Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, S.J.
MICHAEL W. LENZ
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 012883 April 17, 2003
WARDEN OF THE SUSSEX I
STATE PRISON
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
I.
Petitioner, Michael William Lenz, was convicted of the
willful, deliberate, and premeditated killing of a person by a
prisoner confined in a state or local correctional facility in
violation of Code § 18.2-31(3). The jury fixed his punishment
at death, and the circuit court sentenced petitioner in
accordance with the jury verdict. We affirmed the judgment of
the circuit court in Lenz v. Commonwealth, 261 Va. 451, 544
S.E.2d 299, cert. denied, 534 U.S. 1003 (2001). In view of
our resolution of this proceeding, it is not necessary that we
discuss the underlying facts related to petitioner's
convictions.
II.
As permitted by Code § 8.01-654, Lenz filed a petition
for a writ of habeas corpus in this Court against Page True,
Warden, Sussex I State Prison, alleging, among other things,
that his trial counsel were ineffective. The Warden filed a
motion to dismiss, and this Court entered an order directing
that the Circuit Court of Augusta County conduct an
evidentiary hearing limited to certain issues. This Court
took petitioner's remaining claims under advisement.
The circuit court conducted the evidentiary hearing
required by this Court pursuant to Code § 8.01-654(C) and
submitted its written report to this Court, which entered
orders establishing a schedule for the submission of briefs.
Petitioner filed an opening brief that only addressed the
issues that were the subject of the circuit court's
evidentiary hearing. Petitioner, in his opening brief, did
not discuss the issues that this Court had taken under
advisement, including petitioner's claim that trial counsel
were ineffective because they failed to challenge the verdict
form during petitioner's capital murder trial.
The Warden, relying upon our decision in Hedrick v.
Warden, 264 Va. 486, 570 S.E.2d 840 (2002), argues that this
Court must dismiss all petitioner's claims that were not
discussed in his opening brief, including his ineffective
assistance of counsel claims that were asserted in the
petition for a writ of habeas corpus. We disagree with the
Warden.
It is true, as the Warden asserts, that in Hedrick, we
held that a petitioner's claims were procedurally defaulted
because the petitioner, who had asserted those claims in his
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petition for a writ of habeas corpus, failed to discuss those
claims in his opening brief. 264 Va. at 522, 570 S.E.2d at
862. However, in this case, unlike the petitioner in Hedrick,
Lenz specifically incorporated by reference in his opening
brief the arguments that he advanced in his petition for a
writ of habeas corpus. We think that this is a material
difference, and we hold that petitioner's claims that he
specifically incorporated by reference as a part of his
opening brief are not procedurally barred.
We recognize that we have repeatedly held that a litigant
cannot incorporate by reference arguments that were made in
another court or in another case. See Schmitt v.
Commonwealth, 262 Va. 127, 138, 547 S.E.2d 186, 194 (2001),
cert. denied, 534 U.S. 1094 (2002); Burns v. Commonwealth, 261
Va. 307, 319, 541 S.E.2d 872, 881, cert. denied, 534 U.S. 1043
(2001); Hedrick v. Commonwealth, 257 Va. 328, 336, 513 S.E.2d
634, 638-39, cert. denied, 528 U.S. 952 (1999); Pulliam v.
Coastal Emergency Servs., Inc., 257 Va. 1, 20 n.12, 509 S.E.2d
307, 318 n.12 (1999); Williams v. Commonwealth, 248 Va. 528,
537, 450 S.E.2d 365, 372 (1994), cert. denied, 515 U.S. 1161
(1995); Mickens v. Commonwealth, 247 Va. 395, 401 n.4, 442
S.E.2d 678, 683 n.4, vacated and remanded on other grounds by
513 U.S. 922 (1994); Jenkins v. Commonwealth, 244 Va. 445,
460-61, 423 S.E.2d 360, 370 (1992), cert. denied, 507 U.S.
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1036 (1993); Spencer v. Commonwealth, 240 Va. 78, 99-100, 393
S.E.2d 609, 622, cert. denied, 498 U.S. 908 (1990). And, we
adhere to these prior rulings. However, in this case,
petitioner's petition for a writ of habeas corpus was filed
with the Clerk of this Court. Unlike the situation that may
exist when a litigant seeks to incorporate by reference
arguments filed in another court or in another case, this
Court has no difficulty ascertaining the exact arguments that
petitioner has incorporated by reference from other pleadings
filed in this Court.
III.
A.
Petitioner argues, among other things, that his trial
counsel were ineffective because they failed to object to the
verdict form during the sentencing phase of his capital murder
trial. Petitioner, relying principally upon our decision in
Atkins v. Commonwealth, 257 Va. 160, 510 S.E.2d 445 (1999),
argues that trial counsel were ineffective because they failed
to object to the verdict form that was incomplete and
inaccurate. This verdict form failed to inform the jury that
it could sentence petitioner to life imprisonment even if the
jury found petitioner guilty of both aggravating factors
beyond a reasonable doubt. Continuing, petitioner states that
his trial counsel did not challenge the verdict form either in
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the circuit court or in petitioner's initial brief filed on
appeal.
We agree with petitioner. In Atkins, we considered
whether a jury, at the conclusion of the sentencing phase of a
capital murder trial, was properly instructed when "the
verdict form failed to provide the jury with the option of
sentencing [the defendant] to life imprisonment upon a finding
that neither of the aggravating factors of future
dangerousness or vileness was proven beyond a reasonable
doubt." 257 Va. at 177-78, 510 S.E.2d at 456. We observed
that "it is materially vital to the defendant in a criminal
case that the jury have a proper verdict form." Id. at 178,
510 S.E.2d at 456.
We reversed the circuit court's judgment in Atkins that
imposed the sentence of death upon the defendant because the
jury verdict form was not accurate. The form that was
submitted to the jury "contained no alternative finding
permitting the jury to impose only a life sentence if neither
future dangerousness nor vileness had been proven beyond a
reasonable doubt." Id.
When we considered Lenz' direct appeal to this Court, we
raised, sua sponte, the issue whether the verdict form was
proper in light of our decision in Atkins. We directed
counsel to address this issue. Petitioner's trial counsel
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responded to our directive and stated that the jury verdict
form they drafted was defective because the form did "not
include the alternatives that, having found the defendant
guilty of capital murder, the jury could find either or both
of the aggravating factors and still impose a life sentence."
This Court did not consider petitioner's arguments on direct
appeal because they were neither raised in the circuit court
nor were they the subject of an assignment of error before
this Court during the appeal. Lenz, 261 Va. at 472, 544
S.E.2d at 311.
The jury in the sentencing phase of Lenz' capital murder
trial was given the following form which is almost identical
to 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."
This form, however, did not satisfy our holding in Atkins
because the form failed to inform the jury that it could
impose a sentence of life imprisonment or a sentence of life
imprisonment and a fine if the jury found that neither of the
aggravating factors had been proven beyond a reasonable doubt.
Therefore, we are compelled to conclude that the above-
referenced form, which is almost identical to the language
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contained in Code § 19.2-264.4(D), is not sufficient to
satisfy our holding in Atkins.
We disagree with the Warden's contention that
petitioner's trial counsel could not "have been ineffective
for failing to object to a verdict form mandated by statute
and which repeatedly had been held by this Court to be
proper." Our decision in Atkins, holding that it is
materially vital to a defendant in a criminal case that the
jury be given a proper verdict form reflecting its sentencing
options, was rendered in February 1999, one and one-half years
before petitioner's jury was instructed. Atkins, 257 Va. at
178, 510 S.E.2d at 456.
We note that in June 2001, we decided Powell v.
Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001). In Powell,
we held that a verdict form identical to the one used in the
present case was improper because the form failed to state
that the jury could impose a sentence of life imprisonment,
even after finding the defendant guilty of one or both
aggravating factors beyond a reasonable doubt. 261 Va. at
545, 552 S.E.2d at 363. Thus, here, as in Powell, the absence
of this sentencing alternative from the verdict form
constituted error in the sentencing phase of the capital
murder proceeding. Id.
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We disagree with the Warden that petitioner has not
suffered any prejudice. Our above-stated holding in Atkins
requires a finding of prejudice because had counsel assigned
error to the verdict form during the direct appeal of the
judgment, petitioner would have received a new sentencing
proceeding. See Atkins, 257 Va. at 179, 510 S.E.2d at 457.
See also Williams v. Taylor, 529 U.S. 362, 394-95 (2000);
Strickland v. Washington, 466 U.S. 668, 694 (1984); Hedrick v.
Warden, 264 Va. at 496-97, 570 S.E.2d at 847; Powell, 261 Va.
at 545, 552 S.E.2d at 363.
B.
In view of our ruling that will require petitioner to
receive a new sentencing hearing, we need not consider his
habeas corpus claims that relate to his prior sentencing
hearing.
C.
Petitioner argues that he "was denied his right to
counsel at a critical stage of the proceedings due to the
trial court's refusal to order that Lenz be transported to a
location where he could have reasonable access to his
attorneys until a week before his capital trial commenced, and
due to the conditions under which the Commonwealth forced
trial counsel to consult with Lenz during the months prior to
his trial." This claim is procedurally defaulted because it
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could have been raised at trial and on direct appeal. Slayton
v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974), cert.
denied, 419 U.S. 1108 (1975).
We recognize that in his brief on direct appeal,
petitioner argued that he was "denied effective assistance of
[c]ounsel in that the Department of Corrections housed [him]
hours away from the site of the trial and of the offices of
his appointed attorneys. Because of these great distances the
defendant could only meet with his attorneys for a short
period of time. The time the defendant spent with his
attorneys was much less than the travel time to and from the
location." Lenz, 261 Va. at 460, 544 S.E.2d at 304. We
refused to consider this claim on direct appeal because in
this Commonwealth, "[c]laims raising ineffective assistance of
counsel must be asserted in a habeas corpus proceeding and are
not cognizable on direct appeal." Id. However, in
petitioner's petition for a writ of habeas corpus, he does not
allege that his counsel were ineffective for this reason.
Rather, he asserts that he was denied his right to counsel at
a critical stage of the proceedings, which is different from a
claim of ineffective assistance of counsel.
Petitioner argues that "[t]he death penalty in Virginia
is unconstitutional." This argument was raised on direct
appeal and petitioner may not assert this argument again in
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this habeas corpus proceeding. Slayton, 215 Va. at 30, 205
S.E.2d at 682.
D.
Petitioner argues that his trial counsel were ineffective
because they "fail[ed] to object to the Department of
Corrections' unilateral decision to place a stun belt on
[petitioner] throughout his trial, without any showing of
need, denied [petitioner] his rights to be tried without
restraint, to effective assistance of counsel, and to a fair
trial." We disagree.
During a pretrial hearing, petitioner's trial counsel
asked the circuit court for permission to purchase civilian
clothes for the petitioner, even though he was an inmate.
Trial counsel did not want petitioner to appear before a jury
wearing a prison-issued jumpsuit and shackles. The circuit
court inquired whether petitioner could wear a stun belt
because "if he were to escape, that would be a danger to the
public." Apparently, petitioner was required to wear a stun
belt during his trial.
In view of petitioner's criminal history, which included
multiple convictions for escape from custody, we hold that
trial counsel were not ineffective because they did not object
to the circuit court's decision to require this inmate to wear
a stun belt. Even habeas counsel do not dispute that
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petitioner was a risk to the public if he were able to escape.
There is nothing in this record that indicates the jury
observed a stun belt on petitioner during his trial.
Petitioner failed to demonstrate prejudice because he cannot
show that there is a "reasonable probability" that, but for
counsel's [allegedly] unprofessional errors, the result of the
proceeding would have been different. "A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694;
accord Bell v. Cone, 535 U.S. 685, 695 (2002); Roe v. Flores-
Ortega, 528 U.S. 470, 482 (2000); Hedrick v. Warden, 264 Va.
at 497, 570 S.E.2d at 847. Accordingly, we hold that
petitioner fails to satisfy the performance or prejudice
standards established in Strickland v. Washington.
E.
Petitioner argues that his trial counsel "were
ineffective for failing to object to jury instructions that
incorrectly permitted the jury to convict [petitioner] of
capital murder even if [the jury] did not find that the
[Commonwealth] had proven beyond a reasonable doubt that
[petitioner] was . . . the actual perpetrator of the victim's
death." Petitioner's contention is without merit.
The evidence at trial established that Lenz and another
inmate stabbed the victim with knives numerous times. The
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victim incurred a total of 68 stab wounds and all the wounds
contributed to the victim's death. During the guilt phase of
petitioner's capital murder trial, the circuit court
instructed the jury that it may convict petitioner of capital
murder if the Commonwealth proved "beyond a reasonable doubt
that [petitioner] was an active and immediate participant in
the act or acts that caused the victim's death."
In view of the facts, the instruction that the circuit
court gave the jury was a correct statement of law, and we
approved that instruction in Strickler v. Commonwealth, 241
Va. 482, 493-95, 404 S.E.2d 227, 234-35, cert. denied, 502
U.S. 944 (1991). Contrary to petitioner's arguments, he was
not entitled to a jury instruction that he could only be
convicted of capital murder in the event the jury found beyond
a reasonable doubt that he was the "triggerman." As we have
held, "a defendant who 'jointly participated in [a] fatal
beating' was subject to conviction and punishment for capital
murder, [when] the other requisite elements were present. We
adhere to the view that [when] two or more persons take a
direct part in inflicting fatal injuries, each joint
participant is an 'immediate perpetrator' for the purposes of
the capital murder statutes." Id. at 495, 404 S.E.2d at 235.
Thus, we hold that trial counsel were not ineffective because
they had no basis upon which to object to the challenged jury
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instruction, which was appropriate in view of the facts
presented to the jury during the guilt phase of petitioner's
capital murder trial.
IV.
Accordingly, we will dismiss all petitioner's claims
except his claim that asserted he was denied effective
assistance of counsel because trial counsel failed to object
to the improper verdict form. We will grant that portion of
the petition for a writ of habeas corpus challenging the use
of the improper verdict form, and petitioner shall be granted
a new sentencing hearing.
Petition dismissed in part,
granted in part, and case
remanded to the circuit court
for a new sentencing hearing.
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