Preview:

VIRGINIA:
In the Supreme Court of Virginia held at the Supreme
Court Building in the City of Richmond, on Friday, the  24th
day of March,  2006.
Jerry Terrell Jackson,                                          Petitioner,
against    Record No.  042751
Warden of the Sussex I State Prison,                            Respondent.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of
habeas corpus filed January  4,  2005, the respondent’s
motion to dismiss, and the petitioner’s reply to that
motion, the Court is of the opinion that the motion should
be granted and the writ should not be issued.
Jerry Terrell Jackson was convicted in the Circuit
Court of the City of Williamsburg and James City County of
one count each of statutory burglary, robbery, rape, petit
larceny and two counts of capital murder for the
premeditated killing of Ruth Phillips during the commission
of a rape, and during the commission of a robbery.    Finding
that the Commonwealth had proven the aggravating factor of
“future dangerousness” beyond a reasonable doubt, see Code
§  19.2-264.2, the jury fixed Jackson’s sentence at death on
each of the capital murder convictions and fixed sentences
totaling two life sentences plus  20 years’ imprisonment and
1




12 months in jail for the non-capital convictions.    The
trial court sentenced Jackson in accordance with the jury’s
verdict.    This Court unanimously affirmed Jackson’s
convictions and the sentences of death.    Jackson v.
Commonwealth,  267 Va.  178,  208-09,  590 S.E.2d  520,  537
(2004), cert. denied,  543 U.S.  891  (2004).
In claim I(A), petitioner alleges that he was denied
the effective assistance of counsel because counsel relied
on impermissible and unreasonable factors in determining
which questions to ask individual jurors during voir dire.
Counsel did not ask four potential jurors, Lewis Samuels,
Alfonso LaFalce, June Brown, and Joyce Griffith:  (1)
whether they believe death is the appropriate punishment
for murder unless the defendant convinces them otherwise;
(2) whether they believe everyone who commits murder will
be dangerous in the future; and  (3) whether they would
automatically vote to impose death on a person they
determined to be a future danger.    Petitioner contends that
in determining not to pose these questions to these four
potential jurors, counsel unreasonably relied on racial
stereotypes, geographic stereotypes, and  “tips” from the
bailiff.    Petitioner further asserts that had counsel asked
the questions, there was a reasonable probability that one
2




of the jurors would have revealed that he or she was
unqualified to serve.
The Court holds that claim I(A) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland v. Washington,  466 U.S.  668,
687  (1984).    The record, including the trial transcripts
and affidavit of trial counsel, demonstrates that the court
asked significant voir dire questions and the four jurors,
along with other members of the venire, demonstrated that
they would be fair and impartial.    Counsel averred that,
based upon the court’s questioning and the information
obtained as to each of the jurors, counsel made a strategic
decision not to ask these jurors any additional questions.
Furthermore, petitioner does not allege that any of these
jurors were, in fact, unqualified or that any of these
jurors failed to follow the instructions given to them by
the trial court.    Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding
would have been different.    See id. at  687,  694.
In claim I(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel
violated the holding in Batson v. Kentucky,  476 U.S.  79
3




(1986) when he chose not to exercise a peremptory strike as
to juror Holly Minkins because she was an African-American
woman.    Petitioner acknowledges that counsel’s decision to
retain Minkins was a tactical decision but nevertheless
contends that Minkins’ answers during voir dire
demonstrated that she was not qualified to serve on the
jury.    Thus, counsel’s decision to retain Minkins was
unconstitutional because it was based solely on Minkins’
race.    Petitioner further contends that counsel’s failure
to strike Minkins is presumptively prejudicial.    However,
even if prejudice is not presumed, petitioner claims he can
demonstrate prejudice because absent counsel’s error, the
composition of the jury would have been different.
Petitioner argues that, in light of the scant evidence on
the issue of premeditation and the fact that the jury
conducted sentencing deliberations for two days, there is a
reasonable probability that a difference in the jury
composition would have resulted in a different outcome.
The Court holds that claim I(B) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    First, counsel’s failure to
strike Minkins is not a  “structural error.”    As this Court
stated in Morrisette v. Warden of the Sussex I State
Prison,  270 Va.  188,  613 S.E.2d  551  (2005):
4




A                                                             “structural error” is a  “defect affecting the
framework within which the trial proceeds, rather
than simply an error in the trial process
itself.”    Arizona v. Fulminante,  499 U.S.  279,
310  (1991); see Emmett v. Warden,  269 Va.  164,
168,  609 S.E.2d  602,  605  (2005).    As such, it is
the constitutional magnitude of the error that
defies  “harmless error review.”    Neder v. United
States,  527 U.S.  1,  8  (1999).    Examples of errors
which affect the framework of a trial include the
denial of a public trial, the denial of counsel,
the denial of an impartial trial judge, the
systematic exclusion of members of the
defendant’s race from the grand jury, the
infringement upon a defendant’s right to
represent himself, and the improper instruction
to a jury as to reasonable doubt and the burden
of proof.    See Johnson v. United States,  520 U.S.
461,  466-67  (1997)  (discussion of  “limited class
of cases” in which structural error found); Green
v. Young,  264 Va.  604,  611-12,  571 S.E.2d  135,
140  (2002)  (holding an instruction stating the
jury shall find the defendant guilty if the
Commonwealth failed to prove each element beyond
a reasonable doubt to be structural error).
Id. at  192,  613 S.E.2d at  556.    Thus, any prejudice is
not presumed.
The record, including the trial transcript of the voir
dire of Minkins, also demonstrates that Minkins was
qualified to serve on the jury.    The holding in Batson
applies to the impermissible exclusion of members of a
particular race from a jury pursuant to the exercise of a
peremptory strike.                                            476 U.S. at  87-88.    Petitioner has
failed to demonstrate that counsel’s tactical decision
regarding the selection of jurors was of a constitutional
dimension, as petitioner does not claim that counsel
5




excluded members of a particular race in violation of
Batson.    Furthermore, petitioner has failed to demonstrate
that the empanelled jury was not impartial.    Thus,
petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.    See
Strickland,  466 U.S. at  687,  694.
In claim II(A), petitioner alleges that the trial
court failed to ensure the selection of an impartial jury
because the court did not inform the venire that the victim
was  88 years old and did not inform the venire of  “other
circumstances of her life.”    Petitioner contends that
without this information, the court could not determine
whether the venire, which included several venire persons
who were  65 and older, could be impartial.    The Court holds
that claim II(A) is procedurally defaulted because this
non-jurisdictional issue could have been raised at trial
and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus.    Slayton v. Parrigan,
215 Va.  27,  29-30,  205 S.E.2d  680,  682  (1974), cert.
denied,  419 U.S.  1108  (1975).
In claim II(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel failed
6




to object to the inadequacy of the information given to the
venire and failed to cure the trial court’s error.
Petitioner contends that the  “facts” were undisputed and
did not go to any element of any offense that was charged.
Petitioner asserts that had counsel ensured that the
victim’s age and other circumstances were provided to the
venire, there is a reasonable probability that one of the
potential jurors would have revealed that he or she was
unqualified.
The Court holds that claim II(B) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    The record, including the
trial transcripts, demonstrates that counsel asked the
jurors whether any sorrow or sympathy they might feel
towards the victim would affect their ability to judge the
case fairly.    Moreover, the court instructed the jurors,
“You must not be influenced in any degree by any personal
feeling of sympathy for or prejudice against any party.”
Petitioner also fails to identify any information,
other than the victim’s age, that he contends should have
been provided to the venire.    Moreover, petitioner does not
allege that he was actually denied an impartial jury or
that any of the jurors seated would have been deemed
unqualified to serve had the victim’s age and other unknown
7




information been provided to them.    Thus, petitioner has
failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the
proceeding would have been different.    See Strickland,  466
U.S. at  687,  694.
In claim III, petitioner alleges that he was denied
the effective assistance of counsel because counsel failed
to adequately redact portions of the videotaped police
interrogation of the petitioner and failed to adequately
redact portions of the interrogation transcript.
Petitioner contends that counsel failed to redact
references to home burglaries, suspicion that petitioner
“hung out with” drug dealers, petitioner’s heavy
consumption of alcoholic beverages, petitioner’s confession
to a break-in at the victim’s apartment complex the night
prior to the victim’s murder, and police suspicion that
petitioner had committed an unrelated rape.    Petitioner
further contends that counsel’s performance was
“explosively prejudicial” because there was a reasonable
probability that  “the jurors found  [him] guilty of capital
murder because of his prior crimes.”
The Court holds that claim III satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
8




test enunciated in Strickland.    The record, including the
trial transcripts, demonstrates that petitioner’s counsel,
Patrick D. Kelley, reviewed the videotape, provided the
Commonwealth with proposed redactions prior to opening
statements, discussed the proposed redactions on the record
prior to the videotape being introduced into evidence, and
finally agreed to a satisfactory redacted version.    The
record further demonstrates that petitioner’s other
counsel, Andrew A. Protogyrou, reviewed the transcript and
objected to the use of the transcript.    Furthermore, the
unredacted portions of the videotape support the
petitioner’s theory of defense that he was a burglar, not a
rapist or a murderer, and that he did not intend to commit
murder when he entered the victim’s apartment.    Thus,
petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.    See
Strickland,  466 U.S. at  687,  694.
In claim IV(A), petitioner alleges that the
Commonwealth failed to disclose the exculpatory information
that Alex Meekins and Jasper Meekins are only half brothers
and falsely argued that because mitochondrial DNA  (mtDNA)
analysis evidence excluded Alex as a contributor of the
9




hairs found on the victim’s body, Jasper was also excluded.
Petitioner contends that if Alex and Jasper are not from
the same maternal line, they would have different mtDNA,
and the exclusion of Alex would have provided no meaningful
information about Jasper.    The Court holds that claim IV(A)
is procedurally defaulted.    Petitioner concedes that Andrew
Protogyrou’s trial notes confirm that trial counsel were
aware that Alex and Jasper were half brothers.
Furthermore, Alex Meekins had been subpoenaed to appear at
trial and could have verified his lineage.    Thus, the
allegedly exculpatory information concerning both Meekins’
parental history was available to petitioner at trial.
Because this non-jurisdictional issue could have been
raised at trial and on direct appeal, it is not cognizable
in a petition for a writ of habeas corpus.    Slayton,  215
Va. at  29-30,  205 S.E.2d at  682.
In claim IV(B), petitioner alleges that he was
denied the effective assistance of counsel because
counsel unreasonably failed to investigate and to
inform the jury that Alex and Jasper Meekins are only
half brothers.    Petitioner contends that counsel
should have called Alex to testify that he and Jasper
were half brothers and should have sought DNA testing
of Jasper.    Petitioner asserts that counsel’s errors
10




prevented counsel from arguing that another person
raped and killed the victim after petitioner left.
Thus, petitioner contends that he was prejudiced
because the jury was left with an impression that
petitioner was the only person that could have left
the pubic hairs found on the victim’s body.
The Court holds that claim IV(B) satisfies
neither the  “performance” nor the  “prejudice” prong of
the two-part test enunciated in Strickland.    The
record, including expert testimony at trial and the
certificates of analysis entered into evidence,
demonstrates that mtDNA testing excluded Alex Meekins
as a contributor of the pubic hairs found on the
victim’s body and in her bed.    According to the expert
testimony presented at trial, mtDNA is shared,
identically, by a mother and her offspring.    Juvenile
records, submitted by the Warden in this proceeding,
for both Alex and Jasper Meekins demonstrate that the
brothers share the same mother.    Consequently,
petitioner’s claim that Jasper would have different
mtDNA than his half brother is factually without
merit.
The record further demonstrates that petitioner
admitted to raping the victim and that mtDNA testing
11




of the pubic hairs found on the victim were determined
to be consistent with the petitioner’s mtDNA to the
exclusion of  99.998% of the population with a  95%
degree of confidence.    In light of the petitioner’s
confessions to police and counsel’s theory that the
killing was accidental, counsel engaged in sound trial
strategy when they chose not to argue that some
unidentified individual killed the victim.    Thus,
petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been
different.    See Strickland,  466 U.S. at  687,  694.
In claim V(A), petitioner alleges that the prosecutor
improperly used demonstrative evidence in his closing
argument when he impermissibly demonstrated the manner in
which petitioner held the pillow down over the victim.
Petitioner contends that the prosecutor’s demonstration was
improper because no evidence was presented at trial to
prove petitioner pressed the pillow down continuously with
both hands, at a steep angle, with force, or  “with  [a]
single-minded fixation.”    The Court holds that claim V(A)
is barred because this issue was raised and decided on
direct appeal from the criminal convictions, and therefore,
12




it cannot be raised on habeas corpus.    Henry v. Warden,  265
Va.  246,  249,  576 S.E.2d  495,  496-97  (2003).
In claim V(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel
unreasonably failed to raise an appropriate objection to
the pillow demonstration and failed to request a curative
instruction.    Although petitioner does not dispute the
prosecutor’s right to use the pillow to demonstrate the
passage of time necessary to cause death by suffocation,
petitioner claims the prosecutor was not permitted to
“present a concocted portrayal” of the petitioner’s
conduct.    Petitioner contends that had counsel objected to
the prosecutor’s improper demonstration, there is a
reasonable probability that the jury would not have
unanimously found that the killing was willful.
The Court holds that claim V(B) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    On direct appeal, this
Court reviewed the record of petitioner’s trial and held
that  “the Commonwealth’s demonstration did not distort the
evidence concerning the manner of Mrs. Phillips’ death.”
Jackson,  267 Va. at  203,  590 S.E.2d at  534.    Thus,
petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable
13




probability that, but for counsel’s alleged errors, the
result of the proceeding would have been different.    See
Strickland,  466 U.S. at  687,  694.
In a portion of claim VI(A), petitioner alleges that
he was denied the effective assistance of counsel because
counsel unreasonably failed to object to the substance of
Richard Phillips’ testimony during the penalty phase of the
trial.    Following his testimony during the guilt phase,
Richard Phillips, the victim’s son, was permitted to remain
in the courtroom.    At that time, the prosecutor stated that
he did not intend to have Mr. Phillips testify again.    The
trial court allowed Mr. Phillips to testify a second time,
however, during the sentencing phase and over counsel’s
objection, finding that Mr. Phillips did not hear anything
“during the trial on guilt or innocence that would change
his  [victim impact] testimony.”    Petitioner contends that
the content of Mr. Phillips’ testimony was, in fact,
altered by what he had heard during the guilt phase of the
trial and that counsel should have objected when Mr.
Phillips commented how impressed he was with the jury
process and that he could not imagine how the jurors could
listen to something that would remain with them all of
their lives.
14




The Court holds that this portion of claim VI(A)
satisfies neither the  “performance” nor the  “prejudice”
prong of the two-part test enunciated in Strickland.    In
petitioner’s direct appeal, this Court held that, pursuant
to Code  §  19.2-265.01, the trial court did not abuse its
discretion by allowing Mr. Phillips to testify during the
penalty phase even though he had remained in the courtroom
after his guilt phase testimony.    Jackson,  267 Va. at  205,
590 S.E.2d at  535.    This Court noted that Mr. Phillips did
not learn anything that affected his victim impact
testimony and held that the defendant was not prejudiced by
Mr. Phillips’ penalty phase testimony.    Id.
In his petition for a writ of habeas corpus, the
petitioner has presented Mr. Phillips’ comments about the
jury process in an incomplete fashion.    When considered in
context, Mr. Phillips’ comments were not comments on
evidence he heard as to petitioner’s guilt, were not
objectionable, and were not prejudicial.    Thus, petitioner
has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the
proceeding would have been different.    See Strickland,  466
U.S. at  687,  694.
15




In another portion of claim VI(A), petitioner alleges
that he was denied the effective assistance of counsel
because counsel failed to object to the exclusion of
Jackson’s family from the courtroom during the guilt phase.
Since Jackson’s family members were expected to testify
during the penalty phase, the trial court excluded
petitioner’s family from the courtroom during the guilt
phase.    Petitioner claims that counsel’s failure to object
sent a false message that petitioner’s family did not care
enough to be with petitioner during his trial.
The Court holds that this portion of claim VI(A)
satisfies neither the  “performance” nor the  “prejudice”
prong of the two-part test enunciated in Strickland.
Petitioner cannot demonstrate that an objection would have
been successful because Code  §  19.2-265.01 does not provide
an exemption that would have allowed petitioner’s family
members to remain in the courtroom during the guilt phase
of the trial and later testify at the penalty phase.    In
addition, petitioner has not alleged that any juror
actually believed his family  “did not care” or that the
presence of any members of his family during trial would
have affected the jury’s determination.    Thus, petitioner
has failed to demonstrate that counsel’s performance was
deficient or that there is a reasonable probability that,
16




but for counsel’s alleged errors, the result of the
proceeding would have been different.    See Strickland,  466
U.S. at  687,  694.
In claim VI(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel
unreasonably failed to object to Mr. Phillips’ testimony at
the post-verdict sentencing hearing held before the trial
court on April  3,  2003 pursuant to Code  §  19.2-264.5.
Petitioner claims counsel should have objected that Mr.
Phillips’ testimony exceeded the scope of permissible
victim impact evidence and improperly referred to
petitioner’s other crimes.
The Court holds that claim VI(B) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    The limitations and
requirements relating to victim impact evidence do not
apply at the post-verdict sentencing hearing and the trial
court has the discretion to determine the admissibility of
such evidence.    Remington v. Commonwealth,  262 Va.  333,
354-55,  551 S.E.2d  620,  633  (2001), cert. denied,  535 U.S.
1062  (2002).    Moreover, evidence regarding the other crimes
to which Mr. Phillips briefly referred had been admitted
into evidence during the guilt and penalty phases of the
trial.    Therefore, petitioner fails to demonstrate that
17




counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been
different.    See Strickland,  466 U.S. at  687.
In claim VI(C), and in a portion of claim VI(D),
petitioner alleges that he was denied the effective
assistance of counsel because counsel unreasonably failed
to object to additional, cumulative victim impact evidence
presented by Richard Phillips at the post-verdict
sentencing hearing.    The Court holds that claim VI(C) and
this portion of claim VI(D) satisfy neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    Petitioner argues that the
victim does not have a statutory  “right” to testify at the
post-verdict sentencing hearing; however, he does not
provide any authority for his claim that victim impact
testimony during the post-verdict sentencing hearing is
impermissible.    Furthermore, petitioner does not attempt to
demonstrate how the cumulative nature of the evidence
prejudiced him during the post-verdict sentencing
proceeding.
As opposed to the jury’s sentencing role, see Code
§  19.2-264.4, in a post-verdict sentencing proceeding, the
trial court’s role is to determine whether good cause
18




exists to reduce a jury’s verdict of death.    Code  §  19.2-
264.5.    The record, including the transcripts of
petitioner’s trial and sentencing hearings, demonstrates
that the trial court exercised its discretion to determine
the relevance and admissibility of the evidence and that
the trial court’s sentence of death was based upon that
court’s consideration of the evidence in mitigation and
aggravation, including petitioner’s significant criminal
history.    Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been
different.    See Strickland,  466 U.S. at  687,  694.
In another portion of claim VI(D), petitioner alleges
he was denied the effective assistance of counsel because
the jury was permitted to hear victim impact evidence from
Mr. Phillips twice.    Petitioner contends that there is a
reasonable probability that if defense counsel had properly
objected to Mr. Phillips’ second testimony during the
penalty phase at least one juror would have held out for a
life sentence.
The Court holds that this portion of claim VI(D) is
without merit.    The record, including the guilt and penalty
phase transcripts, demonstrates that Mr. Phillips guilt
19




phase testimony was factual testimony concerning the
circumstances surrounding his discovery of his mother’s
body and did not constitute  “victim impact evidence.”
Thus, the jury did not twice hear victim impact evidence
from Mr. Phillips.
In another portion of claim VI(D), petitioner alleges
counsel’s failure to object to victim impact evidence at
the sentencing phase and at the post-verdict sentencing
hearing cumulatively prejudiced petitioner.    The Court
holds that this portion of claim VI(D) is without merit.
“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.”    Lenz v. Warden of the Sussex I State Prison,  267
Va.  318,  340,  593 S.E.2d  292,  305  (2004).
In claim VII(A)(1), petitioner alleges that he was
denied the effective assistance of counsel because counsel
failed to adequately investigate and present available
mitigation evidence concerning his childhood abuse, in
particular, testimony from petitioner’s siblings.
Petitioner contends that it is unreasonable to believe that
petitioner’s parents, as the alleged abusers, would have
offered substantial evidence of child abuse, and yet
20




counsel called only petitioner’s parents to testify as to
this issue.    Petitioner has attached several affidavits to
his petition for a writ of habeas corpus in support of his
contention that counsel should have called additional
witnesses to testify as to this issue.    Petitioner contends
that counsel’s failure to elicit testimony on this issue
from other sources prevented the jury from hearing  “how or
why Jackson’s abusive childhood extenuated his moral
culpability.”
The Court holds that claim VII(A)(1) does not satisfy
the  “prejudice” prong of the two-part test enunciated in
Strickland.    The record, including the guilt and penalty
phase transcripts and the affidavit of trial counsel,
demonstrates that counsel presented ample evidence,
including the testimony of physicians, psychologists,
social workers, and a pastor who had treated, evaluated,
and/or counseled petitioner and his family, to substantiate
that petitioner was the victim of child abuse.    This
evidence 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
21




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.    In addition, counsel
elicited 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.
The evidence that petitioner contends counsel should
have presented is largely cumulative of that considered by
the jury.    The only new information proffered by petitioner
consists of anecdotal evidence of specific instances of the
abuse from the perspective of petitioner’s siblings.    The
22




affidavit of trial counsel demonstrates that counsel made a
strategic decision not to call petitioner’s brother, Damien
Jackson, to testify because Damien’s successful transition
from the abusive environment into a military career would
have diminished the mitigating effect of petitioner’s
abusive upbringing.    Counsel were aware of the child abuse
suffered by the petitioner when counsel decided not to call
Damien as a witness.    Nothing in the record demonstrates
that counsel’s decision would have been altered by knowing
the specific details of the abuse that petitioner’s
siblings now provide.    Thus, petitioner has failed to
demonstrate that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the
proceeding would have been different.    See Strickland,  466
U.S. at  687,  694.
In claim VII(A)(2), petitioner alleges that he was
denied the effective assistance of counsel because counsel
failed to adequately investigate and present available
mitigation evidence concerning his good character.
Petitioner contends that Marie Simons, petitioner’s
girlfriend, and Constance Howard, another friend, were
available to testify as character witnesses and would have
testified that petitioner was a good man who was kind, had
dreams and aspirations, and was devoted to his grandmother.
23




Petitioner further contends that, as a result of counsel’s
failure to call these witnesses, the jurors did not hear
testimony that Jackson responded in a positive manner when
he was not living in a traumatic and threatening
environment, and had the jurors heard this information, the
jury may have returned a verdict of life imprisonment.
The Court holds that claim VII(A)(2) satisfies neither
the  “performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    The record, including the
transcript of the sentencing phase, demonstrates 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.    In addition, counsel
elicited testimony that despite two particularized
incidents, petitioner had adjusted positively to
confinement.    Petitioner has not attempted 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.
Thus, petitioner has failed to demonstrate that counsel’s
performance was deficient or that there is a reasonable
probability that, but for counsel’s alleged errors, the
24




result of the proceeding would have been different.    See
Strickland,  466 U.S. at  687,  694.
In claim VIII(A), the petitioner claims that jurors
Wendy Berube and Dana Metheny indicated that they would not
consider age and background as mitigation evidence unless
the trial court instructed them to do so.    Petitioner
contends that both jurors were not qualified to sit because
the court failed to give such an instruction or to excuse
them.    The Court holds that claim VIII(A) is procedurally
defaulted because this non-jurisdictional issue could have
been raised at trial and on direct appeal and, thus, is not
cognizable in a petition for a writ of habeas corpus.
Slayton,  215 Va. at  29-30,  205 S.E.2d at  682.
In claim VIII(B), petitioner alleges that he was
denied the effective assistance of counsel because counsel
unreasonably failed to request the trial court to give the
necessary instruction regarding age and background as
mitigation evidence, failed to object when the court did
not give the instruction, and failed to move to dismiss
jurors Berube and Metheny as unqualified.    Petitioner
further claims that prejudice is presumed under these
circumstances and that if the jurors had been given the
necessary instruction, there is a reasonable probability
25




that one of the jurors would have voted for a life
sentence.
The Court holds that claim VIII(B) satisfies neither
the  “performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    Petitioner’s contention
that qualification of these jurors was  “conditioned” upon
the giving of a specific instruction is not supported in
fact or in law.    Both jurors were qualified upon the trial
court’s determination that they would be fair and
impartial.    Petitioner is unable to establish that
counsel’s failure to seek the particular instruction at
issue was unreasonable because an instruction emphasizing
individual mitigating factors would have been properly
refused.    George v. Commonwealth,  242 Va.  264,  283,  411
S.E.2d  12,  23  (1991); LeVasseur v. Commonwealth,  225 Va.
564,  595,  304 S.E.2d  644,  661  (1983).    Furthermore, the
record demonstrates that the jury was instructed to
consider petitioner’s history, background, and mitigating
factors in determining whether petitioner posed a future
danger to society and, if so, whether to impose a sentence
of life imprisonment or death.    Thus, petitioner has failed
to demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding
26




would have been different.    See Strickland,  466 U.S. at
687,  694.
In claim VIII(C), petitioner alleges that the
prosecutor engaged in  “misconduct” by failing to ensure
Berube remained qualified.    Petitioner contends that
because the prosecutor opposed counsel’s motion to strike
Berube, arguing that she would be qualified if instructed
to consider petitioner’s age and background in mitigation,
the prosecutor had a duty to ensure that Berube received
the instruction.    The Court holds that claim VIII(C) is
procedurally defaulted because this non-jurisdictional
issue could have been raised at trial and on direct appeal
and, thus, is not cognizable in a petition for a writ of
habeas corpus.    Slayton,  215 Va. at  29-30,  205 S.E.2d at
682.
In claim IX(A), petitioner alleges that the penalty
phase instructions interfered with the jurors’ ability to
give full effect to mitigating evidence.    Petitioner
contends that his right to a reliable determination of
punishment was violated by the trial court’s instruction
that  “[a]ny decision you make regarding punishment must be
unanimous” and the court’s failure to instruct jurors that
their findings on mitigation did not have to be unanimous.
The Court holds that claim IX(A) is procedurally defaulted
27




because this non-jurisdictional issue could have been
raised at trial and on direct appeal and, thus, is not
cognizable in a petition for a writ of habeas corpus.    Id.
In claim IX(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel failed
to request an instruction stating that findings regarding
mitigating factors did not have to be unanimous.
Petitioner alleges that counsel should have objected when
the trial court instructed the jurors that they had to be
unanimous in their decision regarding punishment and should
have argued that the Constitution required the trial court
to instruct the jurors that their determination of
mitigating factors did not have to be unanimous.
Petitioner contends that if the jurors had known that they
did not have to be unanimous as to the mitigating factors,
there is a reasonable probability that at least one juror
would have held out for a life sentence.
The Court holds that claim IX(B) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.                                 “[T]he Virginia sentencing
scheme does not require juries to make findings as to
specific mitigating factors.    Instead, juries are
instructed to consider all possible mitigating
circumstances before rendering their sentence decision.”
28




Roach v. Angelone,  176 F.3d  210,  223  (4th Cir.  1999).    In
this case, the trial court instructed the jury to  “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.”    The trial court’s instruction
that the jury’s decision regarding punishment must be
unanimous did not preclude the jury from considering
mitigating evidence.    Id.    Counsel are not unreasonable for
failing to request an instruction that was not necessary or
required.    Joseph v. Commonwealth,  249 Va.  78,  90-91,  452
S.E.2d  862,  870  (1995).    Thus, petitioner has failed to
demonstrate that counsel’s performance was deficient or
that there is a reasonable probability that, but for
counsel’s alleged errors, the result of the proceeding
would have been different.    See Strickland,  466 U.S. at
687,  694.
In claim X(A), petitioner alleges that the verdict
forms were defective because they did not state that life
imprisonment meant life imprisonment  “without the
possibility of parole.”    Petitioner concedes that jurors
were twice instructed that life imprisonment meant life
without the possibility of parole, but, nonetheless,
contends that the verdict forms denied him the right to due
29




process of law and a fair trial.    The Court holds that
claim X(A) is procedurally defaulted because this non-
jurisdictional issue could have been raised at trial and on
direct appeal and, thus, is not cognizable in a petition
for a writ of habeas corpus.    Slayton,  215 Va. at  29-30,
205 S.E.2d at  682.
In claim X(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel
unreasonably failed to object to the verdict forms on the
grounds that they did not contain the language qualifying
the definition of life imprisonment as life without the
possibility of parole.    The Court holds that claim X(B)
satisfies neither the  “performance” nor the  “prejudice”
prong of the two-part test enunciated in Strickland.    The
record demonstrates, and petitioner concedes, that the jury
was properly instructed that  “imprisonment for life” meant
“imprisonment for life without the possibility of parole.”
As required by statute, the verdict forms included all the
requisite options.    Code  §  19.2-264.4; Morrisette,  270 Va.
at  202-03,  613 S.E.2d at  562.    There is no requirement that
a verdict form contain the instruction that imprisonment
for life means  “imprisonment for life without the
possibility of parole.”    Lenz,  267 Va. at  324 n.1,  593
S.E.2d at  295 n.1.    Thus, counsel’s failure to make a
30




meritless objection was not deficient, and petitioner has
failed to demonstrate that there is a reasonable
probability that, but for counsel’s alleged error, the
result of the proceeding would have been different.    See
Strickland,  466 U.S. at  687,  694.
In claim XI(A), petitioner alleges that the
prosecutor’s argument improperly nullified the effect of
petitioner’s mitigation evidence.    The Court holds that
claim XI(A) is procedurally defaulted because this non-
jurisdictional issue could have been raised at trial and on
direct appeal and, thus, is not cognizable in a petition
for a writ of habeas corpus.    Slayton,  215 Va. at  29-30,
205 S.E.2d at  682.
In claim XI(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel
unreasonably failed to object to the prosecutor’s argument
regarding the mitigation evidence.    Petitioner contends
that the prosecutor improperly nullified the mitigation
evidence when he argued that petitioner and his brother
grew up in the same environment and petitioner’s brother
“corrected himself,” inferring that petitioner also could
have overcome his adverse childhood environment if he had
wanted to do so.    Petitioner further contends that counsel
unreasonably failed to investigate his brother’s
31




circumstances and was, therefore, unprepared to rebut the
prosecutor’s argument.    Petitioner claims that there is a
reasonable probability that had counsel been prepared to
object to or rebut the prosecutor’s argument, the jurors
would have given full consideration to the mitigation
evidence and at least one juror would have voted for life.
The Court holds that claim XI(B) satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    The record, including the
trial transcript, demonstrates that the prosecutor merely
reminded the jurors of the evidence that petitioner’s
brother had overcome his childhood environment, while
petitioner did not.    The prosecutor has  “a right to combat,
and to argue the evidence and the fair inferences from it
with respect both to the defendant’s guilt and to a fitting
punishment.”    Martinez v. Commonwealth,  241 Va.  557,  559-
60,  403 S.E.2d  358,  359  (1991),  (quoting Jackson v.
Commonwealth,  193 Va.  664,  70 S.E.2d  322  (1952)).    The
affidavit of counsel demonstrates that counsel, aware that
petitioner’s brother had a successful adult life, chose not
to subpoena the brother in order to minimize the contrast
between the brother and petitioner.    Moreover, petitioner
has failed to establish that the jurors did not give the
mitigation evidence full effect despite the prosecutor’s
32




argument.    Thus, petitioner has failed to demonstrate that
counsel’s performance was deficient or that there is a
reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been
different.    See Strickland,  466 U.S. at  687,  694.
In claim XII(A), petitioner alleges that this Court
unreasonably and erroneously induced counsel to withdraw on
direct appeal his Assignment of Error Number Eight, which
stated that  “[t]he trial court erred in denying defendant’s
motion to dismiss capital murder indictment for failure to
allege aggravating elements.”    Petitioner contends that
this Court violated his rights to due process and the
effective assistance of counsel when it improperly elicited
a withdrawal of Assignment of Error Number Eight during
oral argument, and when the Court, thereafter, failed to
address the Assignment of Error in its opinion.    The Court
holds that claim XII(A) is procedurally defaulted because
this non-jurisdictional issue could have been raised in a
petition for rehearing and, thus, is not cognizable in a
petition for a writ of habeas corpus.    Slayton,  215 Va. at
29-30,  205 S.E.2d at  682.
In claim XII(B), petitioner alleges that he was denied
the effective assistance of counsel because counsel
unreasonably withdrew Assignment of Error Number Eight and
33




unreasonably failed to correct his error.    Petitioner
contends that counsel was unfamiliar with the contents of
the petition for appeal and was therefore unprepared to
adequately argue that petitioner actually had made an
argument for Assignment of Error Number Eight.    Petitioner
further contends that had counsel not waived this issue,
the Court would have ruled in petitioner’s favor and
petitioner would have prevailed on appeal.
The Court holds that claim XII(B) fails to satisfy the
“prejudice” prong of the two-part test enunciated in
Strickland.    Even if counsel had properly preserved this
assignment of error, there is not a reasonable probability
that the result of the appeal would have been any
different.    Petitioner asserted in Assignment of Error
Number Eight that  “[t]he trial court erred in denying
defendant’s motion to dismiss capital murder indictment for
failure to allege aggravating elements.”    There is no
constitutional requirement that a capital murder indictment
include allegations concerning aggravating factors.    Ring
v. Arizona,  536 U.S.  584,  597 n.4  (2002)(noting that the
Fourteenth Amendment has not been construed to include the
Fifth Amendment right to  “presentment or indictment of a
Grand Jury”); Apprendi v. New Jersey,  530 U.S.  466,  477 n.3
(2000).
34




Furthermore, this Court has held that a defendant
charged with capital murder is not entitled to a bill of
particulars delineating the Commonwealth’s intended
aggravating factors when the indictment specifying the
crime gives the defendant notice of the nature and
character of the offense charged.    Roach v. Commonwealth,
251 Va.  324,  340,  468 S.E.2d  98,  107  (1996).    The
indictment in this case gave petitioner notice of the
nature and character of the offense.    Thus, the trial court
correctly denied counsel’s motion to dismiss the indictment
and counsel cannot be held ineffective for withdrawing,
even unintentionally, a frivolous argument.    Thus,
petitioner has failed to demonstrate that there is a
reasonable probability that, but for counsel’s alleged
errors, the result of the proceeding would have been
different.    See Strickland,  466 U.S. at  687,  694.
In claim XIII, petitioner alleges that he was denied
the effective assistance of counsel because counsel
unreasonably waived Assignment of Error Number Seven on
direct appeal.    Assignment of Error Number Seven alleged,
“[t]he trial court erred in denying defendant’s motion to
transfer venue.”    Counsel waived arguing this assignment of
error in favor of raising the venue issue in conjunction
with the appellate argument that petitioner’s sentence was
35




the result of passion and prejudice.    Petitioner further
contends that had counsel not waived this assignment of
error, there is a reasonable probability that the result of
the appeal would have been different.
The Court holds that claim XIII satisfies neither the
“performance” nor the  “prejudice” prong of the two-part
test enunciated in Strickland.    The record demonstrates
that counsel’s decision to argue venue as part of the
prejudice and passion argument was a matter of appellate
strategy.                                                             “[T]he process of  ‘winnowing out weaker claims
on appeal and focusing on’ those more likely to prevail,
far from being evidence of incompetence, is the hallmark of
effective  .  .  . advocacy.”    Burger v. Kemp,  483 U.S.  776,
784  (1987); see also Smith v. Murray,  477 U.S.  527,  536
(1986)  (what claims to raise on appeal, and how to raise
them, are matters entrusted to the discretion of appellate
counsel).    Furthermore, this Court noted that the trial
court was able to seat a jury with relative ease.    Jackson,
267 Va. at  207 n.8,  590 S.E.2d at  537 n.8.    The ease with
which a jury is selected is a critical element in
determining whether venue is proper.    Jackson,  267 Va. at
207 n.8,  590 S.E.2d at  537 n.8; Thomas v. Commonwealth,  263
Va.  216,  231,  559 S.E.2d  652,  660  (2002).    Thus, petitioner
has failed to demonstrate that counsel’s performance was
36




deficient or that there is a reasonable probability that,
but for counsel’s alleged errors, the result of the
proceeding would have been different.    See Strickland,  466
U.S. at  687,  694.
In claim XIV, petitioner alleges that the cumulative
character of counsel’s performance and resulting
prejudicial impact deprived him of his constitutionally
guaranteed assistance of counsel.    The Court holds that
claim XIV is without merit.    As addressed previously,
petitioner has failed to demonstrate that counsel’s
performance was deficient or that petitioner suffered
prejudice as a result of counsel’s alleged errors.              “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.”
Lenz,  267 Va. at  340,  593 S.E.2d at  305.
Accordingly, the petition is dismissed.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
37

Download 1042751.pdf

Virginia Law