidently granted,
we bypass the government’s argument that some of the claims on
which the district court granted relief were procedurally
defaulted.

30
of limitations is tolled during the period in “which a properly

filed application for State post-conviction or other collateral

review . . . is pending.” Id. § 2244(d)(2). However, it urges

that Jackson’s oversized brief, which he submitted on December

3, 2004, did not constitute a “properly filed application.”

Counting from January 4, 2005, the date that Jackson’s corrected

petition was filed, the government argues that the statute of

limitations expired on March 16, 2007. We disagree.

Jackson’s submission of an oversized habeas brief and a

motion to permit the extra pages to the Supreme Court of

Virginia constituted “delivery and acceptance . . . in

compliance with the applicable laws and rules governing

filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). Jackson’s

initial petition was neither rejected nor dismissed by the

Supreme Court of Virginia. Jackson was instead directed to file

a “corrected petition” in a timely manner. J.A. 1140. The

Supreme Court of Virginia’s emphasis on “correction” indicates

to us that the requested alteration constituted an amendment to

Jackson’s initial filing.

In any event, it is apparent from the record that Jackson

relied on the federal district court’s grant of an extension to

April 17, 2007 when timing the submission of his federal habeas

brief. Significantly, the government raised no objection to

Jackson’s statute-of-limitations calculations prior to that

31
deadline, nor did it otherwise suggest that Jackson’s federal

habeas petition should be time-barred. Even if the government

were correct that Jackson’s oversized petition was not “properly

filed,” under these circumstances, Jackson would undoubtedly be

entitled to equitable tolling. See Green v. Johnson, 515 F.3d

290, 304 (4th Cir. 2008) (noting that equitable tolling is

appropriate when “due to circumstances external to the party’s

own conduct--it would be unconscionable to enforce the

limitation period against the party and gross injustice would

result”).

B.

The government also urges that the district court erred by

holding an evidentiary hearing. We consider that argument in

light of the Supreme Court’s recent delineation of such

hearings’ limited role in federal habeas proceedings.

In Cullen v. Pinholster, the Supreme Court clarified that

AEDPA limits federal habeas review “to the record that was

before the state court that adjudicated the claim on the

merits.” 2011 WL 1225705, at *8. In other words, when a habeas

petitioner’s claim has been adjudicated on the merits in state

court, a federal court is precluded from supplementing the

record with facts adduced for the first time at a federal

evidentiary hearing. See id. at *9 (“It would be strange to ask

federal courts to analyze whether a state court’s adjudication

32
resulted in a decision that unreasonably applied federal law to

facts not before the state court.”).

The district court did not have the benefit of Cullen’s

guidance when it determined that a hearing was warranted because

Jackson had “alleged sufficient facts that, if fully

established, would entitle him to relief on two of the 17 claims

raised in his federal habeas petition.” J.A. 1527-28. It is

now clear, however, that the court’s reliance on material

developed at the federal evidentiary hearing was at odds with

AEDPA’s placement of “primary responsibility [for habeas review]

with the state courts,” and illustrated the difficulties

inherent in “allow[ing] a petitioner to overcome an adverse

state-court decision with new evidence introduced in a federal

habeas court and reviewed by that court in the first instance

effectively de novo.” Cullen, 2011 WL 1225705, at *8. Mindful

that “evidence introduced in federal court has no bearing on

§2254(d)(1) review,” id. at *10, we proceed to assess Jackson’s

petition on the basis of the facts contained in the state-court

record.

IV.

We turn to the standards by which we evaluate the merits of

the issues before us on appeal and cross-appeal. Our review is

bounded by the familiar contours of AEDPA deference, which, as

33
recently reinforced by the Supreme Court’s unanimous decision in

Harrington v. Richter, 131 S. Ct. 770 (2011), helps to ensure

“confidence in the writ and the law it vindicates.” Id. at 780.

We may grant habeas relief on claims adjudicated on their merits

in state court only if that

adjudication resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States or resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.

Appleby v. Warden, 595 F.3d 532, 535 (4th Cir. 2010) (internal

quotations omitted) (citing 28 U.S.C. § 2254(d)).

A state court’s holding is “contrary to” clearly

established federal law “if the state court arrives at a

conclusion opposite to that reached by th[e Supreme] Court on a

question of law” or “confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and

arrives at” an opposite result. Lewis v. Wheeler, 609 F.3d 291,

300 (4th Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362,

405 (2000)). By contrast, a “state court unreasonably applies

federal law when it ‘identifies the correct governing legal rule

from th[e] Court’s cases but unreasonably applies it to the

facts of the particular . . . case,’” or “unreasonably extends a

legal principle from [the Court’s] precedent to a new context

where it should not apply or unreasonably refuses to extend that

34
principle to a new context where it should apply.” Id. at 300-

01 (quoting Williams, 529 U.S. at 407) (alterations in

original). In short, to obtain federal habeas relief, “a state

prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded

disagreement.” Harrington, 131 S. Ct. at 786-87; see also

Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (noting that on

AEDPA review, the pertinent question “is not whether a federal

court believes the state court’s determination was incorrect but

whether that determination was unreasonable--a substantially

higher threshold”).

To demonstrate ineffective assistance of counsel, Jackson

must show “that counsel’s performance was deficient, and that

the deficiency prejudiced the defense.” Wiggins v. Smith, 539

U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687). This

two-part analysis presents a “high bar” to petitioners, and we

must assess their efforts to surmount it with “scrupulous care,

lest intrusive post-trial inquiry threaten the integrity of the

very adversary process the right to counsel is meant to serve.”

Harrington, 131 S. Ct. at 788 (internal quotations omitted).

Even if Jackson could satisfy the “difficult standard” of

Strickland’s first prong, James v. Harrison, 389 F.3d 450, 457

35
(4th Cir. 2004), he would still be required to show prejudice.

In a capital case, “the prejudice inquiry centers on ‘whether

there is a reasonable probability that, absent [counsel’s]

errors, the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not

warrant death.’” Williams v. Ozmint, 494 F.3d 478, 484 (4th

Cir. 2007) (quoting Strickland, 466 U.S. at 695) (alterations in

Ozmint). Such a showing “requires a substantial, not just

conceivable, likelihood of a different result.” Cullen, 2011 WL

1225705, at *12 (internal quotations omitted). When making this

determination we review the “totality of the evidence before the

. . . jury.” Ozmint, 494 F.3d at 484.

V.

Against the backdrop of these highly deferential standards

we proceed to the issues before us. We begin with the

government’s challenge to the grant of federal habeas relief on

Jackson’s mitigation-related claims. We then turn to the

government’s appeal of the district court’s grant of relief on

Jackson’s claims of instructional error and to Jackson’s related

claims on cross-appeal. For the reasons described below, we

conclude the writ was improvidently granted.

36
 A.

Like the Supreme Court of Virginia, we bypass whether

defense counsel’s performance was deficient and proceed directly

to the prejudice prong of the Strickland analysis. See

Strickland, 466 U.S. at 688; see also McHone, 392 F.3d at 704.

We conclude that the state court’s finding that Jackson had not

shown prejudice arising from any alleged mitigation-related

deficiencies was not “clearly unreasonable” and that the

district court erred by holding otherwise.

We first address Jackson’s claim that counsel’s failure to

interview his siblings had a substantial likelihood of affecting

the outcome of penalty-phase proceedings. Given the array of

evidence of childhood abuse presented to the jury, nothing in

the state-court record shows that the Supreme Court of Virginia

unreasonably determined that the failure to develop and present

testimony from Jackson’s siblings did not constitute Strickland

prejudice.

As described above, counsel called seventeen mitigation

witnesses, including nine professionals, many of whom had

treated or worked with Jackson when he was a child, five family

members, Jackson’s godmother, the family’s pastor, and Jackson

himself. These mitigation witnesses’ testimony shed

considerable light on Jackson’s traumatic childhood. For

instance, in response to probing inquiries from counsel, the

37
social worker who had researched multiple instances of Jackson’s

childhood abuse read an account of her investigation suggesting

that Jackson and his brother had been “outright raped.” J.A.

899. The jury also heard record evidence that Jackson’s

stepfather harangued him in the midst of counseling sessions,

stating that “he hate[d] him and that [Jackson wa]s evil.” Id.

at 825. These are just two of many, striking examples of

physical and emotional abuse presented to the jury at the

penalty phase. 11

Even the district court’s selective summary 12 of the

proceedings at trial illustrates the severity of the accounts of

11
The district court noted that this disturbing language
appeared in the written records assembled by counsel; indeed, it
cited these two statements as data reviewed by counsel that
should have prompted further investigation. Jackson III, 699 F.
Supp. 2d at 847. However, the court failed to mention that
these same accounts were read to the jury. In summarizing the
witnesses’ presentations of these reports, the court blandly
alluded to the former incident as an alleged sexual assault and
to the latter as “verbal[] abus[e].” Id. at 856-57.
12
The district court’s minimization of the potency of
mitigation evidence at trial is notably illustrated by its
assertion that the trial court “warned” defense counsel about
the dryness of his evidence. See Jackson III, 699 F. Supp. 2d
at 845. The pertinent statement was not a “warning.” It was
instead offered as a rationale for continuing with mitigation
witnesses after counsel noted that Jackson had not taken his
medication, which Jackson explained “help[ed him] to stay
awake.” J.A. 887. The trial court noted that he had seen
Jackson “looking down and looking around,” but reasoned that
such behavior was understandable given the nature of the
witnesses’ testimony. J.A. 888.

38
abuse presented to the jury in mitigation. See Jackson III, 699

F. Supp. 2d. at 855-58. Testimony from Jackson’s trial

recounted by the district court included descriptions of Jackson

suffering a broken arm when he was less than two years old (an

injury which neither of his parents could explain); being

sexually assaulted; receiving medical treatment on multiple

occasions for severe bruising; finding himself locked out of his

apartment by his biological father at a young age; being struck

with a belt; enduring a beating in the eye and chest with a

large stick; and, on at least one occasion, having to strip

naked and perform exercises before being beaten. See Jackson

III, 699 F. Supp. 2d. at 855-58. The district court also cited

testimony that Jackson’s father “had a reputation for alcohol

consumption” and that his stepfather had been criminally

prosecuted for child abuse, which resulted in a suspended

sentence, a protective order, and mandatory counseling. Id.

Against the backdrop of this mitigation evidence, the

Supreme Court of Virginia supportably found that the testimony

described in Jackson’s siblings’ affidavits would have been

“largely cumulative” of material already before the jury, as

they amounted to “anecdotal evidence of specific instances of

the abuse from the perspective of [Jackson’s] siblings.”

Jackson II, 627 S.E.2d at 787. As a result, the state court

reasoned, the failure to develop and present Jackson’s siblings

39
as witnesses was not substantially likely to have affected the

outcome of penalty-phase proceedings. Given the breadth and

depth of evidence of childhood abuse provided to the jury, we

cannot say that determination was clearly unreasonable. See

Harrington, 131 S. Ct. at 791.

We also see no basis on which to conclude that counsel’s

alleged failure to present positive character evidence

prejudiced Jackson. The district court’s contrary finding

reflected a lack of deference to the Supreme Court of Virginia’s

threshold factual conclusion “that the jury heard evidence of

[Jackson’s] good qualities.” Jackson II, 627 S.E.2d at 787.

The district court’s dismissal of the statements on which the

Supreme Court of Virginia relied as “bland, hearsay comments,”

which “offered no real insight into Jackson’s character or

personality,” Jackson III, 699 F. Supp. 2d at 852, constituted

an assessment of the potency of the positive mitigation evidence

rather than the existence of such evidence. Put otherwise, the

bare insistence that the positive statements cited by the

Supreme Court of Virginia did not constitute “genuine” evidence

was far from a refutation by clear and convincing evidence of

the Supreme Court of Virginia’s factual conclusion. See 28

U.S.C. § 2254(e)(1). Although it invoked AEDPA’s language, the

district court did not give that standard sufficient “operation

or function in its reasoning.” Harrington, 131 S. Ct at 787.

40
 More fundamentally, the district court’s “reweigh[ing of]

the evidence in aggravation against the totality of available

mitigating evidence,” was conspicuously one-sided. Wiggins, 539

U.S. at 534; see also Emmett v. Kelly, 474 F.3d 154, 170 (4th

Cir. 2007). Specifically, the district court failed to mention

considerable evidence regarding the horrific circumstances of

Jackson’s rape and murder of Mrs. Phillips. This omission was

particularly striking in light of the government’s careful

emphasis on the disturbing details of Jackson’s crimes at

closing.

The troubling circumstances highlighted by the government

included the fact that Jackson intruded upon the “sanctity of

[Mrs. Phillips’s] home,” despite the fact that her car was

parked outside; that he had entered through a window that she

had left “open just a little bit so she did not have to use

[her] air conditioner, so she could save some money,” J.A. 960;

that he ignored her plea to take what he wanted and leave; that

after raping and murdering her, he absconded with her car; that

he left his victim with her dress pulled up and her body

grotesquely twisted; and that he used the money he took from her

purse to buy drugs.

The government also pointedly emphasized Jackson’s own

testimony during the guilt phase, noting that his retreat from

his earlier videotaped statement “absolutely showed no remorse.”

41
Id. at 961. The government further observed that Jackson “had

the audacity” to claim that Mrs. Phillips had not been raped and

to attempt to shift blame to his alleged accomplices. Id. at

961-62. This body of aggravating evidence only reinforces our

determination that the Supreme Court of Virginia was not clearly

unreasonable in determining that Jackson had failed “to

demonstrate how additional evidence of his good character, such

as his love for his grandmother and his desire that his parents

reunite, would have affected the jury’s determination.” Jackson

II, 627 S.E.2d at 787.

Finally, we turn to Jackson’s assertion that counsel failed

to present expert testimony linking childhood abuse to adult

behavior. The Supreme Court of Virginia did not address this

claim, see supra n. 2, and the district court declined to make

an independent finding of prejudice arising from the absence of

psychological testimony, see Jackson III, 699 F. Supp. 2d at

864. In light of the balance of aggravating and mitigating

evidence discussed above, we are unconvinced that such expert

testimony would have yielded “a ‘substantial’ . . . likelihood

of a different result.” Cullen, 2011 WL 1225705, at *12

(quoting Harrington, 131 S. Ct. at 791).

In sum, we find that even if counsel’s development and

presentation of mitigation evidence was deficient, any

42
deficiencies did not amount to prejudice under Strickland’s

second prong.

B.

The remaining claims on which the district court granted

relief, as well as Jackson’s claims on cross-appeal, all involve

alleged instructional error, arising out of the trial court’s

failure to specifically instruct the jury on particular

mitigating factors. We begin with the claim on which habeas

relief was granted, i.e., that counsel’s failure to object to

the lack of a specific mitigation instruction constituted

constitutionally deficient representation. As this argument was

adjudicated on a complete factual record in state court, we

review it through the “doubly” deferential lens of AEDPA and

Strickland, Cullen, 2011 WL 1225705, at *12; Harrington, 131 S.

Ct. at 788, and conclude that it lacks merit.

We briefly recount the disputed jurors’ colloquies at voir

dire. Juror Dana Metheny initially responded “No” when asked by

defense counsel whether she would “be able to consider the age

of Mr. Jackson in making a decision on whether to impose life

without the possibility of parole, or death.” J.A. 639. She

repeated her answer after counsel clarified that the question

was whether she would consider “age or any other evidence that

we may put before you if we so elect . . . in mitigation that

you may consider; family, doctors, past, the way he grew up.”

43
Id. at 639-40. However, she repeatedly responded “Yes” when

asked if she would consider such issues if instructed to do so

by the court. E.g., id. (“If the Court tells you to consider

issues in mitigation, such as age, such as background, such as

family, such as psychological or psychiatric issues, would you

consider those issues in mitigation before you voted for death?”

“Yes.”).

Juror Wendy Berube expressed similar reluctance to consider

age as mitigating evidence. When asked whether she would

consider factors in mitigation, she responded “Yes. I mean, I

would consider everything,” adding “I don’t think that age

matters, if that is what you’re asking.” Id. at 665-66

(emphasis added). When queried “If the Court instructs you age

matters, would you then consider it?” she responded “Yes.” Id.

at 666. She gave the same response when asked if she would

“follow the Court’s instructions?” Id. In deeming both jurors

qualified to serve, the trial court stated: “They don’t know

whether [age is] a factor for them to consider or not . . .

[B]ut when they’re told that it’s a factor they must consider or

they should consider, not what weight they’d give to it, they

all agree that they’ll consider it.” Id. at 671.

The district court’s grant of habeas relief was anchored in

its reading of the jurors’ colloquies and the trial court’s

statement as a clear indication that neither juror was qualified

44
to serve unless they were “specifically instructed” to consider

various types of mitigation evidence. Jackson III, 699 F. Supp.

2d at 866. However, the Supreme Court of Virginia supportably

found that the “contention that qualification of these jurors

was ‘conditioned’ upon the giving of a specific instruction is

not supported in fact or in law.” Jackson II, 627 S.E.2d at

788. Neither the district court’s analysis nor Jackson’s

argument on appeal shows that the state court’s conclusion was

clearly unreasonable. As a result, AEDPA mandates that we defer

to the state court’s assessment. 13

Both jurors plainly expressed their willingness to consider

any and all mitigation evidence if instructed to do so by the

judge. The trial court provided just such an instruction,

13
The district court erred when it declined to afford such
deference to the state court’s fact finding. Jackson III, 699
F. Supp. 2d at 853. The Supreme Court of Virginia found that
any request for a specific instruction “would have been properly
refused.” Jackson II, 627 S.E.2d at 788. In support of its
holding the state court cited Virginia precedents illustrating
the appropriateness of general instructions. See id.; see also
Gray v. Commonwealth, 356 S.E.2d 157, 178 (Va. 1987) (“[F]ailure
to list mitigating factors inures to the benefit of a
defendant.”); LeVasseur v. Commonwealth, 304 S.E.2d 644, 661
(Va. 1983) (“We have repeatedly held that an instruction is
improper which singles out one portion of the evidence for
special emphasis.”).
This body of caselaw may be why the trial court did not
present an itemized instruction on its own initiative. In any
event, Virginia precedent on this point, as well as the trial
court’s decision to proceed with a general instruction, provided
sufficient support for the state court’s determination so as to
warrant AEDPA deference.

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admonishing the jury that “in determining the appropriate

punishment you shall consider any mitigation evidence presented

of circumstances which do not justify or excuse the offense but

which in fairness or mercy may extenuate or reduce the degree of

moral culpability and punishment.” J.A. 617 (emphasis added).

Significantly, both age and background had been expressly

presented to the jury by defense counsel as mitigating factors.

We have already described counsel’s argument that Jackson’s

traumatic childhood should be weighed in mitigation. Counsel

also specifically emphasized Jackson’s relative youth at the

time he committed the rape and murder. See, e.g., Id. at 972

(“[Y]ou have a videotape back there [of Jackson’s confession] .

. . [W]atch that 19-year-old kid talk.”); id. at 973 (“Life for

a 20-year-old man without the possibility of parole. Ever.

That’s what we ask.”).

More fundamentally, there is simply no factual or legal

basis for the district court’s apparent assumption that either

juror was “conditionally” qualified and that a specific

mitigation instruction was therefore constitutionally mandated.

Tellingly, in his brief and at oral argument, Jackson could not

cite a single case in which such conditional qualification had

been recognized. Nor were we able to find one. As the Supreme

Court of Virginia found, “[b]oth jurors were qualified upon the

trial court’s determination that they would be fair and

46
impartial.” Jackson II, 627 S.E.2d at 788; see also Bell v.

Cone, 543 U.S. 447, 456 (2005) (noting “the presumption that

state courts know and follow the law” (internal quotation

omitted)). Nothing more was required.

By the same token, the district court’s reliance on cases

in which factfinders declined to give any consideration to

mitigating evidence was misplaced. As explained above, there is

no evidence here that either of the jurors refused to consider

such evidence following the trial court’s instruction. Cf.

Morgan v. Illinois, 504 U.S. 719, 736 (1992) (discussing jurors

who “obviously deem mitigating evidence to be irrelevant to

their decision to impose the death penalty”); Eddings v.

Oklahoma, 455 U.S. 104, 113 (1982) (noting trial judge’s

erroneous conclusion that “as a matter of law he was unable even

to consider the [mitigating] evidence” of defendant’s family

history). Both jurors stated that they would listen to an

instruction to consider mitigating evidence; they were

ultimately admonished to do just that. Absent any indication

that the Supreme Court of Virginia’s analysis was clearly

unreasonable, counsel’s failure to object to the lack of a

specific mitigating instruction cannot support a claim for

habeas relief.

For the same reasons, Jackson’s claims on cross-appeal lack

merit. Jackson argues that (1) Juror Berube should not have

47
been seated in the first place because she would not consider

age as a mitigating factor, (2) both disputed jurors were

rendered unfit for service when no specific instruction was

given and the trial court erred by not removing them on its own

motion, and (3) defense counsel’s failure to move to strike the

jurors when a specific mitigating instruction was not provided

was unreasonable. However, as the Supreme Court of Virginia

supportably found, the jurors’ service was not “conditional.”

Any concerns the jurors expressed were adequately addressed by

the general mitigation instruction.

VI.

For the foregoing reasons we reverse the district court’s

grant of habeas relief in this case.

REVERSED

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