PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TERESA WILSON LEWIS, 

Petitioner-Appellant,

v.  No. 09-4 BARBARA J. WHEELER, Warden,

Fluvanna Correctional Center for

Women,

Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Glen E. Conrad, District Judge.

(7:07-cv-00538-gec-mfu)

Argued: March 23, 2010

Decided: June 4, 2010

Before TRAXLER, Chief Judge, WILKINSON,

Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Wilkinson and Senior Judge Hamilton joined.

COUNSEL

ARGUED: James Elmer Rocap, III, STEPTOE & JOHNSON, LLP, Washington, D.C., for Appellant. Katherine Bal-
dwin Burnett, OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:

Michele J. Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for

Appellant. William C. Mims, Attorney General, Jerry P.

Slonaker, Senior Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia, for Appellee. 

OPINION

TRAXLER, Chief Judge:

Teresa Wilson Lewis ("Lewis") pleaded guilty in the Circuit Court of Pittsylvania County, Virginia to two counts of

capital murder for hire, and related charges of conspiracy to

commit capital murder, robbery, and use of a firearm, arising

out of the murders of her husband, Julian Clifton Lewis, Jr.

("Julian"), and stepson, Charles J. Lewis ("C.J."). She was

sentenced to death for each conviction of capital murder for

hire, life imprisonment for the robbery conviction, and a total

of 33 years’ imprisonment for the remaining convictions.

After unsuccessfully challenging her death sentences on

direct appeal and in state habeas proceedings, Lewis filed a

petition for a writ of habeas corpus in federal district court.

See 28 U.S.C.A. § 2254 (West 2006). The district court

denied relief but granted a certificate of appealability on four

claims. See 28 U.S.C.A. § 2253(c)(1) (West 2006). We

granted a certificate of appealability on two additional claims.

See id. For the reasons set forth below, we now affirm.

I.

The detailed facts surrounding the murders of Julian and

C.J. are set forth in the opinions of the Virginia Supreme

2 LEWIS v. WHEELER
Court, which we summarize below. See Lewis v. Warden, 645

S.E.2d 492, 495-99 (Va. 2007); Lewis v. Commonwealth, 593

S.E.2d 220, 222-25 (Va. 2004).

A.

In March or April 2000, Lewis met Julian at Dan River,

Inc., where they were both employed. Julian was a recent

widower, having lost his wife and the mother of his three

adult children to an extended illness in January of that year.

In June 2000, Lewis moved in with Julian. They married soon

thereafter and Lewis quit working.

In December 2001, Julian’s son, Jason Clifton Lewis, was

killed in an accident. Julian received life insurance proceeds

in excess of $200,000, which he placed in an account with

Prudential Securities that was only accessible by him. In February 2002, Julian purchased five acres of land and a mobile

home where he and Lewis began to live.

In August 2002, C.J., an Army reservist, was required to

report for active duty with the National Guard. Prior to leaving, C.J. made estate arrangements, including executing a will

and obtaining a life insurance policy in the amount of

$250,000. He designated Julian as his primary beneficiary and

Lewis as his secondary beneficiary.

It was also in the fall of 2002 that Lewis first met Matthew

J. Shallenberger ("Shallenberger") and Rodney L. Fuller

("Fuller"), who would become her co-conspirators in a plot to

murder her husband and stepson. Lewis met Shallenberger,

who was 22 years old, and Fuller, who was 19 years old, at

a Wal-Mart store. Before long, Lewis began a sexual relationship with Shallenberger, who was 11 years her junior. On at

least one occasion, however, Lewis performed a "lingerie

show" for both men, and had sexual intercourse with Fuller as

well as Shallenberger. On another occasion, Lewis took her

16-year-old daughter with her to meet the men at a parking

LEWIS v. WHEELER 3
lot. Lewis introduced her daughter to Fuller and the two had

sexual intercourse in one car while Lewis and Shallenberger

had sexual intercourse in the other vehicle. 

At some point, Lewis and Shallenberger began discussing

a plan to kill Julian and share the money that Lewis would get

upon his death. The first plan was put into motion on October

23, 2002. Lewis withdrew $1,200 from the bank and gave the

money to the men to purchase the necessary guns and ammunition. Shallenberger gave the money to an acquaintance who

purchased two shotguns for the conspirators. Lewis told Shallenberger and Fuller the route that Julian would travel from

work to home that evening. The plan was for the men to stop

and kill Julian on the roadway and make the murder look like

a robbery. The presence of another vehicle close to Julian during the trip home, however, made execution of the first plan

impossible.

Undeterred, the conspirators quickly hatched a second plan

to kill Julian. They also added a plan to murder C.J. when he

returned home for his father’s funeral in order to share the

proceeds from his life insurance policy as well. However,

when Lewis learned that C.J. would be visiting at the mobile

home on the evening of October 29-30, 2002, the decision

was made to murder Julian and C.J. at the same time.

In the early morning hours of October 30, 2002, Shallenberger and Fuller, armed with the shotguns purchased with

Lewis’ money, entered the mobile home through a rear door

that Lewis had left unlocked for them. Upon entering, Shallenberger woke Lewis, who had fallen asleep next to Julian

while waiting, and told her to get up. She went into the

kitchen where she waited while Shallenberger shot Julian several times with the shotgun. She then reentered the bedroom,

where Julian lay mortally wounded but still alive, retrieved

Julian’s pants and wallet, and returned to the kitchen. Meanwhile, Fuller went to C.J.’s bedroom and shot him several

times with the second shotgun. When Fuller returned to the

4 LEWIS v. WHEELER
kitchen, he saw Lewis and Shallenberger removing the money

from Julian’s wallet. Apparently there was some uncertainty

as to whether C.J. was dead, so Fuller took Shallenberger’s

shotgun and returned to shoot C.J. two more times. After

retrieving some of the shotgun shells, Shallenberger and Fuller left the mobile home.

For approximately 45 minutes after the last shots were

fired, Lewis remained in the mobile home with the victims.

She made at least two telephone calls to other persons, but did

not call authorities. At approximately 3:55 a.m., a 911 operator fielded a call from Lewis reporting that a single intruder

had entered her home at approximately 3:15 or 3:30 a.m., and

shot her husband and stepson. She told the 911 operator that

the intruder entered the bedroom where she was sleeping with

Julian and told her to get up. She claimed that Julian told her

to go into the bathroom, where she hid while the intruder fired

four or five times.

Sheriff’s deputies arrived at the Lewis home at approximately 4:18 a.m. Lewis told the deputies that her husband’s

body was on the floor in the master bedroom and that her

stepson’s body was in the other bedroom. When the officers

entered the master bedroom, however, they found Julian badly

wounded, but still alive and talking. He "‘made slow moans’

and uttered, ‘Baby, baby, baby, baby.’" Lewis, 593 S.E.2d at

223 (alteration omitted). Julian told the officers his name and,

when asked "if he knew who had shot him, . . . responded,

‘My wife knows who done this to me.’" Id. at 224. While trying to assist the victims, one deputy observed Lewis talking

on the telephone and heard Lewis "state, ‘I told C.J. about

leaving that back door unlocked.’" Id. (alteration omitted).

Julian died shortly thereafter, while still in the mobile home.

When informed that Julian and C.J. were dead, Lewis did not

appear to the officers to be upset.

Investigator Barrett and Investigator Isom with the Pittsylvania County Sheriff’s Office interviewed Lewis during

LEWIS v. WHEELER 5
their investigation of the murders. During one interview,

Lewis claimed that Julian had physically assaulted her a few

days before the murders, but denied killing him, having him

killed, or knowing who killed him. Lewis told the investigators that she and Julian had talked and prayed together before

he went to bed that night, and that she told him she was going

to the kitchen to pack his lunch for the next day. A lunch bag

was found in the refrigerator with an attached note stating "’I

love you. I hope you have a good day.’" Id. She had also

drawn a picture of a "smiley face" on the bag and inscribed

"‘I miss you when you’re gone,’" in the smiley face. Id.

Later that morning, Lewis called Mike Campbell, Julian’s

supervisor at Dan River. She told Campbell that Julian had

been murdered and asked for Julian’s paycheck. Campbell

told Lewis that she could pick it up after 4:00 p.m. that day.

The following day, Lewis contacted Campbell again, apologized for not picking up the check the day before, and again

asked when she could get it. Campbell later testified that

Julian brought his lunch to work in a blue and white cooler

and did not use lunch bags. He also testified that when he

went to pay his respects to Lewis in person a couple of days

later, Lewis told him that Julian had bought her a red sports

car before he was killed, but that she was going to trade it

along with one of his vehicles for a larger car. She also told

Campbell that she planned to sell Julian’s land and mobile

home.

Also on the day of the murders, Lewis spoke with Lieutenant Michael Booker, C.J.’s commanding officer. When Lt.

Booker called Lewis to express his condolences, Lewis told

him that she was "‘still in shock’" and that the police had been

questioning her. Id. She told Lt. Booker that "[t]here is no

way I would have killed my husband and stepson. They

guessed that because I didn’t get shot that I might have done

it. My husband told me to go into the bathroom, so I did." Id.

Lewis then informed Lt. Booker that she was the secondary

beneficiary of C.J.’s military life insurance policy and that she

6 LEWIS v. WHEELER
had been told that she would be contacted within 24 hours of

his death with information regarding when she would get her

money.

On November 4, 2002, Lewis contacted Lt. Booker and

requested C.J.’s personal effects and a photograph of C.J. that

she had given Lt. Booker for a memorial service. Lt. Booker

told Lewis that he would return the photograph to her, but that

the personal effects would be given to C.J.’s sister Kathy Clifton, his immediate next of kin. Lt. Booker testified that Lewis

became "very angry" and "insisted that [Lt. Booker] bring

them to her as soon as possible." J.A. 99. When Lt. Booker

refused, Lewis again asked about the life insurance money

and "remind[ed him] that she was the secondary beneficiary."

J.A. 99. When Lt. Booker told Lewis that she would still be

entitled to the life insurance, Lewis responded, "‘that’s fine,

Kathy can have all of his effects as long as I get the money.’"

J.A. 100.

Julian’s daughter Kathy also testified about her dealings

with Lewis immediately after the murders. Lewis told Kathy

that she had waited 45 minutes after the murders to call 911,

and that she called her ex-mother-in-law, Marie Bean, and her

best friend, Debbie Yeatts, prior to doing so. Lewis also

called Kathy on the night of the murders and told her that she

had already gone over the necessary arrangements with the

funeral home. Lewis told Kathy that all she needed were the

names of some of Julian’s family members, and that Kathy

need not even come to the funeral home the following day.

When Kathy joined Lewis at the funeral home the next day

anyway, she recalled Lewis saying that "she was the sole beneficiary of everything" and that "money was no object." J.A.

141. On the day of the funerals, Lewis called Kathy prior to

the services and told her "that she had just left the hairdresser’s and had gotten her nails done, [and] that she had bought

a beautiful suit to wear to the funeral." J.A. 141-42. She also

offered to sell Julian’s mobile home to Kathy.

LEWIS v. WHEELER 7
In addition to her attempts to obtain Julian’s paycheck,

Lewis also made a quick attempt to withdraw $50,000 from

Julian’s Prudential Securities’ account by presenting a forged

check made payable to her at the bank. The bank employee

refused to cash the check because the signature did not match

Julian’s signature in the bank’s records.

Finally, and consistent with Lewis’s immediate attempts to

obtain the cash payoff from the murders, the investigators

learned that Lewis was aware prior to the murders that she

would handsomely profit from the deaths of her husband and

stepson. She had earlier told an acquaintance that she was

"just ‘using Julian for money and that he would buy her

things.’" Lewis, 593 S.E.2d at 225. Another acquaintance

overheard her saying a couple of months before the murders

that "if Julian died, ‘she would get the money, and if [C.J.]

was killed and Julian was dead, she would get that money,

too.’" Id.

On November 7, 2002, Lewis, presented with the rapidly

accumulating evidence against her, confessed to Investigator

Isom that she had offered Shallenberger money to kill Julian.

Lewis told Isom that she met Shallenberger at Wal-Mart and

let him into their home on the night of the murders. However,

she falsely claimed that Shallenberger shot both Julian and

C.J. before taking the money and leaving the mobile home.

She told Isom that Shallenberger had expected to receive half

of the insurance proceeds, but that she had changed her mind

and decided to keep all of the money. Lewis then accompanied Isom to Shallenberger’s residence, where she identified

him as her co-conspirator. The following day, Lewis asked to

speak with Isom and admitted that she had not been totally

truthful the day before. Lewis confessed Fuller’s involvement

in the murders and advised Isom that her minor daughter had

assisted during the planning process as well. During the ensuing search of the mobile home where Shallenberger and Fuller

resided, officers recovered two pairs of rubber household

gloves containing primer residue caused by the firing of a

8 LEWIS v. WHEELER
firearm shell and two shotguns, one of which was determined

to have fired the shotgun shells found in Julian’s bedroom.

According to the autopsies, Julian and C.J. both died as a

direct result of the multiple shotgun wounds. Julian was

struck in "the upper left arm, shoulder, abdomen, pelvis,

penis, thighs, legs, arms, and chest. The bullets destroyed or

removed large areas of tissue in his upper arm, shoulder, and

upper chest, [and] fractured several ribs." Id. In addition,

"[p]lastic wadding from a shotgun shell was lodged in

[Julian’s] left lung tissue." Id. However, none of Julian’s injuries were immediately fatal, and Julian instead "died from

extensive blood loss" approximately 45 minutes to an hour

after the shootings. Id. C.J. was struck in the "back, abdomen,

chest, neck, left upper arm and shoulder, elbow, left thigh,

face, and forearm," but died almost immediately from his

wounds. Id.

B.

Shortly after Lewis was charged for her participation in the

murder-for-hire plot, the trial judge appointed attorneys David

Furrow and Thomas Blaylock to represent her, both of whom

had experience in capital murder cases. After investigating the

case, counsel became extremely concerned about the heinous

facts surrounding this intimate, murder-for-hire and -profit

crime and their dim prospects for preventing a death penalty

verdict by a Pittsylvania County jury. Given their knowledge

of the assigned trial judge and of juries generally in the

county, they became convinced that Lewis’ best chance of

avoiding the death penalty would be to submit to sentencing

by the trial judge, who had never imposed the death penalty

on a capital defendant and who would be sentencing Fuller,

a triggerman, to life imprisonment under an agreement he had

made with the prosecution for his cooperation against Shallenberger and Lewis.

Under Virginia law, if a defendant pleads guilty to capital

murder, the trial judge conducts the sentencing proceeding

LEWIS v. WHEELER 9
without a jury. See Va. Code § 19.2-257. If the defendant

pleads not guilty, the trial court may determine the case only

with the consent of the defendant and concurrence of the

Commonwealth. See id. Accordingly, counsel recommended

that Lewis plead guilty and invoke her statutory right to be

sentenced by the trial judge.

Prior to the guilty plea proceeding, a competency assessment of Lewis was performed by Barbara G. Haskins, M.D.,

a board-certified forensic psychiatrist, who also arranged for

an IQ test to be performed by Dr. Bernice Marcopulos.

According to the testing, Lewis had a Full Scale IQ of 72,

with a Verbal IQ of 70, and a Performance IQ of 79. This

placed her in the borderline range of intellectual functioning,

but not at or below the level of mental retardation. Dr.

Haskins reported that Lewis was competent to enter the pleas

and able to understand and appreciate the possible penalties.

At the guilty plea proceeding, the trial judge questioned Lewis

and ensured that she understood that she was waiving her

right to a jury and that she would be sentenced to either life

imprisonment or death by the trial judge. Satisfied that Lewis

was entering the plea voluntarily, knowingly, and intelligently, the trial judge accepted the plea and scheduled the

sentencing proceeding.

At the sentencing proceeding, the Commonwealth relied

primarily upon a written summary of evidence that would

have been presented against Lewis had the case proceeded to

a jury trial, and sought the death penalty based upon Virginia’s statutory aggravating factors of vileness (based upon both

depravity of mind and aggravated battery to the victims) and

future dangerousness.1 In mitigation, the defense presented

1

See Va. Code Ann. § 19.2-264.2 (providing that "[i]n assessing the

penalty of any person convicted of an offense for which the death penalty

may be imposed, a sentence of death shall not be imposed unless the court

or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant

10 LEWIS v. WHEELER
evidence that Lewis had no previous history of violence and

had only a single, non-violent conviction for prescription forgery for which she was on probation. Lewis’ probation officer

testified that Lewis had been compliant with the terms of her

probation and had never demonstrated any type of violence.

The probation officer who prepared the presentence report

also testified that Lewis seemed remorseful when he interviewed her. A long-time family friend and schoolmate of

Lewis’, who was engaged to be married to Lewis’ sister, testified that he had never observed Lewis behaving in a violent

manner. Finally, an official at the Roanoke City Jail provided

a statement that there had been no incidents of violence

involving Lewis, nor even minor infractions while she was

incarcerated there awaiting trial. Lewis’ father, brother and

sister were in the courtroom during the sentencing, and the

trial judge was advised that they would all testify that they

loved and cared about Lewis and did not want her to receive

the death penalty.

At the conclusion of the sentencing proceeding, the trial

judge rejected the future dangerousness aggravator, based

upon the lack of any significant criminal history or violent

behavior. However, he imposed sentences of death for the

capital offenses based upon the vileness aggravator, finding

that Lewis’ conduct involved both depravity of mind and

aggravated battery. See Lewis, 593 S.E.2d at 227 (noting that

"[a] finding of vileness must be based on conduct which is

outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind or an aggravated battery

to the victim. Proof of any one of these three components will

would commit criminal acts of violence that would constitute a continuing

serious threat to society or that his conduct in committing the offense for

which he stands charged was outrageously or wantonly vile, horrible or

inhuman in that it involved torture, depravity of mind or an aggravated

battery to the victim; and (2) recommend that the penalty of death be

imposed); see also Va. Code Ann. § 19.2-264.4. 

LEWIS v. WHEELER 11
support a finding of vileness." (internal quotation marks and

citation omitted)).

In imposing the sentences of death, the trial judge acknowledged that the case was made more difficult by the fact that

Lewis had led the police to Shallenberger and Fuller and

pleaded guilty to her crimes, as well as by the fact that Fuller

would receive a life sentence for his part in the plot. However,

the trial judge found that Lewis, as wife and stepmother to the

victims, had engaged in the "cold blooded, pityless slaying of

two men, horrible and inhumane" for profit, which "fits the

definition of the outrageous or wantonly vile, horrible, act."

J.A. 213. Of particular significance, the trial judge noted the

"cold" lack of emotion displayed by Lewis, J.A. 211, and the

fact that there was "no other motivation for these killings

except greed" with "no thought on her part of what she was

doing other than these two murders and what she would

receive once they were deceased," J.A. 212. The trial judge

also found it significant that Lewis had "lured [the] men and

her juvenile daughter into [her] web of deceit and sex and

greed and murder, and within an incredibly short period of

time from meeting [the men], she had recruited them, been

involved in planning and completing these murders, and

within one week before the actual murders had one failed

attempt on Julian’s life." J.A. 212. Finally, he paid particular

note to the fact that, "while her husband lay dying . . . in the

bedroom, [Lewis] was out apparently writing a love note to

him to put in the refrigerator, splitting up the money from the

deceased’s wallet with the co-defendants in the kitchen and

waiting for Julian to die." J.A. 213. Based upon the evidence,

the trial judge was "convinced that [Lewis] waited until she

thought [Julian] was dead before she called the police" and

"that she allowed him to suffer . . . without any feelings at all,

with absolute[ ] coldness." J.A. 217.2

2Later, in connection with Shallenberger’s death penalty sentencing

phase, the trial judge stated that Lewis was "the most culpable" of the

12 LEWIS v. WHEELER
On appeal, the Virginia Supreme Court affirmed the death

sentences, agreeing that "without question," the evidence of

Lewis’ conduct overwhelmingly supported the trial judge’s

finding of the vileness aggravator based upon depravity of

mind. Lewis, 593 S.E.2d at 227; id. (explaining that "depravity of mind," for purposes of the vileness aggravator, is

defined as "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary

legal malice and premeditation.") (internal quotation marks

omitted). Specifically, the court found that,

the defendant was the mastermind of these gruesome

crimes, which would not have occurred but for her

actions. The evidence shows that she married her

husband because she was interested in his money.

She planned to kill him and her stepson so that she

could acquire her husband’s assets and proceeds

from her stepson’s life insurance policy. She made a

prior unsuccessful attempt along with Shallenberger

and Fuller to kill her husband, and, when that plan

failed, she initiated another plan which resulted in

the deaths of her husband and her stepson while they

lay asleep in their home. She involved her 16-yearold daughter in the plan to kill the victims, and she

encouraged her daughter to have sexual relations

with one of the murderers. The defendant also paid

for the shotguns and ammunition used to kill her

husband and stepson.

After Shallenberger and Fuller had shot the victims several times with shotguns, the defendant went

three conspirators, J.A. 313, and referred to her as "the head of th[e] serpent." J.A. 310. The trial judge agreed with the Commonwealth that all

three conspirators deserved the death penalty, but felt unable "in good

conscience" to sentence Shallenberger to death when "the Commonwealth

ha[d] chosen to offer one of the shooters life." J.A. 314. 

LEWIS v. WHEELER 13
to her husband’s bedroom and took his pants and

wallet. She removed cash from her husband’s wallet

and gave it to the murderers while her husband lay

bleeding to death from the wounds that he had suffered. Even then, however, the defendant waited at

least 45 minutes, while her husband was still alive,

suffering and bleeding from the bullet wounds,

before she reported the crimes . . . . Once the deputy

sheriffs arrived at the residence, at least one hour

after her husband and stepson had been shot, defendant’s husband remained alive, suffering and bleeding to death. After her husband’s death, the

defendant showed no emotion or remorse, and she

initially denied any involvement in this murder.

Moreover, on the night of the murders, prior to the

killings, the defendant prayed with her husband and

arranged for her daughter to speak to her husband so

that he would not think that something was awry. 

Id. at 228.3 Lewis’ petition for rehearing was subsequently

denied, and the United States Supreme Court denied certiorari. See Lewis v. Virginia, 543 U.S. 904 (2004).

C.

In subsequent state habeas proceedings, Lewis alleged that

her counsel, while successful in refuting the future dangerousness aggravator, had been constitutionally ineffective in failing to adequately investigate and present mitigating evidence

to also refute the depravity-of-mind aggravator and to otherwise mitigate her crimes. Lewis also asserted, for the first

time, constitutional challenges to Va. Code Ann. § 19.2-257,

3Having concluded that the depravity-of-mind aggravator was overwhelmingly supported by the evidence of record, the Virginia Supreme

Court found it unnecessary to address Lewis’ challenge to the trial judge’s

decision to impute the aggravated batteries to Lewis. See Lewis v. Commonwealth, 593 S.E.2d 220, 227 (Va. 2004). 

14 LEWIS v. WHEELER
and the validity of her guilty plea. Lewis claimed that she had

a constitutional right under Apprendi v. New Jersey, 530 U.S.

466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), to

plead guilty and have the aggravating factors determined by

a jury instead of a judge, rendering the statute and her guilty

plea constitutionally invalid. Lewis also claimed that counsel

was constitutionally ineffective in failing to advise her of this

right and preserve it before the trial judge. The Virginia

Supreme Court rejected Lewis’ ineffective-assistance-ofcounsel claims on the merits, and found Lewis’ challenges to

the statute and guilty plea to be procedurally barred because

she had failed to raise them at trial or on direct appeal.

Pursuant to 28 U.S.C.A. § 2254, Lewis then filed a petition

for a writ of habeas corpus in the district court, raising the

same claims. The district court dismissed Lewis’ petition and

denied Lewis’ motion to alter or amend the judgment.

II.

We review the district court’s denial of federal habeas

relief on the basis of a state court record de novo. See Tucker

v. Ozmint, 350 F.3d 433, 438 (4th Cir. 2003). However, when

a habeas petitioner’s constitutional claim has been "adjudicated on the merits in State court proceedings," we may not

grant relief unless the state court’s adjudication "resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States" or "resulted in a

decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding." 28 U.S.C.A. § 2254(d). 

"A legal principle is ‘clearly established’ within the meaning of this provision only when it is embodied in a holding of

th[e] [Supreme] Court." Thaler v. Haynes, 130 S. Ct. 1171,

1173 (2010) (per curiam); see also Williams v. Taylor, 529

U.S. 362, 412 (2000) ("Th[e] statutory phrase refers to the

LEWIS v. WHEELER 15
holdings, as opposed to the dicta, of this Court’s decisions as

of the time of the relevant state-court decision."). A state

court’s decision is contrary to clearly established federal law

"if the state court arrives at a conclusion opposite to that

reached by th[e] [Supreme] Court on a question of law" or

"confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at a result

opposite" to the Supreme Court’s. Williams, 529 U.S. at 405.

A state court unreasonably applies federal law when it "identifies the correct governing legal rule from th[e] Court’s cases

but unreasonably applies it to the facts of the particular . . .

case." Id. at 407. A state court also unreasonably applies federal law when it "unreasonably extends a legal principle from

[the Court’s] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a

new context where it should apply." Id. Factual determinations made by the state court "shall be presumed to be correct," and "[t]he applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1).

III.

We begin with Lewis’ claims that counsel was ineffective

in failing to investigate and present additional evidence during

the sentencing phase which she contends would have (1)

rebutted the Commonwealth’s theory that she was the mastermind of the murder conspiracy and that she acted with a

depraved mind in planning and executing the murder plot, and

(2) otherwise mitigated her crimes by humanizing her, outweighing the aggravating evidence and making her a candidate for mercy.

Such claims of ineffective assistance of counsel are

reviewed under the standards of Strickland v. Washington,

466 U.S. 668, 686 (1984), and its progeny. Lewis must demonstrate "that counsel’s performance was deficient" and that

"the deficient performance prejudiced the defense." Id. at 687.

16 LEWIS v. WHEELER
To demonstrate inadequate or deficient performance, Lewis

"must show that counsel’s representation fell below an objective standard of reasonableness" measured by "prevailing professional norms." Id. at 688. To demonstrate prejudice, Lewis

"must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different." Id. at 694. In death penalty challenges, this showing requires a habeas petitioner to establish

a reasonable probability that the sentencer, if confronted with

the additional mitigating evidence, would have returned a different sentence. See Wiggins v. Smith, 539 U.S. 510, 536

(2003); see also Powell v. Kelly, 562 F.3d 656, 668 (4th Cir.

2009) ("Under Strickland, [the petitioner] must show that

‘there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’"

(quoting Strickland, 466 U.S. at 695)); Emmett v. Kelly, 474

F.3d 154, 160 (4th Cir. 2007) (same).

A.

The additional evidence relied upon by Lewis in support of

her claims was presented at an evidentiary hearing conducted

by the original trial judge at the direction of the Virginia

Supreme Court, and is extensively discussed both in the Virginia Supreme Court’s decision dismissing the state habeas

petition, see Lewis, 645 S.E.2d at 499-502, and the district

court’s decision below, see Lewis v. Wheeler, 2009 WL

588957 (W.D. Va. Mar. 6, 2009). By way of summary, Lewis

obtained and presented additional evidence and opinions from

Dr. Haskins and Dr. Marcopulos, as well as new opinions and

testimony from Dr. Philip R. Costanzo, Ph.D., a psychologist,

Dr. Elinor McCance-Katz, an addiction psychiatrist, and Dr.

Louis Eliacin, Lewis’ treating gynecologist. Lewis also hired

and presented evidence from Ms. Deborah Gray, a social

worker and substance abuse counselor who performed a mitigation investigation, and testimony from various family members and acquaintances. Lewis contends that the additional

LEWIS v. WHEELER 17
evidence would have established that she suffered, at the time

of the murders, from borderline intellectual functioning, a

dependent personality disorder that caused her to latch onto

men and be easily led by them, and prescription drug addiction or abuse. The combined effect of these disabilities, she

asserts, would have explained her "cold" affect and demeanor

and demonstrated her inability to mastermind or otherwise

plan the heinous murders.

In response to this additional evidence, the Commonwealth

submitted an expert evaluation of Lewis performed by Dr.

Leigh D. Hagan, a forensic and clinical psychologist. According to Dr. Hagan, there was insufficient evidence to support

the claim that Lewis suffered from an addiction to prescription medications, or that her use of such medications caused

an extreme mental or emotional disturbance. In addition,

Lewis failed to meet the criteria for a diagnosis of dependent

personality disorder. According to Dr. Hagan, Lewis had the

capacity to plan and carry out the murder plot.

Lewis’ counsel testified at the state habeas hearing regarding their representation and strategy for defending her. They

acknowledged that they were aware of Lewis’ low IQ, alleged

difficulties with prescription drugs, and possible dependent

personality traits. However, they believed that further investigation and development was unnecessary and potentially

harmful. The low IQ evidence would be placed before the

trial judge in the competency report and, in their view, the

prescription drug and dependent personality issues were

unsupported by the facts and double-edged in character. In

addition to opening Lewis up to a potentially damaging evaluation by an expert for the Commonwealth, they believed that

the latter two "excuses" would have supported the futuredangerousness aggravator and substantially undercut their

strategy to portray her as a previously non-violent defendant

who had accepted responsibility for her role in the offense and

assisted the authorities in arresting her coconspirators.

18 LEWIS v. WHEELER
After considering the additional evidence, the trial judge

found that counsel had employed a reasonable strategy during

the sentencing phase and that Lewis had failed to demonstrate

either deficient performance or actual prejudice.4 The Virginia

Supreme Court also rejected the claims, but did so solely on

the basis of Lewis’ failure to demonstrate prejudice. The court

concluded that Lewis’ alleged problems did "not explain or

even mitigate the carefully calculated conduct that [she had]

exhibited in carrying out the[ ] crimes." Lewis, 645 S.E.2d at

506. Because there was no reasonable probability that, had the

evidence been presented in the original sentencing proceeding, the trial judge would have imposed a sentence of life

imprisonment instead of death, Lewis was not entitled to

relief. See id.

B.

Lewis first contends that § 2254(d)’s deferential standards

of review do not apply to her claim that counsel was ineffective in failing to present the additional evidence to rebut the

depravity-of-mind aggravator and, consequently, that we must

4Specifically, the trial judge found that counsel had "made reasonable

and proper choices based on the information supplied by the defendant,

statements of witnesses, her own experts, and the real evidence against

[Lewis]." J.A. 2270-71. The judge also found that counsel had made "reasonable decisions not to present or investigate further certain evidence that

while it may have gone to the defense of depravity of mind was a double

edged sword that would also have supported the aggravator of future dangerousness." J.A. 2271. The trial judge further found that "[t]he evidence

in th[e] case belied [Lewis]’s attempts to present herself as mentally deficient and dependent such that she was incapable of planning and carrying

to execution the two murders," and that "[n]one of the experts testifying

overcame the evidence in th[e] case that [Lewis] planned, directed and

saw to finality these two murders, and her attempts, and her attempts only,

to profit from the[m]." J.A. 2271. The trial judge found that counsel’s

strategy to focus the mitigation evidence on the future dangerousness

aggravator was a reasonable one and that the "decision to avoid presenting

or investigating further the double edged evidence under the depravity of

mind vileness factor was also objectively reasonable." J.A. 2272. 

LEWIS v. WHEELER 19
review this claim de novo. See Cone v. Bell, 129 S. Ct. 1769,

1784 (2009) (providing that a claim that has not been adjudicated on the merits by the state court will be reviewed by the

federal court de novo); Monroe v. Angelone, 323 F.3d 286,

297 (4th Cir. 2003) (same). She contends that the state habeas

court was required to consider whether there was a reasonable

probability that the trial judge would have rejected the

depravity-of-mind aggravator prior to considering whether

there was a reasonable probability that the trial judge would

have found that the totality of the mitigating evidence outweighed that aggravator. We disagree.

First, although Lewis states her claims as two separate

ones, the evidentiary basis for the two claims is the same.

Moreover, both claims necessarily involve considering the

aggravating circumstances surrounding the crime in light of

the evidence presented in the habeas hearing to rebut (or, in

the alternative, mitigate) those aggravating circumstances.

Lewis contends that counsel’s failure to present the additional

evidence of her disabilities amounted to deficient performance. She contends that she was prejudiced because there is

a reasonable probability that, had the evidence been presented, she would have received a sentence of life imprisonment either because (1) the judge would have rejected the

vileness predicate based upon depravity of mind, or (2) the

judge would have found that the totality of the mitigating evidence sufficiently outweighed the aggravating circumstances

of the murders. In short, Lewis asserts identical claims of

deficient performance and prejudice, but alternative arguments for why the outcome of her sentencing proceeding

might have been different. Under these circumstances, we see

nothing improper or unreasonable in the Virginia Supreme

Court’s joint consideration of the claims.

Second, the Virginia Supreme Court clearly appreciated the

separately stated claim challenging counsel’s failure to present the evidence to rebut the depravity-of-mind aggravator,

explicitly noting that:

20 LEWIS v. WHEELER
In the present case, Lewis alleges that trial counsel

provided ineffective assistance because they failed to

present available mitigation evidence during the penalty phase of her trial. Lewis contends that counsel

should have presented [this] evidence to rebut the

Commonwealth’s theory that Lewis was the "mastermind" of the murder conspiracy. According to

Lewis, her low mental functioning, prescription drug

addiction, and dependent personality disorder rendered her incapable of acting with a "depraved

mind" because these problems impacted her ability

to function and exercise judgment, resist demands,

and display emotions. 

Lewis, 645 S.E.2d at 504 (emphasis added). Thus, while the

court generally referred to the additional evidence as "mitigation evidence," it clearly considered Lewis’ claims that this

evidence would have both rebutted the depravity-of-mind

aggravator and otherwise served to mitigate her crimes.

Finally, the Virginia Supreme Court, after weighing the

evidence in aggravation against the totality of the mitigating

evidence, held that "[a]ny psychological, cognitive, and physical difficulties Lewis may have had could not explain or even

mitigate the carefully calculated conduct that Lewis exhibited

in carrying out these crimes." Id. at 506. We think the only

fair reading of the opinion is that the court considered both

claims but concluded that Lewis was not entitled to habeas

relief because she had both (1) failed to demonstrate that the

alleged deficiencies rebutted, or "explain[ed] . . . the carefully

calculated conduct" upon which the depravity-of-mind aggravator rested and (2) failed to demonstrate that these identical

alleged deficiencies would have "even mitigate[d]" that conduct in the balance. Id.

Accordingly, we hold that the Virginia Supreme Court

properly considered the claims and adjudicated them on the

LEWIS v. WHEELER 21
merits, and that our review of its decision is therefore subject

to the deferential standards of review set forth in § 2254(d).

C.

Turning to the merits of Lewis’ ineffective-assistance-ofcounsel claims, we cannot say that the state court’s adjudication was an unreasonable one given the evidence presented.

The crux of Lewis’ claims is that the additional evidence

would have demonstrated that she was incapable of serving as

the mastermind of the murder conspiracy, explained her cold

affect and demeanor, and otherwise mitigated her involvement in the murders. The Virginia Supreme Court, after

obtaining the findings and recommendations of the trial judge,

evaluated all of the evidence presented both in the original

and state habeas hearings and concluded that Lewis had failed

to demonstrate that there was a reasonable probability that the

outcome of her sentence would have been different had the

additional evidence been presented. Id. at 506. According to

the court:

The evidence in aggravation of Lewis’ crimes

included her extensive planning of the crimes in

which Lewis recruited the killers, paid them $1,200

to purchase weapons, arranged sexual activities for

them involving both Lewis and her 16 year old

daughter, and assisted the killers’ entry into the marital home at night.

Lewis committed the crimes because of greed,

intending to profit from the murders by receiving the

proceeds from C.J.’s life insurance policy and additional assets held by Julian. Other evidence in aggravation of the murders was Lewis’ diversionary

conduct with her husband on the night of the murders, including her act of praying with him before

they retired for the night.

22 LEWIS v. WHEELER
The brutal nature of the murders, in which Lewis’

husband and stepson were shot several times, was

further evidence in aggravation of the crimes. Also,

after Shallenberger shot Julian, Lewis went into the

bedroom while he was alive and lay bleeding and

removed Julian’s wallet in order to provide additional money to the killers.

Other powerful evidence in aggravation of the

murders was the fact that Lewis waited at least 45

minutes, while her husband was alive and suffering

from the multiple bullet wounds, before she contacted emergency response personnel by telephone.

When the emergency response personnel arrived and

attempted to assist the victims, one of whom was

still alive, Lewis engaged in a telephone conversation with a friend discussing C.J.’s alleged failure to

lock the back door of the home.

Id. at 504-05. The evidence developed by Lewis to rebut

and/or mitigate these aggravating circumstances, on the other

hand, was determined to be comparatively weak:

With regard to the issue of Lewis’ mental functioning, the evidence was disputed concerning her

cognitive ability to plan the murders. Although Dr.

Costanzo and Dr. McCance-Katz opined that it was

highly unlikely that persons with Lewis’ level of

mental functioning could plan the murders, Dr.

Hagan testified that Lewis had the mental capacity to

plan the murders with Shallenberger and to help execute the ultimate plan they devised. Also, Dr.

McCance-Katz acknowledged that Lewis’ behavior

around the time of the murders was purposeful and

"goal-directed."

The mitigation evidence on the issue of whether

Lewis suffered from a dependent personality disorLEWIS v. WHEELER 23
der also was in dispute. Dr. Costanzo and Dr.

Haskins concluded that Lewis suffered from a

dependent personality disorder. Dr. Costanzo

explained that as a result of this disorder, Lewis

experienced many problems, including trouble making ordinary decisions without the advice of others,

a difficulty initiating activities on her own, and a

need for other people to assume responsibility for

most major aspects of her life.

Dr. Hagan, however, gave contrary testimony that

Lewis did not suffer from such a personality disorder

but exhibited conduct that showed "a passive aggressive or an aggressive dependency." According to Dr.

Hagan, these characteristics involved the use of other

people to achieve one’s objectives.

With regard to Lewis’ drug use, Dr. McCanceKatz testified that Lewis had a severe addiction to

drugs and that the amount of narcotic medications

she was taking during the time of the murders would

have impaired her cognition and inhibited the "affect" or expression that she displayed to others.

However, Dr. McCance-Katz admitted that Lewis’

ability to carry out the murder plans was not affected

by her use of prescription drugs.

Dr. Eliacin and Deborah Grey also concluded that

Lewis was addicted to prescription drugs. In addition, Dr. Haskins testified that Lewis had a dependence on narcotics.

In contrast, Dr. Hagan testified that "there is not

sufficient eyewitness, third party report, nor evidence of record to support the conclusion that she

was actually addicted." Further, Lewis had not complained of any problems associated with drug with24 LEWIS v. WHEELER
drawal when incarcerated about one week after the

murders.

This evidence concerning Lewis’ prescription

drug abuse is evidence of a type that the Court in

Wiggins termed "double edge[d]." See Wiggins, 539

U.S. at 535, 123 S.Ct. 2527. While Lewis presented

evidence at the habeas hearing that her abuse of narcotics and other prescription drugs could have

affected her judgment and have caused her to appear

"uncaring" at the time of the offenses, the evidence

also showed that, initially, Lewis voluntarily consumed excessive prescription drugs. Therefore, this

evidence could be viewed both in aggravation and

mitigation of the offense.

Lewis, 645 S.E.2d at 505-06. In sum, the court determined

that the evidence of the "various problems Lewis faced as a

result of her personality deficits, drug dependence, and level

of intellectual functioning" failed to demonstrate prejudice

because the totality of the evidence "showed that notwithstanding the various difficulties Lewis experienced over the

course of her life, she killed her two relatives solely for monetary gain in a deliberately planned and executed scheme. Any

psychological, cognitive, and physical difficulties Lewis may

have had could not explain or even mitigate the carefully calculated conduct that Lewis exhibited in carrying out these

crimes." Id. at 506.

Given our own review of the evidence, we cannot say that

this determination was an unreasonable one. First, the factual

evidence surrounding these murders demonstrates that it was

Lewis who was uniquely positioned to plan or, as the Virginia

Supreme Court held on direct appeal, "mastermind . . . these

gruesome crimes, which would not have occurred but for her

actions." Lewis, 593 S.E.2d at 228. Lewis was Julian’s wife

and C.J.’s stepmother. As beneficiary of Julian’s estate, and

C.J.’s life insurance if Julian were dead, she alone stood to

LEWIS v. WHEELER 25
profit handsomely from their joint murder. There was also

evidence that Lewis was well aware of this potential as, prior

to the murders, she bragged to others that she was marrying

Julian for his money and that she would benefit financially if

Julian and C.J. were dead.

In contrast to her intimate involvement with the victims,

Shallenberger and Fuller had never met Julian or C.J. and,

without Lewis, had no way of knowing their expected movements or whereabouts. The men were also substantially younger than the more experienced and knowledgeable Lewis

who, as found by the state court, lured the men into helping

her achieve her financial payoff through sexual favors and

money. She even went so far as to involve her 16-year-old

daughter (whom the men also did not previously know) in the

planning process and, on at least one occasion, she took her

daughter with her to meet the men where they engaged in

simultaneous, sexual relations in side-by-side vehicles.

The specific actions taken in preparation for the murders

also demonstrate Lewis’s ability to plan and carry out the

murderous plot. After meeting the men and enlisting their

help to kill Julian, Lewis withdrew $1,200 cash from her

bank, which she gave to Shallenberger to purchase the murder

weapons and, during the planning process, she initiated

approximately 160 of the 170 documented telephone calls

between her and Shallenberger. Also, only Lewis could have

provided the men with the necessary information regarding

her husband’s employment, expected movements, and route

home for the first, unsuccessful attempt to murder him on the

roadway. Only Lewis could have advised the men that she

would also benefit as the secondary beneficiary of C.J.’s life

insurance, prompting the added plan to murder him when he

came home for his father’s funeral. Only Lewis could have

advised the men that, as luck would have it, C.J. would be

coming home from active duty for a visit and could more easily be murdered alongside his father. And, only Lewis could

have provided the men with the expected whereabouts of the

26 LEWIS v. WHEELER
intended victims when they entered the mobile home to kill

them.

The actions taken by Lewis at the time of the murders, and

immediately thereafter, also eliminate any reasonable likelihood that Lewis was incapable of carrying out the murder

plan while away from any asserted influence or control of the

triggermen, or that her low IQ and prescription drug use rendered her incapable of making the necessary plans and decisions. On the night of the murders, unaided by her coconspirators, Lewis engaged in a number of activities

designed to ensure that everything appeared normal to her

husband and stepson, made sure the coast was clear for the

triggermen, and took steps to cover her involvement. She

prayed with her husband, lay down with him, and then got up

to make the necessary preparations. At some point she prepared the lunch bag for him with the attached love note and

"smiley face," presumably to deflect attention from her as a

suspect, and, according to her, spent time with her stepson as

well. Before returning to her bed with Julian, she unlocked the

back door for the shooters and also confined the dog, a pit

bull, in the middle bedroom where it could not interfere with

them or their plans.

After the murders had been committed, and the triggermen

had left, Lewis continued to exhibit this ability to operate

alone in carrying out the plot. She waited from 30 to 45 minutes before calling 911, presumably hoping that Julian would

finally die, making telephone calls to others in the interim.

When the police finally arrived, she calmly related a false

story of an unknown intruder and, while on the telephone,

made a comment within earshot of the officers blaming C.J.

for leaving the door unlocked. Her ability to further the

intended goal of financial profit, without oversight or direction from her co-conspirators, was also immediately demonstrated. While her victims were still in the mobile home,

Lewis set about to obtain Julian’s most recent paycheck from

his employer. Later that afternoon, she spoke with Lt. Booker

LEWIS v. WHEELER 27
and advised him that she was the sole beneficiary of C.J.’s life

insurance policy. In the days that followed, Lewis contacted

Lt. Booker a second time about the proceeds of the life insurance policy, telling him that Kathy could have C.J.’s personal

effects so long as she got the money. She also sought to withdraw $50,000 from Julian’s Prudential Securities account with

a forged check that she falsely claimed he had written to her

before his death. It was also later discovered that Lewis and

a friend had visited an attorney shortly after the murders to

ensure that Kathy would not inherit from her father and

brother. Lewis also made plans to liquidate and spend her

inheritance. She offered to sell Kathy her father’s land and

mobile home and started making plans to trade Julian’s vehicle, along with the red sports car he had purchased for her

before he was murdered, for a larger car. Finally, Lewis demonstrated no difficulty in making the funeral arrangements for

her victims. By the morning after the murders, she had

already spoken to the funeral home about the arrangements,

and attempted to subtly exclude Kathy from the process. She

also purchased a new suit for the occasion, and had her hair

and nails done as well.

In the face of this overwhelming evidence of Lewis’ actual

capacity to act alone and make decisions to further the murderous plot, Lewis presented comparatively weak evidence

that this alleged dependent personality disorder combined

with her low IQ and prescription drug abuse to render her

incapable of acting in that capacity and explain the "cold"

affect and demeanor she exhibited during and after the murders. While Lewis had a low IQ, her education records indicated that she successfully attended school for some time and

was an average student. There was no evidence of Shallenberger’s comparative intelligence, and Fuller’s IQ was much

lower than Lewis’ IQ. There was also little evidence to support Lewis’ claim that a drug dependency played any significant part in the crime. By her own admission, she was not

under the influence of any drugs at the time of the murders,

28 LEWIS v. WHEELER
and there was no evidence that she experienced withdrawal or

other adverse effects after she was arrested and incarcerated.

In sum, having fully considered the evidence in support of

the vileness aggravator, and the totality of the mitigating evidence presented at the sentencing hearing and on state habeas

to refute and mitigate that aggravator, the Virginia Supreme

Court properly analyzed this claim under Strickland and its

progeny, and held that there was no reasonable probability

that the sentencer, had he been confronted with the additional

evidence, would have rejected the vileness aggravator or, barring that, otherwise found that there was sufficient evidence

in mitigation to warrant rejection of the penalty of death. Having independently considered Lewis’ contentions, we cannot

say that the state court’s adjudication of Lewis’ claims is contrary to or an unreasonable application of the applicable precedents. Accordingly, Lewis is not entitled to habeas relief on

this basis and we affirm the dismissal of these claims.

IV.

We turn now to Lewis’ remaining claims, all of which are

rooted in her constitutional challenge to Va. Code Ann.

§ 19.2-257, and to the validity of her guilty plea, based upon

the principles set forth in Apprendi v. New Jersey, 530 U.S.

466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002).

A.

Under Virginia’s capital sentencing scheme, when a defendant is charged with a death-eligible offense, the trial court

conducts a bifurcated proceeding. "[T]he court shall first submit to the jury the issue of guilt or innocence of the defendant

of the offense charged in the indictment . . . ." Va. Code Ann.

§ 19.2-264.3(A). If the defendant is found guilty of a deatheligible offense, "then a separate proceeding before the same

jury shall be held as soon as is practicable on the issue of the

penalty, which shall be fixed as is provided in § 19.2-264.4."

LEWIS v. WHEELER 29
Va. Code Ann. § 19.2-264.3(C). When a defendant pleads

guilty and waives his or her right to a jury determination of

guilt, however, Va. Code Ann. § 19.2-257 provides that the

trial judge will conduct the sentencing proceeding alone,

determine whether an aggravating factor or factors exist, and

make the determination of whether death is the appropriate sentence.5

Lewis contends that she had a constitutional right under

Apprendi/Ring to plead guilty and have a jury determine the

existence of the aggravating factors necessary to impose the

sentence of death, and that Va. Code Ann. § 19.2-257

deprived her of this right. Lewis also challenges the validity

of her guilty plea, contending that, because the trial judge’s

plea colloquy failed to advise her of this purported right, her

guilty plea and accompanying waiver of a jury trial were not

made knowingly and intelligently.

Because Lewis failed to challenge the constitutionality of

the statute or the validity of her guilty plea before the state

trial judge or on direct appeal, however, the state habeas court

held that the claims were procedurally barred under Slayton

v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding that

claims that could have been raised at trial or on direct appeal

may not be raised on state collateral review). It has long been

held that federal habeas courts are precluded from reviewing

a claim that "a state court has declined to consider [on] its

merits on the basis of an independent and adequate state procedural rule," Bacon v. Lee, 225 F.3d 470, 476 (4th Cir.

5

See Va. Code Ann. § 19.2-257 ("Upon a plea of guilty in a felony case,

tendered in person by the accused after being advised by counsel, the court

shall hear and determine the case without the intervention of a jury; or if

the accused plead not guilty, with his consent after being advised by counsel and the concurrence of the attorney for the Commonwealth and of the

court entered of record, the court shall hear and determine the case without

the intervention of a jury. In such cases the court shall have and exercise

all the powers, privileges and duties given to juries by any statute relating

to crimes and punishments."). 

30 LEWIS v. WHEELER
2000); see Coleman v. Thompson, 501 U.S. 722, 731-32

(1991), and that the Slayton procedural bar qualifies as such

an adequate and independent state law ground, see Vinson v.

True, 436 F.3d 412, 417 (4th Cir. 2006). Thus, "[a]bsent a

fundamental miscarriage of justice, which [Lewis] does not

assert, [we] may not review [the] claims unless [Lewis] can

demonstrate cause for the default and actual prejudice as a

result of the alleged violation of federal law." Id. (internal

quotation marks omitted); see also Coleman, 501 U.S. at 750.

B.

Lewis asserts—both as independent grounds for relief and

to demonstrate the requisite cause which would allow us to

review her substantive claims on the merits — that her counsel was constitutionally ineffective in (1) failing to inform her

that she had a right to plead guilty and obtain a jury determination of aggravating factors and (2) failing to preserve the

challenge to the statute before the trial judge.

In order to prevail on her claim, Lewis must demonstrate

that a reasonably competent attorney would have believed that

the Apprendi/Ring cases established that a defendant who

pleads guilty to a capital offense and waives his or her right

to a jury trial nevertheless retains a right to a jury determination of aggravating factors. Lewis must also demonstrate that

counsel’s failure to raise the issue with her and the trial judge

prejudiced her because, had they done so, there is a reasonable probability that the outcome of her sentencing proceeding would have been different. We hold that she has failed to

meet this burden.

1.

First, neither Apprendi nor Ring holds that a defendant who

pleads guilty to capital murder and waives a jury trial under

the state’s capital sentencing scheme retains a constitutional

right to have a jury determine aggravating factors.

LEWIS v. WHEELER 31
In Apprendi, the defendant pleaded guilty to two firearm

offenses carrying maximum sentences of ten years each, preserving his right to challenge the constitutionality of any

enhancement under a separate, hate-crime statute. See

Apprendi, 530 U.S. at 469-70. At sentencing, the trial judge

increased the sentence for one firearm count to twelve years

based upon the hate-crime law and defendant appealed. See

id. at 468, 471. The Supreme Court reversed the enhanced

sentence, holding that the sentencing facts necessary to

increase the defendant’s maximum punishment served as elements of the enhanced or separate offense and, therefore,

were required to be found by a jury. See id. at 490 (holding

that "[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt"). Apprendi was not a capital case,

however, and the Supreme Court specifically noted that its

decision did not invalidate capital sentencing schemes which

allow judges to determine the existence of aggravating factors

necessary to impose a sentence of death following a jury’s

conviction of a defendant for a capital crime. See id. at 496-

97 (noting that the Court had "previously considered and

rejected the argument that the principles guiding [its] decision

. . . render invalid state capital sentencing schemes requiring

judges, after a jury verdict holding a defendant guilty of a

capital crime, to find specific aggravating factors before

imposing a sentence of death." (citing Walton v. Arizona, 497

U.S. 639, 647-49 (1990)). Thus, as the district court noted

below, "if anything, Apprendi would have led a reasonable

defense attorney to believe that capital defendants were not

entitled to a jury determination of the aggravating factors,

regardless of whether they pled guilty to capital murder or

proceeded to a jury trial." J.A. 2697.

In Ring, the defendant was convicted of a capital crime by

a jury and sentenced to death by the trial judge pursuant to the

Arizona capital sentencing scheme previously upheld in Walton. See Ring, 536 U.S. at 588-89. The Court reversed, how32 LEWIS v. WHEELER
ever, overruling its decision in Walton and holding that

"[b]ecause Arizona’s enumerated aggravating factors operate

as ‘the functional equivalent of an element of a greater

offense,’" the defendant also has a right to have them submitted to the jury for its determination. Ring, 536 U.S. at 609.

Ring, therefore, established that a defendant who has exercised his right to a jury trial on a capital offense is also entitled to a jury determination of the aggravating factors

necessary to impose the sentence of death.

Lewis contends that any reasonable attorney or jurist would

have concluded after Ring that a defendant who pleads guilty

to a capital offense—and waives his right to a jury pursuant

to a state statute that mandates that a judge conduct the sentencing proceeding when such a guilty plea is entered —

retains this constitutional right to have a jury determine the

existence of aggravating factors. However, neither Apprendi

nor Ring stand for that proposition. In both cases, the challenged sentencing procedures denied defendants the option of

having a jury determine a sentence enhancement, or aggravating factor, regardless of whether the defendant pleaded guilty

or not guilty to the charged offense. In Apprendi, the defendant pleaded guilty but expressly preserved his right to challenge any hate-crime enhancement. And in Ring, the

defendant was convicted of capital murder by a jury. Thus, in

neither case did the defendant waive his right to a jury determination of facts upon which the enhancement or aggravating

factor rested. 

In short, the Ring decision did not clearly establish or even

necessarily forecast that a capital defendant who pleads guilty

and waives his right to a jury trial can insist upon a jury trial

on aggravating factors. As noted by the district court, the

claim that "a defendant who pleads guilty to a capital offense

is nonetheless entitled to a jury determination of the aggravating factors would have been an extension of" that precedent.

J.A. 2698 (emphasis added). Consequently, we cannot say

that counsel’s failure to question the constitutionality of the

LEWIS v. WHEELER 33
Virginia statute and discuss the issue with Lewis amounted to

objectively unreasonable performance. See Engle v. Isaac,

456 U.S. 107, 134 (1982) ("We have long recognized . . . that

the Constitution guarantees criminal defendants only a fair

trial and a competent attorney. It does not insure that defense

counsel will recognize and raise every conceivable constitutional claim."); Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th

Cir. 1983) (noting that counsel was not ineffective for failing

to perceive an extension of precedent).6

2.

Second, even if we were to conclude that reasonable counsel would have recognized a potential Apprendi/Ring challenge to the Virginia statute, Lewis cannot meet her burden of

demonstrating deficient performance by counsel which prejudiced her because pressing the issue in this case would have

been in direct conflict with the defense strategy to have Lewis

plead guilty in order to obtain sentencing before the judge

instead of a jury.

As noted previously, Lewis was provided appointed counsel with extensive criminal experience, including experience

in handling capital cases.7 In light of the overwhelming evi6The Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), was not issued until after Lewis pleaded guilty and her sentences

were affirmed on appeal. See id. at 303 (holding that "the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant" (emphasis omitted)). Thus, we express no

opinion as to what effect, if any, Blakely has upon the question of whether

a capital defendant has a constitutional right to plead guilty and demand

a jury trial on aggravating factors or under what circumstances that right,

if it exists, will be deemed waived. See Blakely, 542 U.S. at 310 (noting

that "[i]f appropriate waivers are procured, States may continue to offer

judicial factfinding as a matter of course to all defendants who plead

guilty" and that "[e]ven a defendant who stands trial may consent to judicial factfinding as to sentence enhancements"). 

7Attorney Blaylock had twenty-three years of experience and had handled at least fifteen capital murder cases. Attorney Furrow had twenty-six

years of experience and had worked with Blaylock on as many as ten capital murder cases. 

34 LEWIS v. WHEELER
dence of guilt and Lewis’ confession, counsel first attempted

to obtain an agreement that the Commonwealth would not

seek the death penalty in return for Lewis’ guilty plea. The

prosecutor, however, viewed Lewis as "the worst of the three

[conspirators] and . . . was . . . adamant about seeking the

death penalty against her." J.A. 2177.

As the investigation continued, and the case developed,

counsel became increasingly concerned about the gruesome

nature of the crimes, which was graphically reflected in the

crime scene photographs, and the chilling nature of the evidence of Lewis’ actions before and after the murders to plan

and profit from them. Based upon their knowledge of typical

juries in the area, and available information regarding the

assigned trial judge, counsel believed that a death sentence by

a jury was a virtual certainty and that Lewis stood a better

chance of being sentenced to life imprisonment by the trial

judge. Of particular note, counsel was aware of no cases in

which the trial judge had imposed a death sentence and, as a

result of a cooperation deal between the prosecution and Fuller, knew that the trial judge would sentence Fuller to life

imprisonment for his role as an actual triggerman in the murders.8

In a ten-page letter to Lewis, Attorney Furrow summarized

the expected testimony and evidence that would be presented

at trial, along with counsel’s concerns. Attorney Furrow

pointed out to Lewis the "particularly gruesome" photographs

of the bodies of Julian and C.J. as "among the worst I have

seen" due to "[t]he use of small caliber ammunition." J.A.

1033. He also advised Lewis that they fully expected the prosecutor to engage in the dramatic tactic of "rack[ing] the

[pump] shot gun" while showing the photographs, a particu8

In addition to relying upon their own experience, counsel sought guidance and opinions from at least one national death penalty expert, as well

as local criminal defense attorneys who regularly practiced before the trial

judge. 

LEWIS v. WHEELER 35
larly effective technique which counsel had personally witnessed in another case. J.A. 1033. Counsel also discussed the

murder-for-hire and profit facts and the expected testimony by

Lewis’ minor daughter that Lewis "sat in the car next [to her]

while she was having sex with an adult black male," which

counsel believed would "have a horrible impact on the jury

both among white[s] and blacks, men and women." J.A. 1033.

In light of their opinion that death was a virtually certain

penalty if Lewis were sentenced by a jury, counsel advised

Lewis that her "best chance to receive a sentence of life in

prison without the possibility of parole [was] to plead guilty

and take [her] chances with the Judge." J.A. 1036. In doing

so, counsel explained that pleading guilty and being sentenced

by the trial judge had several advantages, including: (1)

removal of the "drama" from the case, such as having the jury

hear "the racking of the shotgun" which would "not have the

same impact on the Judge as it would on a jury"; (2) the fact

that Fuller would have already received a life sentence and

counsel’s belief that the judge’s "sense of fairness" would

render him "more likely to hand out similar sentences"; (3)

the fact that there had only been "two cases in Virginia in

which the hirer in a murder for hire case ha[d] received the

death penalty"; (4) the fact that "[a] woman ha[d] never

received the death penalty"; and (5) the fact that Lewis "ha[d]

no history of violent crimes." J.A. 1036.

Counsel also met with Lewis to discuss their concerns and

opinions. According to counsel, Lewis appeared to understand

their advice, was in agreement with it, and made the decision

to plead guilty. Lewis voluntarily signed the letter, stating that

she "wish[ed] to plead guilty and be sentenced by the Judge."

J.A. 1037. In connection with this guilty plea, the competency

assessment performed by Dr. Haskins revealed that Lewis

"was able to recount her basic defense strategy . . . and . . .

explain the reasons behind the strategy," understood "the role

of a jury in a capital case, and of a judge," and knew "the pros

and cons of a jury [versus] a bench trial." J.A. 1194, 1195.

36 LEWIS v. WHEELER
With the benefit of hindsight, Lewis now contends that her

counsel was ineffective in failing to preserve and advise her

of a potential challenge to the constitutionality of the Virginia

statute based upon Apprendi/Ring. However, it is well established that when considering claims that counsel’s performance has been constitutionally ineffective in a state

proceeding, our scrutiny must be "highly deferential." Strickland, 466 U.S. at 689. 

It is all too tempting for a defendant to second guess

counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel

was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.

Id. (internal citation omitted). To prevail, Lewis must "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id.

(internal quotation marks omitted). And, we "must indulge a

strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance." Id.

Here, Lewis has failed to demonstrate that counsel’s strategy to have her plead guilty and take advantage of her statutory right to have a judge sentence her was unsound. And

Lewis’ current claim—that she would have insisted on pleading guilty and have a jury determine her sentence — is wholly

inconsistent with this reasonable and agreed-upon strategy at

the time. In sum, Lewis’ current claim "suffer[s] from the

classic hindsight that we are cautioned not to apply to upset

state court judgments." Emmett, 474 F.3d at 171.9 Accord9We also note that, in contrast to the many ineffective assistance of

counsel claims that require state and federal habeas courts to consider

LEWIS v. WHEELER 37
ingly, even if we were to determine that counsel should have

been aware of a potential Apprendi/Ring challenge to the state

statute, counsel’s failure to raise the issue with Lewis and preserve the challenge before the trial judge in the circumstances

of this case did not amount to objectively unreasonable performance. 

For the same reasons, Lewis has failed to demonstrate that

she was prejudiced by counsel’s failure to raise the potential

Apprendi/Ring challenge to the statute. See Strickland, 466

U.S. at 694. In order to demonstrate such prejudice, Lewis

must show that there is a reasonable probability that she

would have pleaded guilty and demanded a jury sentencing.

Lewis does summarily now contend that she would have done

so, asserting that this would have allowed her to demonstrate

to the jury that she was remorseful and had accepted responsibility for her crimes. However, this assertion wholly ignores

the agreed-upon strategy at the time, which was not simply to

plead guilty in order to bolster the evidence of Lewis’ cooperation and confession, but rather to achieve the goal of removing the sentencing decision from the hands of the jury and

placing it with a judge the defense reasonably believed would

be more inclined to sentence her in parity with her coconspirators. There were but two means to employ this strategy. The prosecutor had to consent to trial by jury on guilt

and sentencing before the judge, which would not have served

any of Lewis’ goals, or Lewis had to plead guilty in order to

take advantage of the very statute she now seeks to challenge.

Accordingly, Lewis has failed to demonstrate a reasonable

probability that, had counsel recognized a potential challenge

to the constitutionality of the statute and advised her of that

after-the-fact explanations by defense counsel regarding their investigations and strategy decisions, Lewis’ counsel’s strategy was quite clearly

laid out in a comprehensive letter to the defendant and signed by her. This

was followed by the trial judge clearly advising Lewis that she was waiving her right to a jury and that she would be sentenced by him instead. 

38 LEWIS v. WHEELER
potential challenge, she would have abandoned the agreedupon strategy and opted instead to plead guilty and insist upon

a sentencing proceeding before a jury.10

C.

Having fully considered the record in this case, we agree

that Lewis has failed to demonstrate that counsel’s failure to

preserve and advise her of a possible Apprendi/Ring challenge

to the constitutionality of Va. Code Ann. § 19.2-257 rises to

the level of constitutionally deficient representation and has

also failed to demonstrate that she was prejudiced as a result

of counsel’s alleged deficiencies. Accordingly, we affirm dismissal of her ineffective-assistance-of-counsel claims on the

merits, as well as the dismissal of her procedurally defaulted

challenges to the statute and her guilty plea.

V.

For the foregoing reasons, we affirm the district court’s

denial of habeas relief.

AFFIRMED

10To the extent Lewis presses her claim that she has demonstrated prejudice from counsel’s failure to preserve the Apprendi/Ring challenge to the

state statute because there is a reasonable probability that the death sentence she received from the trial judge would have been reversed by a federal court, we are unpersuaded. Lewis’ attempt to demonstrate prejudice

in this way is more accurately described as a claim that her counsel’s performance was deficient because they failed to advance an argument before

the trial judge that they did not wish to prevail upon, solely for the purpose

of setting up an appealable ground should their actual strategy fail.

Although the Constitution guarantees criminal defendants a competent

attorney, and one that employs reasonable strategies for success, it does

not require defense counsel to engage in such judicial game-play, and the

speculation required to guess what might have occurred had counsel made

the attempt falls far short of the standard necessary for federal habeas

courts to upset valid state court judgments. 

LEWIS v. WHEELER 39