PRESENT: All the Justices 

ROBERT STACY YARBROUGH 

v. Record No. 021660 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 March 3, 2005 

WARDEN OF THE SUSSEX I STATE PRISON 

UPON A PETITION FOR A WRIT OF HABEAS CORPUS 

 This petition for a writ of habeas corpus was filed under 

our original jurisdiction. We consider whether the petitioner 

was denied his Sixth Amendment right to the effective assistance 

of counsel in a second penalty phase proceeding conducted after 

we remanded his capital murder case. 

I. PROCEEDINGS 

 The petitioner, Robert Stacy Yarbrough, was convicted in a 

jury trial in the Circuit Court of Mecklenburg County (the 

circuit court) of the capital murder of Cyril Hugh Hamby during 

the commission of robbery, in violation of Code § 18.2-31(4), 

and of the robbery of Hamby, in violation of Code § 18.2-58. 

The jury found Yarbrough guilty of both crimes, and fixed his 

punishment at death for the capital murder and at life 

imprisonment for the robbery. The circuit court sentenced 

Yarbrough in accordance with the jury verdict. 

We affirmed Yarbrough’s robbery conviction and sentence, 

and his conviction of capital murder, but vacated the death 

sentence and remanded the case for a new penalty phase 
proceeding because the circuit court had refused Yarbrough’s 

request to instruct the jury that he would be ineligible for 

parole if he received a sentence of life imprisonment. 

Yarbrough v. Commonwealth, 258 Va. 347, 374-75, 519 S.E.2d 602, 

616-17 (1999)(Yarbrough I). On remand, a jury again fixed 

Yarbrough’s punishment for capital murder at death, and the 

circuit court sentenced Yarbrough in accordance with the jury 

verdict. We affirmed the circuit court’s judgment. Yarbrough 

v. Commonwealth, 262 Va. 388, 551 S.E.2d 306 (2001)(Yarbrough 

II), cert. denied, 535 U.S. 1060 (2002). 

Yarbrough filed a petition for a writ of habeas corpus 

under Code § 8.01-654 against the warden of the Sussex I State 

Prison (the warden). Based on the death sentence he received on 

remand, Yarbrough alleged that (1) the jury was selected in a 

racially discriminatory manner; (2) the jury was misled about 

the appropriate burden of proof; (3) his trial counsel rendered 

ineffective assistance; and (4) Virginia’s capital murder 

statute is unconstitutional. We refused Yarbrough’s petition. 

Yarbrough filed a petition for rehearing pursuant to Rule 

5:39, which we granted limited to consideration of the claim 

that Yarbrough was denied the effective assistance of counsel at 

his second penalty phase proceeding. We entered an order 

directing the circuit court to conduct an evidentiary hearing 

pursuant to Code § 8.01-654(C) to consider the merits of 

2
Yarbrough’s allegation that he was denied the effective 

assistance of counsel at his penalty phase proceeding on remand 

because counsel unreasonably failed to investigate and present 

relevant mitigating evidence as required by the United States 

Supreme Court’s decision in Wiggins v. Smith, 539 U.S. 510 

(2003). The circuit court conducted an evidentiary hearing (the 

habeas hearing) and submitted a written report that contained 

findings of fact and conclusions of law as directed by Code 

§ 8.01-654(C)(3).1

II. FACTS 

 In Yarbrough I, we provided a complete statement of facts 

concerning the crimes for which Yarbrough was convicted and 

sentenced. 258 Va. at 353-55, 519 S.E.2d at 603-05. In 

Yarbrough II, we described the evidence presented at the second 

penalty phase proceeding, which is relevant to the present 

habeas corpus proceeding. 262 Va. at 391-92, 551 S.E.2d at 307-

08. We will recite the facts from that opinion: 

 During the second penalty phase proceeding, the 

Commonwealth presented essentially the same evidence 

it had presented during the first penalty phase 

proceeding, including evidence that the defendant 

killed Hamby by stabbing him multiple times in the 

neck. The Commonwealth’s evidence also included 

testimony from Hamby’s family and friends concerning 

 1

 The Honorable Charles L. McCormick, III (retired) 

conducted the evidentiary hearing and submitted the required 

report to this Court. Judge McCormick also presided over 

Yarbrough’s original guilt and penalty phase proceedings, as 

well as the second penalty phase proceeding on remand. 

3
the impact of Hamby’s murder on them. Hamby’s two 

daughters, his daughter-in-law, and one of his 

granddaughters testified that their relationships with 

Hamby were close and were nurtured by his kindness and 

thoughtfulness, and that Hamby’s death has devastated 

their family. Two former neighbors and long-time 

customers of Hamby testified that Hamby had developed 

close friendships with them that demonstrated his 

warmth and generosity. 

 The Commonwealth also presented testimony from 

Dr. Marcella F. Fierro, the Chief Medical Examiner for 

the Commonwealth. Dr. Fierro testified that Hamby 

bled to death as a result of at least ten separate 

knife wounds to his neck. She testified that the 

wounds penetrated to the junction between the neck and 

skull at several locations on the rear of Hamby’s 

neck, and that such wounds “are usually associated 

with trying to take the head off.” In addition, Dr. 

Fierro identified injuries from at least five separate 

blows to Hamby’s head that were consistent with 

beating and kicking. She testified that Hamby was 

alive when all these wounds were inflicted, and that 

it took as long as 15 minutes for him to bleed to 

death. The Commonwealth presented additional 

testimony from Dominic Rainey, a witness to the 

killing, who testified that Hamby was begging the 

defendant to stop attacking him while the defendant 

was cutting the front and rear of Hamby’s neck in a 

“sawing motion.” 

 Yarbrough presented testimony from his mother who 

stated that Yarbrough had lived with her his entire 

life except for two years as a teenager during which 

he lived with his grandmother. Yarbrough also 

presented testimony from his former prison counselor 

who testified that Yarbrough had not received any 

adverse disciplinary reports during his time in 

prison. 

Id.

 At the habeas hearing, Yarbrough’s trial counsel, Buddy 

Ward, testified that he and his investigator, William Smith, 

conducted a “deep background check” that began with Yarbrough’s 

4
birth. They collected Yarbrough’s school records and 

investigated a medical incident from Yarbrough’s childhood. 

Ward and Smith interviewed Yarbrough at length, and 

contacted Yarbrough’s family members and other potential 

character witnesses. According to Ward, Yarbrough did not say 

anything negative about his mother, and did not indicate that he 

had been neglected during his childhood years. 

The only two family members with whom Ward spoke were 

Yarbrough’s mother and grandmother. Yarbrough’s mother stated 

that at one point, she sent her son to live with his grandmother 

in order to “work through” her own problems with drugs. 

Yarbrough’s grandmother, however, did not offer any information 

suggesting that Yarbrough had experienced a troubled childhood. 

Ward did not interview Yarbrough’s father or sister because 

Yarbrough stated that he had not had contact with them in many 

years. 

 Ward also stated that he discussed Yarbrough's case with 

Dr. Evan Nelson, a psychologist appointed by the circuit court 

who interviewed Yarbrough and his family members. Dr. Nelson 

informed Ward that Yarbrough’s mother had a drug problem when 

Yarbrough was a child and once placed Yarbrough in the care of 

his grandmother for this reason. 

After receiving Dr. Nelson’s evaluation, Ward attempted to 

“follow up” with Yarbrough’s mother and grandmother, but 

5
received no new information and did not “push” for more 

information about Yarbrough’s childhood or about his mother’s 

drug use. Ward also stated that he did not use Dr. Nelson as a 

witness at the second penalty phase proceeding because Dr. 

Nelson had concluded that his testimony could prove harmful to 

Yarbrough’s case. 

 Yarbrough’s mother, Lorraine R. Mitchell, testified 

extensively about Yarbrough’s childhood years and about her 

struggle with drug abuse. She stated that Yarbrough spent his 

early childhood years with her in a low-income housing project 

in Camden, New Jersey. Her boyfriend, Willis Jenkins, and their 

daughter, Dorian, also lived there for a number of years. 

Mitchell stated that when Jenkins brought crack cocaine 

into the home, she started using the drug and became addicted to 

it. Jenkins eventually moved out of the home because of her 

addiction. After Jenkins left, Mitchell did not pay her bills 

regularly, and her utility services often were disconnected. 

She eventually lost her home after failing to make the mortgage 

payments. 

 Mitchell testified that the rest of Yarbrough’s childhood 

was spent in several different locations. She and the two 

children lived for a period of time at her mother’s house and, 

when Yarbrough was 11 years old, he spent a year in Illinois 

6
with his half brother. While Yarbrough was in Illinois, Jenkins 

removed Dorian permanently from Mitchell’s care. 

Mitchell stated that after Yarbrough returned from 

Illinois, they lived in a shelter and in an apartment she 

described as a “slum.” She and Yarbrough later moved to 

Virginia’s Eastern Shore. They eventually began living with a 

man named Willie Jiggets, who sold crack cocaine and whose home 

was a place where neighbors would “hang out,” play cards, and 

drink liquor. 

 Mitchell testified that despite her drug use and living 

conditions, she tried not to use illegal drugs in front of her 

children, and that Yarbrough was never physically or sexually 

abused. Mitchell also testified that her children always had 

food, clothing, and a place to live. Mitchell stated that she 

answered all the questions Ward and Smith asked, and that she 

thought she had discussed her drug use with Ward. 

Yarbrough’s grandmother, Annie Mae Riley, testified that 

neither Ward nor Smith requested details about Yarbrough’s 

personal history. However, Riley stated that she was present 

when Smith asked Mitchell some questions about her use of crack 

cocaine. 

Riley also testified that Yarbrough lived with her while he 

was attending kindergarten and first grade. When Yarbrough and 

7
Mitchell moved to their own house in Camden, Riley visited them 

regularly. 

During this time, Riley observed a change in Mitchell’s 

behavior and a deterioration of conditions in the home. 

However, Riley stated that the children always had food to eat. 

Riley also testified that Yarbrough often cared for Dorian when 

Mitchell failed to do so. 

When Mitchell confessed her drug addiction to Riley, Riley 

helped Mitchell obtain assistance to deal with the problem and 

later helped her move to Virginia. Riley further stated that 

Yarbrough was not abused or neglected as a child. 

 Yarbrough also presented the testimony of Willis Jenkins, 

who confirmed many of the details of Mitchell’s testimony and 

testified that neither Ward nor Smith contacted him about 

Yarbrough. Jenkins also stated that he introduced Mitchell to 

the use of crack cocaine, and that she began using it on a daily 

basis. He testified that even after he stopped using the drug, 

Mitchell continued taking it and frequently had a “house full of 

people getting high” in the basement while the children were 

upstairs. Jenkins also stated that during this period Mitchell 

took money from his bank account to buy drugs and often did not 

pay their utility bills, which resulted in disruptions in 

service. 

8
Jenkins testified that he never witnessed any abuse of the 

children, and that he and Mitchell tried to shield the children 

from their drug use. He eventually moved out of the house and 

removed Dorian from Mitchell’s care one or two years later. 

 Jenkins also stated that during the period when Mitchell 

was addicted to drugs, the children were able to walk to their 

grandmother’s house, about 10 minutes away, where she would 

provide them with food. He also noted that Yarbrough often took 

care of Dorian’s needs when Mitchell failed to do so. 

Yarbrough’s father likewise confirmed aspects of his son’s 

early childhood years. He testified that although he remained 

in frequent contact with his son over the years, no lawyer or 

investigator ever contacted him on his son’s behalf. 

Yarbrough’s father also testified that after Mitchell and 

his son moved out of his house and began living with Jenkins, he 

eventually learned of Mitchell’s drug addiction and took his son 

to live with a half brother in Illinois. Yarbrough’s father 

testified that when his son returned one year later and resumed 

living with Mitchell, she appeared to have overcome her 

addiction.

 Finally, Yarbrough presented the testimony of his sister, 

Dorian Jenkins, and his cousin, Anthony Riley. Both testified 

that Yarbrough’s trial counsel did not contact them. Riley 

stated that although he was very young at the time, he 

9
remembered “rampant” drug activity in Yarbrough’s childhood 

home, as well as very poor living conditions. Dorian Jenkins, 

who lived with Yarbrough and Mitchell until she was five years 

old, described very dirty living conditions, with the frequent 

absence of electricity and water. She also stated that 

Yarbrough often helped feed her and did “anything [else] I 

needed for him to do.” 

 The warden presented testimony from the investigator, 

William Smith, who testified that Yarbrough did not provide any 

information about his childhood living conditions. Smith stated 

that Yarbrough did not indicate that there were problems in his 

home life during his childhood, nor did he suggest any 

circumstances that would have required additional investigation. 

Smith also testified that Mitchell never mentioned her drug 

addiction, nor did she indicate any unusual problems that 

occurred during Yarbrough’s childhood years. Smith acknowledged 

that he did not request any records from social service 

agencies, explaining that he did not think that he could obtain 

access to them. 

 The warden also presented testimony from Ward, who stated 

that Mitchell portrayed herself to him as a “good mother with a 

problem that she was working her way through.” According to 

Ward, Mitchell did not discuss any details of her drug use or 

10
provide information about any other difficulties Yarbrough 

encountered during his childhood years. 

Ward testified that he would have liked to have had Dorian 

Jenkins’ testimony at the penalty phase proceeding of the trial. 

He did not consider contacting her, however, because Yarbrough 

had not seen her in many years. 

Ward further testified that while it would have been 

possible to present a mitigation case based solely on 

Yarbrough’s difficult childhood, he would have preferred to 

include the testimony of an expert regarding the impact of such 

a childhood on Yarbrough. Ward conceded, however, that he did 

not ask the circuit court to appoint a new expert to replace Dr. 

Nelson. 

 In its report, the circuit court found that Ward was unable 

to obtain substantial information from the witnesses he 

interviewed, and that he did not attempt to obtain any 

additional information from other witnesses. The court 

concluded that Ward received little assistance from Yarbrough, 

his mother, and his grandmother. 

The court found that Mitchell and Jenkins both used alcohol 

and drugs during Yarbrough’s childhood, but that they attempted 

to conceal their drug use from their children. The court also 

found that although there was neglect and privation in 

Yarbrough’s childhood history, these circumstances did not 

11
result from the mother’s willful misconduct toward her children 

but from her inability to care for them during the unspecified 

period that she was addicted to crack cocaine. 

The court noted that on Yarbrough’s return from his oneyear stay in Illinois, Mitchell’s condition had improved. The 

court also found that although Mitchell occasionally “slipped 

and slid,” she “managed to straighten out her life and avoid her 

prior difficulties with crack cocaine use.” The court further 

concluded that there was no credible evidence that Yarbrough had 

been the victim of physical or sexual abuse. 

 In addition, the circuit court found that the testimony of 

both Anthony Riley and Dorian Jenkins was incredible. The court 

concluded that because Dorian’s testimony described living 

conditions when she was at most five years old and these events 

occurred about 15 years before she testified, her testimony was 

“questionable as it was likely influenced by what others had 

told her rather than her personal recollection.” The court 

further found that Anthony Riley’s testimony “came across as 

overreaching and exaggerated – almost rehearsed.” 

In its proposed conclusions of law, the circuit court 

recommended that Yarbrough’s habeas corpus petition be dismissed 

because Yarbrough failed to demonstrate that he was prejudiced 

by his counsel’s performance. The court first concluded that 

Yarbrough’s counsel rendered ineffective assistance because he 

12
failed to investigate aggressively Yarbrough’s personal history 

and, thus, could not make a reasonable strategic decision 

regarding whether to present mitigation evidence based on a 

claim that Yarbrough suffered neglect as a child. The court 

further concluded, however, that the mitigation evidence 

received at the habeas hearing was insufficient to demonstrate a 

reasonable probability that the outcome of the second penalty 

phase proceeding would have been different had that evidence 

been considered by the jury. 

III. DISCUSSION 

 Yarbrough argues that his trial counsel rendered 

ineffective assistance at the second penalty phase proceeding. 

He asserts that Ward should have conducted a more thorough 

background investigation in order to obtain and present 

mitigation evidence during the penalty phase. Yarbrough 

contends that Ward failed to contact witnesses who would have 

been able to provide information that Yarbrough was severely 

neglected as a child, and also failed to pose detailed questions 

about his upbringing to those witnesses who were interviewed. 

 Yarbrough also asserts that the circuit court applied the 

wrong standard of proof at the habeas hearing in reaching its 

conclusion that Yarbrough did not suffer prejudice as a result 

of his counsel’s performance. He maintains that the court 

erroneously indicated that he was required to prove that the 

13
available mitigation evidence outweighed the evidence in 

aggravation of the offense. In the alternative, Yarbrough 

contends that he met his actual burden of proof, namely, that 

there was a reasonable probability that if the available 

mitigation evidence had been presented to the jury during the 

second penalty phase proceeding, the jury would have reached a 

different result. 

 In response, the warden argues that Ward provided effective 

assistance of counsel during the second penalty phase 

proceeding. The warden notes that Ward investigated Yarbrough’s 

personal history and reasonably determined that he would not 

benefit from further investigation. The warden also contends 

that it was reasonable for Ward to have relied on Yarbrough’s 

indication that he experienced no particular problems during his 

childhood, and that there would be no benefit to be derived from 

contacting his extended family. 

 The warden also argues that the circuit court correctly 

held that Yarbrough was not prejudiced by his counsel’s alleged 

failure to investigate and present evidence of Yarbrough’s 

personal history. The warden observes that at the habeas 

hearing, Yarbrough did not present evidence of sexual or 

physical abuse, extreme neglect, or other substantial mitigating 

evidence. Thus, the warden contends that Yarbrough failed to 

meet his burden of proving that but for his counsel’s alleged 

14
ineffective assistance, the jury would have fixed his punishment 

at life imprisonment. 

 In reviewing the circuit court’s findings of fact and 

conclusions of law submitted pursuant to Code § 8.01-654(C), we 

defer to the court’s factual findings and are bound by them 

unless they are plainly wrong or without evidentiary support. 

Lovitt v. Warden, 266 Va. 216, 229, 585 S.E.2d 801, 808 (2003), 

cert. denied, ___ U.S. ___, 124 S.Ct. 2018 (2004); Hedrick v. 

Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002). However, 

we review de novo the circuit court’s recommended conclusions of 

law, because they involve mixed questions of law and fact. 

Lovitt, 266 Va. at 229, 585 S.E.2d at 808; Hedrick, 264 Va. at 

496, 570 S.E.2d at 847; see Strickland v. Washington, 466 U.S. 

668, 698 (1984). 

 We consider the circuit court’s submissions in the context 

of Yarbrough’s Sixth Amendment right to counsel, which includes 

the right to the effective assistance of counsel. Strickland, 

466 U.S. at 685-86; see Roe v. Flores-Ortega, 528 U.S. 470, 476 

(2000); United States v. Cronic, 466 U.S. 648, 654 (1984); 

Lovitt, 266 Va. at 248, 585 S.E.2d at 820; Sheikh v. Buckingham 

Corr. Ctr., 264 Va. 558, 564, 570 S.E.2d 785, 788 (2002). This 

guarantee entitles a criminal defendant to counsel who is 

reasonably competent and who provides advice that is within the 

range of competence required of attorneys in criminal cases. 

15
Strickland, 466 U.S. at 687; see Wiggins v. Smith, 539 U.S. 510, 

521 (2003); Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); 

Lovitt, 266 Va. at 249, 585 S.E.2d at 820; Green v. Young, 264 

Va. 604, 609, 571 S.E.2d 135, 138 (2002). 

 To prevail on a claim of ineffective assistance of counsel, 

a petitioner must ordinarily satisfy both parts of the two-part 

test established in Strickland. Strickland, 466 U.S. at 687; 

Lovitt, 266 Va. at 249, 585 S.E.2d at 820; see Wiggins, 539 U.S. 

at 521; Williams v. Taylor, 529 U.S. 362, 390 (2000). The 

petitioner must first show that “counsel’s representation fell 

below an objective standard of reasonableness.” Strickland, 466 

U.S. at 687-88; see also Wiggins, 539 U.S. at 521; Bell v. Cone, 

535 U.S. 685, 695 (2002); Williams, 529 U.S. at 390-91; Lovitt, 

266 Va. at 249, 585 S.E.2d at 820. In deciding this question, 

the court considering the habeas corpus petition “must indulge a 

strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance.” Strickland, 466 

U.S. at 689; see also Kimmelman, 477 U.S. at 381; Lovitt, 266 

Va. at 249, 585 S.E.2d at 820. 

To prove that counsel’s conduct fell outside the range of 

reasonable professional assistance, a petitioner must overcome 

the presumption that under the particular circumstances of the 

case, the challenged actions may be considered sound trial 

strategy. Strickland, 466 U.S. at 689; Lovitt, 266 Va. at 249, 

16
585 S.E.2d at 820; see Bell, 535 U.S. at 698; Darden v. 

Wainwright, 477 U.S. 168, 186 (1986). However, “strategic 

choices made after less than complete investigation are 

reasonable” only “to the extent that reasonable professional 

judgments support the limitations on investigation.” 

Strickland, 466 U.S. at 690-91; see also Wiggins, 539 U.S. at 

521; Burger v. Kemp, 483 U.S. 776, 794 (1987); Lovitt, 266 Va. 

at 249, 585 S.E.2d at 821. 

 Addressing the investigation and presentation of mitigation 

evidence, the Supreme Court observed in Wiggins that “Strickland

does not require counsel to investigate every conceivable line 

of mitigating evidence no matter how unlikely the effort would 

be to assist the defendant at sentencing. Nor does Strickland

require defense counsel to present mitigating evidence at 

sentencing in every case.” Wiggins, 539 U.S. at 533. 

Instead, in determining whether trial counsel exercised 

reasonable professional judgment regarding the investigation and 

presentation of mitigation evidence, a reviewing court must 

focus on whether the investigation resulting in counsel’s 

decision not to introduce certain mitigation evidence was itself 

reasonable. Id. at 523; Strickland, 466 U.S. at 690-91; Lovitt, 

266 Va. at 250, 585 S.E.2d at 821. In making this 

determination, “a court must consider not only the quantum of 

evidence already known to counsel, but also whether the known 

17
evidence would lead a reasonable attorney to investigate 

further.” Wiggins, 539 U.S. at 527; see also Lovitt, 266 Va. 

250, 585 S.E.2d at 821. 

If the reviewing court concludes that counsel’s performance 

was deficient under the first part of the Strickland test, a 

petitioner seeking relief must also establish that “there is a 

reasonable probability that, but for counsel’s unprofessional 

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

A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 U.S. at 

694; see also Wiggins, 539 U.S. at 534; Williams, 529 U.S. at 

391; Lovitt, 266 Va. at 250, 585 S.E.2d at 821; Hedrick, 264 Va. 

at 496-97, 570 S.E.2d at 847. 

A reviewing court, however, is not required to decide 

whether “counsel’s performance was deficient before examining 

the prejudice suffered by the defendant as a result of the 

alleged deficiencies.” Strickland, 466 U.S. at 697. As the 

Supreme Court has stated, “If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient 

prejudice, which we expect will often be so, that course should 

be followed.” Id.; see also Lovitt, 266 Va. at 250, 585 S.E.2d 

at 821; Strickler v. Murray, 249 Va. 120, 128, 452 S.E.2d 648, 

652, cert. denied, 516 U.S. 850 (1995). 

18
When a prejudice determination involves the failure to 

pursue the presentation of mitigation evidence, the reviewing 

court is required to evaluate the totality of the available 

mitigation evidence, both that adduced at trial and that 

presented at the habeas hearing, along with the evidence in 

aggravation of the offense received at trial. Wiggins, 539 U.S. 

at 536; Williams, 529 U.S. at 397-98; Lovitt, 266 Va. 250, 585 

S.E.2d at 821. 

 In the present case, Yarbrough’s contentions address trial 

counsel’s alleged failure to investigate his family background, 

which he asserts contained evidence of neglect and drug abuse by 

his mother, impoverished living conditions, and general abuse 

resulting from his mother’s drug-related activities. As 

recommended by the Supreme Court in Strickland, we move directly 

to consider the second prong of the two-part test, namely, the 

issue whether Yarbrough suffered prejudice sufficient to 

undermine confidence in the outcome of the second penalty phase 

proceeding as a result of his counsel’s failure to investigate 

and present available mitigation evidence.2 See Strickland, 466 

 2

 Because we address the issue of prejudice directly, we 

need not consider and we express no opinion on the circuit 

court's finding that Yarbrough received ineffective assistance 

of counsel in the second penalty phase proceeding. Such 

finding, having not been adopted by this Court, has no effect in 

these proceedings. 

19
U.S. at 694; see also Williams, 529 U.S. at 391; Lovitt, 266 Va. 

at 252, 585 S.E.2d at 822. 

Initially, we find no merit in Yarbrough’s argument that 

the circuit court applied the wrong standard of proof in making 

its prejudice determination by requiring Yarbrough to show that 

the mitigating evidence outweighed the evidence in aggravation 

of the offense. Contrary to Yarbrough’s contention, the circuit 

court based its prejudice determination on the Strickland

standard whether there was a reasonable probability of a 

different result at the second penalty phase proceeding if the 

totality of the available mitigation evidence had been presented 

to the jury. 

In reaching its conclusion that Yarbrough had not satisfied 

the Strickland standard, the circuit court observed that the 

evidence in aggravation “more than outweighs” the available 

mitigating evidence. This statement did not impose a separate 

evidentiary standard in violation of Strickland but merely 

served to explain the court’s view that the evidence in 

mitigation did not even closely approach the evidence in 

aggravation presented at Yarbrough’s trial. 

Moreover, as we have already observed, we are required to 

make our own prejudice determination without any deference to 

the circuit court’s recommended conclusion of law, because this 

issue is subject to our de novo review. Lovitt, 266 Va. at 229, 

20
585 S.E.2d at 808; Hedrick, 264 Va. at 496, 570 S.E.2d at 847; 

see Strickland, 466 U.S. at 698. Thus, we proceed to consider 

this mixed question of law and fact under the established 

principles stated above. 

In making our prejudice determination, we rely on the 

Wiggins decision in which the Supreme Court, applying 

Strickland, invalidated a habeas petitioner’s death sentence 

based on the prejudicial effect of trial counsel’s failure to 

investigate and present certain mitigation evidence to the jury 

at the petitioner’s sentencing proceeding. Wiggins, 539 U.S. at 

537-38. There, the petitioner was convicted of capital murder 

in a bifurcated trial. Id. at 515-16. Trial counsel decided 

not to present any mitigation evidence during the penalty phase, 

and instead sought to prove that the evidence was insufficient 

to prove that the defendant was the actual perpetrator of the 

murder rather than a lesser participant in the crime. Id. 

Under Maryland law, this determination is made at the penalty 

phase of a capital murder trial, and a jury may sentence a 

defendant to death only if it determines that the defendant was 

the actual perpetrator of the crime. See Md. Code Ann., Crim. 

Law § 2-202 (2002). 

 Before adopting this approach, trial counsel had the 

defendant evaluated by a psychologist, who concluded that the 

defendant “had an IQ of 79, had difficulty coping with demanding 

21
situations, and exhibited features of a personality disorder.” 

Wiggins, 539 U.S. at 523. However, the psychologist’s report 

did not discuss the defendant’s extensive personal history. Id. 

Trial counsel also reviewed court and social services records, 

which referred to the defendant’s “misery as a youth” and to the 

fact that he had spent most of his childhood years in foster 

care. Id.

 At the habeas hearing in Wiggins, the petitioner presented 

a report from a psychologist, who stated that the petitioner had 

“experienced severe privation and abuse in the first six years 

of his life while in the custody of his alcoholic, absentee 

mother.” Id. at 534-35. The psychologist also stated that the 

petitioner “suffered physical torment, sexual molestation, and 

repeated rape during his subsequent years in foster care.” Id.

at 535. Additionally, the evidence showed that the petitioner 

was homeless for a period of time and had “diminished mental 

capacities.” Id.

 The Supreme Court held that trial counsel’s decision to 

limit their investigation of mitigation evidence was 

unreasonable, because the information counsel had seen in the 

social services records would have led a reasonably competent 

attorney to conduct a further investigation. Id. at 534. The 

Court determined that the petitioner suffered prejudice as a 

result of counsel’s unprofessional errors of judgment because 

22
the mitigating evidence that counsel failed to discover and 

present was “powerful.” Id.

 Mindful of this analysis, we consider the evidence 

presented at Yarbrough’s habeas hearing and the circuit court’s 

recommended findings of fact. The evidence of Yarbrough’s 

personal history consisted of testimony from family members and 

friends. As stated above, the circuit court found the testimony 

of both Dorian Jenkins and Anthony Riley incredible. Having 

rejected the testimony of these two witnesses, the circuit court 

made its findings of fact based on the remaining evidence 

received at the habeas hearing. 

We conclude that the testimony of Yarbrough’s mother and 

grandmother supports the circuit court’s finding that although 

Yarbrough faced periods of privation and neglect during his 

childhood due to his mother’s drug addiction, at other times she 

provided adequately for him under difficult circumstances. 

Their testimony also supports the court’s finding that 

Yarbrough’s mother did not regularly use drugs after she 

admitted her problem to her mother and took action to correct 

it. 

We also conclude that in addition to the testimony of 

Yarbrough’s mother and grandmother, evidence from Willis Jenkins 

and Yarbrough’s father supports the circuit court’s conclusion 

that Yarbrough was not physically or sexually abused as a child. 

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Further, the testimony of Willis Jenkins and Yarbrough’s 

grandmother supports the court’s finding that Yarbrough often 

cared for himself and his sister as a result of his mother’s 

drug addiction. Thus, we conclude that there is evidence in the 

record to support these recommended findings of fact, and we 

apply them in undertaking our prejudice analysis. See Lovitt, 

266 Va. at 229, 585 S.E.2d at 808; Hedrick, 264 Va. at 496, 570 

S.E.2d at 847. 

 In determining prejudice, we “reweigh the evidence in 

aggravation against the totality of available mitigating 

evidence.” Wiggins, 539 U.S. at 534; see also Williams, 529 

U.S. at 397-98; Lovitt, 266 Va. at 256, 585 S.E.2d at 824-25. 

The evidence in aggravation at Yarbrough’s second penalty phase 

proceeding included the brutal nature of the attack on Hamby, a 

77-year old man, which appeared to be an attempted decapitation. 

Also in aggravation was the fact that Hamby was alive when all 

ten of the knife wounds were inflicted on him, and that he may 

have lived for 15 minutes as he bled to death. The evidence 

also showed that Yarbrough continued to cut Hamby’s neck in a 

sawing motion even after Hamby pleaded with Yarbrough to stop 

cutting him. 

 The mitigation evidence concerning Yarbrough’s childhood 

home life showed that his mother was addicted to crack cocaine 

for an unspecified period of time, and that the family lost its 

24
home and later faced substandard living conditions at different 

locations. During the time of her drug addiction, Yarbrough’s 

mother sometimes neglected her children. Yarbrough frequently 

helped to take care of his sister to compensate for his mother’s 

failure to do so. 

Because of his mother’s drug addiction, Yarbrough was 

required to live with relatives on two occasions, and his 

sister was removed permanently from the mother’s home. The 

mitigation evidence also showed that Yarbrough had no prior 

record. 

In contrast to the penalty phase evidence in Wiggins, the 

record from Yarbrough’s second penalty phase proceeding shows 

that counsel presented some recent personal background 

information for the jury’s consideration. That testimony, 

provided by Yarbrough’s former prison counselor, showed that 

Yarbrough had adjusted to prison life in that he had not 

received any adverse disciplinary reports during the time he had 

been incarcerated. 

 We further observe that there was no mitigation evidence 

presented at the habeas hearing showing that Yarbrough has a 

diminished mental capacity. This aspect of his case constitutes 

a major distinction from the evidence presented in Wiggins, 

which showed that the petitioner exhibited “borderline 

retardation.” Wiggins, 539 U.S. at 518. Also missing from the 

25
present case is the evidence of extreme physical abuse that 

permeated the record in Wiggins. 

These critical differences likewise distinguish Yarbrough’s 

case from Williams. There, the Supreme Court concluded that a 

defendant had suffered prejudice resulting from his counsel’s 

failure to present substantial mitigation evidence at the 

penalty phase of his capital murder trial. Williams, 529 U.S. 

at 396-98. The evidence presented at the habeas hearing in that 

case showed that the petitioner was “borderline mentally 

retarded” and had suffered extreme abuse and neglect as a child. 

Id. at 370. That evidence included documents that “dramatically 

described mistreatment, abuse, and neglect during his early 

childhood, as well as testimony that he . . . had suffered 

repeated head injuries, and might have mental impairments 

organic in origin.” Id.

 With these distinctions in mind, and reviewing the evidence 

in mitigation and aggravation of the offense in accordance with 

the holding of Wiggins, we conclude that Yarbrough has failed to 

demonstrate that his defense was prejudiced by trial counsel’s 

failure to investigate and present the available mitigation 

evidence introduced at the habeas hearing. We hold that the 

record does not demonstrate that, but for his trial counsel’s 

alleged failures, there is a reasonable probability that the 

result of the second penalty phase proceeding would have been 

26
different. See Strickland, 466 U.S. at 694; see also Wiggins, 

539 U.S. at 534; Williams, 529 U.S. at 391; Lovitt, 266 Va. at 

257, 585 S.E.2d at 825. In short, the record before us does not 

undermine confidence in the outcome of the proceedings. See

Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S. at 534; 

Williams, 529 U.S. at 391; Lovitt, 266 Va. at 257, 585 S.E.2d at 

825. 

 For these reasons, we will dismiss the petition for a writ 

of habeas corpus. 

Petition dismissed.

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