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 nonjurisdictional 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 nonjurisdictional 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