VIRGINIA:

 In the Supreme Court of Virginia held at the Supreme Court 

Building in the City of Richmond, on Tuesday, the 8th day of 

November, 2005. 

Paul Warner Powell, Petitioner, 

 against Record No. 042716 

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 December 27, 2004, and the respondent's motion to dismiss, the 

Court is of the opinion that the motion should be granted and the 

writ should not issue. 

Petitioner, Paul Warner Powell, was originally convicted in the 

Circuit Court of Prince William County of the capital murder of 

Stacey Lynn Reed, abduction, rape of Stacey's younger sister, 

Kristie Reed, and attempted capital murder of Kristie Reed. The 

jury fixed petitioner’s sentence at death for the capital murder 

conviction and three terms of life imprisonment and fines totaling 

$200,000 for the remaining convictions. Upon review of the capital 

murder conviction and the death sentence imposed upon petitioner, 

this Court reversed the capital murder conviction upon a finding 

that the indictment charging petitioner with capital murder in the 

commission of robbery and/or attempted robbery had been improperly 

amended to include a charge of capital murder "during the commission 

of or subsequent to rape and/or attempted rape and/or sodomy and/or 
2

attempted sodomy." Powell v. Commonwealth, 261 Va. 512, 532, 552 

S.E.2d 344, 355-56 (2001) (“Powell I”). This Court reversed 

petitioner’s conviction for capital murder, affirmed the remaining 

convictions, and remanded the case “for a new trial on a charge of 

no greater than first degree murder for the killing of Stacey Reed, 

if the Commonwealth be so advised.” Id. at 546, 552 S.E.2d at 363. 

After the opinion issued and petitioner had been indicted for 

first-degree murder, petitioner wrote a letter to the Commonwealth's 

Attorney in which petitioner described how he had attempted to rape 

Stacey Reed before he murdered her. Based on this new evidence, the 

Commonwealth moved to enter a nolle prosequi of the indictment in 

the remanded case, and sought a new indictment against petitioner 

for capital murder. On December 3, 2001, the grand jury returned an 

indictment charging petitioner with the capital murder of "Stacey 

Lynn Reed during the commission of or subsequent to the attempted 

rape of Stacey Lynn Reed." 

Apart from the new evidence of petitioner's October 21, 2001 

letter to the Commonwealth's Attorney in which petitioner confessed 

to the attempted rape of Stacey, the evidence presented during the 

guilt-determination phase of petitioner's second trial was not 

markedly different from that received during the first trial. The 

jury found petitioner guilty of capital murder and fixed his 

sentence at death, finding both aggravating factors of future 

dangerousness and vileness. The trial court confirmed the jury's 

sentence of death. This Court affirmed petitioner’s conviction and 

approved the sentence of death in Powell v. Commonwealth, 267 Va. 

107, 590 S.E.2d 537 (2004), cert. denied, __ U.S. __, 125 S.Ct. 86 
3

(2004) (“Powell II”). 

Procedural Defaults

 “A petition for writ of habeas corpus is not a substitute for 

an appeal or a writ of error.” Morrisette v. Warden, 270 Va. 188, 

___, 613 S.E.2d 551, 554 (2005) (citing Slayton v. Parrigan, 215 Va. 

27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108 

(1975); Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243, 246 

(1969)). Further, claims that have been previously raised and 

decided at trial and on direct appeal are not cognizable in a 

petition for writ of habeas corpus. Henry v. Warden, 265 Va. 246, 

249, 576 S.E.2d 495, 496 (2003). 

In claim I(A), petitioner alleges that the Commonwealth 

violated his right against double jeopardy by trying him twice for 

the same offense. In the first portion of claim I(B), petitioner 

alleges that the prosecutor’s animosity towards him demonstrates 

that petitioner’s due process rights were violated and he was tried 

a second time for capital murder because of prosecutorial 

vindictiveness. In claim II(D), petitioner alleges that the 

Commonwealth violated his right to counsel by eliciting 

incriminating statements from him on November 2, 2001 while 

petitioner was still represented by the attorney who had been 

appointed to represent petitioner in his previous trial. In claim 

IV(C), petitioner alleges that his due process rights and right to a 

reliable sentencing proceeding were violated by the trial court’s 

vague vileness jury instruction. 

The Court holds that claims I(A), II(D), IV(C), and the first 
4

portion of I(B) are barred because these issues were raised and 

decided in the trial court and on direct appeal from the criminal 

conviction and, therefore, they cannot be raised on habeas corpus. 

Henry, 265 Va. at 249, 576 S.E.2d at 496. 

In the second portion of claim I(B), petitioner alleges, for 

the first time, that because the prosecutor sought a capital murder 

charge after the petitioner had been successful on appeal, there is 

a “presumption” that his second trial for capital murder was the 

result of prosecutorial vindictiveness. In claim I(C), petitioner 

alleges that his subsequent trial violated “the collateral estoppel 

component of the Double Jeopardy Clause” and violated petitioner’s 

right against double jeopardy. 

In claim II(A), petitioner alleges the Commonwealth violated 

his constitutional rights by taking statements from petitioner on 

January 30 and 31, 1999 without obtaining a waiver of petitioner’s 

Sixth Amendment right to counsel. Petitioner claims that his right 

to counsel had attached because a magistrate had issued a warrant 

for his arrest. In claim II(B), petitioner alleges that his 

subsequent statements on February 4, 1999 were unconstitutionally 

obtained as they were “fruits of the poisonous tree” as a result of 

the Commonwealth illegally obtaining his January 30 and 31, 1999 

statements. In claim II(C), petitioner alleges his February 4, 1999 

statements were “per se invalid” as the police elicited the 

statements from him without counsel being present even though 

petitioner had requested counsel and counsel had been appointed on 

February 1, 1999. 

In claim II(E), petitioner alleges that the Commonwealth 
5

violated his right to counsel by scheduling the November 2, 2001 

interview before petitioner was formally indicted on December 3, 

2001. In claim II(F), petitioner alleges that the prosecution 

“unconstitutionally and unethically” communicated to him through the 

police interview on November 2, 2001, violated Rules of Professional 

Conduct 4.2 and 5.3, interfered with petitioner’s relationship with 

counsel, and violated his right to counsel. In claim II(G), 

petitioner alleges his Fourth and Fifth Amendment rights were 

violated as petitioner’s waiver of his Miranda rights on November 2, 

2001, was involuntarily given. 

In claim III(A), petitioner alleges that the remarks made by 

the Commonwealth’s Attorney in opening and closing arguments 

violated his rights under the Fifth, Eight, and Fourteenth 

Amendments as the “remarks vouched for the personal opinions of the 

prosecutors that [petitioner] deserved the death penalty.” In claim 

III(B), petitioner alleges that remarks made by the Commonwealth’s 

Attorney in the penalty phase of the trial regarding the effect of 

the death penalty in deterring other people from committing future 

crimes violated his Fifth, Eighth, and Fourteenth Amendments rights. 

In claim IV(A), petitioner alleges he was unconstitutionally 

prosecuted because the indictment against him was deficient as it 

did not allege either vileness or future dangerousness and neither 

factor was proven beyond a reasonable doubt at trial. In claim 

IV(B), petitioner alleges that the Commonwealth was collaterally 

estopped from presenting the issue of future dangerousness at his 

second trial because the jury at petitioner’s first trial returned a 

finding only of vileness. 
6

In claim IV(D), petitioner alleges that his constitutional 

rights were violated by the vague jury instruction on future 

dangerousness. In claim IV(E), petitioner alleges that the jury 

instruction on future dangerousness unconstitutionally “relieved the 

Commonwealth of its burden to prove every element beyond a 

reasonable doubt” because it told the jury that it only had to find 

a “probability” of future dangerousness. In claim IV(F), petitioner 

alleges that his due process rights and right to a reliable 

sentencing proceeding were violated because the future dangerousness 

aggravating factor excludes consideration of petitioner’s life in 

prison. 

In claim V(A), petitioner alleges that his right to due 

process, his right to be able to participate in his trial, and his 

right to “heightened reliability” in his trial were violated by the 

medication administered to him in prison before trial and the stun 

belt he wore at trial. 

In claim VI(A), petitioner alleges that his rights to due 

process and a reliable sentencing hearing were violated when the 

Commonwealth knowingly introduced Exhibit 51 as evidence of his 

criminal history at the penalty phase of the trial. In claim VI(B), 

petitioner alleges that the Commonwealth violated his due process 

rights by failing to inform petitioner that “some of the entries on 

Commonwealth Exhibit 51 were false and misleading.” In a portion of 

claim VI(C), petitioner alleges that the Commonwealth violated Code 

§§ 19.2-295.1, -264.2, and -264.4 because Exhibit 51 was not a 

“record of convictions” and listed charges which had been either 

nolle prossed or of which petitioner was found not guilty. In 
7

another portion of claim VI(C), petitioner alleges that the 

Commonwealth violated Code § 19.2-264.3:2 because the Commonwealth 

failed to give notice of its intent to present evidence of 

unadjudicated criminal conduct. In claim VI(D), petitioner alleges 

the Commonwealth violated his Sixth Amendment rights when it 

introduced Exhibit 51 because there was no “foundational testimony 

as to the personal knowledge of the record-keeper, the regularity of 

its preparation, the reliance on the records, or any other 

circumstance showing trustworthiness.” 

In claim VII(A), petitioner alleges that his constitutional 

rights to freedom of speech, freedom of association, due process and 

“to a reliable individualized sentencing determination” were 

violated by the Commonwealth’s introduction of racist statements and 

documents that linked petitioner to certain groups and “broad 

ideas.” In claim VII(B), petitioner alleges that the Commonwealth 

violated his right to confront and cross-examine witnesses when it 

introduced certificates of analysis in an attempt to authenticate 

several letters allegedly written by petitioner. In claim X(A), 

petitioner claims the trial court violated his rights under the 

Fifth and Fourteenth Amendments as well as under Code § 19.2-298 

when it failed to allow petitioner to allocute before he was 

sentenced. 

The Court holds that the second portion of claim I(B) and 

claims I(C), II(A), II(B), II(C), II(E), II(F), II(G), III(A), 

III(B), IV(A)1, IV(B), IV(D), IV(E), IV(F), V(A), VI(A), VI(B), 

 1

 See Wolfe v. Commonwealth, 265 Va. 193, 223-24, 576 S.E.2d 

471, 488-89 (2003) (failure to include aggravating factors in an 
8

VI(C), VI(D), VII(A), VII(B) and X(A) are procedurally defaulted 

because these non-jurisdictional issues could have been raised at 

trial and on direct appeal and, thus, are not cognizable in a 

petition for a writ of habeas corpus. Parrigan, 215 Va. at 29, 205 

S.E.2d at 682. 

Claims of Ineffective Assistance of Counsel

 In a portion of claim I(D)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issues stated in claim I(A) and the first 

portion of claim I(B). The Court holds that this portion of claim 

I(D)(1) is without merit. The record demonstrates that counsel 

raised these issues at trial. 

 In another portion of claim I(D)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, stated in the second portion of claim 

I(B), that there is a “presumption” that his second trial for 

capital murder was the result of prosecutorial vindictiveness 

because the prosecutor sought a capital murder charge after the 

petitioner had been successful on appeal. 

The Court holds that this portion of claim I(D)(1) fails to 

satisfy the “prejudice” prong of the two-part test enunciated in 

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

demonstrates that petitioner’s indictment for capital murder was 

obtained after petitioner provided evidence, which had previously 

 

indictment is not jurisdictional and is waived if not raised before 

trial). 
9

been unavailable and which supported the charge. This previously 

unavailable evidence creates an objective justification in the 

charging decision and rebuts any presumption of vindictiveness. See

United States v. Goodwin, 457 U.S. 368, 374, 376 n.8 (1982); Alabama 

v. Smith, 490 U.S. 794, 798-799 (1989) (presumption of 

vindictiveness which arises from an increased sentence on retrial 

rebutted by objective information justifying the increase). Thus, 

petitioner has failed to demonstrate that, but for counsel’s alleged 

error, the result of the proceeding would have been different. 

 In another portion of claim I(D)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, stated in claim I(C), that his subsequent 

trial violated “the collateral estoppel component of the Double 

Jeopardy Clause” and violated petitioner’s right against double 

jeopardy. The Court holds that this portion of claim I(D)(1) fails 

to satisfy the “prejudice” prong of the two-part test enunciated in 

Strickland. The record of petitioner’s criminal trial and direct 

appeal demonstrates that petitioner argued his subsequent trial 

violated the res judicata and law of the case components of the 

Double Jeopardy Clause. The factual basis for his argument at trial 

and on appeal is identical to that which he raises in his petition 

for writ of habeas corpus. This Court rejected the petitioner’s 

arguments and held that jeopardy had attached only to the capital 

murder charge specified by the reading of both the indictment and 

the bill of particulars. Powell II, 267 Va. at 135, 590 S.E.2d at 

554. As such, res judicata is not implicated because, in 

petitioner’s first trial, the jury was not charged with determining 
10

whether petitioner raped or attempted to rape Stacey Reed and, thus, 

could not have made a determination of fact on that matter. Thus, 

petitioner has failed to demonstrate that, but for counsel’s alleged 

error, the result of the proceeding would have been different. 

 In a portion of claim I(D)(2), petitioner alleges he was denied 

the effective assistance of counsel because counsel failed to raise 

on appeal the issues stated in claim I(A) and the first portion of 

claim I(B). The Court holds that this portion of claim I(D)(2) is 

without merit. The record demonstrates that counsel raised these 

issues on appeal. In another portion of claim I(D)(2), petitioner 

alleges he was denied the effective assistance of counsel because 

counsel failed to raise on appeal the issues stated in the second 

portion of claim I(B) and in claim I(C). The Court holds that this 

portion of claim I(D)(2) satisfies neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record demonstrates that these issues were not raised at trial. 

Therefore counsel was reasonable for choosing not to raise claims 

which would have been barred under Rule 5:25. Further, petitioner 

has articulated no reason why this Court would have invoked either 

exception to Rule 5:25 and reached the merits of either issue. 

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 error, the result of the proceeding 

would have been different. 

In a portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim II(A), that the 
11

Commonwealth unconstitutionally obtained statements from him on 

January 30 and 31, 1999 without obtaining a waiver of petitioner’s 

Sixth Amendment right to counsel. Petitioner claims that his right 

to counsel had attached because formal criminal proceedings had been 

initiated against him when a magistrate had issued a warrant for his 

arrest. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The right to counsel, under the 

Sixth Amendment of the United States Constitution, exists at the 

start of “adversar[ial] judicial criminal proceedings.” See United 

States v. Gouveia, 467 U.S. 180, 189 (1984) (“we have never held 

that the right to counsel attaches at the time of arrest”); Michigan 

v. Jackson, 475 U.S. 625, 632 (1986) (“arraignment signals ‘the 

initiation of adversary judicial proceedings’ and thus the 

attachment of the Sixth Amendment”). As no judicial proceedings had 

been initiated against petitioner at the time he gave his 

statements, the right to counsel had not attached and, therefore, 

trial counsel had no grounds to raise a Sixth Amendment claim. 

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. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim II(B), that his 

statements on February 4, 1999 were unconstitutionally obtained as 
12

they were “fruits of the poisonous tree” as a result of the 

Commonwealth illegally obtaining his January 30 and 31, 1999 

statements. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. As petitioner’s constitutional right 

to counsel had not been violated when he provided the previous 

statements to the police, the statements he made on February 4, 1999 

could not have been the “fruit of the poisonous tree.” 

Additionally, petitioner admits that he was advised of his Miranda

rights and orally waived those rights before the February 4, 1999 

statements were made. 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. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim II(C), that his 

February 4, 1999 statements were “per se invalid” as the police 

elicited the statements from him without counsel being present even 

though counsel had been appointed to represent petitioner on 

February 1, 1999. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record, including the transcript 

of the suppression hearing held during petitioner’s first trial, 

demonstrates that petitioner initiated contact with the police on 
13

February 4, 1999. Further, as petitioner admits, he was re-advised 

of his right to counsel and he knowingly and voluntarily waived that 

right. Therefore, trial counsel had no viable grounds for raising a 

Sixth Amendment claim regarding petitioner’s February 4, 1999 

statements. 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. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue articulated in claim II(D). The Court 

holds that this portion of claim II(H)(1) is without merit. The 

record demonstrates that counsel raised this issue at trial. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim II(E), that the 

Commonwealth violated his right to counsel by scheduling the 

November 2, 2001 interview before petitioner was formally indicted 

on December 3, 2001. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record demonstrates that 

petitioner’s conversation with the police on November 2, 2001 was 

part of the investigation into the authenticity of the October 21, 

2001 letter which petitioner had sent to the Commonwealth’s 

Attorney. Armed with the evidence provided by the petitioner in the 

letter and in petitioner’s November 2, 2001 conversation with police 
14

officers, the Commonwealth’s Attorney sought and obtained the 

indictment for capital murder. Petitioner offers no evidence to 

support his claim that the Commonwealth actively delayed seeking an 

indictment in order to circumvent his Sixth Amendment right to 

counsel. 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. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim II(F), that the 

Commonwealth’s Attorney’s Office “unconstitutionally and 

unethically” communicated to him through the police interview on 

November 2, 2001 without the consent of the attorney who had 

represented petitioner at his first trial. Petitioner contends that 

the actions of the Commonwealth’s Attorney’s Office violated Rules 

of Professional Conduct 4.2 and 5.3, interfered with his 

relationship with counsel, and violated his right to counsel because 

the Commonwealth knew petitioner was still represented by his 

previous counsel on November 2, 2001. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. In Powell II, this Court “determined 

that the crime for which [petitioner] was tried and convicted in the 

present case was a separate offense from those for which he had been 

previously convicted. [Petitioner] had not been formally charged 

with that offense when he was interviewed on November 2, 2001, and, 
15

thus, he was not entitled to have his counsel from his prior trial 

present during that interview.” 267 Va. at 142, 590 S.E.2d at 558. 

As petitioner’s right to counsel had not attached to the particular 

crime being investigated and for which petitioner was charged and 

convicted, it was not impacted by the alleged actions of the 

Commonwealth’s Attorney’s Office and an objection on this basis 

would have been frivolous. 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. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel because counsel failed to 

raise the issue, articulated in a portion of claim II(G), that his 

Fourth and Fifth Amendment rights were violated as petitioner’s 

waiver of his Miranda rights on November 2, 2001 was involuntarily 

given because petitioner was allegedly under the influence of two 

mood-altering drugs, Atarax and Depakote. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record, including the motion to 

suppress, the transcript of petitioner’s November 2, 2001 statement 

to police, and the transcript of the motion to suppress hearing, 

demonstrates that petitioner voluntarily and knowingly waived his 

Miranda rights. Although petitioner was taking Depakote and Atarax, 

the record demonstrates that petitioner was coherent and able to 

understand the questions Detective Leonard was asking. Petitioner 

fails to state what effects Atarax and Depakote had on his ability 
16

to voluntarily waive his Miranda rights. 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. 

In another portion of claim II(H)(1), petitioner alleges he was 

denied the effective assistance of counsel because counsel failed to 

raise the issue, articulated in another portion of claim II(G), that 

his Fourth and Fifth Amendment rights were violated, as petitioner’s 

waiver of his Miranda rights on November 2, 2001 was involuntarily 

given because Detective Leonard violated his promise not to discuss 

the murder during the interview by asking petitioner questions about 

the murder. 

The Court holds that this portion of claim II(H)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record, including the motion to 

suppress, the transcript of petitioner’s November 2, 2001 statement 

to police, and the transcript of the motion to suppress hearing, 

demonstrates that petitioner voluntarily and knowingly waived his 

Miranda rights. Petitioner signed the waiver form and initialed 

that no promises had been made to him and the record demonstrates 

that petitioner was informed that he had the right to stop answering 

questions at any time. Further, the record, including the 

transcripts from the motion to suppress hearing, demonstrates that 

petitioner never invoked his right to silence or his right to 

counsel, and, therefore, there was no basis upon which counsel could 

have raised the issue. Thus, petitioner has failed to demonstrate 
17

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. 

 In a portion of claim II(H)(2), petitioner alleges he was 

denied the effective assistance of appellate counsel because counsel 

failed to raise on appeal the issues stated in claims II(A), II(B), 

II(C), II(E), II(F), and II(G). The Court holds that this portion 

of claim II(H)(2) satisfies neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record demonstrates that these issues were not raised at trial. 

Therefore, counsel was reasonable for choosing not to raise on 

appeal claims which would have been barred under Rule 5:25. 

Further, petitioner has articulated no reason why this Court would 

have invoked either exception to Rule 5:25 and reached the merits of 

any of these issues. 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 error, the 

result of the proceeding would have been different. 

In another portion of claim II(H)(2), petitioner alleges 

counsel was ineffective for failing to raise the issue, articulated 

in claim II(D), that the Commonwealth violated his right to counsel 

by eliciting incriminating statements from him on November 2, 2001, 

while petitioner was still represented by the attorney who had been 

appointed to represent petitioner at his first trial. The Court 

holds that this portion of claim II(H)(2) is without merit. The 

record demonstrates that counsel raised this issue on appeal. 

In a portion of claim III(C)(1), petitioner alleges he was 
18

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue articulated in claim III(A) that the 

remarks made by the Commonwealth in opening and closing arguments at 

both the guilt and penalty phases of his trial violated his rights 

under the Fifth, Eighth, and Fourteenth Amendments as the “remarks 

vouched for the personal opinions of the prosecutors that 

[petitioner] deserved the death penalty.” Petitioner contends the 

Commonwealth’s Attorney referred to himself in the first person as 

he informed the jury that the death penalty would be sought in the 

case and asked the jury to return a sentence of death against 

petitioner. 

The Court holds that this portion of claim III(C)(1) 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 remarks in question did not vouch 

for the personal opinion of the Commonwealth’s Attorney but rather 

were based upon the evidence the Commonwealth’s Attorney expected to 

be presented and which had been presented at trial. Therefore, the 

remarks were not improper and counsel did not act unreasonably for 

failing to object. 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. 

In another portion of claim III(C)(1), petitioner alleges he 

was denied the effective assistance of counsel at trial because 

counsel failed to raise the issue, articulated in claim III(B), that 

remarks made by the Commonwealth’s Attorney in the penalty phase of 
19

the trial regarding the effect the death penalty has in deterring 

other people from committing future crimes violated his rights 

pursuant to the Fifth, Eighth, and Fourteenth Amendments. 

The Court holds that this portion of claim III(C)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. This Court has previously held that 

“[w]hile considerations of deterrence should not be the basis for a 

finding of guilt of the offense, such considerations may be argued 

in connection with the punishment to be assessed for the crime." 

Wilkins v. Commonwealth, 253 Va. 156, 157, 482 S.E.2d 837, 838 

(1997) (citing Payne v. Commonwealth, 233 Va. 460, 468, 357 S.E.2d 

500, 505, cert. denied, 484 U.S. 933 (1987)). Our review of the 

record, including the trial transcript, demonstrates that the 

deterrence argument was raised during the penalty phase of 

petitioner’s trial and, therefore, did not provide counsel with 

grounds for an objection. 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. 

In claim III(C)(2), petitioner alleges he was denied the 

effective assistance of counsel on appeal because counsel did not 

raise the issues articulated in claims III(A) and III(B). The Court 

holds that claim III(C)(2) satisfies neither the “performance” nor 

the “prejudice” prong of the two-part test enunciated in Strickland. 

The record demonstrates that these issues were not raised at trial. 

Therefore, counsel was reasonable for choosing not to raise on 

appeal claims which would have been barred under Rule 5:25. 
20

Further, petitioner has articulated no reason why this Court would 

have invoked either exception to Rule 5:25 and reached the merits of 

either issue. 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 error, the result of the 

proceeding would have been different. 

In a portion of claim IV(G)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim IV(A), that 

petitioner was unconstitutionally prosecuted because the indictment 

against him did not allege either vileness or future dangerousness 

and neither factor was proven beyond a reasonable doubt at trial. 

The Court holds that this portion of claim IV(G)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. 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). As such, this Court has previously held that 

counsel is not ineffective for failing to raise this issue. See

Morrisette v. Warden, 270 Va. at ___, 613 S.E.2d at 556. 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 error, the result of the proceeding would have 

been different. 
21

In another portion of claim IV(G)(1), petitioner alleges he was 

denied the effective assistance of counsel because counsel failed to 

raise the issue, articulated in claim IV(B), that the Commonwealth 

was collaterally estopped from presenting the issue of future 

dangerousness at his second trial because the jury at petitioner’s 

first trial returned a finding only of vileness. Petitioner 

contends that the jury at petitioner’s first trial returned a 

finding only of vileness after being informed that it could find 

either, both, or neither aggravating factor, and, therefore, that 

the future dangerousness issue had been determined in his favor at 

the end of the first trial. 

The Court holds that this portion of claim IV(G)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. Collateral estoppel does not apply 

in petitioner’s case because petitioner was being tried for a 

different crime. The determination of future dangerousness depends 

in part on and, as this Court has previously held, may be based 

solely on “the circumstances surrounding the commission of the 

offense of which he is accused.” See Code § 19.2-264.4(C); Murphy v. 

Commonwealth, 246 Va. 136, 144, 431 S.E.2d 48, 53, cert. denied 510 

U.S. 928 (1993). The evidence at petitioner’s second trial, 

including petitioner’s attempted rape of Stacey Reed and letters 

written by petitioner while in prison following his first trial, was 

different than that which a jury considered in petitioner’s first 

trial. Therefore, the issue of collateral estoppel was not 

implicated because the jury at petitioner’s second trial was asked 

to determine an issue that was neither considered nor available at 
22

the previous trial. 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. 

In another portion of claim IV(G)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue articulated in claim IV(C). The Court 

holds that this portion of claim IV(G)(1) is without merit. The 

record demonstrates that counsel raised this issue at trial. 

In another portion of claim IV(G)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim IV(D), that his 

constitutional rights were violated by the trial court’s vague 

future dangerousness jury instruction. The instruction stated that 

the jury had to find, beyond a reasonable doubt, that “. . . there 

is a probability that he would commit criminal acts of violence that 

would constitute a continuing serious threat to society.” 

Petitioner claims that the juxtaposition of “beyond a reasonable 

doubt” and “probability” made this instruction vague as one cannot 

find a probability beyond a reasonable doubt. 

The Court holds that this portion of claim IV(G)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. This Court has already held that 

“the word, ‘probability,’ in the statutory context in which it is 

used, is not ambiguous . . . [t]herefore, the "future dangerousness" 

predicate is not unconstitutionally vague.” Mickens v. 

Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684, vacated on 
23

other grounds, 513 U.S. 922 (1994). The instruction petitioner 

complains of followed the statute, as approved by this Court, and 

therefore counsel was not unreasonable for failing to raise the 

objection. 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. 

In another portion of claim IV(G)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim IV(E), that the 

future dangerousness jury instruction unconstitutionally “relieved 

the Commonwealth of its burden to prove every element beyond a 

reasonable doubt” because it told the jury that it only had to find 

a “probability” of future dangerousness. 

The Court holds that this portion of claim IV(G)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. Counsel is not unreasonable for 

failing to object to jury instructions that follow the statute and 

have previously been approved by this 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. 

In another portion of claim IV(G)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim IV(F), that his due 

process rights and right to a reliable sentencing proceeding were 
24

violated because the future dangerousness aggravating factor 

excludes consideration of petitioner’s life in prison. 

The Court holds that this portion of claim IV(G)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. This Court has previously held that 

a determination of future dangerousness revolves 

around an individual defendant and a specific crime. 

Evidence regarding the general nature of prison life 

in a maximum security facility is not relevant to 

that inquiry, even when offered in rebuttal to 

evidence of future dangerousness such as that 

presented in this case. 

Schmitt v. Commonwealth, 262 Va. 127, 146, 547 S.E.2d 186, 199-200 

(2001), cert. denied, 534 U.S. 1094 (2002) (citing Burns v. 

Commonwealth, 261 Va. 307, 339-40, 541 S.E.2d 872, 893 (2001), cert. 

denied 534 U.S. 1043 (2001)). 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. 

 In a portion of claim IV(G)(2), petitioner alleges he was 

denied the effective assistance of appellate counsel because counsel 

failed to raise on appeal the issues stated in claims IV(A), IV(B), 

IV(D), IV(E), and IV(F). The Court holds that these portions of 

claim IV(G)(2) satisfy neither the “performance” nor the “prejudice” 

prong of the two-part test enunciated in Strickland. The record 

demonstrates that these issues were not raised at trial. Therefore, 

counsel was reasonable for choosing not to raise on appeal claims 

which would have been barred under Rule 5:25. Further, petitioner 

has articulated no reason why this Court would have invoked either 
25

exception to Rule 5:25 and reached the merits of either issue. 

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 error, the result of the proceeding 

would have been different. 

In another portion of claim IV(G)(2), petitioner alleges he was 

denied the effective assistance of counsel on appeal because counsel 

failed to raise the issue articulated in claim IV(C). The Court 

holds that this portion of claim IV(G)(2) is without merit. The 

record demonstrates counsel raised this issue on appeal. 

In claim V(B)(1), petitioner alleges he was denied the 

effective assistance of counsel at trial because counsel failed to 

raise the issues, articulated in claim V(A), that his right to due 

process, his right to be able to participate in his trial, and his 

right to “heightened reliability” in his trial were violated by the 

medication administered to him in prison before trial and the stun 

belt he wore at trial. Petitioner claims that the combination of 

medication he was on, including Depakote, Paxil and Zoloft, caused 

him to appear emotionless and expressionless during trial. 

Petitioner claims that he was never found to be a security threat 

and that the stun belt limited his communication with counsel, 

distracted him during trial, and prejudiced him before the jury. 

The Court holds that claim V(B)(1) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Petitioner provides no evidence that he 

was involuntarily medicated or that the medication he was taking 

prior to and during the trial was the reason he appeared “cold, 
26

expressionless, and remorseless during the trial.” Additionally, 

petitioner is unable to demonstrate prejudice because, as was the 

case in Lenz v. Warden, 265 Va. 373, 380, 579 S.E.2d 194, 198 

(2003), there is “nothing in the record that indicates the jury 

observed a stun belt on petitioner during the trial.” 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. 

 In claim V(B)(2), petitioner alleges he was denied the 

effective assistance of appellate counsel because counsel failed to 

raise on appeal the issues stated in claim V(A). The Court holds 

that claim V(B)(2) satisfies neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record demonstrates that these issues were not raised at trial. 

Therefore, counsel was reasonable for choosing not to raise on 

appeal claims which would have been barred under Rule 5:25. 

Further, petitioner has articulated no reason why this Court would 

have invoked either exception to Rule 5:25 and reached the merits of 

either issue. 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 error, the result of the 

proceeding would have been different. 

In a portion of claim VI(E)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issues articulated in claim VI(A) that his 

rights to due process and a reliable sentencing hearing were 
27

violated when the Commonwealth knowingly introduced Exhibit 51 as 

evidence of his criminal history at the penalty phase of the trial. 

Petitioner claims that the Commonwealth falsely stated that Exhibit 

51 was a certified copy of his criminal history, when it was neither 

certified nor a copy of his criminal record. Further, according to 

petitioner, the exhibit contained false and misleading information, 

including, inter alia, information that petitioner had been found 

guilty of capital murder when that conviction had been reversed by 

this Court and later nolle prossed and that charges for felony 

larceny and statutory burglary had been nolle prossed when the 

charges had actually been dismissed. 

The Court holds that this portion of claim VI(E)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. Petitioner has failed to demonstrate 

what effect, if any, Exhibit 51 had on the jury. The record, 

including the trial transcript, demonstrates that while Exhibit 51 

indicated that petitioner had previously been found guilty of 

capital murder, the jury was already aware of this information. 

Petitioner’s own letters to the Commonwealth’s Attorney, which had 

been introduced at trial, indicated that petitioner was on “death 

row” after having already been found guilty of capital murder. When 

Exhibit 51 was introduced, the Commonwealth mentioned only 

petitioner’s prior convictions and did not say anything about the 

capital murder conviction or about any of the charges for which 

petitioner was not convicted. The Commonwealth did not mention the 

exhibit again during the presentation of the evidence or during 

argument. The Commonwealth’s argument that petitioner deserved the 
28

death penalty was based not on petitioner’s criminal history, but on 

the killing of Stacey Reed, the letters petitioner wrote after 

Stacey Reed’s murder, and petitioner’s racist attitudes. 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. 

In another portion of claim VI(E)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim VI(B), that the 

Commonwealth failed to turn over exculpatory information by not 

informing petitioner that “some of the entries on Commonwealth 

Exhibit 51 were false and misleading.” Petitioner claims that the 

Commonwealth’s actions violated his due process rights. 

The Court holds that this portion of claim VI(E)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record demonstrates that on 

December 23, 2002, the Commonwealth provided petitioner’s counsel 

with a copy of the printout later identified as Exhibit 51. 

Petitioner’s knowledge regarding his own criminal record is as 

extensive, if not more so, as the Commonwealth’s. The inaccuracies 

in the printout, therefore, were before petitioner prior to trial 

and the Commonwealth did not violate its duty to disclose 

exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 

(1963). 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 
29

would have been different. 

In another portion of claim VI(E)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in a portion of claim VI(C), 

that the Commonwealth violated Code §§ 19.2-295.1, -264.2, and -

264.4 because Exhibit 51 was not a “record of conviction” and showed 

charges which had been either nolle prossed or for which petitioner 

was found not guilty. Petitioner claims that the introduction of 

Exhibit 51 “falsely led the jury to believe that [petitioner] had a 

much more serious criminal record than he did” when deciding future 

dangerousness. 

The Court holds that this portion of claim VI(E)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record, including the trial 

transcript and the exhibits, demonstrates that the jury was already 

aware that petitioner had previously been found guilty of capital 

murder. Petitioner’s own letters to the Commonwealth’s Attorney, 

which had been introduced at trial, indicated that petitioner had 

been on “death row” after having been found guilty of capital 

murder. When Exhibit 51 was introduced, the Commonwealth mentioned 

only petitioner’s prior convictions, did not mention the previous 

capital murder conviction or any of the charges for which petitioner 

was not convicted. Finally, the Commonwealth focused the jury’s 

determination for a sentence of death not on petitioner’s criminal 

history, but rather on the killing of Stacey Reed, the letters 

petitioner wrote while he was incarcerated, and how petitioner’s 

racist attitudes showed him to be capable of violence. Thus, 
30

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. 

In another portion of claim VI(E)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in another portion of claim 

VI(C), that the Commonwealth violated Code § 19.2-264.3:2 because 

the Commonwealth failed to give notice of its intent to present 

evidence of unadjudicated criminal conduct. Exhibit 51 contained 

information regarding criminal charges that had been either nolle 

prossed or of which petitioner had been found not guilty. 

The Court holds that this portion of claim VI(E)(1) 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 Commonwealth complied with Code 

§ 19.2-264:3.2 as counsel acknowledged that he had received the 

document as required. Therefore, any objection counsel would have 

made on this issue would have been frivolous. 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. 

In another portion of claim VI(E)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim VI(D), that the 

Commonwealth violated his Sixth Amendment rights when it introduced 
31

Exhibit 51 because there was no “foundational testimony as to the 

personal knowledge of the record-keeper, the regularity of its 

preparation, the reliance on the records, or any other circumstance 

showing trustworthiness.” The Court holds that this portion of 

claim VI(E)(1) satisfies neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

Petitioner has failed to establish that had counsel objected, the 

Commonwealth would not have been able to provide the appropriate 

foundation or that Exhibit 51 would have been ruled inadmissible. 

Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that, but for counsel's alleged errors, 

the jury would not have considered Exhibit 51 and the result of the 

proceeding would have been different. 

 In claim VI(E)(2), petitioner alleges he was denied the 

effective assistance of appellate counsel because counsel failed to 

raise on appeal the issues stated in claims VI(A), VI(B), VI(C), and 

VI(D). The Court holds that claim VI(E)(2) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record demonstrates that these issues 

were not raised at trial. Therefore, counsel was reasonable for 

choosing not to raise on appeal claims which would have been barred 

under Rule 5:25. Further, petitioner has articulated no reason why 

this Court would have invoked either exception to Rule 5:25 and 

reached the merits of either issue. 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 error, 

the result of the proceeding would have been different. 
32

In claim VI(F), petitioner alleges he was denied the effective 

assistance of counsel because counsel failed to have the charges 

listed on Exhibit 51, which had been nolle prossed or dismissed, 

expunged pursuant to Code § 19.2-392.2. Petitioner claims that the 

inclusion of these charges in a capital sentencing proceeding 

constitutes a “manifest injustice” and that the charges were 

eligible for expungement under the statute. 

The Court holds that claim VI(F) fails to satisfy the 

“prejudice” prong of the two-part test enunciated in Strickland. 

Petitioner fails to show that any motion for the expungement of his 

record would have succeeded. Additionally, petitioner has failed to 

show that a “manifest injustice” occurred because the information he 

now complains of was listed in Exhibit 51. When Exhibit 51 was 

introduced, the Commonwealth mentioned only petitioner’s prior 

convictions and did not say anything about the capital murder 

conviction or about any of the charges where petitioner was not 

convicted. Exhibit 51 clearly identifies the disposition of each 

charge and thus, the fact that some charges were nolle prossed or 

dismissed was before the jury. Finally, the Commonwealth focused 

the jury’s determination for a sentence of death not on petitioner’s 

criminal history, but rather on the killing of Stacey Reed, the 

letters petitioner wrote while he was incarcerated, and how 

petitioner’s racist attitudes showed him to be capable of violence. 

Thus, petitioner has failed to demonstrate that, but for counsel's 

alleged errors, the result of the proceeding would have been 

different. 

In claim VI(G), petitioner alleges he was denied the effective 
33

assistance of counsel because appellate counsel in petitioner’s 

first trial failed to file a petition for writ of habeas corpus 

challenging the convictions that arose from the first trial. The 

Court rejects claim VI(G) because there is no constitutional right 

to counsel in seeking habeas relief. Howard v. Warden, 232 Va. 16, 

19, 348 S.E.2d 211, 213 (1986). 

In a portion of claim VII(C)(1), petitioner alleges he was 

denied the effective assistance of counsel at trial because counsel 

failed to raise the issue, articulated in claim VII(A), that his 

constitutional rights to freedom of speech, freedom of association, 

due process and “to a reliable individualized sentencing 

determination” were violated by the Commonwealth’s introduction of 

racist statements and documents which linked petitioner to certain 

groups and “broad ideas.” 

The Court holds that this portion of claim VII(C)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. Petitioner’s racist beliefs and 

writings were a significant and relevant part of the Commonwealth’s 

case because they were evidence of petitioner’s motivation for 

killing Stacey Reed. This evidence was also properly introduced at 

sentencing to show that petitioner was a dangerous person. Further, 

petitioner provides no evidentiary support for his speculation that 

the evidence “tended to inflame the jury by linking [petitioner] to 

certain abstract beliefs” and “caused the jury to sentence 

[petitioner] for his abstract beliefs.” Petitioner does not allege 

that had counsel objected this evidence would have been ruled 

inadmissible and the jury’s determination would have been different. 
34

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. 

In another portion of claim VII(C)(1), petitioner alleges he 

was denied the effective assistance of counsel at trial because 

counsel failed to raise the issue, articulated in claim VII(B), that 

the Commonwealth violated his right to confront and cross-examine 

witnesses when it introduced certificates of analysis in an attempt 

to authenticate several letters allegedly written by petitioner. 

Petitioner claims that the certificates of analysis were testimonial 

in nature and without them the Commonwealth could not have 

attributed the letters to him. 

The Court holds that this portion of claim VII(C)(1) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record, including the 

certificates of analysis, show that the Commonwealth complied with 

the requirements of Code § 19.2-187 as the certificates were 

attested to by the scientists who performed the handwriting analysis 

and, therefore, the scientists were not required to appear at trial. 

Additionally, the evidence at trial demonstrates that petitioner 

admitted to the police that he wrote the letters. Thus, petitioner 

has failed to demonstrate that counsel’s performance was deficient. 

Further, petitioner claims only that counsel's alleged errors “had a 

substantial and injurious effect on [petitioner’s] trial” but does 

not claim that, had counsel objected, the letters would have been 

ruled inadmissible or the result of the proceeding would have been 
35

different. 

In a portion of claim VII(C)(2), petitioner alleges he was 

denied the effective assistance of counsel on appeal because counsel 

did not raise the issues articulated in claims VII(A) and VII(B). 

The Court holds that this portion of claim VII(C)(2) satisfies 

neither the “performance” nor the “prejudice” prong of the two-part 

test enunciated in Strickland. The record demonstrates that these 

issues were not raised at trial. Therefore, counsel was reasonable 

for choosing not to raise on appeal claims which would have been 

barred under Rule 5:25. Further, petitioner has articulated no 

reason why this Court would have invoked either exception to Rule 

5:25 and reached the merits of either issue. 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 error, the result of the proceeding would have been 

different. 

In claim VIII(A), petitioner alleges he was denied the 

effective assistance of counsel during the penalty phase because 

counsel failed to properly investigate petitioner’s background in 

order to rebut the Commonwealth’s claim that petitioner had racist 

beliefs and that petitioner tortured animals. Petitioner alleges 

that had counsel conducted a proper investigation he would have 

discovered that petitioner had once shared a cigarette with a “black 

male;” that petitioner was known to make references to Satan in 

order “to keep others at a safe distance” and to say things in order 

to shock people, to gain acceptance and to garner attention to 

himself; and that petitioner “wore racism like fashionable clothing” 
36

in order to “gain acceptance from certain groups.” Petitioner 

claims that counsel also would have discovered that he had lived 

without any racial issues in environments where 75% of the occupants 

were black; had “had good friends who were black;” was not 

aggressive towards his cousin’s black boyfriend; that he told 

stories about torturing animals to a classmate who had never seen 

petitioner abuse any animals and did not believe the stories; and 

that petitioner had acted nice to cats and dogs that belonged to 

friends and family. 

The Court holds that claim VIII(A) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The evidence of petitioner’s character 

and demeanor, which he argues should have been presented, would have 

been damaging because evidence existed that petitioner had admitted 

to the police that he was a racist and had tortured animals and 

because the affidavits supplied by petitioner also demonstrate that 

petitioner was known to make racist statements and tell stories 

about abusing animals. None of the affidavits establish that 

petitioner was either not racist or not abusive to animals. 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. 

In claim VIII(B), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to rebut the 

Commonwealth’s claim that petitioner had no remorse because counsel 

did not properly investigate petitioner’s background, interview 
37

relevant witnesses, or review the records in the possession of 

petitioner’s prior counsel. Petitioner alleges that counsel would 

have discovered that petitioner had cried during his January 30, 

1999 police interview and stated that he wanted to tell Stacey 

Reed’s parents he was sorry; that petitioner wanted to write a 

letter to Stacey Reed’s family; that petitioner wanted to trade his 

life for Stacey’s; that petitioner wanted to apologize to Kristie 

Reed; that petitioner broke down and cried during his first trial 

and that a probation officer had noted that petitioner was “confused 

and sorry about committing the crime.” 

The Court holds that claim VIII(B) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record demonstrates that there was 

overwhelming evidence that petitioner lacked remorse. Petitioner 

wrote letters to the Commonwealth’s Attorney in 2001, in which he 

taunted the Commonwealth’s Attorney, admitted to stabbing Stacey 

Reed and then “stomping on her throat,” and admitted to drinking 

iced tea and smoking a cigarette after killing her, but in which he 

never expressed remorse. Petitioner also stated he wanted Stacey 

Reed’s parents to be ready to “relive it all again because if I have 

to suffer for the next 50 or 60 years or however long then they can 

suffer the torment of reliving what happened.” Additionally, 

petitioner sent a letter to Stacey Reed’s parents two years after 

the murder in which he compared Stacey Reed to pictures of a topless 

model he included with the letter but did not express remorse. 

Thus, petitioner has failed to demonstrate that counsel’s 

performance was deficient or that there is a reasonable probability 
38

that, but for counsel's alleged errors, the result of the proceeding 

would have been different. 

In claim VIII(C), petitioner alleges he was denied the 

effective assistance of counsel because counsel failed to rebut the 

Commonwealth’s claim that petitioner had above average intelligence 

by failing to investigate his background, interview relevant 

witnesses, or review the records in the possession of petitioner’s 

prior counsel. Petitioner contends he had a full-scale IQ score of 

102 in 1991 which placed him at the 54th percentile; that he had a 

full-scale IQ of 87 in 1993; that experts had opined that 

petitioner’s intelligence was “average or below,” and that he was 

capable of functioning in the average range despite low average 

range IQ scores. 

The Court holds that claim VIII(C) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record demonstrates that at trial, 

petitioner’s own expert testified on cross-examination that 

petitioner’s IQ was “within the average range of intelligence.” The 

reports cited by petitioner demonstrated that he was considered to 

have average intelligence with psychologist William Brock commenting 

that petitioner’s intelligence may not be indicative of his IQ 

scores and psychologist Shayne Weir commenting that petitioner’s 

intelligence was “probably brighter” than petitioner’s IQ score of 

102. 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. 
39

In claim IX(1), petitioner alleges that he was denied the 

effective assistance of counsel during the penalty phase of his 

trial because counsel failed to prepare and present “a compelling 

mitigation case.” Petitioner claims that counsel presented “weak 

testimonial evidence” and no documentary evidence. In support of 

this claim, petitioner submits affidavits from his mother, Cynthia 

Powell, and one brother, Matthew Powell. Petitioner contends that 

counsel met only once, briefly, with Matthew Powell, and only asked 

him whether petitioner’s father had been abusive, and that counsel 

did not prepare Cynthia Powell to testify. Further, petitioner has 

submitted the affidavit of William Stejsall, a psychologist who 

testified on petitioner’s behalf at trial. Dr. Stejsall states that 

trial counsel deviated from the planned presentation of Dr. 

Stejsall’s testimony and the jury never heard a large part of Dr. 

Stejsall’s findings concerning the factors outside of petitioner’s 

control during his adolescence which led to petitioner developing “a 

self-destructive and antisocial adaptation to life.” 

The Court holds that claim IX(1) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that trial counsel called seven witnesses 

on petitioner’s behalf, including Matthew and Cynthia Powell, who 

discussed various aspects of petitioner’s upbringing and childhood. 

The jury heard evidence that petitioner’s father was abusive and had 

a drinking problem; petitioner’s parents were incapable of 

controlling petitioner; and at one point, petitioner’s parents 

temporarily relinquished custody of petitioner to the Department of 
40

Social Services. The jury was also informed that petitioner’s 

social worker had recommended intensive family therapy after 

petitioner returned home and a juvenile court psychologist, who 

evaluated petitioner in late 1993, recommended that petitioner be 

placed in a long-term treatment facility for at least six months. 

Further, at trial, Dr. Stejsall testified that, as a result of 

his home life, petitioner’s behavioral and mental health issues were 

neglected and he received a variety of treatments with mixed results 

and at various stages of his life petitioner received no treatment 

at all. Dr. Stejsall opined that petitioner developed behaviors 

described as oppositional defiant disorder, attention deficit 

hyperactivity disorder, conduct disorder and serious depression 

which, at times, resulted in petitioner becoming suicidal and 

engaging in self-mutilation. Dr. Stejsall also testified that 

petitioner had no “serious disciplinary infractions” while 

incarcerated for Stacey Reed’s murder because petitioner had been on 

medications and was receiving psychiatric care. Petitioner fails to 

allege what additional information Matthew and Cynthia Powell would 

have provided had counsel interviewed them more thoroughly or had 

better prepared them or how additional testimony from Dr. Stejsall 

would have affected the trial. 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. 

In claim IX(2), petitioner alleges that he was denied the 

effective assistance of counsel because counsel failed to prepare 

and present “a compelling mitigation case” regarding the “toxic 
41

environment in which [he] grew up.” Petitioner points to the 

following in support of his claim: a 1991 family assessment which 

described his home life; the reports from a probation officer 

documenting petitioner’s father’s abuse; petitioner’s mother’s 

passivity; and the officer’s failed attempts to obtain intervention 

for petitioner; a 1993 mental status evaluation which documented the 

tension between petitioner and his father; and the sexual assault of 

petitioner when he was seventeen years old. 

The Court holds that claim IX(2) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that counsel presented testimony from 

numerous witnesses regarding the abusive relationship between 

petitioner and his father. Dr. Stejsall testified that petitioner 

was raised in a “toxic” environment and that a severe beating by a 

large group of young men while petitioner was confined in a juvenile 

detention facility and the sexual assault upon petitioner when 

petitioner was seventeen worsened the effects of petitioner’s mental 

health problems. Petitioner has failed to assert how the 

information he alleges counsel should have presented is not 

cumulative in nature or how it would have affected the proceedings. 

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. 

In claim IX(3), petitioner alleges that he was denied the 

effective assistance of counsel because counsel failed to 
42

investigate, review records, interview witnesses, or prepare and 

present “a compelling mitigation case” regarding his psychological 

problems. Petitioner cites a 1991 psychological evaluation, reports 

from the Prince William County Public School Special Education 

Department and the city of Manassas Public Schools Eligibility 

Committee, and psychological evaluations of petitioner performed in 

1993 and 1995 in support of his claim. 

The Court holds that claim IX(3) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that Dr. Stejsall, who was initially 

appointed to evaluate petitioner at his first trial and who reevaluated petitioner in preparation for his second trial, conducted 

his initial evaluation of petitioner based upon a review of 

petitioner’s “psychological evaluations,” “all of the medical and 

mental-health records that have ever been written or generated in 

connection with [petitioner]” including “three psychiatric 

hospitalizations” and petitioner’s school records including the 

records of “his eligibility and programming as a special education 

student as a seriously, emotionally disturbed student.” Because Dr. 

Stejsall based his opinion on his review of these materials, which 

are the same materials petitioner claims counsel failed to review, 

counsel acted properly by relying on Dr. Stejsall’s expert opinion 

regarding petitioner’s psychological problems. 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 
43

different. 

In claim IX(4), petitioner alleges that he was denied the 

effective assistance of counsel because counsel failed to prepare 

and present “a compelling mitigation case” regarding the obstacles, 

caused by petitioner’s family, to petitioner’s treatment. In 

support of his claim, petitioner points to evidence of his father’s 

refusal to participate in court-ordered counseling and to allow 

petitioner back in the house. Further, petitioner cites evidence 

that a probation officer believed that the inability of the family 

to receive appropriate or timely services was preventing petitioner 

and his family from successfully addressing their problems. 

The Court holds that claim IX(4) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. Our review of the record, including the 

trial transcript, demonstrates that the jury was made aware that 

petitioner’s father often did not attend counseling with petitioner 

and that petitioner often did not receive services due to money and 

family problems and the lack of available organizations willing to 

work with the family. Dr. Stejsall testified that petitioner’s 

“toxic” home environment prevented petitioner from receiving 

consistent treatment of his behavioral and mental-health issues. 

The evidence petitioner presents is cumulative of that presented at 

trial and petitioner has failed to assert how the use of any of this 

evidence would have impacted the jury. 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. 
44

In claim IX(5), petitioner alleges that he was denied the 

effective assistance of counsel because counsel failed to prepare 

and present “a compelling mitigation case” during the penalty phase 

of the proceeding regarding the life petitioner was living before 

the murder of Stacey Reed. Petitioner provides evidence in support 

of his claim that indicates he was homeless, had lost his friends, 

had all of his possessions stolen, and had recently broken up with 

his girlfriend. Petitioner has also presented evidence that he was 

drinking heavily and taking drugs around that time. 

The Court holds that claim IX(5) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the affidavits 

provided by petitioner and the affidavit of counsel, demonstrates 

that petitioner was homeless because his family was either afraid he 

would steal from them or because the children in the home were 

frightened of him and that petitioner’s friends had stopped spending 

time with him because he would “brag a lot” and was acting “weird” 

and “clingy” or “jealous” because of the relationship two of the 

friends had with Stacey Reed. Counsel made a strategic decision not 

to call any of these people as mitigation witnesses because their 

testimony would have supported a finding of future dangerousness. 

Counsel is not ineffective for failing to present evidence that 

could be “cross-purpose evidence” capable of aggravation as well as 

mitigation. Lenz v. Warden, 267 Va. 318, 337, 593 S.E.2d 292, 303 

(2004); see also Barnes v. Thompson, 58 F.3d 971, 980-81 (4th Cir.), 

cert. denied, 516 U.S. 972 (1995). Thus, petitioner has failed to 

demonstrate that counsel’s performance was deficient or that there 
45

is a reasonable probability that, but for counsel's alleged errors, 

the result of the proceeding would have been different. 

In claim IX(6), petitioner alleges that he was denied the 

effective assistance of counsel because counsel failed to prepare 

and present “a compelling mitigation case” during the penalty phase 

of the proceeding regarding petitioner’s lack of future 

dangerousness while in prison. Petitioner claims counsel should 

have presented a 1993 school report, a 1994 juvenile detention home 

report, and evidence that he had earned his GED while incarcerated 

in 1995 and had no disciplinary violations while incarcerated 

awaiting his second trial. 

The Court holds that claim IX(6) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. The record, including the trial 

transcript, demonstrates that counsel presented evidence that 

petitioner did not pose a future danger in prison. Dr. Stejsall 

informed the jury that, as a result of the medications and 

psychiatric care petitioner received while incarcerated for Stacey 

Reed’s murder, petitioner had no serious disciplinary infractions 

while in prison. The Commonwealth’s evidence that petitioner posed 

a future danger, however, was overwhelming. Petitioner admitted 

that he was a racist; claimed that “everybody that ain’t white ... 

needs to die” and stated that if he had waited until he was old 

enough to buy a gun he would have “kill[ed] a lot of somebodies.” 

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 
46

would have been different. 

In claim X(B)(1), petitioner alleges he was denied the 

effective assistance of counsel at trial because counsel failed to 

raise the issue articulated in claim X(A) that the trial court 

violated his rights under the Fifth and Fourteenth Amendments as 

well as under Code § 19.2-298 when it failed to allow petitioner to 

allocute before he was sentenced. 

The Court holds that claim X(B)(1) satisfies neither the 

“performance” nor the “prejudice” prong of the two-part test 

enunciated in Strickland. There is no constitutional “right” to an 

allocution before sentencing. Hill v. United States, 368 U.S. 424, 

428 (1962)(deprivation of allocution before sentencing is “an error 

which is neither jurisdictional nor constitutional”). The record 

demonstrates that petitioner was prone to making statements 

detrimental to his case. Further, petitioner has not alleged what 

he would have said if he had been given the opportunity to address 

the court or how such a statement would have impacted the sentence 

he received. 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. 

 In claim X(B)(2), petitioner alleges he was denied the 

effective assistance of counsel on appeal because counsel failed to 

raise the issue articulated in claim X(A). The Court holds that 

claim X(B)(2) satisfies neither the “performance” nor the 

“prejudice” prong of the two-part test enunciated in Strickland. 

The record demonstrates that these issues were not raised at trial. 
47

Therefore counsel was reasonable for choosing not to raise claims 

which would have been barred under Rule 5:25. Further, petitioner 

has articulated no reason why this Court would have invoked either 

exception to Rule 5:25 and reached the merits of either issue. 

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 error, the result of the proceeding 

would have been different. 

In claim XI, petitioner alleges that various stages of 

Virginia’s post-conviction process are insufficient to protect his 

constitutional rights. First, petitioner claims that the statute of 

limitations for filing a petition for writ of habeas corpus provided 

him insufficient time to investigate and brief all of his claims. 

Second, petitioner claims that the trial court failed to appoint 

counsel for petitioner’s habeas petition within the time period 

prescribed by Code § 19.2-163.7. Third, petitioner was refused his 

applications for the appointment of experts to assist with the 

preparation of his petition for writ of habeas corpus. Finally, 

petitioner claims that his motions for a copy of his record 

maintained by the Prince William Juvenile and Domestic Relations 

Court were denied. 

The Court holds that the issues raised in claim XI are not 

cognizable in a petition for a writ of habeas corpus. “The writ is 

available only where the release of the prisoner from his immediate 

detention will follow as a result of an order in his favor. It is 

not available to secure a judicial determination of any question 

which, even if determined in the prisoner's favor, could not affect 
48

the lawfulness of his immediate custody and detention.” Virginia 

Parole Board v. Wilkins, 255 Va. 419, 420-421, 498 S.E.2d 695, 696 

(1998). 

In claim XII, petitioner alleges his rights under the Sixth, 

Eighth and Fourteenth Amendments as well as Article I, Sections 8, 9 

and 11 of the Constitution of Virginia were violated because the 

jurors were exposed to an extraneous influence, namely a Bible, 

during the trial. Petitioner claims that at least one unidentified 

juror carried a Bible during the trial and specifically referred to 

it during the penalty phase. The Court holds that the petitioner 

has failed to allege facts that establish that the jurors were 

“exposed” to a Bible “during the course of the trial” and, 

therefore, claim XII is speculative. 

Accordingly, the petition is dismissed. 

 A Copy, 

 Teste: 

 Patricia L. Harrington, Clerk