Appendix — Roach v. Angelone

APPENDIX

Opinion of the United States Court of Appeals

for the 4° Circuit

Opinion of the Virginia Supreme Court

Denial of Petition for Writ of Certiorari (1996)

Denial of Petition for Writ of Certiorari (1998)

Opinion of the United States District Court for the Western

District of Virginia

Denial of Petition for Rehearing in the United States Court of

Appeals for the 4" Circuit

Order Setting Date of Execution

Order Awarding Appeal from the Circuit Court of Greene

County

Order Granting Stay of Execution

28 USC § 2254

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVE EDWARD ROACH,

Dchionei intel

Vv.

No. 98-26

RONALD ANGELONE, Director,

Virginia Department of Corrections,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CA-97-693-R)

Argued: March 3, 1999

Decided: May 4, 1999

Before WIDENER, NIEMEYER, and KING, Circuit Judges.

Certificate of appealability denied and appeal dismissed by

published opinion. Judge King wrote the opinion, in which

Judge Widener and Judge Niemeyer concurred.

COUNSEL

ARGUED): Steven Marc Schneebaum, PATTON BOGGS,

L.L-P., Washington, D.C., for Appellant. Robert Quentin

Harns, Assistant Attorney General, OFFICE OF THE

la

ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

ON BRIEF: Benjamin G. Chew; Willa B. Perlmutter, Susan M.

Mathiascheck, PATTON BOGGS, L.L-P., Washington, D.C.,

for Appellant. Mark L. Earley, Attorney General of Virginia,

OFFICE OF THE ATTORNEY GENERAL, Richmond,

Virginia, for Appellee.

OPINION

KING, Circuit Judge:

In 1995, Steve Edward Roach (“Roach”), was convicted of

capital murder in the State of Virginia and sentenced to death.

1996, the Supreme Court of Virginia affirmed the sentence,

Roach v. Commonwealth, 468 S.E.2d 98 (Va. 1996), and the

Supreme Court of the United States denied certiorari. Roach v.

Virginia, 519 U.S. 951 (1996). Upon exhausting his state

collateral remedies, Roach petitioned the United States District

Court for the Western District of Virginia for a writ of habeas

corpus. See 28 U.S.C.A. § 2254 (West Supp. 1998). After

reviewing the parties’ legal arguments and conducting an

evidentiary hearing, the district court, on July 29, 1998, denied

habeas corpus relief.

Roach has appealed to this court, pursuant to 28 U.S.C. § 1291,

from the final order of the district court. In addition, Roach

has filed with us a petition for a certificate of

pursuant to 28 U.S.C. § 2253(c)' and Fed. R. App. P. 22. On

1 28 U.S.C. § 2253(c) provides, in pertinent part:

(1) Unless a circuit justice or judge issues a certificate of appealability, an

appeal may not be taken to the court of appeals from -

(A) the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State Court . . . .

2a

appeal, Roach raises five issues that he claims warrant habeas

relief. After careful consideration of each of Roach’s

contentions and the entire record, we find that Roach has

failed to make a substantial showing of the denial of a

constitutional right and that there is no basis for federal habeas

corpus relief. Accordingly, we deny the petition for a certificate

of appealability and dismiss the appeal.

I,

On Deceraber 3, 1993, Mary Ann Hughes (“Mrs. Hughes”)

was shot and killed in her home. The cause of death was a

single shotgun blast to the chest. Mrs. Hughes’s purse,

containing her credit card and approximately sixty dollars in

cash, and her 1981 Buick Regal were stolen. During the early

morning hours of December 4, 1993, a Nottoway County

deputy sheriff observed Mrs. Hughes's automobile parked in

the parking lot of a shopping center in Blackstone, Virginia.

The dapuny cubsoquentiy idensified Roach os the driver of the

car. Later that same morning, Roach was videotaped while

attempting to use Mrs. Hughes’s credit card at an automated

teller machine in Louisburg, North Carolina.

On December 5, 1993, a South Carolina State Trooper

observed Mrs. Hughes’s automobile traveling at an excessive

rate of speed. When the trooper attempted to detain the

vehicle, Secidiaasielilaeees ontheteh deestter ofthe

road and escaped into the adjacent woods. The driver’s clothes

matched the description of the clothes Roach was observed

wearing on the night of the murder.

(2) A certificate of appealability may issue . .. only if the applicant has made

a substantial showing of the denial of a constitutional right. 28 US.C.A. §

2253 (West 1996). The showing which Roach is required to make in order

to obtain a certificate of appealability under 28 U.S.C. § 2253, as amended

by the Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), has not changed from the showing required of habeas corpus

petitioners prior to 1996. See Mackall v. Angelone, 131 F.3d 442, 444, n.3

(4th Cir. 1997), cert. denied , 118 S.Ct. 907 (1998).

3a

The items retrieved from the vehicle included Mrs. Hughes

purse, a blue jacket, a number eight load shotgun shell, and a

plastic bag from a Winn-Dinue grocery store. Roach’s latent

palm prints and fingerprints were also recovered from the

interior of the automobile.

On December 6, 1993, Roach returned to the Commonwealth

of Virginia and voluntarily surrendered to Sheriff William

Mornis for questioning. During questioning, Roach initially

attempted to deny his involvement in the murder and theft and

implicate others. However, when presented with evidence

independently gathered by police, Roach confessed to the

crimes. Roach told the Sheriff:

I went over there and saw her counting the money and

as I was leaving, I had the shotgun laying at the door

and I shot her, took the money, the car and left, went

to North Carolina. And I cashed -I tried to use —use

the credit card but-about four tumes[,] but it wouldn’t

work.

Roach v. Commonwealth at 103.

Because Roach was seventeen years old at the time of the

murder of Mrs. Hughes, juvenile petitions were issued charging

him with murder, using a firearm in the commission of murder,

and robbery. The peda gave notice of its intent to

try Roach as an adult and a transfer hearing was held in the

juvenile court. The juvenile court found probable cause to

believe that Roach committed the crimes and advised the

Commonwealth’s attorney that he could seek indictments

against Roach before a grand jury.’

2 At the time of Roach’s indictment and trial, transfers from the juvenile

court system to the circuit court system were controlled by Va. Code

§ 16.1-269. Under that statute, the juvenile court was required to determine

only if there was probable cause to believe Roach had committed an offense |

that would be a felony had it been committed. by an adult. Va. Code

4a

atime

Roach was indicted and tried on charges of (1) capital murder

of Mrs. Hughes in the commission of robbery while armed

with a deadly weapon, in violation of Va. Code § 18.2-31(4); (2)

use of a firearm in the commission of murder in violation of

Va. Code § 18.2-53. 1; and (3) robbery by violence to the

person of Mrs. Hughes, in violation of Va. Code § 18.2-58. The

ee ere

In order to lawfully sentence a convicted defendant to death in

Virginia, a jury must unanimously find, beyond a reasonable

doubt, the presence of one of two aggravating factors. See Va

Code § 19.2-264.2 (Michie 1977). Those aggravating factors are

colloquially known as the “future dangerousness predicate”

and the “vileness predicate.” At the sentencing phase of

Roach’ trial, che triel judge, Sending the evidence of vlence:

insufficient as a matter of law, withdrew that predicate from

the jury’s consideration. The judge alowed the jury to consider

the future dangerousness predicate alone. The jury.

unanimously a beyond a reasonable yr a that Roach

represented a future danger to society, recommended the death

penalty. The trial judge accepted the jury’s recommendation

and sentenced Roach to death.

On direct appeal, the Supreme Court of Virginia affirmed

Roach’s death sentence and the Supreme Court of the United

supra.

remedies, Roach filed his petition for a writ of habeas corpus in

the Western District of Virginia. In his thorough Memorandum

Opinion, Chief Judge Samuel G. Wilson considered each of

Roach’s contentions and found no basis for federal habeas

relief. Accordingly, the district court dismissed the petition.

§ 16.1-269 was repealed in 1994 and replaced with a similar provision. See

Va. Code Ann. § 16.1-269.1 (Michie 1997).

5a

|

Roach now appeals that dismissal. The issues raised on appeal,

as characterized by Roach, are as follows:

1. The proportionality review conducted by the

Supreme Court of Virginia was constitutionally

defective, in violation of Roach’s due process rights;

2. The evidence proffered by the Commonwealth

during the penalty phase of the trial was

constitutionally insufficient to support the jury’s

finding of future dangerousness;

3. The trial court violated Roach’s due process rights

by refusing to instruct the jury regarding Roach’s

potential parole eligibility if sentenced to life

4. The trial court violated Roach’s due process rights

by erroneously instructing the jury that its decision

regarding punishment had to be unanimous;

5. The procedure by which Virginia transferred Roach

from juvenile court to circuit court for trial as an adult

a gets em lated individualized

assessment of maturity and moral responsibility.

Although Roach has placed special emphasis on the

proportionality review issue, we have, in the circumstances of

this case, made a comprehensive review of each of the issues

presented by him on appeal. We address each of these five

issues in turn.

II.

Roach filed his federal habeas corpus petition on February 12,

1998, after the April 24, 1996 enactment of the AEDPA.

Accordingly, this Court must apply the deferential standard of

review imposed by the AEDPA’s amendments to 28 U.S.C.

6a

§ 2254(d). See 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998);

Green v. French, 143 F.3d 865, 868 (4th Cir. 1998), cert.

denied, 119 S.Ct. 844 (1999). Under the standards imposed by

the AEDPA, a federal court may not grant a writ of habeas

corpus on issues adjudicated in a state court unless the state

proceedings:

(1) 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

(2) 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 US.CA. § 2254(d) (West 1996). There is no allegation that

’s sentence was based on an unreasonable determination

of the facts; Roach does not claim that he is actually innocent

of the murder of Mrs. Hughes. Therefore, our review is

controlled by § 2254(d)(1). This court has previously

the language of § 2254(d)(1) as authorizing habeas

relief “only when the state courts have decided the question by

interpreting or applying the precedent in a manner that

reasonable jurists would all agree is unreasonable.” Green v.

French, 143 F.3d at 870.

A.

First, Roach argues that we must cause a writ of habeas corpus

to issue because the Supreme Court of Virginia failed to

conduct a meaningful proportionality review of his death

sentence, in contravention of the Eighth and Fourteenth

Amendments. According to Roach, the Supreme Court of

Virginia failed to adequately review the imposition of the death

7a

penalty against him, and such failure entitled him to federal

habeas relief as a violation of the Due Process Clause.’

3

Under Virginia law,’ when a defendant has been convicted of a

capital crime and sentenced to death, the Supreme Court of

Virginia is required to determine “[w]hether the sentence of

death was imposed under the influence of passion, prejudice,

or any other arbitrary factor” and “[w]hether the sentence of

death is excessive or disproportionate to the penalty imposed

in similar cases, considering both the crime and the defendant.”

Roach v. Commonwealth, 468 S.E.2d at 113. When assessing

whether the death sentence in question is excessive or

disproportionate to the penalty imposed in other cases, the

Supreme Court of Virginia considers “whether other

> It appears from the record that Roach failed to raise this argument in his

state habeas corpus petition. This issue, therefore, has not been exhausted

par res +t sd weal om procedurally defaulted. See Gray v.

Netherland, 518 U.S. 152, 161-62 (1996). However, the issue of procedural

default generally is an affirmative defense that the Commonwealth must

raise and preserve. Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999).

The Commonwealth has not asserted this defense here. Despite the

Commonwealth’s failure to preserve the issue, this court has the

discretionary power to address a petitioner’s procedural default sua sponte.

Id at 262. However, as we have previously noted:

The exercise of ... discretion should not be automatic, but

must in every case be informed by those factors relevant to

balancing the federal interest in comity and judicial economy

against the petitioner’s substantial interest injustice.

Additionally, the court should consider whether justice

requires that the habeas petitioner be afforded with notice

and a reasonable opportunity to so address the issue of

procedural default. Id. (citation omitted). Roach has not been

provided with an opportunity to address the issue of

procedural default. After consideration of these factors, we

believe the proper course is to decline to address the issue of

procedural default sua sponte, and to address the

proportionality review issue on the merits.

4 See Va. Code Ann. § 17-110.1(c)(1), (2) (Michie 1983).

8a

eo

sentencing bodies in this jurisdiction generally impose the

supreme penalty for comparable or similar crimes, considering

both the crime and the defendant.” Id (citing Jenkins v.

Commonwealth, 423 S.E.2d 360, 371 (Va. 1992)).

In its review of Roach’s direct appeal, the Supreme Court of

Virginia made a comprehensive comparison of the record from

the trial court in this case with the records of other capital

murder cases in Virginia, to determine whether the death

penalty imposed on Roach was excessive or disproportionate

to the penalty imposed for similar crimes. Id. Because Roach’s

jury imposed the death penalty on the basis of the future

dangerousness predicate alone, the court gave particular

consideration to other capital murder cases in which robbery

was the underlying felony and the death penalty was based only

on the future dangerousness predicate.> The court also

reviewed capital murder cases in which robbery was the

underlying offense and a sentence of life imprisonment was

imposed. Id. Based upon its review of the records from these

cases, the court concluded that, while there were exceptions,

juries in Virginia “generally impose the death sentence for

crimes comparable or similar to Roach’s murder of Mrs.

Hughes.” Id. at 114. Therefore, the Supreme Court of Virginia

found the death penalty in this instance to be neither excessive

nor disproportionate to the penalty imposed in comparable

cases. Id.

2.

It is a well-settled proposition that the individual States are not

constitutionally required to provide defendants who have been

convicted of capital crimes with “proportionality reviews” of

their death sentences. Pulley v. Harris, 465 U.S. 37, 50-51

> Those cases were compiled in Yeatts v. Commonwealth, 410 S.E.2d 254,

267-68 (Va. 1991), and supplemented in Chichester v. Commonwealth, 448

S.E.2d 638, 652 (1994). Additionally, the Virginia Supreme Court stated that

it considered v 455 S.E.2d 219 (Va. 1995), and

v. 452 S.E.2d 862 (Va. 1995). Roach v.

Commonwealth at 113.

9a

(1994). It is also generally accepted that federal habeas corpus

relief is unavailable where a petitioner alleges the state court |

incorrectly or inadequately applied state law. See Buchanan v, )

Angelone, 103 F.3d 344, 351 (4th Cir. 1996), aff'd, 118 S.Ct.

757 (1998); Fisher v. Angelone, 163 F.3d 835, 854 (4th Cir.

1998). As we recently reiterated in Fisher, “basic prinaples of

federalism permit us to review only those state court decisions

that implicate federal constitutional rights.” Id. In the present

case, the proportionality review conducted by the Supreme

Court of Virginia was mandated by a Virginia statute, not the

federal constitution. Therefore, absent some specific evidence

that the review procedures employed by that court constituted

an independent violation of the federal constitution, we shall

not entertain Roach’s contention that the state court failed to

follow state law. See id. at 854-55.

Recognizing the limited availability of federal habeas relief,

Roach argues that the proportionality review scheme, as

applied to his case, constitutes an independent violation of the

Due Process Clause of the Fourteenth Amendment. Roach’s

basic argument may be outlined as follows: In order to avoid

arbitrary and capricious sentencing and to ensure that capital

punishment is applied coaisistently and fairly, the Eighth

requires the States to institute procedures that

narrow the class of persons eligible for the death penalty.

v , 408 US. 238 (1972); v

428 US. 153 (1976); Zant v. Stephens, 462 U.S. 862 (1983).

According to Roach, Virginia has decided to review the

proportionality of all death sentences as the means of satisfying

this constitutional requirement. Now that it has elected to

provide proportionality reviews, Roach argues, Virginia must |

do so in accordance with the Due Process Clause. If the State’s

actions do not comport with due process, this Court has the

authonity to intercede.

Roach asserts that, since the reinstatement of the death penalty

in Virginia, the Supreme Court of Virginia has never

overtumed a death sentence. When con its

10a

proportionality review, Roach claims the court only reviews

simular cases where the jury sentenced the defendant to death.

Roach asserts that the court never reviews cases where similar

defendants, convicted of similar crimes, were sentenced to life

imprisonment. Such a system, Roach maintains, is merely a

“rubber stamp” affirmance of the imposition of the death

penalty and not the “comparative analysis” required by the Due

Process

Roach’s assertions directly conflict with the statements made

by the Supreme Court of Virginia regarding the cases it

reviewed. That court stated that it reviewed capital murder

cases in which robbery was the underlying felony and the death

penalty was based only on the future dangerousness predicate.

Roach v. Commonwealth, 468 S.E.2d at 113. Additionally, the

court reviewed the records of capital murder cases where

robbery was the underlying offense and a sentence of life

imprisonment was imposed. Id. In response, Roach simply

maintains that the court could not have reviewed those cases

and affirmed his death sentence.

Put simply, Roach would have this court attempt to” look

behind” the review conducted by the Supreme Court of

Virginia and endeavor to ascertain what that court “really did”

(which, in his view, differs from what the court stated it did).

As we explain below, this would be a virtually impossible task

and the Constitution does not require us to engage in such a

speculative undertaking.

3.

As noted above, this Court does not have the power to

reexamine a state court’s determination of state law. In Walton

v. Anzona, 487 U.S. 639, 655 (1990), the Supreme Court was

presented with a similar challenge to the proportionality review

of the Arizona Supreme Court. The Court held that, where the

statutorily defined aggravating factor had been construed in a

manner that furnished sufficient guidance to the sentencer,

proportionality review was not constitutionally required. Id. at

lla

655-56. In such an instance, the Court could lawfully presume

that the death sentence in question was not” want only and

freakishly imposed” and, therefore, the sentence was not

disproportionate within any recognized meaning of the Eighth

Amendment. Id. The Court found that the Arizona Supreme

Court undertook its proportionality review in good faith and,

held that the Constitution did not require it to look behind the

Arizona Supreme Court’s conclusion that the sentence was

proportional. Id. at 656.

The same rationale is applicable here. In a capital case in

Virginia, the constitutionally mandated narrowing of the class

of persons eligible for the death penalty occurs twice during

the trial process. First, during the guilt phase of the trial, the

jury must decide if the defendant falls within a statutorily

defined class of capital offenders. See ¢.g., Va. Code Ann. §

18.2-31(4) (Michie 1998). Second, during the sentencing phase

of the trial, the jury must unanimously find the presence of an

additional aggravating factor. See Va. Code Ann. § 19.2 - 264.2

(Michie 1977). The Supreme Court has found statutorily

defined aggravating factors to satisfy the

requirement, see Zant v. Stephens, supra, and we have ruled

that Virginia’s future dangerousness predicate is constitutional.

Giarratano v. Procurier, 891 F.2d 483 (4th Cir. 1989).

Therefore, pursuant to Walton v. Arizona, there being no

allegation or indication that the Supreme Court of Virginia

undertook its proportionality review in something other than

“good faith,” we will not look behind its conclusion that the

sentence received by Roach was proportional to sentences

received by similar defendants for similar crimes.* As this

6 We agree with the reasoning of the district court which stated in its

Even assuming that the failure by the Supreme Court of

Virginia to conduct its pro review in a meaningful

manner could, under some circumstances, amount to a

violation of the Fourteenth Amendment, Roach has not

demonstrated that the Supreme Court of Virginia’s review of

12a

eee

court noted in Buchanan v. Angelone, 103 F.3d 344 (4th Cir.

1996), aff'd 118 S.Ct. 757 (1998), “on collateral review, federal

courts are not required to re-examine a state court’s good faith

findings.” Id, at 351 (citing Walton v. Arizona, 497 U.S. at

656). Accordingly, Roach’s assertion of a due process violation

ina eeienelaaaiiecialewe allentiadfaien toy Vecgiain svon

fail, and this court must deny federal habeas relief on this

claim.

B.

Roach next argues that the evidence proffered by the

Commonwealth was insufficient, as a matter of constitutional

right, to support the jury’s finding of future dangerousness. By

allowing the jury to consider this aggravating factor, Roach

maintains, the trial court violated his Fourteenth Amendment

due process rights.

As we explained in Turmer v. Williams, 35 F.3d 872, 894 (4th

Gir. 1994), the sufficiency of the evidence necessary to prove

the existence of an aggravating factor is reviewed under the

standard established by Jackson v. Virginia, 443 U.S. 307

(1979). Under the Jackson standard, a court must determine

“whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements ... beyond a reasonable doubt.” Jackson

at 319.

3.

Roach's sentence was so deficient as to amount to a federal

constitutional violation .... The record thus demonstrates that

the Supreme Court of Virginia conducted a thorough review

of Roach’s sentence in compliance with Virginia law.

Although this court may view the matter differently, it

antennae nats ened bts Gallen ten the donb

sentence was not disproportionate or excessive when

compared to the sentence imposed in similar cases.

Roach v. Angelone, No. 97-0693-R, at 11-12 (W.D. Va. July 29, 1998).

13a

Virginia’s statutory scheme for capital sentencing requires a

jury to find the existence of at least one of two aggravating

conditions before it lawfully may impose the death penalty.

[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

=o mi find that there is a probability that the

defendant would commit criminal acts of violence

that would constitute a serious continuing 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.

Va. Code Ann. § 19.2-264.2 (Michie 1977).’

In the present case, after evidence was presented in the

sentencing phase of the trial, the trial judge determined that the

State had failed to present sufficient evidence to allow the jury

to consider the vileness predicate. Therefore, the trial judge

withdrew the vileness predicate from the jury’s consideration

and permitted the jury to consider only whether the State had

proved beyond a reasonable doubt that Roach represented a

future danger to society.

2.

During the sentencing phase of the trial, the State presented

evidence regarding Roach’s past criminal convictions. That

evidence demonstrated that within a seven-month period prior

to the murder of Mrs. Hughes, Roach had “broken and entered

a private residence, stolen a .357 Magnum pistol from that

dwelling, committed two automobile larcenies, and violated a

condition of his probation” by carrying a shotgun, which he

? See also Va. Code Ann. § 19.264.4(C) (Michie 1980).

14a

|

later used to murder Mrs. Hughes. Roach v. Commonwealth,

468 S.E.2d at 112. Of significance, the jury was also entitled to

consider the evidence regarding the capital offense of which

Roach had been convicted. Murphy v. Commonwealth, 431

S.E.2d 48, 53 (Va. 1993). That evidence was devastating—

Roach murdered Mrs. Hughes with a shotgun as she stood in

the doorway of her own home in order to steal her social

security money and automobile. Roach v. Commonwealth at

112. As the Supreme Court of Virginia noted, under Virgini

law, the facts and circumstances of the capital crime alone may

be sufficient to support a finding of future dangerousness. Id.

This court may not substitute it, view of the evidence for that

of the jury. Tuggle v. Thompson, 57 F. 3d 1356, 1369 (4th

Gir.), vacated on other grounds, 516 U.S. 10 (1995). The

Supreme Court of Virginia concluded that a reasonable jury

could find that, given the evidence of Roach’s

pattern of criminal behavior, culminating in the murder of Mrs.

Hughes, there was a probability that Roach would commit

criminal acts of violence that would constitute a continuing

serious threat to society. Roach v. Commonwealth at 112.

Viewing the evidence in the light most favorable to the

prosecution, the conclusion of the Supreme Court of Virginia

does not constitute an unreasonable application of, or conflict

with, any clearly established federal law as determined by the

Supreme Court of the United States.’ Vv :

143 F.3d at 870. We agree with the Supreme Court of Virginia

and with the district court that the evidence was sufficient to

* After reviewing this claim, Judge Wilson properly concluded:

The court cannot find that the Supreme Court of Virginia’s

conclusion that this evidence, viewed in the light most

federal law as determined by the United States Supreme

Court.

Roach v. Angelone, No. 97-0693-R, at 10-11 (W.D. Va July 29, 1998).

15a

support the finding of future dangerousness. The trial court did

not deprive Roach of any constitutional protections in this

regard.

Cc.

Roach next argues that the trial court erred by failing to

instruct the jury that, if sentenced to life imprisonment, he

would not become eligible for parole for a minimum of

twenty-five years. Roach asserts that this court should extend

the holding of Simmons v. South Carolina, 512 U.S. 154

(1994), to include cases where, if sentenced to life

imprisonment, the defendant remains eligible for parole.

Bs

In Simmons,” the defendant was tried and convicted of capital

murder. Under South Carolina law, the defendant was ineligible

for parole because he had previously pleaded guilty to other

violent offenses. Id. at 156. Following the defendant’s

conviction, the State sought the death penalty based on his

future dangerousness. Id. at 157.

During the penalty phase of the trial, Simmons presented

evidence that the general public apparently i ailiaaned the

meaning of the term “life imprisonment. “ Id. at 159.

According to the evidence presented, the majority of people

believed that if sentenced to life imprisonment in South

Carolina, a convicted murderer would be paroled within twenty

to thirty years. Id. During trial, the judge had refused to give

amy instructions to the jury regarding the defendant’s ineligi-

bility for parole. Id. at 160. Even when the jury inquired as to

whether a sentence of life imprisonment carried with it the

possibility of parole, the trial judge simply instructed the jury

that they were not to concern themselves with parole or parole

9 We have recognized that Justice O’'Connor’s concurring opinion actually

represents the holding in Summons. See Keel v. French, 162 F.3d 263, 269

(4th Cir. 1998); Mu’min v. Pruett, 125 F.3d 192, 199 (4th Cir.), cert. denied ,

118 S.Ct. 438 (1997).

16a

eligibility. Id. Shortly after receiving this additional instruction,

the jury returned with a sentence of death. Id.

In her concurring opinion, Justice O'Connor noted that capital

ing p ings must comport with the requirements of

qolnilastincaiict denen

criminal defendant must be allowed the opportunity to meet

the State’s case against him. Id. at 175. Future dangerousness is

a factor upon which the States may rely in seeking the death

penalty, id.; California v. Ramos, 463 U.S. 992, 1002-03 (1983);

however, where the State seeks to show that the defendant will

be a future danger to society, the presentation of the fact that

the defendant will never be paroled and released into the

general public will often be the only way in which a violent

criminal can successfully meet the State’s case. Id. at 177.

Therefore, the Court ruled, where the defendant is truly

ineligible for parole, the Due Process Clause entitles the

defendant to inform the jury of that fact. Id.

Roach now asserts that the logic of Justice O’Connor’s holding

in Simmons should be extended to circumstances where a

sentence of life imprisonment includes the possibility of parole.

Roach faces a serious problem with this assertion-this court

has repeatedly considered this argument and consistently

rejected it. “As the Supreme Court held, the decision whether

or not to inform the jury of the possibility of the defendant’s

early release is generally left to the States. Simmons at 176. “In

a State in which parole is available, the Constitution does not

require (or preclude) jury consideration of that fact. “ Id.

In Keel v. French, Keel was convicted of capital murder in

North Carolina and sentenced to death. Keel, 162 F.3d at 266.

Keel argued that the trial court’s refusal to instruct the jury

regarding his parole status pursuant to Simmons was a

"0 See Keel v. French, 162 F.3d 263 (4th Cir. 1998); Wilson v. Green, 155

Vv.

F.3d 396 (4th Cir), cert. denied, 119 S.Ct. 536 (1998); Amold v. Evatt, 113

F.3d 1352 (4th Cir. 1997).

17a

violation of his Eighth Amendment nghts. Id. at 270. This

Court, finding that Summons limited the right to receive such

an instruction to those instances where the alternative sentence

is life without the possibility of parole, dismissed the petition.

Id.

The Supreme Court of Virginia also considered this issue on

Roach’s direct appeal. Relying on its prior decision in Joseph v.

Commonwealth, 452 S.E.2d 862 (Va. 1995), the court held that

the Summons rule applied only if the defendant was ineligible

for parole. Because Roach would become eligible for parole in

twenty-five years, the court concluded that he was not entitled

to such an instruction. Roach v. Commonwealth, 468 S.E.2d at

105."

2.

In order to obtain federal habeas relief, Roach must show that

no reasonable jurist could interpret the rule of Simmons as

limited in application to those defendants who are ineligible for

parole under state law. Green, 143 F.3d at 870. Roach simply

cannot make that showing. Had he not been sentenced to

death, Roach would have been eligible for parole in twenty-five

years. Therefore, under this Court’s interpretation and

application of Summons, Roach is not entitled to habeas relief

on this claim.

D.

1! After thoroughly reviewing this issue, the district court stated as follows:

However compelling Roach’s argument that the logic behind

the decision in Simmons applies equally to his case, the court

cannot find that the interpretation of Simmons adopted by

the Supreme Court of Virginia is contrary to, or an

unreasonable application of, clearly established federal law as

determined by the United States Supreme Court.

Roach v. Angelone , No. 97-0693-R, at 7 (WD. Va. July 29, 1998).

18a

eereaciemmaediie

inch neat contests the trie court's jury instruct ion a

the requirement o imity in the ing verdict.” Roach

asserts that the bacumeealhe Gamuten “any decision

you make regarding punishment must be unanimous” was

improper. He argues that it impermissibly shifted the burden of

proof and effectively instructed the jury that, in order to avoid

the imposition of the death penalty, the defendant was required

to persuade all of the jurors that one or more mitigating factors

were applicable. This shifting of the burden of proof, Roach

maintains, is constitutionally defective, and denied him the

right to have all mitigating evidence considered and given

appropriate weight by the jury.

1.

Unfortunately, Roach has a procedural problem with this issue-

-he failed to raise it on his direct appeal to the Supreme Court

of Virginia. The first time Roach asserted this alleged error was

in his state habeas corpus petition. The Supreme Court of

Virginia, relying on its decision in Slayton v. Parrigan, 205 S.

E.2d 680, 682 (Va. 1974), dismissed Roach’s claim as

procedurally barred. Roach v. Netherland, No. 96-2568 (Va.

12 The trial judge instructed the jury:

You have convicted the defendant of an offense which may

be punished by death. You must decide whether the

defendant shall be sentenced to death or to impri

for life .... Before the penalty can be fixed at death, the

Commonwealth must prove beyond a reasonable doubt, the

following aggravating circumstances, that after consideration

the punishment of the defendant at death, but if you believe

from all of the evidence that the death penalty is not

justified, then you shall fix the punishment of the defendant

at ... imprisonment for life .... Amy decision you make

regarding punishment must be unanimous.

19a

April 30, 1997). In Slayton, a prisoner filed a petition for

habeas corpus, alleging ineffective assistance of counsel and an

impermissibly suggestive pretrial identification. Id. at 681. The

sole issue before the Supreme Court of Virginia was whether

the petitioner had standing to attack the allegedly improper

identification in a habeas proceeding where the petitioner did

not assert the defense at trial and did not raise the issue on

direct appeal. Id. Reasoning that “a prisoner is not entitled to

use habeas corpus to circumvent the trial and

processes, “ the court ruled that the petitioner had no such

standing. Id. at 682.

Where a state court expressly denies a claim under a state

al default rule, the defendant is generally precluded

from raising that claim in a federal habeas corpus

Kol 162 Fedo 266 (ating Sawyer v. Whitley, 505 U.S. 333,

338 (1992)). The basis for ce meee me = a

must be an adequate and independent state ground. Coleman

v. Thompson, 501 U.S. 722, 731-32 (1991). “We have

repeatedly recognized that the procedural default rule set forth

in Slayton constitutes an adequate and state law

ground for decision.” Fisher v. Angelone , 163 F. 3d 835, 844

(4th Cir. 1998). Therefore, absent a showing of actual

innocence or cause and prejudice, this claim is procedurally

barred from federal habeas review.

2.

As the district court noted, Roach does not maintain that he is

actually innocent of the murder of Mrs. Hughes. This court,

then, may only inquire as to whether cause and prejudice exists

to excuse a state procedural default, not into whether the state

court property applied its own law. Fisher at 844. Cause exists,

and will serve to excuse the failure to raise a claim during a

state proceeding, where the factual or legal basis for the claim

') See also Mu'min v. Pruett, 125 F.3d 192, 196 (4th Cir), cert. denied 118

S.Ct. 438 (1997); Bennett v. Angelone , 92 F.3d 1336, 1343 (4th Cir. 1996);

Spencer v. Murray, 18 F.3d 229, 232 (4th Cir. 1994).

20a

ner th

was not reasonably available to the claimant at the time of the

state proceeding. McCleskgy v. Zant, 499 U.S. 467, 494(1991).

The basis for Roach’s claim here is that the trial court gave an

erroneous instruction to the jury regarding the requirement of

bases for this claim were available to Roach prior to his direct

appeal. On its face, then, this claim has been

defaulted. Roach, however, attempts to vault this sizable hurdle

by asserting ineffective assistance of appellate counsel as the

cause for his failure to raise this issue on direct Roach’s

argument is not compelling and must be rejected."

3.

In order to prove that he has been denied his Sixth

Amendment right to effective assistance of counsel,

Roach must satisfy the two-prong test set forth in Stri

Washington , 466 U.S. 668 (1984). First, Roach must show that

'* It is axiomatic that before a petitioner may obtain federal habeas relief, he

must first exhaust his state remedies. 28 U.S.CA. § 2254(b)(1) (West 1996).

A dlaim is not exhausted until the petitioner has “fairly presented” his claim

to the state’s highest court. Picard v. Connor, 404 U.S. 270, 275-78 (1971).

The petiti must have presented the substance of the claim, including

the facts underlying the claim, to the state court. Matthews v, Evatt, 105

F.3d 907, 911 (4th Cir. 1997). In this instance, the district court found that

Roach did not present the substance of his claim of ineffective assistance of

counsel to the Supreme Court of Virginia and, therefore, failed to

his state remedies. ingly, the district court concluded, the

claim is procedurally barred from habeas review. See Gray v.

Netherland, 518 U.S. 152, 161-62 (1996).

Although the district court found Roach’s claim of ineffective assistance of

appellate counsel barred from federal review, it went on to address the

merits of the claim. Upon review of the record, we agree with the district

court that this claim is procedurally barred. A contrary conclusion would

the asserted merits of Roach’s ineffective assistance claim and have found

no basis for federal habeas relief.

21a

his counsel’s representation in the appellate proceedings fell

below an objective standard of reasonableness. Id, at 688.

Second, he must show that his attorney’s substandard conduct

prejudiced him to the extent that it deprived him of a fair trial.

Id. at 689. In other words, Roach must demonstrate that, but

for his attorney’s deficient performance, there is a reasonable

probability that the result of the proceedings would have been

different. See id. A reasonable probability is one that

undermines confidence in the outcome of the proceedings. Id.

Roach alleges that his counsel rendered ineffective assistance

when he Gied sesuhe ths allegedly improper jury instruction

on direct appeal before the Supreme Court of Virginia.

According to Roach, this improper instruction violated his

Eighth and Fourteenth Amendment nights under the holdings

of Mills v. Maryland, 486 U.S. 367 (1988), and McCoy v, North

Carolina, 494 U.S. 433 (1990).

In Mills and McCoy, the tral courts instructed their respective

juries that their findings as to mitigating circumstances had to

be unanimous. The Supreme Court found such instructions to

be unconstitutional. Mills at 384; McCoy at 444. Unlike the

present case, however, both Mills and McCoy involved state

sentencing schemes which required the jury to make findings

as to specific mitigating circumstances. Mills at 370; McCoy at

436. A jury instruction tn i 3 the holdings of Mills and

McCoy if there is a “reasonable probability” that the jury

applied the instruction in such a way as to preclude its

consideration of mitigating evidence. Boyde v. California, 494

US. 370, 380(1990).

Unlike the sentencing schemes at issue in Mills and McCoy. the

Virginia sentencing scheme does not require juries to make

findings as to specific mitigating factors. Instead, junes are

instructed to consider all possible mitigating circumstances

before rendering their sentencing decision. Here, the trial Judge

instructed the jury to “consider any evidence presented of

circumstances which ... in fairness or mercy may extenuate or

22a

icitaaaatademaiatiiniiiaia iii disiaidiil

reduce the degree of moral culpability and punishment.”

Additionally, the verdict form provided to the jury indicated

that it must consider all mitigating evidence and it did not limit

the jury’s consideration of that mitigating evidence in any

fashion. Based upon these facts, the district court found it

unlikely that the general unanimity instruction given by the trial

court prevented the jury from considering and giving

appropriate weight to the mitigating evidence. Accordingly, the

district court held that, to the extent the Supreme Court of

Virginia considered the merits of cis claim, its adjudication of

the claim was reasonable under Strickland.

We agree. In the present case, the trial judge instructed the jury

to consider any and all evidence presented in mitigation of the

crime. The verdict form reinforced that instruction. Based

upon those facts, we cannot find a reasonable probability that

the jury applied the general unanimity instruction in such a way

as to preclude its consideration of the mitigating evidence

presented by Roach.

In determining whether petitioner has demonstrated that his

counsel’s representation was inadequate, this court begins with

the strong presumption that counsel’s conduct fell within the

wide range of objectively reasonable conduct. Evans v.

Thompson, 881 F.2d 117, 124 (4th Cir. 1989). Because the jury

instruction in question cannot be said to violate Mills and

McCoy, Roach’s appellate counsel’s failure to raise the issue of

'S In this regard, the district court stated as follows:

The court finds that the instruction, when considered in

conjunction with the verdict form, did not create a

“reasonable probability “ that the jury applied the instruction

in such a way as to preclude its consideration of mitigating

evidence. Accordingly, to the extent that the Supreme Court

of Virginia addressed this claim on the merits, its

adjudication of the claim was reasonable under Strickland.

Roach v. Angelone, No 97-0693-R, at 17-18 (WD. Va. July 29, 1998)

(citation omitted).

23a

the instruction on direct appeal does not fall outside that wide

realm of objectively reasonable professional assistance.

Strickland, 466 U.S. at 689. Therefore, Roach’s claim of

ineffective assistance of appellate counsel fails on its merits,

and it is rejected.

E.

Finally, Roach argues that the procedure employed by the

Commonwealth of Virginia to transfer him from the juvenile

court system into the circuit court system for trial as an adult

violated his Eighth and Fourteenth Amendment rights.

According to Roach, because Virginia’s juvenile transfer

procedure does not mandate a judicial finding that the juvenile

possesses the requisite maturity and moral responsibility to be

tried as an adult, it is unconstitutional.

1.

At the time of Roach’s arrest and indictment, transfers from

the juvenile court system to the county court system were

controlled by Va. Code § 16.1-269."* Under that statute, the

juvenile court was required to determine merely if there were

probable cause to believe the juvenile had committed an

offense that would be a felony had it been committed by an

adult.

In the present case, after the prosecution gave notice of its

intent to try Roach as an adult, a transfer hearing was

conducted in the Greene County Juvenile and Domestic

Relations District Court. Roach v. Commonwealth at 98. The

juvenile court found probable cause to believe that Roach had

committed the crimes and advised the Commonwealth’s

attorney that he could seek indictments against Roach before a

grand jury. Id. The trial court then reviewed the transfer order

under Va. Code § 16.1-269 and found probable cause to

16 Va. Code § 16.1-269 was repealed in 1994 and replaced with a similar

provision. See Va. Code Ann. § 16.1-269.1 (Michie 1997).

24a

believe that Roach had committed the offenses in question. Id.

Subsequently, Roach was indicted, tried, and convicted.

Roach advanced this claim on direct appeal before the

Supreme Court of Virginia. Relying on its previous decisions in

427 S.E.2d 379, 383-84 (Va. 1993),

114 S.Ct. 2701 (1994), afd 450 S.E.2d

vacated and remanded,

361 (Va. 1994), and Thomas v. Commonwealth, 419 S.E.2d

606, 609 (Va. 1992), the Supreme Court of Virginia rejected

Roach’s argument and held that the Commonwealth was not

constitutionally required to provide individualized

consideration of a juvenile’s moral culpability and maturity

under the Virginia transfer statute. Roach v. Commonwealth at

105.

In Thomas, a seventeen-year-old defendant appeared in

murder. Thomas at 607. The defendant and his counsel waived

a preliminary hearing and a transfer hearing in the juvenile

court and the defendant was transferred to stand trial as an

acts in civeust cout. Id st 608. Subsequently, the defendant’s

now counsel, whe moved to semand the proceeding to juvenile

coun for s tell wenaler beuien, bd.sc 60h The trial court

denied the motion to remand and the defendant was tried,

convicted, and sentenced to death. Id. at 608.

On appeal, the Supreme Court of Virginia held that the

Constitution required neither juvenile transfer hearings nor any

other additional procedural safeguards for juveniles tried for

capital crimes. Id. at 609. According to the court, “Virginia’s

death penalty statutes provide for individual consideration of

all those tried on capital charges, with the age of the defendant

at the time ... of the capital offenses’ a statutorily

mitigating factor the jury may consider in determining whether

to fix punishment at death or life imprisonment.”

Va. Code Ann. § 19.2-264.4(B)(v) (Michie 1998).

25a

In Wnght , a seventeen-year-old defendant was transferred

from the juvenile court system to the circuit court, where he

was tried as an adult and convicted of numerous violent

offenses, including capital murder. Wright , 427 S.E.2d at

381-82. After finding the existence of the future dangerousness

predicate, the jury fixed the defendant’s sentence at death. On

appeal, the defendant argued that his Eighth Amendment

nghts had been violated because Virginia’s juvenile transfer

statute did not mandate iandl of his moral

nt 5, and psychological maturity. Id. at 384. Relying on

Wright argued that he was deprived of

the individual consideration required before a state lawfully

may impose the death penalty on a minor. Id. The Supreme

Court of Virginia disagreed. Relying on its previous holding in

Thomas, the court reiterated that the Constitution did not

require juvenile transfer hearings or any other additional

procedural safeguards for juveniles tried for capital offenses,

and that Virginia’s death penalty statutes provided the requisite

individualized consideration demanded by the Constitution. Id.

at 384.

Now, in order to obtain federal habeas relief on this claim,

Roach must demonstrate that these holdings are contrary to or

an unreasonable application of clearly established federal law as

decided by the Supreme Court of the United States. In other

words, Roach must show that the Supreme Court of Virginia

interpreted or applied the precedent of the Supreme Court of

the United States in a manner that reasonable jurists would all

agree is unreasonable. Green v. French, 143 F.3d at 870.

5

According to Roach, in order to pass constitutional muster, a

state’s laws must provide a fair basis for evaluating the

culpability, moral responsibility, and maturity of a juvenile

before referring him for trial and potential punishment as an

adult. In order to make that determination, the State must

provide the juvenile with “individualized consideration.”

26a

aaeeetisininimsaiiaiaiieaiiaiiiiaaiiaiiiniiiaae

Like the defendant in Wright , Roach relies upon Stanford v,

Kentucky , 492 U.S. 361, 375 (1989), is tethers « mg

the Supreme Court has mandated that this individualized

culpability analysis take place prior to a decision to transfer a

juvenile for trial as an adult for a capital offense. Because the

juvenile court did not make such an individualized

determination in the present case, Roach argues, his transfer to

ahit cust Gor eid Hied hie Risheh and Founcauh

Amendment rights.

In our view, Roach’s interpretation of Stanford is ov

bn Sean the Supeesne Court ecidveseed whether the Eight

Amendment prohibited the execution of sixteen- and

seventeen-year-old capital offenders. The Court concluded that

the imposition of capital punishment under these

circumstances did not violate the Eighth Amendment. In the

ice nke ea sa et haga ml Justice Scalia

discussed why state laws denying minors the right to drink

alcoholic beverages, vote, or drive automobiles were

inapplicable to the issue before the Court. Stanford at 374-75.

According to Justice Scalia, capital punishment differs from the

above generalized prohibitions, in that individualized

consideration is a constitutional requirement. Id.

Notwithstanding Roach’s assertions to the contrary, the

Supreme Court simply did not hold that juvenile transfer

statutes which do not provide for individualized consideration

of the minor’s maturity and moral responsibility violate the

Constitution. Rather, Justice Scalia concluded that the transfer

statutes in question " the state courts to make

determinations that ensured individualized consideration of the

maturity and moral responsibility of sixteen- and

seventeen-year-old offenders occurred before those minors

were required to stand trial as adults. Id. at 375. The Supreme

” Only four justices joined in this portion of the opinion.

18 See Ky. Rev. Stat. Ann. § 208.170 (Michie 1982), repealed effective July

15, 1984; and Mo. Rev. State. § 211.071(6) (1986).

27a

Court did not hold thar all juvenile transfer statutes must

Stl oes hnsia Afieeesd ai tte taiedicant oceans oon

minor defendants accused of capital crimes to be

constitutional. Additionally, the Supreme Court did not

proscribe a State from providing individual consideration in

another manner.

In the present case, the Supreme Court of Virginia held that

Virginia’s capital sentencing scheme” satisfied the

constitutional requirement of individual consideration. Roach

v. Commonwealth, 468 S.E.2d at 105.” Because the S

Court did not rule that individual consideration of the

defendant’s maturity and moral responsibility was required at

the juvenile transfer stage, a reasonable jurist could conclude

sus Vissi quntstins salelinaiien Gamdtation daemeh

ingly, Roach cannot meet his burden of proof here. He has not

demonstrated that the Supreme Court of Virginia’s

adjudication of this claim is contrary to or an unreasonable

application of clearly established federal law as decided by the

19 See Va. Code Ann. § 19.2-264.4(B) (Michie 1998), which provides that

the defendant’s age at the time of the offense may be considered as a

mitigating factor by the sentencing jury.

20 Judge Wilson, in his Memorandum Opinion in the district court, agreed,

stating:

Justice Scalia did not state that juvenile transfer statutes

therefore, that the Constitution does not require a judicial

determination of a juvenile offender’s moral culpability and

maturity before the state may try the juvenile as an adult for a

capital crime.... The court concludes that Roach has not

demonstrated that the Supreme Court of Virginia’s

adjudication of this claim conflicted with clearly established

federal law as decided by the United States Supreme Court.

Roach v. Angelone, No. 97-0693-R, at 8-9 (WD. Va July 29, 1998)

(footnotes omitted).

28a

Supreme Court of the United States and, therefore, he does not

qualify for federal habeas relief on this claim.

Ii.

Roach -- who is clearly guilty of committing an egregious

offense against Mrs. Hughes and the peace and dignity of the

Commonwealth of Virginia — has been accorded a full array of

post-conviction remedies. He has, in candor, been provided

with all the process due under our system of justice, by way of

conviction and sentence. Pursuant to the foregoing, we must

conclude that Roach has failed to make a substantial showing

of the denial of a constitutional right and that there is no valid

basis for habeas corpus relief. Roach’s petition for a certificate

of appealability is therefore denied and his appeal of the

decision of the district court is dismissed.

CERTIFICATE OF APPEALABILITY

DENIED AND APPEAL DISMISSED

251 Va. 324; 468 S.E. 2d 98

PRIOR HISTORY. FROM THE CIRCUIT COURT OF

GREENE COUNTY. Lloyd C. Sullenberger, Judge.

DISPOSITION: Affirmed.

COUNSEL: David L. Heilberg (Peter L. McCloud; Boyle, Bain

& Downer, on briefs), for appellant.

Robert B. Beasley, Jr., Assistant Attorney General (James S.

Gilmore, III, Attorney General, on brief), for appellee.

JUDGES: Present: All the Justices. OPINION BY JUSTICE

BARBARA MILANO KEENAN.

OPINIONBY: BARBARA MILANO KEENAN

In this appeal, we review a capital murder conviction and a

death sentence imposed upon Steve Edward Roach for the

murder of Mary Ann Hughes, his 70-year-old neighbor.’

1. PROCEEDINGS

Juvenile petitions were issued against Roach, who was 17

years old at the time of these offenses, charging him with

capital murder, use of a firearm in the commission of murder,

and robbery. The Commonwealth gave notice of intent to try

Roach as ax ails andl aananenaaeaiaeieneiened in the

Greene County Juvenile and Domestic Relations District Court

(the juvenile court). Finding probable cause to believe that

Roach committed the crimes, the juvenile court advised the

Commonwealth’s Attorney that he could seek indictments

against Roach before a grand jury. The circuit court then

! Roach has not appealed his convictions of robbery and use of a firearm in

the commission of murder.

30a

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.

BE

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$5 B.

35

first fa

conducted to Code §§ 19.2-264.3 and -264.

Roach was found guilty as charged in all three indictments.”

Me

‘

te

iL

i

ii

|

4

? Since Roach was a juvenile at the time these offenses were committed, the

pay Ge not, Sx punishment on the non-capieal charges. See Code § 16 i-

3la

We will review the evidence in the light most favorable to the

Carmonuualth, 240 Va.. 26, 42, 393 S.E.2d 599, 608 (1990). On

the evening of December 3, 1993, Mary Ann Hughes was shot

and killed in her home about five miles west of Stanardsville.

In the early morning hours of December 4, 1993, Gregory

Lee Giuriceo, Jr., a deputy sheriff for Nottoway County,

noticed a Buick Regal parked in a parking lot of a shopping

32a

center in Blackstone. Roach was identified by Giuriceo as the

operator of the car. After leaving the parking lot, Giuriceo

determined that the automobile was registered to Hughes.

Later in the morning of December 4, 1993, Roach attempted

to use Hughes’s Discover bank card at an automated teller

machine in Louisburg, North Carolina. A video tape from the

machine showed Roach attempting to withdraw cash from

Hughes’s account.

On December 5, 1993, Trooper David F. Chavis of the

South Carolina Highway Patrol observed a 1981 Buick Regal

automobile with Virginia plates which was being driven at 69

R

7

e

gr

store. Mahlon Jones, a fingerprint expert employed by the

Commonwealth’s Division of Forensic Science, identified a

Roach made several telephone calls to his aunt, Annie Betty

Dean, while he was in North Carolina and South Carolina.

During those telephone conversations, she asked him to “come

home and give [himself] up.” On December 6, 1993, Roach

contacted Sheriff William L. Morris and arranged to come that

day with his father to the Sheriff's Department for questioning.

33a

Miranda rights in the presence of Roach’s father. Roach waived

and both he and his father signed the waiver form.

Morris then questioned Roach out of his father’s

presence. Clarence Roberts, an acquaintance of the Roach

hs

S

family and an employee of the Department of Alcoholic

Beverage Control, was present with Morris during the

interview.

————~—— Ar the Sheriff's" Department, Morris advised Roach of his ——_ —

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I went over there and saw her counting the money

and as I was leaving, I had the shotgun laying at

the door and I shot her, took the money, the car

and left, went to North Carolina. And I cashed ~ I

tried to use - use the credit card but — about four

tumes[,] but it wouldn’t work.

When asked where he shot Hughes, he answered, “In the

chest.”

At trial, Roach offered evidence that there was no gunshot

residue on his hands or clothes when he was arrested. He also

presented evidence that no footprints at the scene of the crime

matched the shoes he was wearing on December 3, 1993. In

Division of Forensic Science in the analysis of blood and body

fluid, testified that, when Roach was arrested, he had no blood

on his clothing, except a “very light stain” on his shirt, despite

the fact that the fatal wound perforated one of Hughes’s

arteries and the pattern of blood splatters indicated that the

person who had fired the gun was standing within five feet of

Hughes.

Penalty Phase

During the penalty phase of the trial, the Commonwealth put

on evidence of Roach’s prior Juvenile convictions. Roach had

been convicted twice of grand larceny of an automobile. He

commutted the first larceny in May 1993 and the second in

August 1993. In connection with the first automobile larceny,

Roach was convicted of reckless driving and failure to stop for

a police officer.

In June 1993, Roach was convicted of breaking and entering

a residential dwelling and of grand larceny arising out of the

burglary. Roach gained entry to the home by breaking a

window. He then ransacked the house and stole a .357

35a

In August 1993, Roach was sentenced to supervised

probation and house arrest under the supervision of his

parents at all times. He violated the conditions of this

probation when he left the family home and carried a weapon.

When Roach was placed on probation in August 1993, a

psychological evaluation was ordered. The psychologist

recommended that Roach and his family attend family

ing and that Roach increase his level of academic

attainment. Roach had stopped attending school in 1991 when

he was 14 years old.”

According to John T. Frey, Roach’s probation officer, Roach

and his family attended counseling sessions at the regional

counseling center prior to December 1993. Roach also onde

in G.E.D. classes in the adult education program offered by

Greene County.

Shirley Ann Roach, Roach’s mother, testified that she and

Roach’s father had separated and reconciled their marriage four

times during Roach’s childhood. She testified that she and her

husband requested that Roach be released because he was

needed around the house to do chores and to care for his

brothers. She also stated that she did not realize that possessing

a weapon violated the terms of Roach’s probation because the

probation papers did not explicitly state this fact.

John Roach, Roach’s father, testified that he was

absent from home. He also suffered from significant health

problems. When Steve Roach was six years old, John Roach

sustained a shotgun injury which required him to remain in the

hospital for six months. While being treated for the gunshot

wound, he contracted Hepatitis C from a blood transfusion.

The medication he received for this condition caused mood

changes.

36a

John Roach testified that, when his wife left him, life “got

worse” for his children. He began drinking heavily and brought

young girls into the house in order to make his wife jealous. He

stated that the children were present when this occurred and

that they did not receive parental supervision. He also stated

that Steve Roach had free access to all the guns in the house.

Several family friends and relatives testified on Steve Roach’s

behalf. Clarence Roberts testified that Roach had performed

numerous “odd jobs” for him, and that Roach was “an

excellent employee.” Tammy Estes, Roach’s half sister, stated

that Roach often helped his neighbors, including Hughes, cut

firewood, cook, and clean their laundry.

Wendell Lamb, the pastor of Roach’s church, testified that

Roach volunteered his time to help paint and remodel the

church and to work at a camp for children in the George

Washington National Forest. Lamb conceded that, while

Roach was doing volunteer work for the church, he was

accused of stealing a watch. Roach and the owner of the watch

resolved the dispute privately.

Roach testified on his own behalf. He stated that, shortly

after 9:00 p.m. on December 3, 1993, he walked to Hughes’s

house with his shotgun. When she opened the door, he fired

once, walked past her body, and took her purse and the keys to

her car. He stated that he then drove to North Carolina and

attempted to use her Discover credit card to get cash. Roach

testified that he did not know Hughes had died until he spoke

by telephone with his aunt.

Roach also testified that, when he went to Hughes’s house,

he knew she had just received her social security check, knew

the location of her purse, and intended to steal both items.

However, he stated that he did not intend to hurt her, and that

he could not explain “what went . . . through [his] mind.” He

also testified that he was sorry he had killed Hughes, stating, “I

wish I could bring her back.”

37a

Dr. Gary Lee Hawk, a forensic psychologist appointed by the

court, testified concerning his evaluation of Roach. Hawk met

with Roach on six different occasions and spoke with Roach’s

parents and other family members. Hawk determined that

Roach was of average intelligence and had mild i

symptoms. Hawk found no indication that Roach had suffered

any brain injury. He also found no evidence that Roach

suffered from any serious mental illness.

Hawk testified that Roach lied to him about a number of

things and gave him four different versions of what happened

on December 3, 1993. He also stated that Roach was

“particularly immature” for his age. Hawk concluded that

Roach had poor “impulse control” and “did not show very

good ability in many situations to control his emotions or

behavior like seventeen-year-old oor eighteen-year-old

individuals should do.”

Hawk related Roach’s immaturity to the fact that he did not

get the guidance and the structure that children need to mature.

Hawk further stated that Roach’s probation violation for

carrying a weapon was a result of this lack of structure and

supervision. He also testified that there was no pattern of

violent behavior in Roach’s life.

Hawk stated that, in psychological terms, Roach’s act of

killing a friend arose from the fact that “adolescents in conflict,

adolescents in turmoil frequently express extremely strong and

angry emotions with very litle provocation . . . If it’s an

isnmenese eilolescent, thet sort of section is move exaseme.”

Hawk stated that “displacement of emotion” occurs when one

person or situation makes a person angry, but the feelings and

anger are expressed toward someone else

Hawk stated, “Knowing that this was a woman that [Roach]

was close to, and knowing that there was not an existing

pattern of this sort of violent offending, and considering what

38a

he told me, it’s dynamics like that [whi ] would explain [the

murder] in psychological terms.” In addition, Hawk testified

that, “in terms of normal development,” Impulsiveness

diminishes and “doesn’t cause problems for the person.”

Ill. ARGUMENTS WAIVED

Because Roach did not address in his briefs assignments of

error 15(c), 16(f), and 16(h), he is deemed to have waived

them.’ Rule 5:27. Also, since Roach did not ask the trial court

to strike certain prospective jurors for cause, after they heard

another prospective juror state a belief that Roach was guilty,

he has waived this objection to the empanelment of those

jurors. Rule 5:25.*

IV. ISSUES PREVIOUSLY DECIDED

Roach has advanced a number of arguments that we have

rejected in previous decisions. Finding no reason to modify our

expressed views, we will reaffirm our earlier

decisions and reject the following contentions:

> These assignments of error are:

15(c): Virginia’s juvenile transfer statute is unconstitutional as applied.

16(f): The trial court erred in overruling the motion to prohibit the

imposition of the death penalty and to strike the capital murder charge on

the grounds that the post-sentence report infringes upon the defendant’s

rights to due process, to confront his accusers, to be free from cruel and

unusual punishment, and to effective assistance of counsel.

16(h): Virginia’s death penalty statutes as administered deny capital

defendants effective assistance

* Roach has also argued that he received ineffective assistance of counsel

during voir dire based on this occurrence. However, such a claim is not

reviewable on direct appeal. Walker v. Mitchell, 224 Va. 568, 570, 299 S.E.2d

698, 699 (1983); Browning. Commrnuealth, 19 Va.. App. 295, 297, n.2, 452

S.E. 2d3 60, 362, n.2 (1994); see Acts 1990, ch.74.

39a

A. The denial of a jury instruction that Roach would be

to serve a minimum of twenty-five years before

becoming eligible for parole. In Joseph u. eee 249 Va.

78, 84, 452 S. E. 2d 862, 866, cert. denied, _US.__, 116

S.Ct. 204 (1995), we held that such an instrument is not

available to defendants who will be eligible for parole at a

future date.

B. The trial court’s refusal to limit evidence of juvenile and

unadjudicated crimes as background evidence at sentencing.

Rejected in Beaver v. Commonunlth, 232 Va.. 521, 528-29, 352

S.E.2d 342, 346-47, cert. denied, 483 U.S. 1033 (1987).

C. The Virginia transfer statute does not provide indi-

vidualized consideration of a juvenile’s moral culpability and

maturity. Rejected in Wright v. Commonmenlth, 245 Va. 177, 182-

83, 427 S.E.2d 379, 383-84 (1993), vacated and remanded, _

US. _, 114 S.Ct. 2701 (1994), aff'd, 248 Va.. 485, 450 S.E.2d

361 (1994), cert. denied, US. _, 115 S.Ct. 1800 (1995); Thomas

au Commonualth, 244 Va.. 1, 7, 419 S.E.2d 606, 609, cert.

denied, 506 US. 958, 121 L. Ed. 2d 343, 113 S.Ct. 421 (1992).

D. The sentencing verdict form prescribed by Code §

19.2-264(D) po the jury’s option of imposing a life

sentence unconstitutionally vague and obscures mitigation

evidence. We rejected these contentions in Stocktm uv.

Commaonuealth, 241 Va. 192, 215, 402 S.E.2d 196, 209, cert.

denied, 502 U.S. 902, 116 L. Ed. 2d 231, 112 S.Ct. 280 (1991),

and in Le Vasseur v. Commornuealth, 225 1b. 564, 594-95, 304 S.E.

2d 644, 661 (1983), cert. denied, 464 U.S. 1063, 79 L. Ed. 2d

202, 104 S.Ct. 744 (1984). Thus, we find no error in the trial

court’s refusal to substitute Roach’s proposed verdict form for

the statutory sentencing verdict form.

E. The death penalty statutes do not give meaningful

guidance to jurors that they may impose a death sentence only

Y thay dnurine seven 4 sansaaite dnc ik cae

40a

circumstances outweigh mitigating ones. Rejected in Bread uv.

Cammonumalth, 248 Va.. 68, 74, 445 S. E. 2d 670, 674-75, cert.

denied, US. __, 115 S.Qe 442 (1994); Watkins u

229 Va.. 469, 490-91, 331 S. E. 2d 422, 438

(1985), cert. denied, 475 U.S. 1099, 89 L. Ed. 2d 903, 106 S.Cz

1503 (1986).

F. Code § 19.2-264.4(C) violates the defendant’s rights under

the Eighth and Fourteenth Amendments to the United States

Constitution because the jury may find future dangerousness

based upon umnadjudicated crimes. Rejected in FEums u

Conmunseath, 222 Va 766, 770, 284 S.E.2d 816, 817-18 (1981),

cert. denied, 455 U.S. 1038 (1982); see also Watkins v.

Commarmealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989), cert.

denied, 494 U S. 1074, 108 L. Ed. 2d 798, 110 S.Ct. 179 7

(1990).

G. The capital murder and death penalty statutes as

administered are unconstitutional for every reason cited by the

majority in Furman. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92

S.Ct. 2726 (1972): In Fitzgerald v. Commormealth, 223 Va. 615,

635-36, 292 S.E. 2d 798, 810 (1982), cert. denied, 459 US. 1228

(1983), we held that the Virginia capital murder statutes

eliminated the constitutional violations identified in Furman.

Further, in Clark v. Commormualth; 220 Va. 201, 212, 257 S.E.2d

784, 791 (1979), cert. denied, 444 — 1049 ta we rejected

the argument that the Virgi penalty sentencing statutes

violated the restrictions o cote arora

H. The death penalty statutes deny defendants meaningful

appellate review and deny defendants equal protection of the

law and due process of law because of the single tier of

appellate review of death sentences. Rejected in Paye v,

Cammonunalth, 233 Va. 460, 473-74, 357 S.E.2d 500, 508, cert.

denied, 484 U.S. 933 (1987).

V. PRETRIAL MATTERS

4la

A. Juvenile Court Issues

Roach contends that the statutes defining the authority of

juvenile court intake officers violate the separation of powers

clauses of the Virginia Constitution, Art. I, § 5 and Art. II], § 1.

He asserts that, since intake officers are employees of the

Department of Youth and Family Services, an executive

agency, they are constitutionally prohibited from exercising the

Initially, we note that statutes are presumed to comply with

the Virginia and United States Constitutions and will be

declared unconstitutional only when their provisions plainly

violate either document. Etheridge v. Medical Or Hosp., 237 Va.

87, 94, 376 S. E. 2d 525, 528 (1989). In Winchester & Strashag

RR. u Commonuelth, 106 Va. 264, 55 S.E. 692 (1906), we

stated that the separation of the executive, judicial, and

legislative branches of government is “indispensable to public

liberty.” However, we emphasized that the separation required

by the Virginia Constitution is not an absolute separation. We

held that the branches of government need not “be kept

wholly and entirely separate and distinct, and have no common

link or dependence. . . The true meaning is that the whole

power of one of these departments should not be exercised by

the same hands which possess the whole power of either of the

other departments.” Id. at 270, 55 S.E. at 694 (citations

omitted).

The juvenile and domestic relations district court judges

share appointment, assignment, and discharge powers over the

intake officers with the Department of Youth and Family

Services. See Code §§ 16.1-233 and -235. In filing a petition to

initiate a criminal case, the intake officer makes a determination

that there is probable cause to believe that a juvenile has

committed a criminal_offense. See Code § 16.1-260. However,

the juvenile and domestic relations district “~ not the

_ Department of Youth and Family Services, has original

42a

erent ty freer ra br dpe Laney a

a petition does not divest the juvenile and domestic relations

district court of jurisdiction over the juvenile. Code §

16.1-260(G).

Thus, juvenile intake officers do not exercise the whole

power of the judiciary. Because such officers exercise only a

limited judicial function, and the juvenile and domestic

relations district court retains actual control over the juveniles,

we conclude that the intake officer’s authority to issue criminal

petitions does not violate the separation of powers guaranteed

by the Virginia Constitution.

Next, Roach argues that the circuit court acquired ju

dediclon:en toy kite cnly Set the lester incladed ellsass of fen

a er He asserts that, since the juvenile court did not

render a probable cause determination concerning the presence

of aggravating circumstances supporting imposition of the

death penalty, the circuit court did not acquire jurisdiction to

impose the death penalty. We disagree.

Before Roach could be transferred to the circuit court for

trial as an adult, the juvenile court was required by former

Code § 16.1-269 (now § 16.1-269.1) to determine whether

there was probable cause to believe that he committed an

offense which would be a felony had it been committed by an

adult. The aggravating circumstances required for i

of the death penalty are not elements of the crime of capital

murder. They relate only to the punishment authorized after

conviction of the offense. Therefore, the juvenile court was not

required to make a probable cause determination of the

sufficiency of the evidence in support of the statutory

predicates for imposition of the death penalty.

B. Bill of Particulars

43a

Roach filed a motion for a bill of particulars.” The trial court

granted the motion with mS pee to paragraph (f) J yy

unadjudicated ions 0

circumstances of the offense [the Paced terae

are relevant to proof of the [future dangerousness] factor.”

The court denied the balance of the motion. Roach argues that

the trial court’s denial of the remaining parts of the motion

constitutes error based on the gravity of the penalty sought. We

disagree.

5 The motion for. a bill of particulars requested that the trial court enter an

order directing the Commonwealth:

a) To identify the grounds, and all of them, on which it contends that

defendant is guilty of Capital Murder under Va. Code Ann. [ § } 18.2-3 1.

b) To identify the evidence, and all of it, upon which it intends to rely in

seeking a conviction of Defendant upon the charge of Capital Murder.

c) To identify the aggravating factors, if any, upon which it intends to rely in

seeking the death penalty, should defendant be convicted of Capital

d) If the response to (c) includes statement that Commonwealth intends to

prove the “vileness” factor as set out in Va. Code Ann. § 19.2-264.4C, to

identify as many of the components of the factor, torture, depravity of

mind, aggravated battery on which it intends to offer evidence.

e) If the response to (c) include statements that Commonwealth intends to

prove the “vileness” factor as set out in Va. Code Ann. § 19.2-264.4C, to

identify every narrowing construction of that factor on which it intends to

offer evidence.

f) If the response to (c) include statements that the Commonwealth intends

to use to prove the “future dangerousness” factor as set out in Va. Code

Ann. § 19.2-264.4C, to identify any unadjudicated allegations of misconduct

by defendant upon which it intends to offer evidence and any circumstances

of the offense it contends are relevant to proof of the factor.

g) To identify the evidence, and all of it, on which it intends to rely in

support of the aggravating factors identified, and all other evidence which it

intends to introduce in support of its contention that death is the

appropriate punishment for this Defendant.

44a

A defendant is not entitled to a bill of particulars as a matter

of right. Code § 19.2-230 provides that a court “may direct the

filing of a bill of waniedata? Thus, the trial court has

discretion whether to require the Commonwealth to file a bill

of particulars. Quesinhery v. Commonuulth, 241 Va. 364, 372,

402 S.E.2d 218, 223, cert. denied, 502 U.S. 834, 116 L. Ed. 2d

82, 112 S.C. 113 (1991).

If the indictment gives a defendant sufficient “notice of the

nasure and character of the offense charged 20 he can make his

defense,” no bill of particulars is required* Wilder u

Cormormmalth, 217 Va.. 145, 147, 225 S.E.2d 411, 413 (1976).

The indictment in this case met that standard. Therefore, the

trial court did not abuse its discretion in denying the balance of

Roach’s motion. See Strickler v. Commonuaulth, 241 Va. 482,

490, 404 S. E. 2d 22 7, 233, cert. denied, 502 U S. 944 (1991).

C. Voluntariness of Roach’s Confession

Roach argues that the trial court erred in refusing to suppress

his confession as being involuntary “for purposes of exposing

him to the death penalty.” Roach asserts that his waiver of

induced by Sheriff Morris’s allegedly misleading remarks such

as “the truth is so very, very important to you, to us and to

premeditated killi Mary

robbery while armed-with a deadly weapon, which offense is punishable as

a felony in violation of Section 18.231(4) of the Code of Virginia.”

45a

In assessing the voluntariness of Roach’s statement, we apply

a well-established standard of review. In Gray v. Commmaualth,

233 Va. 313, 356 S.E.2d 157, cert. denied, 484 U.S. 873, 98 L.

Ed. 2d 158, 108 S.Ct. 207 (1987), we said:

A defendant’s waiver of his Miranda rights is valid

only if the waiver is made knowingly, voluntarily

and intelligently, Miranda, 384 U.S. at 475. Whether

a statement is voluntary is ultimately a legal rather

than factual question. See Miller v. Fenton, 474 U.S.

104, 110, 106 S.Ct. 445, 450, 88 L. Ed 2d 405

(1985). Subsidiary factual questions, however, are

entitled to a presumption of correctness.. Id. a

112, 106 S.Ct. at 451. The test to be applied in

determining voluntariness is whether the statement

is the “product of an essentially free and

unconstrained choice by its maker,” or whether

the maker’s will “has been overborne and his

capacity for self-determination critically impaired.”

Schneckloth v. Bustamonte, 412 US. 218, 225, 36 L.

Ed. 2d 854, 93 S.Ct. 2041 (1973). In determining

whether a defendant’s will has been overborne,

courts look to “the totality of all the surrounding

circumstances,” id. at 226, including the

defendant’s background and experience and the

conduct of the police, Correll v. Cammonmaulth, 232

Va. 454, 464, 352 S.E.2d 352, 357 (1987); Stockton,

227 Va. at 140, 314 S. E. 2d at 381. Id. at 324, 356

S.E.2d at 163.

The record shows that Roach was of average intelligence, and

that he telephoned Sheriff Morris to initiate the questioning.

Prior to the interrogation, Morris advised Roach and Roach’s

father of Roach’s Miranda rights. Although John Roach was

not present during the interrogation, both he and Steve Roach

signed the waiver forms. During the interrogation, there was

no mention of the death penalty at any time. Roach stated to

46a

Morris that he was making the statements of his own free will,

without pressure of threats or promises.

We also consider the factual findings made by the trial court.

The trial court found that Roach “was not intoxicated [and]

understood his surroundings and the questions asked of him.”

The court found that the interrogation atmosphere was not

coercive and that Roach had not been threatened in any way

The cout Gund den dep eanmntien to tendon eibehs oak

did not overbear Roach’s will. Because these factual findings

in our determination whether Roach’s statements were

voluntary. Miller v. Fenton, 474 US. 104, 112, 88 L. Ed. 2d 405,

106 S.Cx. 445 (1985).

Based on the above evidence and findings, we hold that

Roach’s statements were voluntary, No threats or promises

were made to induce the confession and there is no evidence

Par ma tnt near maps gp Sp

ne

eee

because of any evidence of bias for or against the accused or

the prosecution.”

ms. pagers ise exists that a defendant can receive a fair trial

the jurisdiction in which the offense occurred. Stockton, 227

Va at 137, 314 S.E.2d at 380. In order to overcome this

presumption, a defendant must demonstrate that the citizens

of the jurisdiction feel such prejudice against the defendant as

is reasonably certain to prevent a fair trial. Id. Further, the

decision whether to grant a change of venue lies within the

sound discretion of the trial court. George v. Cormanvanlth, 242

Va.. 264, 2 74, 411 S. E. 2d 12, 18, cert. denied, 503 U.S. 973,

118 L. Ed. 2d 308, 112 S.C 191 (1992).

The fact that there have been media reports about the

accused and the crime does not necessarily require a change of

venue. Buchanan v. Commonunulth, 238 Va. 389, 407, 384 S.E.2d

757, 767-68 (1989), cert. denied, 493 US. 1063, 107 L. Ed. 2d

963, 110 S.Ct. 880 (1990). Another significant factor the trial

court must consider is “the difficulty encountered in selecting a

jury.” Mueller v. Commomnuealth, 244 Va. 386, 398, 422 S.E.2d

380, 388 (1992), cert. denied, 507 US. 1043, 123 L. Ed. 2d 498,

113 S.Ce. 1880 (1993).

Roach did not overcome the presumption that he could

receive a fair trial in Greene County. He concedes that only six

members of the jury pool were so prejudiced by media

coverage that they could not give him a fair trial. Given the

relative ease with which the jury was selected, we hold that the

trial court did not abuse its discretion in denying Roach’s

motion for a change of venue.

E. Jury Selection

Roach next argues that the trial court erred in refusing to

strike for cause juror Breeden. During voir dire, juror Breeden

testified that Daniel Bouton, the Commonwealth’s Attorney,

formerly had represented him in a legal matter. Although

48a

ORL IROL Sp APP ARG GOA OM A TD

Bouton was not representing Breeden in any matter at the time

of trial, Breeden stated that he would regard Bouton as his per-

sonal attorney. Breeden also testified that his former

connection with Bouton would not affect his ability to be

impartial. Roach argues that this relationship presented an

inherent ‘conflict, and that Breeden was more likely to be

influenced by Bouton’s closing argument because he was

accustomed to looking to Bouton for legal guidance.

The trial court’s decision whether to strike a juror for cause is

a matter submitted to its discretion and will not be disturbed

on appeal unless the refusal constitutes manifest error.

Stockton, 241 Va.. at 200, 402 S.E. 2d at 200. Further, in

Calhoun v. Commonualth, 226 Va. 256, 263, 307 S. E. 2d 8%6,

900 (1983), we refused to adopt a per se rule disqualifying a

juror solely because the juror had been represented by the

Commonwealth’s Attorney at some time in the past.

In the present case, the trial court had the opportunity to

observe Breeden’s demeanor when evaluating his statement

that his ability to be impartial would not be affected by his

former association with Bouton. Nothing in the record

suggests that the trial court abused its discretion in accepting

Breeden’s statement that he could be impartial in the tral of

the case. Thus, we find no merit in Roach’s argument.’

VI. GUILT PHASE ISSUES

Roach argues that the trial court erred in refusing to set aside

the verdict of capital murder based on the alleged absence of

evidence corroborating his confession that he was the

“triggerman.” Roach asserts that his confession was inadequate

as a matter of law to establish that he was the immediate

7 We also find no merit in Roach’s claim that his Fourteenth Amendment

rights were violated by the trial court’s refusal to strike Breeden for cause.

The record before us offers no support for such a claim.

49a

perpetrator of the killing. In addition, Roach argues that the

trial court erred in failing to instruct the jury that the

“triggerman” portion of his confession had to be corroborated

before he could be convicted of capital murder. He also assigns

as error the court’s refusal of an instruction defining a principal

in the second degree, as well as its refusal of an instruction that

only the immediate perpetrator of a killing can be convicted of

capital murder. We disagree with the above assertions.

The Commonwealth need not corroborate an entire

confession, but it must corroborate the elements of the corpus

delicti. Watkins, 238 Va.. at 348, 385 S.E.2d at 54. In the

present case, the Commonwealth met its burden of

corroborating the corpus delicti of capital murder.

The corpus delicti of a homicide consists of “proof of the

victim’s death from the criminal act or agency of another

person.” Swam v. Commonunilth, 247 Va. 222, 236, 441 S.E.2d

195, 205, cert. denied, 115 S.Ct. 234 (1994). The testimony of

Dr. Kay, the medical examiner, established that Hughes died

from a shotgun wound to the chest. There was no evidence

that the wound was self-inflicted. Further, the Commonwealth

produced evidence which tended to corroborate that Roach

was the “triggerman” in the killing.

The Commonwealth showed that Roach owned a 12 gauge

shotgun and that he had shot number eight shot from it the

day before the murder. The shot and wadding retrieved from

Hughes’s chest were consistent with the type used in Roach’s

weapon. The Commonwealth also produced evidence taken

from Hughes’s car including a number eight shot shell casing,

as well as latent fingerprints which matched Roach’s

fingerprints.

The corpus delicti of robbery, the predicate offense of_this

capital murder charge, was also corroborated by evidence

independent of Roach’s confession. The autopsy report

revealed evidence of violent force used on Hughes, and the

50a

videotape from the automatic teller machine showed Roach

attempting to use Hughes’s credit card. Further, as stated

above, latent fingerprints matching Roach’s fingerprints were

found in Hughes’s vehicle, which was taken from the murder

scene.

Since the Commonwealth sufficiently corroborated the

corpus delicti of capital murder, the trial court did not err in

denying Roach’s motion to set aside the verdict. Likewise, the

court did not err in failing to instruct the jury that Roach’s

confession that he was the “triggerman” must be corroborated

since the court had already correctly determined, as a matter of

law, that the confession was sufficiently corroborated to go to

the jury. See Watkins, 238 Va. at 350-51, 385 S. E. 2d at 55.

_ Finally, there was no error in the trial court’s refusal to give a

jury instruction that only the immediate perpetrator of the

+ Sogectner ne omer ran: Cer Iomarse gual ts There was no

evidence that Roach acted with an accomplice other than the

first version of his confession, which he later recanted. Also,

since his theory that an other person was the triggerman was

unsupported by the evidence, Roach was not entitled to an

instruction defining a principal in the second degree. See Eaton

a Commonuealth, 240 Va. 236, 255, 397 S. E. 2d 385, 397 (1990),

cert. denied, 502 US. 824, 116 L. Ed. 2d 60, 112 S.Ct. 88 (1991).

Vil. PENALTY PHASE ISSUES

Juror Question

Roach contends that the jury prematurely began deliberations

during the penalty phase of the trial. In support of his claim, he

notes that, after the jury had been instructed but before it

began deliberating, one juror asked the trial court, “Does life in

prison mean with no chance of parole or truly life in prison, or

is he eligible for parole?”

5la

At this point, Roach’s counsel informed the trial court that

“unless the possibility can be excluded that this question

originated solely with one juror, the defense would

move for a mistrial.” The trial court declined to question the

jury on the matter, but gave the jury an additional instruction

stating, “Having found the defendant guilty, you should impose

such punishment as you feel is just under the evidence and

within the instructions of the Court. You are not to concern

yourself with what may happen afterwards.”

We find no merit in Roach’s claim. The question posed by

the individual juror does not indicate that the jury had begun

deliberating Roach’s penalty. Thus, the trial court did not abuse

its discretion in denying the mistrial motion.

Jury Instructions

Roach argues that the trial court erred in refusing to instruct

the jury on the meaning of the word “probability,” in the

ciwtext of the “future dangerousness” provision of Code §

19.2-264.2. We disagree. In Mickens v. Commonwealth, 247 Va.

395, 403, 442 S.E.2d 678, 684, vacated on other grounds, 513

US. _, 115 S.Ge 307 (1994), we held that the word

“probability,” as it appears in the statutory context of the

“future dangerousness” predicate, is not ambiguous. Therefore,

Roach was not entitled to a jury instruction defining that word.

See Lousi v. Commonuzalth, 212 Va.. 848, 850, 188 S. E. 2d 206,

207, 208 (1972).

Roach next asserts that he was denied his Fourteenth

Amendment right of equal protection, because he was refused

an instruction informing the jury that, if he received a life

sentence on the capital murder charge, he would not be eligible

for parole for 25 years. In contrast, Roach argues, certain

“adjudicated recidivists” are entitled to an instruction

informing the jury that they would be ineligible for parole if

given a life sentence for the same offense. See Sammons v. South

Carolina, 512 U.S. 2198 (1994).

52a

As stated above, in applying the rule of Simmons, this Court

has held that a defendant charged with capital murder is

entitled to an instruction regarding parole eligibility only when

(1) the defendant’s future dangerousness is in issue, and (2) the

defendant is ineligible for parole at the time he is sentenced on

the capital murder charge. Wright, 248 Va. at 487, 450 S.E.2d at

362. Since Roach does not contend that he was ineligible for

parole when he was sentenced, he was not entitled to an

instruction regarding parole eligibility. Moreover, Roach has

not suffered a denial of equal protection from the refusal of

such an instruction, because a non-suspect classification is

involved here and that classification “rationally advances a

reasonable and identifiable governmental objective.” Sdxeeiker

u Wilson, 450 U.S. 221, 235, 67L. Ed. 2d 186, 101 S.Ct 1074

(1981); see Evans, 228 Va. at 481, 323 S.E.2d at 122.

When a “recidivist” is ineligible for parole at the time of

sentencing on a capital murder charge, this fact is relevant to

the issue whether “there is a probability that the defendant

would commit criminal acts of violence that would constitute a

continuing serious threat to society.” See Code § 19.2-264.2()).

In contrast, the fact that Roach would be eligible for parole in

25 years is not probative of this issue. This fact could do

nothing more than invite the jury to speculate on the effect in-

carceration might have on Roach. The elimination of such

improper speculation provides a rational basis supporting the

denial of the requested instruction. Thus, Roach’s equal

protection claim fails. See Sdnweiker at 235.

Standard of Proof for Future Dangerousness

Roach argues that, because this Court has never reversed a

death sentence based on insufficiency of evidence of “future

dangerousness,” “Virginia cases articulate no standards to

confine the reach of” that sentencing factor. Roach contends

that such standards must be articulated.

53a

We disagree, because the conclusion Roach urges ignores the

central purpose of Code § 19.2-264.2, that of individualized

consideration of the defendant and the crime committed.

Under the direction of Code § 19.2 -264.2, the trier of fact may

not impose the death penalty unless it finds “future

dangerousness” beyond a_ reason-able doubt, upon

consideration of all relevant evidence of the defendant’s

background, as well as the crime for which the defendant is

being sentenced. This individualized consideration necessarily

precludes the articulation of precise requirements for a finding

of “future dangerousness.” Moreover, a defendant is protected

from an unsupported finding of “future dangerousness” by the

right to appellate review of the sufficiency of the evidence in

support of that finding.

Sufficiency of Evidence of “Future Dangerousness”

Under Code § 19.2-264.2, the death penalty may not be

imposed unless the trier of fact shall find one or both of two

aggravating factors we have referred to as “future

dangerousness” and “vileness.” Yeats v. Commonwealth, 242 Va.

121, 139, 410 S.E.2d 254, 265 (1991), cert. denied, 503 U.S.

946, 117 L. Ed. 2d 639, 112 S.Ct. 1500 (1992). In the present

case, the jury found “future dangerousness,” meaning “there is

a probability that [Roach] would commit criminal acts of

violence that would constitute a continuing serious threat to

society.” Code § 19.2-264.2.

Roach argues that the Commonwealth failed to produce

sufficient proof of his “future dangerousness.” He first

emphasizes that the only expert psychological testimony at the

penalty phase was given by Dr. Hawk, who stated that there

was no pattern of violent behavior in Roach’s life. Although he

concedes that “all of [his] misconduct arguably involved

potential for violence,” Roach asserts that the Commonwealth

never introduced evidence of any actual or threatened violence

in his past behavior. He also notes that his misconduct

occurred only during the period of his family’s “disintegration.”

54a

Further, given his difficult family background and the fact that

he had only one probation violation prior to December 3,

1993, Roach asserts that the jury’s finding of “future

dangerousness” is unsupported by the evidence. We disagree.

The evidence in the penalty phase showed that, within

approximately a seven-month period prior to Roach’s murder

of Hughes, he had broken and entered a private residence,

stolen a .357 Magnum pistol from that dwelling, committed

two automobile larcenies, and violated a condition of his

probation.

As this Court emphasized in Yeatts, burglary laws are based

primarily upon a recognition of the dangers to personal safety

created by the usual burglary situation - the danger that the

intruder will harm the occupants in attempting to perpetrate

the intended crime or to escape and the danger that the

occupants will in anger or panic react violently to the invasion,

thereby inviting more violence. 242 Va.. at 140, 410 S.E.2d at

266 (citations omitted). Thus, Roach’s commission of burglary,

and his theft of a.357 Magnum pistol during the burglary, were

relevant evidence in determining his “future dangerousness.”*

See id.

The jury also heard evidence from John Frey, Roach’s

probation officer, that Roach violated his probation in carrying

a shotgun. Violent behavior arose from this probation violation

when Roach used the shotgun to kill Mrs. Hughes. Therefore,

both the fact of the violation and its particular nature were

relevant evidence in the jury’s determination of “future

dangerousness.”

Most significantly, this Court has recognized that the facts

and circumstances surrounding the capital murder alone may

§ The fact that the dwelling Roach broke and entered was unoccupied at

the time of the offense is a fortuitous circumstance that does not affect our

analysis here.

55a

be sufficient to support a finding of “future dangerousness.”

See Murphy v. Commonuzilth, 246 ih. 136, 145, 431 S. E. 2d 48, 2

53, cert. denied, 5 10 U. S. -, 114 S.Ct. 336 (1993). Here, Roach (

killed a defenseless, 70-year-old neighbor because he wanted

her money. He admitted that Mrs. Hughes had always been

kind to him. Yet, after shooting her at point-blank range, he

walked past her body, robbed her of her money and car keys,

and left her lying on the floor.

From this evidence, the jury was entitled to conclude that

Roach placed little value on human life and was willing to kill

even a defenseless friend in order not to be identified as the

perpetrator of a robbery. Given Roach’s escalating pattern of

criminal behavior culminating in the murder of Mrs. Hughes,

the jury had sufficient evidence from which to find, beyond a

reasonable doubt, that there was a probability that Roach

would commit criminal acts of violence that would constitute a

continuing serious threat to society.

Our conclusion in this regard is not altered by Dr. Hawk’s

testimony. Although he testified that Roach had no pattern of

violent behavior in his life, the jury was entitled to weigh this

opinion in conjunction with all the evidence of Roach’s

criminal behavior, including the facts and circumstances

surrounding his robbery and murder of Mrs. Hughes.

Roach also argues that the “trial court erred [by] finding that

no good cause had been shown to set aside the sentence of

death and impose a sentence of imprisonment for life.” In

reviewing the record pursuant to Code § 19.2-264.5, the trial

court is vested with discretion, upon good cause shown, to set

aside the sentence of death. Here, the record shows that the

trial court reviewed all evidence presented in both mitigation

and aggravation of the offense. Based on the evidence pre-

sented, we cannot conclude that the trial court erred in finding

an absence of “good cause shown” to set aside the jury verdict

of death and to impose a sentence of life imprisonment.

56a

4

c

r

FES RS SEE SSE “iS Re LS

VIII. SENTENCE REVIEW

Under Code § 17-110. 1 (C)(1) and (2), we are required to

determine “whether the sentence of death was imposed under

the influence of passion, prejudice or any other arbitrary

factor” and “whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.”

A. Passion and Prejudice

Roach contends that the sentence of death was imposed

under the influence of passion, prejudice, or other arbitrary

factor. In support of his argument, he restates several of the

errors assigned above. Since we have found no error in the trial

court’s rulings, we reject this argument. See Pope wu

Commarmealth, 234 Va. 114, 127, 360 S.E.2d 352, 360 (1987),

cert. denied, 485 U.S. 1015, 99 L. Ed. 2d 716, 108 S.Ct. 1489

(1988); Wisev. Commoanuealth, 230 Va. 322, 335, 337 S.E. 2d 715,

723 (1985), cert. denied, 475 US. 1112, 89 L. Ed. 2d 921, 106

S.Ct. 1524 (1986). Additionally, our independent review of the

entire record fails to disclose that the jury’s death sentence

“was imposed under the influence of passion, prejudice or any

other arbitrary factor.” Code § 17-110.1(C).

B. Excessiveness and Proportionality

Roach contends that the death sentence is excessive and

disproportionate to those imposed in similar cases. He argues

that comparable death sentence cases involve “fact patterns

more aggravated as to (1) surrounding circumstances of the

offense, (2) age and background of the defendant and (3)

unrebutted defense evidence offered in mitigation.” With

regard to evidence in mitigation, Roach relies primarily on Dr.

Hawk’s testimony and the other testimony concerning Roach’s

school, work, and family life.

57a

i i

In conducting the proportionality review, we consider

“whether other sentencing bodies in this jurisdiction generally

impose the supreme penalty for comparable or similar crimes,

considering both the crime and the defendant.” Jenks v.

Cormoruealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036, 123 L. Ed. 2d 483, 113 S.Ct. 1862

(1993). With this purpose in mind, we have compared the

record in 17, this case with the records in other capital murder

cases to determine whether the death penalty imposed here is

“excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the defendant.”

Code § 17-110. 1 (C)(2).

Here, the jury based its sentence of death only on the “future

dangerousness” predicate. Therefore, in making our

proportionality determination we have given particular

consideration to other capital murder cases in which robbery

was the underlying felony and the death penalty was based only

on the “future dangerousness” predicate.

Those cases were compiled in Yeats, 242 Va. at 143, 410

S.E.2d at 267-68, and supplemented in Obvidester u

Commonwealth, 248 Va. 311, 332-33, 448 S.E.2d 638, 652

(1994), cert. denied, _U.S._, 115 S.Ct. 1134 (1995). The

following additional cases involving. robberies and findings of

“future dangerousness” were decided after Ovicbester and have

been considered by us: Chandler v. Commonunulth, 249 Va. 270,

455 S.E.2d 219, cert. denied, Us. , 165

(1995); Joseph, 249 1b. 78, 452 S.E.2d 862. We have also

reviewed the records in capital murder cases in which robbery

was the underlying offense and a sentence of life

imprisonment was imposed.

Based on this review, we conclude that, while there are

exceptions, juries in this Commonwealth generally impose the

death sentence for crimes comparable or similar to Roach’s

murder of Mrs. Hughes. Roach killed an elderly, defenseless

friend with a shotgun at point blank range in the process of

58a

robbing her of a portion of her social security funds. This

crime, like the other death sentence crimes we have reviewed,

shows extreme cruelty and lack of respect for human life.

In addition, although there was evidence in mitigation

concerning Roach’s status as a 17-year-old offender and

family background, the present case also involved significan

evidence in aggravation of the offense. As stated above, Roach

had been found guilty of four felonies in the seven-month

period prior to the commission of this offense. Although he

had been on supervised probation since August. 1993, this

rehabilitative measure did not deter Roach from carrying a

weapon in violation of the terms of his probation. Moreover,

his use of this weapon to kill Mrs. Hughes represented the

ultimate failure of rehabilitative efforts on his behalf. Given

this escalating pattern of criminal behavior, which culminated

in the commission of the present offense, we conclude that the

imposition of the death penalty in this case is neither excessive

nor disproportionate to the penalty imposed in comparable

cases.

IX. CONCLUSION

We find no reversible error in the issues presented here.

Having reviewed Roach’s sentence of death pursuant to Code §

17-110. 1, we decline to commute the sentence of death.

Accordingly, we will affirm the judgment of the trial court.

Affirmed.

59a

117 S.Ct. 365 (1996)

Steve Edward ROACH, petitioner,

v. VIRGINIA.

No. 96-5654.

Oct. 21, 1996

Case below, 251 Va. 324, 468 S.E.2d 98.

Petition for writ of certiorari to the Supreme Court of

Virginia denied.

118 S.Ct. 713 (1998)

Steve Edward ROACH, petitioner,

v. Ronald J. ANGELONE, Virginia Department of

Corrections.

No. 97-6601.

Jan. 12, 1998.

Petition for writ of certiorari to the Supreme Court of

Virginia denied.

6la

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

STEVE EDWARD ROACH,

Civil Action

No. 97-0693-R

FINAL

ORDER

By: Samuel G.

Wilson

Chief United

States District

Judge

Petitioner,

RONALD ANGELONE,

Respondent.

le

In accordance with the written Memorandum Opinion

entered this day, it is hereby

ORDERED AND ADJUDGED

that Steve Edward Roach’s petition under 28 U.S. C. § 2254 for

writ of habeas corpus is hereby DISMISSED. This action is

stricken from the active docket of the court.

ENTER: This 29th day of July, 1998.

CHIEF UNITED STATES DISTRICT JUDGE

62a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

STEVE EDWARD ROACH, )

)

Petitioner, ) Civil Action

) No. 97-0693-R

) MEMORANDUM

) OPLVION

v. )

)

RONALD ANGELONE, ) By: Samuel G

) Wilson

Respondent. ) Chief United

) States District

Judge

Petitioner Steve Edward Roach brings this petition for

writ of habeas corpus, pursuant to 28 USC. § 2254,

challenging his conviction and sentence of death for the capital

murder of Mary Hughes. Roach was seventeen years old when

he murdered and robbed Hughes, his elderly neighbor and

friend. Although Roach concedes that he committed a terrible

murder for which he deserves substantial punishment, he

argues that the imposition of the death penalty on a juvenile

offender with no prior history of physical acts of violence for a

murder that involved no more than the minimum necessary to

accomplish the act is unprecedented in Virginia. He maintains

that his death sentence is unconstitutional for a variety of

reasons. However persuasive the court finds Roach’s

arguments that the death penalty is not warranted in his case,

this court cannot substitute its view of the facts for that of the

jury that sentenced Roach to death or the state courts that

Coane and affirmed the sentence. The court has conducted

the limited review permissible in federal habeas and concludes

63a

that Roach was not sentenced to death in violation of a clearly

established constitutional nght. Accordingly, the court must

dismiss Roach’s petition.

Roach does not dispute that he murdered and robbed

Mary Hughes on the evening of December 3, 1993. Roach shot

Hughes once in the chest as she stood at the front door of her

home. He then stole her purse and her car. Roach fled in the

car to North Carolina, where he attempted to withdraw cash

from an automatic teller machine using one of Hughes’ credit

cards. Roach then continued on to South Carolina. When a

South Carolina police officer stopped him for speeding, Roach

ran into the woods. Roach subsequently returned to Virginia

and turned himself in to the Sheriff's Department in Greene

County. Although Roach initially told police that someone else

shot Hughes, he eventually confessed to shooting and robbing

Hughes.

The Commonwealth issued juvenile petitions against

Roach for murder, robbery, and the use of a firearm in the

commission of murder. On May 13, 1994, following a transfer

hearing, the Greene County Juvenile and Domestic Relations

Court (“the juvenile court”) certified Roach to stand trial as an

adult and transferred the matter to the Circuit Court of Greene

County (“the trial court”). After the trial court remanded the

case to the juvenile court for further proceedings, the juvenile

court conducted a second transfer hearing and again certified

Roach to stand trial as an adult. A Greene County grand jury

indicted Roach on October 11, 1994, for capital murder in

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

Virginia Code § 18.2-58, and the use of a firearm in the

commission of murder in violation of Virginia Code § 18.2-53.

I.

The guilt phase of Roach’s trial began on February 27,

1995. The jury found Roach guilty of all charges. The penalty

phase of the trial took place on March 3, 1995. The jury found

that Roach presented a future danger to society and

64a

a

recommended a sentence of death.’ On May 9, 1995, the trial

court sentenced Roach to death in accordance with the } jury’s

verdict. The trial court also sentenced Roach to life in prison

for robbery and three years in prison for the use of a firearm in

the commission of murder.

The Supreme Court of Virginia affirmed the judgment

of the trial court on March 1, 1996, Roach v. Commonwealth,

468 S.E.2d 98 (Va. 1996), and denied rehearing on April 19,

1996. The United States Supreme Court denied Roach’s

petition for wnt of certiorari on October 21, 1996. Roach v.

Virginia, 117 S.Ct. 365 (1996). Roach then filed a petition for

writ of habeas corpus in the Supreme Court of Virginia, That

court dismissed the petition on April 30, 1997, and denied

rehearing on August 1, 1997. On January 12, 1998, the United

States Supreme Court denied Roach’s petition for writ of

certiorari. Roach v. Angelone 118 S.Ct. 713 (1998). Roach filed

his amended federal petition in this court on March 9, 1998.

Il.

Because Roach filed his federal petition after the

enactment of the Antiterrorism and Effective Death Penalty

Act of 1996 (“the AEDPA”), the court must apply the

AEDPA’s deferential standard of review, v.

117 S.Ct. 2059, 2068 (1997). The AEDPA provides:

An application for a writ of habeas

corpus on behalf of person in custody

pursuant to the judgment of a State

court shall not be granted with respect

to any claim that as adjudicated on the

merits in State Court proceedings unless

the adjudication of the claim -

' The trial court found that the evidence to support the

vileness predicate was insufficient as a matter of law and

allowed the case to go to the jury on the future dangerousness

predicate only.

65a

(1) 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

(2) 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. § 2254(d). Under subsection (1), a federal court may

grant habeas relief on an issue only “when the state courts have

decided the question by interpreting or applying the relevant

[Supreme Court] precedent in a manner that reasonable jurists

would all agree is unreasonable.” Green v. French, 143 F.3d

865, 870 (4" Cir. 1998).

Il.

Roach first argues that the trial court violated his nght

to due process when it failed to instruct the jury properly on

the requirement of unanimity in sentencing. Roach raised this

claim for the first time as claim I(H) in his petition for writ of

habeas corpus in the Supreme Court of Virginia. The Supreme

Court of Virginia found the claim procedurally barred under

the rule of Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974)

(holding that claims that could have been, but were not, raised

on direct appeal are barred from consideration on habeas). If,

as in this case, a state court expressly denies a claim based on

an adequate and independent state procedural default rule, the

claim is barred from federal review. Coleman _v. Thompson,

501 U.S. 722, 728 (1991). The rule in Slayton provides an

and independent basis for barring federal review. Id.

Therefore, the claim is now defaulted from federal review

66a

_————

absent a showing of actual innocence or cause and prejudice.

Id. at 729-30.

Roach does not assert that he is actually innocent.

Insofar as he argues ineffective assistance of counsel as cause

for his procedural default, the court finds, for reasons stated in

Section IX, infra, that his related ineffective assistance of

counsel claim is without merit. Therefore, Roach’s claim of

ineffective assistance of counsel cannot establish cause to

excuse his procedural default. See Murray v. Carrier, 477 U.S.

478, 488-89 (1986). Accordingly, the court must deny relief on

this claim.

IV.

Next, Roach argues that he was denied due process in

violation of the Fourteenth Amendment when the trial court

failed to instruct the jury that Roach, if sentenced to life in

prison, would not be eligible for parole under Virginia law for

twenty-five years.’ In Simmons v. South Carolina, 512 U.S.

154 (1994), the United States Supreme Court held that, when

the state seeks the death penalty based on a defendant’s future

dangerousness, the defendant has a due process right under the

Fourteenth Amendment to inform the jury, either

ent or instruction, that he is ineligible for parole as a

matter of law, Id. at 162. Roach now argues that he was

entitled, pursuant to the holding in Simmons, to inform the

jury that he would not be eligible for parole for twenty-five

years if it recommended a life sentence.

When Roach raised this claim on direct appeal, the

Supreme Court of Virginia held that Roach was not entitled to

_ ? Following instructions at the penalty phase of the trial, a juror

“Does life in prison mean with no chance of parole or truly life in

prison, or is he eligible for parole?” (Tr. March 3, 1995 at 1085). In

response to this question, the trial court instructed the jury that it should

“impose such punishment as [it feels] is just under the evidence and within

the instructions of the Court” and advised the jury “not to concern [itself]

with what may happen afterwards. “ (Tr. March 3, 1995 at 1089).

67a

an instruction regarding his parole eligibility. Roach, 468 S.E.2d

at 105. Relying on its prior decision in Joseph _v.

Commonwealth, 452 S. E. 2d 862 (Va. 1995), the Supreme

Court of Virginia held that the rule of Summons applied only if

the defendant was ineligible for parole. Roach, 468 S.E.2d at

111. The court concluded that Roach, who would be eligible

for parole after serving twenty-five years, was not entitled to an

instruction regarding his parole eligibility. Id.

To obtain relief on this claim, Roach must demonstrate

that no reasonable jurist could interpret the rule of Simmons as

limited to those defendants who are ineligible for parole under

state law. See Green, 143 F.3d at 870. Roach has not met this

burden. First, the court observes that strong support for the

Supreme Court of Virginia’s interpretation of Simmons is

found in the text of the Simmons opinion itself. The holding of

Simmons is defined by Justice O’Connor’s con..“"g opinion.

Townes Y. Murray 68 F.3d 840, 849-50 (4th Ca 1%"). Justice

O’Connor wrote, “In a state in which parole is available, the

Constitution does not require (or preclude) jury consideration

of that fact. “ Simmons, 5 12 US. at 176 (O'Connor, ie

concurring). In addition, several federal courts interpreting

Simmons have limited its application to defendants who are

ineligible for parole. See Allndge v. Scott, 41 F.3d 213, 221-222

(5th Cir. 1994); see also Ingram v. Zant, 26 F.3d 1047, 1054 n.5

(11th Cir. 1994). These decisions, as well as the text of

Simmons _itself, demonstrate that the Supreme Court of

Virginia’s decision was reasonable. See v.

1998 WL 388405, at *8 (4 Cir. July 13, 1998) (rejecting similar

claim).

A recent opinion by Justice -Stevens offers some

support for Roach’s position that the rule of Simmons should

apply to defendants who are eligible for parole. Justice Stevens,

joined by three other justices, noted the “obvious tension”

between Simmons and a Texas law prohibiting defendants who

are eligible for parole from presenting evidence regarding their

parole eligibility to the jury. Brown v. Texas, 118 S.Ct. 355

68a

enn nen samen mI Ne rere er wen ES

(1997) (opinion of Stevens, J., respecting denial of certiorari).

The Rerwn_opsnion only confirms that the correct

interpretation of Simmons is open to debate among reasonable

jurists. However compelling Roach’s argument that the logic

behind the decision in Simmons applies equally to his case, the

court cannot find that the interpretation of Simmons adopted

by the Supreme Court of Virginia is contrary to, or an

unreasonable application of, clearly established federal law as

deter-mined by the United States Supreme Court. Accordingly,

the court must deny relief on this claim.

V.

Roach next asserts that Virginia’s juvenile transfer

policy violates the Eighth Amendment because it does not

require judicial consideration of a juvenile defendant’s maturity

and moral responsibility before he is compelled to stand trial as

an adult for capital murder. The Supreme Court of —

rejected this claim based on its prior decisions in

Commonwealth, 427 S.E.2d 379 (Va. 1993), aati yoy

grounds, 114 S.Ct, 2701 (1994), and Thomas _v.

Commonwealth, 419 S.E.2d 606 (Va. 1992). In these cases, the

Supreme Court of Virginia held that “the Constitution does

not require transfer hearings or additional procedural

safeguards for juveniles tried for capital offenses.” Wnght, 427

S.E.2d at 384 (citing Thomas, 419 S.E.2d at 609). Roach

cannot obtain relief on this claim unless he demonstrates that

this holding by the Supreme Court of Virginia was

unreasonable in light of clearly established federal law as

decided by the United States Supreme Court. See Green, 143

F.3d at 870. Notwithstanding Roach’s assertions to the

contrary, the United States Supreme Court has never expressly

held that a juvenile capital offender is entitled to individualized

consideration of his moral culpability prior to standing trial as

an adult. Roach’s reliance on a single statement in Justice

Scalia’s opinion in Stanford v. Kentucky, 492 U.S. 361 (1989),

is unavailing. In Stanford, the Supreme Court addressed

whether the Eighth Amendment prohibits the execution of

sixteen- or seventeen-year-old capital offenders. Justice Scalia,

69a

discussing why laws that prohibit persons under age eighteen

from engaging in conduct such as drinking alcoholic beverages

or driving were not relevant to the issue before the Court,

noted that the criminal justice system provides individualized

consideration of a defendant’s maturity. Justice Scalia observed:

In the realm of capital punishment in particular,

“individualized consideration Us] a

constitutional requirement,”

438 U.S. 586, 605 (1978) (opinion of Burger,

CJ.) (footnote omitted); see also Zant _v.

Stephens, 462 U.S. 862, 879 (1983) (collecting

cases), and one of the individualized mitigating

factors that sentencers must ne permitted to

consider is the defendant’s age, see Eddings v

Oklahoma, 455 USS. 104,” 115-116 (1982).

Twenty-nine States ... have codified this

constitutional requirement in laws specifically

designating the defendant’s age as a mitigating

factor in capital cases. Moreover, the

determinations required by juvenile transfer

statutes to certify a juvenile for trial as an adult

ensure individualized consideration of the

maturity and moral responsibility of 16- and 17

year-old offenders before they are even held to

stand trial as adults.

Id. at 375 (footnotes omitted). Justice Scalia did not state that

juvenile transfer statutes which do not provide for

individualized consideration violate the Constitution. A

reasonable jurist could conclude, therefore, that the

Constitution does not require a judicial determination of a

juvenile offender’s moral culpability and maturity before the

state may try the juvenile as an adult for a capital crime.’ In

fact, based on Justice Scalia’s reference to the individualized

> The court also notes that the portion of Justice Scalia’s opinion on

which Roach relies is joined by only three other justices.

70a

en ee cee neem

consideration given to a capital defendant’s age at sentencing,

the Supreme Court of Virginia reasonably could have

concluded that Virginia’s capital sentencing scheme, which

provides that age may be considered as a mitigating factor at

sentencing, satisfied the constitutional requirement of

individualized consideration.’ The court concludes that Roach

has not demonstrated that the Supreme Court of Virginia’s

adjudication of this claim conflicted with clearly established

federal law as decided by the United States Supreme Court.

The court, accordingly, must deny relief on this claim.

VI.

Next, Roach alleges that he was denied due process in

violation of the Fourteenth Amendment when the trial court

refused to “life-qualify” the jury. Roach first raised this claim in

his petition for writ of habeas corpus in the Supreme Court of

Virginia as claim I(B). The Supreme Court of Virginia, applying

the rule in Slayton, found the claim to be procedurally

defaulted. The claim, therefore, is barred from federal review

absent a showing of actual innocence or cause and prejudice.

See Coleman, 501 U.S. at 728. Roach does not claim actual

innocence and, for reasons discussed in Section IX, infra, the

court finds that his related ineffective assistance of counsel

claim is meritless. Roach thus has failed to overcome his

procedural default, Murray, 477 U.S. at 489-90, and the court

denies relief on this claim.

VII.

Roach next challenges the sufficiency of the evidence

to prove future pec To establish the existence of

this aggravating factor, the Commonwealth must prove beyond

a reasonable doubt “a probability that the defendant would

commit criminal acts of violence that would constitute a

continuing serious threat to society, “ Va. Code § 19.2-264.2

(Michie 1995).

4 Virginia Code § 19.2-264.4(B) provides that the defendant’s age at

the time of the offense may be considered as a mitigating factor.

71a

A district court reviews the sufficiency of the evidence

to prove an aggravating factor under the standard of review

established in Jackson v. Virginia, 443 U.S. 307 (1979). See

Turner v. Williams, 35 F.3d 872, 894 (4th Cir. 1994). Under

this standard, the court must determine “whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements ...

beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The

district court must not substitute its view of the facts for that

of the fact-finder. Tuggle v. Thompson, 57 F.3d 1356, 1369

(4th Cir.), vacated on other grounds, 516 U.S. 10 (1995).

At the penalty phase of Roach’s trial, the jury heard

evidence that, during the seven-month period preceding the

murder of Hughes, Roach broke and entered a residence from

which he stole a .357 Magnum pistol, twice committed larceny

of an automobile, and violated the conditions of his probation

by carrying a shotgun, which he later used to murder Hughes.

The jury could also consider the evidence of the capital murder

itself, which involved the killing for money of an elderly

woman whom Roach considered his friend. As the Supreme

Court of Virginia concluded, a reasonable jury could find,

based on this evidence, that “Roach placed little value on

human life and was willing to kill even a defenseless friend in

order not to be identified as the perpetrator of a ew

Roach, 468 S.E.2d at 112.

Roach argues that this evidence was insufficient to

prove future dangerousness because his conduct, however

egregious, involved nothing more than the minimum necessary

to accomplish the murder, and his criminal history included no

prior physical acts of violence. Although this court might not

have reached the same conclusion as the fact finder in this

case, this court must not substitute its view of the evidence for

that of the jury.” See Tuggle, 57 F.3d at 1369. The court cannot

find that the Supreme Court of Virginia’s conclusion that this

evidence, viewed in the light most favorable to the

Commonwealth, was sufficient to prove future dangerousness

72a

conflicted with clearly established federal law as determined by

the United States Supreme Court. Accordingly, the court must

deny relief on this claim.’

Vill.

Roach next argues that the Supreme Court of Virginia

failed to conduct meaningful proportionality review of his

sentence in violation of the Eighth and Fourteenth

Amendments. Insofar as Roach argues that the Eighth

Amendment requires states to conduct proportionality review

of death sentences, his argument is without merit.

Proportionality review is not mandated under the United States

Constitution, Pulley v. Harmis, 465 U.S. 37, 50-51 (1984). Also

without merit is Roach’s argument that the failure of the

Supreme Court of Virginia to conduct the state-mandated

proportionality review in a meaningful manner constitutes a

violation of the due process clause of the Fourteenth

Amendment. The inadequacy of state court’s proportionality

review is not a valid ground for federal habeas relief. Buchanan

v. Angelone, 103 F.3d 344, 350-51 (4th Cir. 1996), aff'd, 118

S.Ct. 757 (1998); See Peterson v. Murray, 904 F.2d 882, 887

(4th Cir. 1990) (state court’s erroneous application of state law

is not a grounds for federal habeas relief).

Even assuming that the failure by the Supreme Court

of Virginia to conduct its proportionality review in a

manner could, under some circumstances, amount

to a violation of the Fourteenth Amendment, Roach has not

demonstrated that the Supreme Court of Virginia’s review of

Roach’s sentence was so deficient as to amount to a federal

constitutional violation. Under Virginia law, the Supreme Court

of Virginia reviews every death sentence to determine:

5 Insofar as Roach argues that Virginia’s future dangerousness

aggravating factor is unconstitutional because it fails to channel or limit a

jury’s discretion to impose the death penalty, his argument is meritless. See

Giarratano v. Procunier, 891 F.2d 483, 489-90 (4th Cir. 1989) (holding that

Virginia’s future dangerousness predicate is constitutional).

73a

1. Whether the sentence of death was imposed

under the influence of passion, prejudice or any

other arbitrary factor; and

2. Whether the sentence of death is excessive or

disproportionate to the penalty imposed in

similar cases, considering both the crime and

the defendant.

Va. Code § 17-110.1 (C). The Supreme Court of Virginia

compared Roach’s case with the record of other capital murder

cases in Virginia, giving “particular consideration to other

capital murder cases in which robbery was the underlying

felony and the death penalty was based only on the ‘future

dangerousness’ predicate.” Roach, 468 S.E.2d at 113. Contrary

to Roach’s assertions, the Supreme Court of Virginia also

“reviewed the records in other capital murder cases in which

robbery was the underlying offense and a sentence of life

imprisonment was imposed.” Id, In addition, the Supreme

Court of Virginia tlie the mitigating factors in Roach’s

case, including his young age and unstable family background.

Id. at 114. Having reviewed all of these factors, the Supreme

Court of Virginia concluded that Roach’s sentence was

“neither excessive nor disproportionate to the penalty imposed

in comparable cases.” Id.

The record thus demonstrates that the Supreme Court

of Virginia conducted a thorough review of Roach’s sentence

in compliance with Virginia law. Although this court may view

this matter differently, it may not review the state court’s

good-faith finding that the death sentence was not

disproportionate or excessive when compared to the sentence

imposed in similar cases. See Walton v. Arizona, 497 U.S. 639,

655-56 (1990). Accordingly, the court must deny relief on this

claim.

IX.

74a

Roach next asserts that he was denied the effective

assistance of counsel in violation of the Sixth Amendment

when his attorneys failed to argue on direct appeal that the trial

court violated his due process rights by failing to instruct the

jury properly on the requirement of unanimity in sentencing

and by failing to “life-qualify” the jury. The respondent argues

that these claims are procedurally defaulted because Roach did

not raise these specific claims in his state habeas petition. The

court agrees.

In his state habeas petition, Roach argued that he was

denied the effective assistance of counsel when his attorneys

failed to object to these issues at trial. He also alleged in claim

II(EE) that, he was denied the effective assistance of counsel

on direct appeal, but he failed to allege specific facts in support

of his claim. In his petition for rehearing of his state habeas

petition, Roach argued that his attorneys were ineffective for

failing to raise on appeal each of the claims that the Supreme

Court of Virginia found barred from habeas review under

Slayton.

Before a habeas petitioner may obtain relief on a claim

in federal court, he first must exhaust his state remedies. 28

US.C. § 2254(b)(1). A claim is not exhausted until the

petitioner has “fairly presented” his claim to the state’s highest

court. Picard v. Connor, 404 U.S. 270, 275-78 (1971). The

ioner must have presented the substance of the claim,

including the facts underlying the claim, to the state court.

Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.), cert. denied,

118 S.Ct. 102 (1997).

The court finds that Roach has not fairly presented his

claims of ineffective assistance of appellate counsel to the

Supreme Court of Virginia. In his petition, Roach did not refer

to the specific claims that he believed his attorneys should have

raised on appeal. Although Roach argued, albeit in conclusory

fashion, in his petition for rehearing that his attorneys were

ineffective for failing to raise the claims deemed barred from

75a

habeas review under Slayton by the Supreme Court of Virginia,

he still failed to set forth with any precision the legal or factual

basis for his claims. The court, accordingly, concludes that

Roach has failed to exhaust his state remedies as to his claims

of ineffective assistance of appellate counsel.

If the petitioner has not exhausted his available state

remedies, a federal court ordinarily should dismiss without

prejudice the petitioner’s claim for habeas corpus relief to

permit the petitioner to exhaust his state remedies. Preiser v.

Rodriguez, 411 U.S. 475 (1973). A federal court, however, need

not dismiss the claim without prejudice if it is clear that state

law would bar review of the claim in state court. If a

nonexhausted claim is barred from review in state court, the

claim is also barred from federal review.

Gray v. Netherland,

518 U.S. 152, 161-62 (1996); Bassette v. Thompson, 915 F.2d

932, 936 (4th Cir. 1990).

If Roach were now to raise his ineffective assistance

claims in state court in a second petition for writ of habeas

corpus, it is clear that the Supreme Court of Virginia would

find the claims procedurally barred. In Virginia, a petitioner

may not raise a claim in a successive habeas corpus petition if

the facts giving rise to the claim were known by or available to

the petitioner at the me he filed his original petition. Va. Code

§ 8.01-654(B)(2). Roach’s ineffective assistance of counsel

claims are not based on facts that were unavailable at the time

he filed his first petition for writ of habeas corpus. Therefore,

to the extent that Roach failed to raise these claims in state

court, the claims are barred from federal review. See Gray, 518

USS. at 161-62.

Even assuming that Roach’s presentation of these

claims in state habeas was sufficient to exhaust his state

remedies, the court finds that the Supreme Court of Virginia’s

adjudication of these claims was reasonable under 28 U.S.C. §

2254(d). To demonstrate that he has been denied his Sixth

Amendment right to the effective assistance of counsel,

76a

petitioner must satisfy the two-prong test announced in

466 U.S. 668 (1984). First, he must

show that his counsel’s representation fell below an objective

standard of reasonableness. Id. at 688. In determining whether

a petitioner has made this showing, the court begins with the

strong presumption that counsel’s conduct was within the wide

range of objectively reasonable assistance. Ev

881 F.2d 117, 123-24 (4th Cir. 1989). Second, petitioner must

show that his attorney’s conduct prejudiced him to the extent

that it deprived him of a fair trial. Strickland, 466 U.S. at 689.

He must establish that, but for his attorney’s alleged deficient

performance, there is a reasonable probability that the result of

the proceedings would have been different. Id. A reasonable

probability is one that undermines confidence in the outcome

of the proceeding. Id.

Roach first alleges that his attorneys rendered

ineffective assistance on direct appeal when they failed to argue

that the trial court improperly instructed the jury on the

requirement of unanimity at the penalty phase dina The

trial court instructed the jury as follows:

You have convicted the defendant of an

offense which may be punished by death. You

must decide whether the defendant shall be

sentenced to death or to imprisonment for life,

or to imprisonment for life and a fine of a

specific amount, but not more than one

hundred thousand dollars ($100,000). Before

the penalty can be fixed at death, the

Commonwealth must prove beyond a

reasonabie doubt the following aggravating

circumstance, that after consideration of his

history and background, there is a probability

that he would commit criminal acts of violence

that would constitute a continuing serious

threat to society. If you find from the evidence

that the Commonwealth has proved that

77a

circumstance beyond a reasonable doubt, then

you may fix the punishment of the defendant at

death, but if you believe from all of the

evidence that the death penalty is not justified,

then you shall fix the punishment of the

defendant at, one, imprisonment for life, or

two, imprisonment for life and a fine of a

specific amount, but not more than one

hundred thousand dollars ($100,000). If the

Commonwealth has failed to prove that

circumstances beyond a reasonable doubt, then

you shall fix the punishment of the defendant

at, one, imprisonment for life, or two,

imprisonment for life and a fine for a specific

amount but not more than one hundred

thousand dollars ($100,000). Any decision you

make regarding punishment must _ be

unanimous.

If you find that the Commonwealth has proved

beyond a reasonable doubt the existence of an

aggravating circumstance, in determining the

appropriate punishment you should consider

any evidence presented of circumstances which

do not justify or excuse the offense, but which

in fairness or mercy may extenuate or reduce

the degree of moral culpability and punishment.

(Tr. March 3, 1995 at 1082-1083). Roach argues that the trial

court failed to instruct the jury that Virginia law provides for a

sentence of life impnsonment if the jury at the penalty phase of

a capital murder trial is unable to reach a unanimous verdict,

see Va. Code § 19.2-264.4(E), and effectively instructed the

jury that a finding of mitigation must be unanimous. He

maintains that trial court’s unanimity instruction, in

combination with its failure to instruct the jury of the

consequences of its failure to reach a unanimous verdict,

violated his Eighth and Fourteenth Amendment nights under

78a

Vriee ee

the holdings of McKoy v. North Carolina, 494 U.S. 493 (1990),

and Mills v. Maryland, 486 US. 367 (1988), by precluding the

jury from considering mitigating evidence. He argues his

attorneys were ineffective for not raising this claim on direct

appeal.

In Mills and McKoy, the Supreme Court found

instructions unconstitutional that informed a jury that a finding

as to the existence of a mitigating circumstance must be

unanimous. Both Mills and McKoy involved capital sentencing

schemes whereby the jury was required to make a finding as to

the existence of specific mitigating circumstances. McKoy, 494

USS. at 436; Mills, 486 U.S. at 370. The Supreme Court held

thar, under such circumstances, it was unconstitutional to

instruct the jury that its finding as to the existence of each

mitigating circumstance must be unanimous. McKoy, 494 U.S.

at 444; Mills, 486 U.S. at 384. A jury instruction violates the

holding in McKoy if there is a “reasonable probability” that the

jury applied the instruction in such 16 a way as to preclude its

consideration of mitigating evidence. Vv

F.3d , 1998 WL 246105, at * 10 (4th Cir. May 18, 1998)

(citing > Bovde v, California, 494 US. 370, 380 (1990).

In contrast to the capital sentencing schemes at issue in

Mills and McKoy, the capital sentencing scheme in Virginia

does not require jurors to make findings as to the existence of

particular mitigating circumstances. In Roach’s case, the trial

court instructed the jury to “consider any evidence presented

of circumstances which. ... in fairness or mercy may extenuate

or reduce the degree of moral culpability and punishment.”

Unlike the juries Mills and McKoy, the jury in Roach’s case was

instructed to consider all mitigating evidence and was not

required to make specific findings regarding enumerated

mitigating circumstances. Because the jurors in Roach’s case

were not required to make an explicit decision

specific mitigating factors, it is unlikely that the general

unanimity instruction given in Roach’s case prevented the jury

from considering and giving effect to the mitigating evidence.

79a

Moreover, the verdict form used in Roach’s case stated

that the jury’s decision had to be unanimous only with regard

to a finding of future dangerousness and a decision to impose a

death sentence. The verdict form indicated that the jury had to

consider all of the mitigating evidence presented and did not

limit the jury’s consideration of mitigating evidence in anyway.’

* The verdict form provided to the jury read as follows:

We, the jury, on the issue joined, having found the Defendant,

guilty of the willful, deliberate, and premeditated killing of a

person in the commission of robbery while armed with a

deadly weapon, and having unanimously found after

consideration of his history and background that there is a

probability that he would commit criminal acts of violence that

would constitute a continuing serious threat to society, and

having considered the evidence in mitigation of the offense,

unanimously fix his punishment at death.

Foreperson

or

We, the jury, on the issue joined, having found the Defendant,

guilty of the willful, deliberate, and sinned ilies of

person in the commission of robbery while armed with a

deadly weapon, and having considered all of the evidence in

aggravation and mitigation of such offense, fix his punishment

at imprisonment for life.

Foreperson

or

We, the jury, on the issue joined, having found the Defendant,

guilty of the willful, deliberate, and premeditated killing of a

person in the commission of robbery while armed with w

deadly weapon, and having considered all of the evidence in

80a

ee

The Court finds that the instruction, when considered in

conjunction with the verdict form, did not create a “reasonable

probability” that the jury applied the instruction in such a way

as to preclude its consideration of mitigating evidence. See

Williams, 1998 WL 246105, at *10. Accordingly, to the extent

that the Supreme Court of Virginia addressed this claim on the

merits, its adjudication of the claim was reasonable under

Strickland.

Roach also alleges that his attorneys rendered

ineffective assistance when they did not argue on appeal that

the trial court failed to “life-qualify” the jury in violation of

Roach’s rights under the Sixth, Eighth, and Fourteenth

Amendments. The trial court asked the prospective jurors the

following three questions:

(1) Do you have any belief or opinion which

would prevent or substantially impair you from

voting to find a defendant guilty of capital

murder because a possible sentence is death?

(2) Do you have any belief or opinion which

would prevent you from voting or even

considering voting for the death penalty if the

jury has found the defendant guilty of capital

murder? :

(3) Do you have any belief or opinion which

would prevent or substantially impair you from

voting for a sentence of less than death if the

aggravation and mitigation of such offense, fix his punishment

at imprisonment for life and a fine of $

(fine must not be more than $100,000.00).

Foreperson

8la

jury has found the defendant guilty of capital

murder?

(Tr. Feb. 28, 1995 at 46-48).

Roach argues that the tral court violated his nght

under the Sixth and Fourteenth Amendments to an impartial

jury when it asked only a single life-qualifying question, In

v , 131 F.3d 442, 451 (4th Cir. 1997) (en

banc), the Fourth Circuit found questions substantially similar

to those posed in Roach’s case adequate under the Sixth and

Fourteenth Amendments. For the same reasons, this court

concludes that the tnal court’s voir dire in this case did not

violate Roach’s Sixth and Fourteenth Amendment nights. The

court finds unpersuasive Roach’s assertion that the numerical

disparity between the life-qualifying question and the

death-qualifying questions prejudiced Roach and denied him an

jury. the Supreme Court of Virginia

reasonably could conclude that the attorneys’ failure to argue

on appeal that the numerical disparity violated Roach’s

constitutional nghts did not amount to ineffective assistance of

counsel under Strickland.

Roach also argues that he had a ght, under the Eighth

Amendment, to question prospective jurors regarding their

views on mitigating evidence to ensure that the jurors’ personal

views would not prevent them from considering mitigating

evidence. He asserts that his attorneys’ failure to raise this issue

on appeal constituted ineffective assistance of counsel. Roach,

however, has not cited any case which holds that a defendant’s

Eighth Amendment nght to have the jury consider mitigating

evidence includes a nght to engage in voir dire of jurors

their views on mitigating evidence. Because Roach

has not shown that the tral court’s voir dire violated his

constitutional nghts, he has not shown either deficient

performance by his attorneys or prejudice. Therefore, to the

extent that this claim was properly raised in state habeas, the

court concludes that the Supreme Court of Virginia’s

82a

4

E

:

id

.

i

adjudication of the claim did not conflict with clearly

established law as decided by the United States Supreme Court.

X.

This young man committed a disturbing crime, and a

jury of his peers has recommended, the state trial judge has

imposed, and the Supreme Court of Virginia has affirmed a

disturbing sentence. Competent, dedicated counsel have

represented him in this proceeding, and the court has

thoroughly examined the record for cognizable, prejudical,

constitutional error. Finding none, the court is constrained to

dismiss his petition.

An appropnate order will be entered this day.

ENTER: This 29" day of July, 1998.

CHIEF UNITED STATES DISTRICT JUDGE

83a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

June 1, 1999

No. 98-26

CA-97-693-R

STEVEN EDWARD ROACH

Petitioner - Appellant

Vv.

RONALD ANGELONE, Director, Virginia Department of

Corrections

Respondent - Appellee

On Petition for Rehearing and Rehearing En Banc

The appellant’s petition for rehearing and rehearing en

banc was submitted to this Court. As no member of this Court

or the panel requested a poll on the petition for rehearing en

banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

For the Court,

/s/ Patricia S. Connor

CLERK

84a

Ba aed RET eS atc A da Po

VIRGINIA:

IN THE CIRCUIT COURT OF GREENE COUNTY

COMMONWEALTH OF VIRGINIA,

v.

FILE NO.

94-31

STEVE EDWARD ROACH,

Defendant.

ORDER

Pursuant to Section 53.1-232.1(ui) of the Code of

Virginia, having determine that the United States Court of

Appeals for the Fourth Circuit has denied habeas corpus relief

to the defendant, this Court hereby ORDERS that the death

sentence of Steve Edward Roach be carried out on the 25th

day of August, 1999, at such a time of day as the Director of

the Department of Corrections shall fix.

It is further ORDERED that at least ten (10) days

before August 25, 1999, the Director shall cause a copy of this

Order to be delivered to the defendant and, if the defendant is

unable to read it, cause it to be explained to him. The Director

shall make return thereof to the Clerk of this Court.

85a

The Clerk is directed to promptly furnish certified

copies of this Order to the following persons:

Ronald J. Angelone, Director

Virginia Department of Corrections

P.O. Box 26963

6900 Atmore Drive

Richmond, Virginia 23261

The Honorable Daniel R. Bouton

Commonwealth’s Attorney

Greene County

P. 0. Box 368

Stanardsville, Virginia 22973

Steven Schneebaum, Esquire

PATTON BOGGS L.LP.

2550 M Street, N.W.

Washington, D.C. 20037

Robert Q. Harris

Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

Pursuant to Rule 1:13, Rules of the Supreme Court of

Virginia, the Court dispenses with the endorsements of

counsel.

Entered this 29" day of June

1999.

Judge

86a

VIRGINIA:

In the Supreme Covert of Virginia held at the Suprene

Conert Building 1 the City of Richmond on Friday 6" day of August,

1999.

Steve Edward Roach,

Appellant,

against Record No. 991817

Circuit Court No.

Criminal) 94-31

Commonwealth of Virginia,

Appellee.

From the Circuit Court of Greene County

Upon consideration of the petition of Steve Edward Roach,

an appeal is awarded him from a judgment rendered by the

Circuit Court of Greene County on the 30" day of July, 1999;

no security being required.

It is further ordered that appellant’s opening brief be filed no

later than August 20, 1999; that appellee’s brief be filed no later

than September 3, 1999; and appellant’s reply brief, if any, shall

leshemetnsendinieeramstis sarees ated ee

be filed no later than September 10, 1999.

87a

iia

This case is consolidated with the case of Steve Edward

Roach v. Commonwealth of Virginia, Record No. 991816.

88a

A Copy,

Teste:

David B. Beach, Clerk

By:

Deputy Clerk

CERTIFICATE OF APPEAL

Pursuant to Rule 5:23, 1, David B. Beach, Clerk of the

Supreme Court of Virginia, do hereby certify that on August 6,

1999 an appeal was awarded as described in the order to which

this certificate is appended. A copy of this certificate and a

copy of the order to which it is appended were this day mailed

to the lower court indicated in the order and to all counsel of

record.

Given under my hand this 6th day of August, 1999.

David B. Beach, Clerk

By:

Deputy Clerk

VIRGINIA:

In the Supreme Court of Virginia held at the Suprene

Court Building in the City of Ridamond on Friday 6" day of August,

1999.

Steve Edward Roach,

Petitioner,

against Record No. 991816

Director of the Department

of Corrections,

Respondent.

Upon a Petition for a Writ of Habeas Corpus

On August 3, 1999 came the petitioner, by counsel, and filed

an emergency motion for a stay of execution.

Thereupon came the respondent, by the Attorney General of

Virginia, and filed a response in opposition thereto.

On consideration whereof, the Court grants the motion and

the execution is stayed.

VIRGINIA:

In the Suprene Court Virgiraa held at the Sueprene

Case Bulg nthe Cy of Ridder Fedey dy Pc

1999,

Steve Edward Roach,

Petitioner,

against Record No. 991816

Director of the Department

of Corrections,

Respondent.

Upon a Petition for a Writ of Habeas Corpus

Upon consideration of the pleadings filed herein, it is

ordered that this case be docketed and placed on the privileged

docket of this Court for the September, 1999 session.

It is further ordered that petitioner’s opening brief be filed

no later than August 20, 1999; that respondent’s brief be filed

no later than September 3, 1999; and petitioner’s reply brief, if

any, shall be filed no later than September 10, 1999.

This case is consolidated with the case of Steve Edward

Roach v. Commonwealth of Virginia, Record No. 991817.

A Copy,

Teste:

David B. Beach, Clerk

By: Deputy Clerk

9la

28 USC § 2254

State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a writ

of habeas corpus in behalf of a person in custody pursuant to

the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of

the United States.

(b)(1) An application for a writ of habeas corpus on

of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that -

(A) the applicant has exhausted the remedies available

in the courts of the State; or

(B)(i) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process

ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the

applicant to exhaust the remedies available in the courts of the

State.

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly waives

the requirement.

(c) An applicant shall not be deemed to have

the remedies available in the courts of the State,

within the meaning of this section, if he has the right under the

law of the State to raise, by any available procedure, the

question presented.

92a

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim -

(1) 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

(2) 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.

(e)(1) In a proceeding instituted by an application for a

wnit of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual issue

made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption

of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the applicant

shows that -

(A) the claim relies on -

(i) anew rule of constitutional law, made

retrospective to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(ui) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient

to establish by clear and convincing evidence that but for

constitutional error, no reasonable fact-finder would have

found the applicant guilty of the underlying offense.

93a

:

iii

(f) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support

the State court’s determination of a factual issue made therein,

the applicant, if able, shall produce the part of the record

pertinent to a determination of the sufficiency of the evidence

to support such determination. If the applicant, because of

indigency or other reason is unable to produce such part of

the record, then the State shall produce such part of the record

and the Federal court shall direct the State to do so by order

directed to an appropriate State official. If the State cannot

provide such pertinent part of the record, then the court shall

determine under the existing facts and circumstances what

weight shall be given to the State court’s factual determination.

(g) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and correct

copy of a finding, judicial opinion, or other reliable wntten

indicia showing such a factual determination by the State court

shall be admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the

Controlled Substances Act, in all proceedings brought under

pe and any subsequent proceedings on review, the

point counsel for an applicant who is or becomes

financially unable to afford counsel, except as provided by a

rule promulgated by the Supreme Court pursuant to statutory

authority. Appointment of counsel under this section shall be

governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel

during Federal or State collateral post-conviction proceedings

shall not be a ground for relief in a proceeding arising under

section 2254.

94a