Virginia Attorney General - Press Release

By Jerry Markon - The Washington Post

Associated Press / Rick Halperin

ProDeathPenalty.Com

Reuters News

Virginia carries out first execution in 18 months

By Dena Porter - HamptonRoads.com

AP - May 27, 2008

JARRATT, Va. - A man whose lawyers claimed was mentally disabled was executed Tuesday night for killing a Brunswick County convenience store owner in the first execution in Virginia in 18 months. Kevin Green, 31, was pronounced dead at 10:05 at Greensville Correctional Center in Jarratt. He died by injection for the August 1998 slaying of Patricia Vaughan, who operated the store with her husband. Green shot the couple and fled with about $9,000.

Green's execution was scheduled to begin at 9 p.m. but was delayed for about an hour when his attorneys attempted to get a federal judge to step in at the last minute. Once the judge declined, the execution proceeded. Earlier, the U.S. Supreme Court refused to stop the execution, and Gov. Timothy M. Kaine declined to intervene.

Green's attorneys had asked the Supreme Court to halt the execution. They claimed the 4th U.S. Circuit Court of Appeals erred when it ruled in February that Green had passed the statute of limitations for claiming ineffective counsel.

Green shot Vaughan and her husband, Lawrence, while robbing their convenience store in rural Dolphin, more than 50 miles south of Richmond. Patricia Vaughan, 53, died at the scene. Lawrence Vaughan was shot but survived. Police say Green confessed, telling them he and his nephew took a bus to northern Virginia and blew all but $170 of the $9,000 they stole on prostitutes, marijuana and clothes. His nephew, 16 at the time, pleaded guilty and was sentenced to 23 years in prison.

Green went to trial and was found guilty of robbery and capital murder and sentenced to death in 2000. A year later, the Virginia Supreme Court ordered a new trial because of juror problems. Green was convicted again in 2001 and again sentenced to death.

The Vaughan family had waited 10 years to see the sentence carried out. "I feel like we're the puppets and they're being the puppeteers," said Marsha Brown, one of the Vaughans' two daughters. She planned to watch Green's execution with her father, sister, husband, stepmother and two local officials. "It's just a fine line between being hopeful and helpless. I really regret that another life has to be involved - that an execution has to happen - but I just think it needs to be carried out," she said.

Kaine, a Roman Catholic, has acknowledged an objection to the death penalty, but pledged when he was elected in 2005 to carry out the state's laws.

A federal magistrate judge decided after a 2006 hearing that Green's IQ was below the mental retardation threshold of 70 but that he could perform basic functions, such as getting a job and a driver's license. Attorneys for Green and organizations that represent people with mental disabilities argue that the judge erred because he focused on the things Green could do instead of the real-world limitations he faced, such as language deficiencies, the inability to write and to care for himself, and difficulty with simple tasks like tying his shoes or making Kool-Aid.

They claim Virginia would become the first state to execute a mentally disabled person since the U.S. Supreme Court outlawed it in 2002 in another Virginia case. Kaine, however, said Tuesday on a monthly call-in radio show on WTOP in Washington, D.C., that the courts have found Green is not mentally disabled.

Green, through his attorneys, declined to be interviewed. Green requested that prison officials not release the contents of his last meal, said Larry Traylor, a spokesman for the Virginia Department of Corrections. Traylor said Green did not meet with family or a spiritual adviser Tuesday but did speak to his attorneys.

He was the 99th person executed in Virginia since the U.S. Supreme Court reinstated capital punishment in 1976. Virginia ranks second only to Texas, which has executed 405.

Green v. Commonwealth, 262 Va. 105, 546 S.E.2d 446 (Va. 2001) (Direct Appeal - Reversed).

Defendant was convicted, after a jury trial in the Circuit Court, Brunswick County, James A. Luke, J., of capital murder, and was sentenced to death. Defendant appealed. The Supreme Court, Hassell, J., held that trial court committed manifest error by seating two jurors who were not impartial. Reversed and remanded.

HASSELL, Justice.

Kevin Green appeals his capital murder conviction and sentence of death. The dispositive question in this appeal is whether the circuit court abused its discretion in refusing to remove two members from the venire. Because we conclude that the circuit court abused its discretion, and that such abuse constitutes manifest error, we will reverse the judgment of the circuit court confirming Green's capital murder conviction, and we will only address certain issues in this appeal.

The defendant was tried before a jury and found guilty of the capital murder of Patricia L. Vaughan during the commission of robbery in violation of Code § 18.2-31(4). The jury also found the defendant guilty of robbery, malicious wounding of Lawrence T. Vaughan, and three counts of the illegal use of a firearm.

In the penalty phase of the capital murder trial, the jury fixed the defendant's punishment at death for the capital murder conviction, finding that he represented a continuing serious threat to society and that his conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity *108 of mind, or aggravated battery to the victim. See Code § 19.2-264.2.

The jury fixed the defendant's punishment for the non-capital offenses as follows: life imprisonment for the robbery, 20 years imprisonment for the malicious wounding, and three sentences of three years each for the illegal use of a firearm convictions. After considering a report prepared by a probation officer pursuant to Code § 19.2-264.5, the circuit court sentenced the defendant in accord with the jury's verdict. Green did not appeal his non-capital convictions.

Therefore, those convictions are not before this Court and are not affected by this opinion. We consolidated the automatic review of the defendant's death sentence with his appeal of the capital murder conviction. Code § 17.1-313(F).

The defendant argues that the circuit court erred by overruling his motion to strike for cause prospective jurors Charles Overby and Edith Pearson. The defendant contends that Overby and Pearson were not impartial and that the circuit court abused its discretion when it refused to remove them from the venire. Responding, the Commonwealth states that the circuit court properly overruled the defendant's motion to strike Overby and Pearson.

*****

The following principles are pertinent to our resolution of the defendant's contention that the circuit court abused its discretion in failing to grant his motions to strike Overby and Pearson. Initially, we observe that the right of an accused to trial by an impartial jury is a constitutional right. U.S. Const. Amends. VI and XIV; Va. Const. Art. 1, Sec. 8. Additionally, Code § 8.01-358 and Rule 3A:14 provide that members of the venire must “stand indifferent in the cause.”

We have stated that a prospective juror “must be able to give [the accused] a fair and impartial trial. Upon this point nothing should be left to inference or doubt. All the tests applied by the courts, all the enquiries made into the state of the juror's mind, are merely to ascertain whether [the juror] comes to the trial free from partiality and prejudice.

“If there be a reasonable doubt whether the juror possesses these qualifications, that doubt is sufficient to insure his exclusion. For, as has been well said, it is not only important that justice should be impartially administered, but it should also flow through channels as free from suspicion as possible.” Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879); accord Barker v. Commonwealth, 230 Va. 370, 374-75, 337 S.E.2d 729, 732-33 (1985); Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 90-91 (1980); Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735 (1976).

On appellate review, this Court must give deference to the circuit court's determination whether to exclude a prospective juror because that court was able to see and hear each member of the venire respond to questions posed. The circuit court is in a superior position to determine whether a prospective juror's responses during voir dire indicate that the juror would be prevented from or impaired in performing the duties of a juror as required by the court's instructions and the juror's oath. Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875 (2000); Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999), cert. denied, 530 U.S. 1218, 120 S.Ct. 2226, 147 L.Ed.2d 257 (2000); *116 Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993). We must consider the voir dire as a whole, and not the juror's isolated statements. Clagett v. Commonwealth, 252 Va. 79, 90, 472 S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997). And, the circuit court's refusal to strike a juror for cause will not be disturbed on appeal unless that decision constitutes manifest error. Clagett, 252 Va. at 90, 472 S.E.2d at 269; Roach v. Commonwealth, 251 Va. 324, 343, 468 S.E.2d 98, 109, cert. denied, 519 U.S. 951, 117 S.Ct. 365, 136 L.Ed.2d 256 (1996); Stockton v. Commonwealth, 241 Va. 192, 200, 402 S.E.2d 196, 200, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991).

Applying the aforementioned principles, we hold that the circuit court abused its discretion and that such abuse of discretion constituted a manifest error when the circuit court failed to remove Overby and Pearson from the venire. And, we hold that the seating of the two jurors requires a reversal of the circuit court's judgment confirming the jury's convictions.

As the above-referenced colloquy indicates, Overby possessed a firm belief in the adage, “an eye for an eye, tooth for a tooth.” He stated that if the Commonwealth proved beyond a reasonable doubt that the defendant had committed a capital offense, he would vote to fix the defendant's penalty at death and that he would not give any consideration to a lesser penalty because the defendant “didn't give his victim consideration when he took [her] life.”

Even though Overby, in response to questions raised by the circuit court and the **452 Commonwealth's attorney, indicated that he would consider both the imposition of the death penalty and life without parole if the defendant were convicted of capital murder, Overby exhibited a strong belief that if the defendant committed a capital offense, he should be sentenced to death.

At the conclusion of his voir dire, Overby reasserted that he would vote to sentence the defendant to death if the Commonwealth proved beyond a reasonable doubt that the defendant had committed a capital offense. We can only conclude from Overby's responses to the voir dire questions that he had formed a fixed opinion about the punishment that the defendant should receive if the defendant were convicted of a capital offense and, thus, Overby was not impartial and “indifferent in the cause.”

We also hold that the circuit court abused its discretion in seating Pearson and that such abuse of discretion constituted manifest error. As the above-referenced colloquy indicates, Pearson had formed opinions which clearly indicate that she was not indifferent in the cause. Pearson initially informed the circuit court that she “suppose[d]” that the defendant was guilty. She had formed that opinion because she had read in a newspaper that the defendant was present when the crimes occurred.

Even though Pearson subsequently stated, in response to questions from the circuit court and the Commonwealth's attorney, that she understood the defendant was presumed to be innocent and that the Commonwealth was required to prove him guilty beyond a reasonable doubt, she later made conflicting statements.

For example, after Pearson had informed the circuit court that she believed the defendant was presumed to be innocent throughout the course of the trial, Pearson informed the defendant's attorney that the defendant would have to prove his innocence and that if the defendant presented no evidence at all, she would find him guilty of the charges.

After the defendant's attorney reminded Pearson that the circuit court had informed her that the Commonwealth has the burden to prove the defendant's guilt, Pearson, nonetheless, stated that she would find the defendant guilty if the defendant failed to produce any evidence. Although Pearson stated in response to the circuit court's inquiry that she “suppose[d]” that she would find the defendant innocent if the Commonwealth failed to prove his guilt beyond a reasonable doubt, her voir dire, when reviewed in its entirety, compels us to conclude that she had formed firm opinions which would have impaired her ability to be impartial and stand indifferent in the cause.

We have stated that “[b]y ancient rule, any reasonable doubt as to a juror's qualifications must be resolved in favor of the accused.” Breeden, 217 Va. at 298, 227 S.E.2d at 735. In Dejarnette v. Commonwealth, 75 Va. (1 Matt.) 867 (1881), we ruled that the circuit court should have removed a venireman who equivocated when asked if he had formed a fixed opinion about the accused's guilt. And, we emphasized that the juror's assertions that he could give the defendant a fair trial did not purge the taint. Id. at 872. Indeed, we stated in Armistead v. Commonwealth, 38 Va. (11 Leigh) 688, 695 (1841), that “however willing [the juror] may be to trust himself, the law will not trust him.”

A defendant is entitled to a trial by jurors who stand indifferent in the cause. Even though circuit courts have wide latitude in the seating of jurors, courts must be mindful that if any reasonable doubt exists regarding whether a juror stands indifferent in the cause, that doubt must be resolved in favor of the defendant. A juror's ability to give a defendant a fair and impartial trial must not be left to inference or doubt.

We will reverse that part of the judgment of the circuit court that confirmed the capital murder conviction and the sentence of death. We will remand this case to the circuit court for a new trial on the capital murder offense. See Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The defendant's non-capital convictions are not before this Court and are not affected by this opinion. Reversed and remanded.

Green v. Commonwealth, 266 Va. 81, 580 S.E.2d 834 (Va. 2003) (Direct Appeal - Retrial).

Defendant was convicted, after a jury trial in the Circuit Court, Brunswick County, James A. Luke, J., of capital murder and was sentenced to death. Defendant appealed. The Supreme Court, 546 S.E.2d 446, reversed and remanded for a new trial. On retrial a jury in the Circuit Court convicted defendant of capital murder and he was sentenced to death. Defendant appealed. The Supreme Court, Cynthia D. Kinser, J., held that: (1) trial court denial of defendant's request for the appointment of an investigator was not an abuse of discretion; (2) the trial court's refusal to allow defendant to ask prospective jurors seven of his 52 questions during voir dire was not an abuse of discretion; (3) excusal of potential juror for cause was not manifest error; (4) evidence was sufficient to establish premeditation; and (5) death sentence for capital murder was not excessive. Affirmed.

OPINION BY JUSTICE CYNTHIA D. KINSER.

This capital murder case is before the Court for the second time. We previously reversed Kevin Green's conviction for the 1998 capital murder of Patricia L. Vaughan and remanded the case to the circuit court for a new trial. Green v. Commonwealth, 262 Va. 105, 118, 546 S.E.2d 446, 452 (2001). FN2 Upon retrial, a jury again convicted Green of capital murder during the commission of robbery in violation of Code § 18.2-31(4). At the conclusion of the penalty phase of the bifurcated trial, the jury fixed Green's punishment at death, finding “that there is a probability that [Green] would commit criminal acts of violence that would constitute a continuing serious threat to society” (the “future dangerousness” predicate), and “that his conduct in committing the offense [was] outrageously or wantonly vile, horrible or inhuman in that it involved ... both aggravated battery to the victim and depravity of mind” (the “vileness” predicate). See Code §§ 19.2-264.2 and -264.4(D). The circuit court subsequently sentenced Green in accordance with the jury verdict.

FN2. Green's convictions for robbery, the malicious wounding of Lawrence T. Vaughan, and three counts of the illegal use of a firearm were not before the Court in the prior appeal, Green, 262 Va. at 108, 546 S.E.2d at 447, nor are they at issue in the present appeal. We consolidated the automatic review of Green's death sentence with the appeal of his capital murder conviction. See Code § 17.1-313(F). Upon considering the issues raised by Green and conducting our mandated review of the imposition of the death penalty, we find no error in the judgment of the circuit court. Thus, we will affirm that judgment and the sentence of death in this case.

I. FACTS

A. GUILT PHASE

The victim, Patricia L. Vaughan, and her husband, Lawrence T. Vaughan, owned and **838 operated a small grocery store in Brunswick County. As part of their grocery store operation, the Vaughans regularly cashed checks for employees of several nearby businesses, including a lumber company that paid its employees on Friday of each week.

Consequently, Mr. Vaughan routinely went to a bank on Fridays to obtain sufficient currency to cash payroll checks for the lumber company employees. And, he did so on Friday, August 21, 1998. Upon returning from the bank on that Friday, he placed $10,000 in a bank bag that he kept in a cabinet underneath the cash register, another $10,000 elsewhere in the store, and the remaining cash in a safe.

On the day in question, as Mr. Vaughan was starting to eat lunch and to file an invoice, two men entered the store. Mr. Vaughan saw them and recognized the taller of the two men as Kevin Green, the defendant. Green had worked for the lumber company for approximately eight to ten weeks during the preceding spring, and had frequented the Vaughans' grocery store at lunchtime, after work, and on Fridays to cash his payroll checks.

When the two men entered the store, Mrs. Vaughan had her back to the door and was standing five or six feet from Mr. Vaughan. Thinking that the shorter man was going over to the “drink box,” Mr. Vaughan turned around to finish his filing. As he did so, he heard his wife scream, “Oh, God.” At trial, Mr. Vaughan described what he then heard: It was four bangs. Bang, bang and I was hit. I didn't know where I was hit, but I was hurt. I turned a complete turn and fell on the floor, sit [sic] down on my right foot and broke my right ankle. And about [the] time I went down, I looked up and I realized it was a gun being fired. I could see him, he shot toward my wife with the fourth shot. I saw his hand with a pistol in it. He was holding [it] like he was target practicing.

Mr. Vaughan testified that Green, after firing the four shots, walked back to the door and stood there “as a lookout” while the other man came around behind the counter and tried to open the cash register. When the drawer on the cash register jammed, Green directed the shorter man to look under the counter.

Upon doing so, he found the bank bag containing approximately $9,000 in cash and Mr. Vaughan's pistol, which he then used to shoot through the key hole in the cash register drawer. Taking the bank bag and the pistol, the shorter man exited the store, but Green walked a few steps over to where Mrs. Vaughan was lying on the floor and pointed the gun at her again.

According to Mr. Vaughan, the gun misfired, and Green ejected a live cartridge onto the floor. Green then fired two more shots in the direction of Mrs. Vaughan. Lowering his head, Mr. Vaughan heard the gun “snap” one more time, but he did not know whether Green was pointing the gun at him or his wife. Only then, when the gun was empty, did Green leave the store.

After Green left, Mr. Vaughan dragged himself approximately five feet across the floor of the store to a telephone and dialed the “911” emergency number, but he was too weak to reach his wife who was still lying on the floor. One of the first police officers to arrive at the scene testified that he observed “puddles of blood just pouring out of [Mrs. Vaughan's] nose, her mouth, [and] her head.” A local volunteer medical examiner determined that Mrs. Vaughan had died at the scene of the shooting.

A subsequent autopsy of Mrs. Vaughan's body revealed that she sustained four gunshot wounds. One bullet penetrated the left side of her head, passed through the temporal and frontal lobes of her brain, and lodged in the inner frontal sinus of her face. Another bullet entered the right side of her chest and went into the upper lobe of her right lung. A third bullet penetrated the left side of her back. This was the only non-lethal wound. The fourth bullet entered the right side of Mrs. Vaughan's back and penetrated two lobes of her right lung.

According to the forensic pathologist who performed the *89 autopsy, Dr. Jose Abrenio, this wound caused hemorrhaging in her thoracic cavity, which led to difficulty in breathing and had the effect of suffocating her. Dr. Abrenio also opined that Mrs. Vaughan survived “seconds to minutes” after she was first shot.

Four days after the murder, a warrant was issued to search Green, his residence, and automobile. During the search of his home, six bullets were retrieved from the trunk of a tree in his yard. The bullets were found behind a “makeshift target” hanging on the tree. Forensic testing on those six bullets and the four bullets recovered from Mrs. Vaughan's body during the autopsy revealed that all ten “caliber 25 Auto full metal jacketed bullets” had been fired from one weapon. About 35 to 50 feet from the tree, 16 25-caliber empty cartridge casings were also recovered.

After Green was arrested, he executed a form waiving his Miranda rights and agreed to be questioned by law enforcement officers. During that interrogation, Green admitted that he and his cousin, David Green, robbed the Vaughans' grocery store and that he selected their store because he knew the Vaughans kept a lot of money there.

Green and his cousin had originally planned to wear masks to conceal their faces. However, they discarded the masks after they had to wait behind the store in their automobile for about an hour because other people were in the grocery store. Green also admitted that he shot both of the Vaughans, hitting Mrs. Vaughan four times.

B. PENALTY PHASE

During the penalty phase of the trial, the Commonwealth presented testimony from several correctional officers who had supervised Green's incarceration at different times and facilities. Much of their testimony described incidents during which Green exhibited disruptive behavior, refused to obey instructions, and made threats to the officers. For example, one officer testified that Green “clinched” the bars of his cell and said, “I'll get you, I will get you.”

Another officer stated that, when Green had to be placed in isolation because of his disruptive conduct, Green started throwing anything he could find, flushing the toilet, and throwing water into the hallway. Green then told the officer that he was going to make the officer's life “a living hell.” Other personnel described incidents in which Green threw food, trash, and feces on the floor and refused to take his medication.

In addition to this testimony, the Commonwealth called Clement Leon Cleaton, an acquaintance of Green. Cleaton testified that Green had threatened to rob and kill him and that he had heard Green threaten to rob a man selling ice cream from a truck. Cleaton also related an incident in which Green had shot several times toward Cleaton's “hog pen” while Cleaton was feeding his hogs. Cleaton had asked Green not to shoot in that direction.

As evidence of mitigating circumstances, Green introduced testimony from Dr. Jack Daniel, an expert in the field of forensic pathology. Dr. Daniel had reviewed Mrs. Vaughan's death certificate, the medical examiner's report, and Dr. Abrenio's autopsy report. He testified that he found no evidence in those documents that Mrs. Vaughan had endured prolonged suffering before she died from the gunshot wounds.

However, Dr. Daniel agreed that it was not possible to determine whether the blood found in Mrs. Vaughan's chest cavity during the autopsy was the result of an immediate bleeding at the time of the injury or accumulated during the hours following her death.

The jury also heard evidence from Dr. Scott W. Sautter, an expert in neuropsychology who had tested Green's I.Q. on two separate occasions using two different tests, the “Wechsler abbreviated intelligence scale” and the “Wechsler [A]dult [I]ntelligence [S]cale [R]evised.”

Dr. Sautter testified that, while the formats of the two tests are similar, the “two tests are not exactly the same.” Dr. Sautter reported that Green had a full-scale I.Q. score of 74 on the Wechsler Adult Intelligence Scale and a score of 55 on the “abbreviated” test. With that level of intellectual functioning, Dr. Sautter stated that Green could work best in a structured environment with guidance and supervision, and that he would expect Green to have difficulties in independent living, managing a budget, and going to a job on a consistent basis.

Based upon his evaluation of Green in a prison setting, Dr. Sautter also opined that, in a maximum-security situation, Green would not be a danger to others and his **840 behavior would be appropriate. However, in a less secure environment, Dr. Sautter opined that Green would be susceptible to harm from other people because of his limited capacity for communication.

Two clinical psychologists testified for the Commonwealth in rebuttal to Dr. Sautter's testimony. Dr. Lynda J. Hyatt reported that Green had an I.Q. score of 84 on the “Ammons & Ammons quick test,” which placed Green in the category of “low average” mental functioning. Dr. Thomas A. Pasquale evaluated Green's personality *91 as well as his intellectual functioning. Dr. Pasquale diagnosed depression, alcohol dependency, drug abuse, anti-social personality disorder, and malingering.

According to Dr. Pasquale, Green had a full-scale I.Q. score of 74 on the Weschler Adult Intelligence Scale, placing him in the “borderline range” of intellectual functioning. With regard to Green's adaptive functioning, Dr. Pasquale noted that Green had worked at a pizza restaurant where he functioned routinely in taking orders, delivering pizzas, and using the cash register; and that Green paid his own rent, lived with a friend, and had a driver's license. Dr. Pasquale also opined that Green is a high risk for violence in an “open community” but that, in a prison setting, the probability of such risk is low.

*****

D. PENALTY-PHASE ISSUES

1. TESTIMONY OF DEPUTY WESSON

During Deputy Kevin Wesson's penalty phase testimony, he stated that, when he worked for a store selling electronic devices, Mrs. Vaughan inquired about having a security system installed at the Vaughans' grocery store. According to Deputy Wesson, Mrs. Vaughan was concerned because of a robbery and murder that had occurred at a store in a neighboring county and was fearful that the same kind of crime could happen at the Vaughans' store.

Green claims that this testimony violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States and the equivalent provisions of the Constitution of Virginia. However, Green did not object to Deputy Wesson's testimony at trial. Thus, he is barred from raising this claim for the first time on appeal. Rule 5:25.

2. SUFFICIENCY OF EVIDENCE OF VILENESS AND FUTURE DANGEROUSNESS

Green asserts that the circuit court erred in overruling his motion to strike the Commonwealth's evidence regarding both the “vileness” and “future dangerousness” predicates and also in overruling his motion to set aside the jury verdict fixing the death penalty. As to the “vileness” factor, Green argues that, since three of the four gunshot wounds sustained by Mrs. Vaughan were lethal, she died almost instantaneously without any other battery to her.

He also relies on the forensic pathologist's testimony that Mrs. Vaughan died within “seconds to minutes” after she was first shot. Thus, in Green's view, the Commonwealth failed to prove either an aggravated battery to the victim or depravity of mind of the defendant.

He also contends that the Commonwealth failed to establish beyond a reasonable doubt that Green would probably commit criminal acts of violence in the future that would constitute a continuing serious threat to society. According to Green, the testimony of Dr. Sautter and Dr. Pasquale established that Green would not be a future danger if confined to prison. Green points to Dr. Sautter's opinion that Green's behavior would be appropriate in a maximum-security situation and to Dr. Pasquale's statement that, in a prison setting, the risk of misbehavior by Green would be low.

In asserting that the Commonwealth failed to establish the “future dangerousness” predicate, Green also relies on the fact that he had no record of convictions for criminal offenses that pre-dated the present offenses involving the Vaughans. Finally, he characterizes the Commonwealth's evidence of unadjudicated prior bad acts as “ ‘benign’ run-ins with friends, family and employers.”

With regard to the “vileness” predicate, the term “aggravated battery” means “a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978). Contrary to Green's assumption that Mrs. Vaughan died instantly, the forensic pathologist stated that he could not determine in what sequence Green had fired the four gunshots at Mrs. Vaughan.

He did opine, however, that the bullet that penetrated two lobes of her right lung caused hemorrhaging in the thoracic cavity, the effect of which he likened to suffocation. “A killing inflicted by multiple gunshot wounds ... when there is an appreciable lapse of time between the first shot and the last, and when death does not result instantaneously from the first” constitutes an “aggravated battery.”*106 Sheppard v. Commonwealth, 250 Va. 379, 392, 464 S.E.2d 131, 139 (1995). Likewise, multiple gunshot wounds, any one of which could have been fatal, constitute an “aggravated battery.” Walker v. Commonwealth, 258 Va. 54, 71, 515 S.E.2d 565, 575 (1999).

We have construed the term “depravity of mind” to mean “a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.” Smith, 219 Va. at 478, 248 S.E.2d at 149. Green's conduct established “depravity of mind” when he repeatedly shot Mrs. Vaughan in front of her husband and left them both to die merely so he could rob them.

The killing of Mrs. Vaughan was unprovoked and Green showed **849 no mercy for her when he walked back over to where she was lying on the floor and emptied his gun at her. See Walker, 258 Va. at 72, 515 S.E.2d at 575-76. Thus, we conclude that the circuit court did not err in refusing to strike the Commonwealth's evidence or to set aside the jury verdict finding the aggravating “vileness” factor.

As to the “future dangerousness” predicate, we reach the same conclusion. The circumstances surrounding the murder of Mrs. Vaughan, including the shooting of Mr. Vaughan, are alone sufficient to establish Green's future dangerousness. See Code § 19.2-264.4(C) (future dangerousness can be based on “the circumstances surrounding the commission of the offense”); Kasi v. Commonwealth, 256 Va. 407, 423, 508 S.E.2d 57, 66 (1998).

In addition, Cleaton, an acquaintance of Green, testified that Green had threatened to rob and kill him and had shot in Cleaton's direction on one occasion even though Cleaton had specifically asked Green not to do so. Cleaton also stated that he had heard Green threaten to rob a man selling ice cream. Finally, several correctional officers who had supervised Green's incarceration testified about Green's disruptive behavior and his threats to the officers.

E. ISSUES ALREADY DECIDED

Several of Green's assignments of error concern issues that this Court has already decided adversely to the position he now advances. Green has offered no reason why we should depart from our precedents. Thus, we affirm our prior holdings and find no merit in the following assignments of error:

1. The trial court erred in overruling the defendant's motion to declare Virginia's death penalty statutes unconstitutional. Green makes only a generalized argument on this issue. We have rejected *107 numerous specific challenges to the constitutionality of Virginia's death penalty statutes in Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907 (1997); Breard, 248 Va. at 74-75, 445 S.E.2d at 675; Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d 678, 684 (1994); Satcher v. Commonwealth, 244 Va. 220, 227-28, 421 S.E.2d 821, 826 (1992); Watkins v. Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989); Spencer, 238 Va. at 275, 280-81, 384 S.E.2d 775, 777-78 (1989); and Smith, 219 Va. at 471-79, 248 S.E.2d at 145-49.

2. The trial court erred in overruling the defendant's motion for a bill of particulars. Initially, we note that the circuit court granted Green's motion in part. To the extent that he now argues that he was entitled to a bill of particulars providing a “narrowing” construction of the “vileness” predicate and listing all the evidence that the Commonwealth intended to rely upon at sentencing, we have rejected such arguments in Goins v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123 (1996); and Strickler, 241 Va. at 490, 404 S.E.2d at 233, respectively.

3. The trial court erred in overruling the defendant's motion to preclude the Commonwealth from using evidence of unadjudicated acts at sentencing. Although the circuit court denied Green's motion, the court stated in its order that it would review each unadjudicated act for its relevance to the issue of future dangerousness and its probative value versus its prejudicial effect. This Court has rejected Green's arguments in Walker, 258 Va. at 64-67, 515 S.E.2d at 571-73; Williams v. Commonwealth, 248 Va. 528, 536, 450 S.E.2d 365, 371 (1994); and Stockton v. Commonwealth, 241 Va. 192, 209, 402 S.E.2d 196, 206 (1991).

4. The trial court erred in denying the defendant's motion for additional peremptory challenges. We have rejected this claim in Spencer, 240 Va. at 84, 393 S.E.2d at 613; Buchanan, 238 Va. at 405, 384 S.E.2d at 767; and O'Dell v. Commonwealth, 234 Va. 672, 690, 364 S.E.2d 491, 501 (1988).

5. The trial court erred in denying the defendant's motion for that court to conduct a proportionality review. As we have already ruled, nothing in Code § 17.1-313(E) requires a trial court to conduct such a review, Bailey, 259 Va. at 742, 529 S.E.2d at 581, and the circuit court in this case did not abuse its discretion in refusing to do so. See id.

6. The trial court erred by overruling the defendant's motion to introduce evidence regarding**850 conditions of imprisonment for life in rebuttal to the Commonwealth's evidence of the defendant's future *108 dangerousness. We have rejected all Green's arguments on this issue in Bell, 264 Va. at 199, 563 S.E.2d at 713; Burns, 261 Va. at 338-40, 541 S.E.2d at 892-93; Lovitt, 260 Va. at 517, 537 S.E.2d at 879; and Cherrix v. Commonwealth, 257 Va. 292, 309-10, 513 S.E.2d 642, 653-54 (1999). We further note that the circuit court denied Green's motion only “to the extent that it exceeds evidence of [Green's] previous adjustment to incarceration.”

F. STATUTORY REVIEW

As with every case involving the imposition of the death penalty, we must determine whether the death sentence in this case was imposed under the influence of passion, prejudice, or other arbitrary factors. Code § 17.1-313(C)(1). Green does not claim that any specific passion or prejudice affected the sentencing decision. Upon reviewing the record, we find no evidence that any such factor was present in this case or influenced either the jury's or the circuit court's sentencing decision.

We are also required by the provisions of Code § 17.1-313(C)(2) to determine whether Green's sentence of death is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Because of the statutory directive that we compare this case with “similar cases,” we have focused on cases in which an individual was murdered during the commission of robbery and the death penalty was imposed upon a finding of both aggravating factors. Our proportionality review includes all capital murder cases presented to this Court for review and is not limited to selected cases. See Burns, 261 Va. at 345, 541 S.E.2d at 896-97.

Based on that review, we conclude that Green's sentence of death is not excessive or disproportionate to sentences generally imposed in this Commonwealth for capital murders comparable to Green's murder of Mrs. Vaughan, and we cite the following cases as examples: Akers v. Commonwealth, 260 Va. 358, 535 S.E.2d 674 (2000), cert. denied, 531 U.S. 1205, 121 S.Ct. 1221, 149 L.Ed.2d 132 (2001); Stout v. Commonwealth, 237 Va. 126, 376 S.E.2d 288 (1989); Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815 (1985); and Edmonds v. Commonwealth, 229 Va. 303, 329 S.E.2d 807 (1985).

In reaching this conclusion, we have considered Green's argument that the death penalty in this case is disproportionate because the Commonwealth failed to show that Mrs. Vaughan endured prolonged suffering before she died and because Green had no criminal convictions prior to this offense.

He thus claims that this case involved “less aggravation” than many other cases in this Commonwealth*109 in which death sentences have been imposed. We do not agree and reiterate that the purpose of our proportionality review “is to reach a reasoned judgment regarding what cases justify the imposition of the death penalty.” Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999). We do not “insure complete symmetry.” Id.

III. CONCLUSION

For the reasons stated, we find no error in the judgment of the circuit court or in the imposition of the death penalty. We also perceive no reason warranting commutation of the death penalty in this case. Thus, we will affirm the judgment of the circuit court. Affirmed.

Green v. Johnson, 515 F.3d 290 (4th Cir. 2008) (Habeas).

Background: Following affirmance of his capital murder conviction and death sentence, 266 Va. 81, 580 S.E.2d 834, petitioner sought federal habeas relief. The United States District Court for the Eastern District of Virginia, at Norfolk, Rebecca Beach Smith, J., 2007 WL 951686, adopted the opinion of Miller, United States Magistrate Judge, 2006 WL 3746138, and denied and dismissed petition. Petitioner appealed.

Holdings: The Court of Appeals, Shedd, Circuit Judge, held that:
(1) Virginia Supreme Court's determination that petitioner had not established claim of mental retardation was not contrary to clearly established federal law or unreasonable application of Supreme Court precedent;
(2) petitioner was not mentally retarded under Virginia law; and
(3) petitioner's ineffective assistance of counsel claim was time-barred. Affirmed.

SHEDD, Circuit Judge:

Kevin Green, a Virginia capital inmate, appeals the denial of his petition for a writ of habeas corpus. The district court granted Green a certificate of appealability (“COA”) on two issues: (1) whether he is mentally retarded so that his sentence is unconstitutional under the Eighth Amendment as interpreted in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and (2) whether his trial counsel rendered ineffective assistance by failing to appeal his non-capital convictions after the first of his two trials. In denying relief, the district court concluded that Green failed to prove he is mentally retarded under Virginia law and that his ineffective assistance of counsel claim is untimely under 28 U.S.C. § 2244(d). For the following reasons, we affirm.

We begin with a summary of the facts pertaining to the underlying crimes, as articulated by the Supreme Court of Virginia:

“The victim, Patricia L. Vaughan, and her husband, Lawrence T. Vaughan, owned and operated a small grocery store in Brunswick County. As part of their grocery store operation, the Vaughans regularly cashed checks for employees of several nearby businesses, including a lumber company that paid its employees on Friday of each week. Consequently, Mr. Vaughan routinely went to a bank on Fridays to obtain sufficient currency to cash payroll checks for the lumber company employees. And, he did so on Friday, August 21, 1998. Upon returning from the bank on that Friday, he placed $10,000 in a bank bag that he kept in a cabinet underneath the cash register, another $10,000 elsewhere in the store, and the remaining cash in a safe.

“On the day in question, as Mr. Vaughan was starting to eat lunch and to file an invoice, two men entered the store. Mr. Vaughan saw them and recognized the taller of the two men as Kevin Green, the defendant. Green had worked for the lumber company for approximately eight to ten weeks during the preceding spring, and had frequented the Vaughans' grocery store at lunchtime, after work, and on Fridays to cash his payroll checks.

“When the two men entered the store, Mrs. Vaughan had her back to the door and was standing five or six feet from Mr. Vaughan. Thinking that the shorter man was going over to the ‘drink box,’ Mr. Vaughan turned around to finish his filing. As he did so, he heard his wife scream, ‘Oh, God.’ At trial, Mr. Vaughan described what he then heard: It was four bangs. Bang, bang and I was hit. I didn't know where I was hit, but I was hurt. I turned a complete turn and fell on the floor, sit [sic] down on my right foot and broke my right ankle. And about [the] time I went down, I looked up and I realized it was a gun being fired. I could see him, he shot toward my wife with the fourth shot. I saw his hand with a pistol in it. He was holding [it] like he was target practicing.

“Mr. Vaughan testified that Green, after firing the four shots, walked back to the door and stood there ‘as a lookout’ while the other man came around behind the counter and tried to open the cash register. When the drawer on the cash register jammed, Green directed the shorter man to look under the counter. Upon doing so, he found the bank bag containing approximately $9,000 in cash and Mr. Vaughan's pistol, which he then used to shoot through the key hole in the cash register drawer. Taking the bank bag and the pistol, the shorter man exited the store, but Green walked a few steps over to where Mrs. Vaughan was lying on the floor and pointed the gun at her again. According to Mr. Vaughan, the gun misfired, and Green ejected a live cartridge onto the floor. Green then fired two more shots in the direction of Mrs. Vaughan. Lowering his head, Mr. Vaughan heard the gun ‘snap’ one more time, but he did not know whether Green was pointing the gun at him or his wife. Only then, when the gun was empty, did Green leave the store.

“After Green left, Mr. Vaughan dragged himself approximately five feet across the floor of the store to a telephone and dialed the '911' emergency number, but he was too weak to reach his wife who was still lying on the floor. One of the first police officers to arrive at the scene testified that he observed ‘puddles of blood just pouring out of [Mrs. Vaughan's] nose, her mouth, [and] her head.’ A local volunteer medical examiner determined that Mrs. Vaughan had died at the scene of the shooting.

“A subsequent autopsy of Mrs. Vaughan's body revealed that she sustained four gunshot wounds. One bullet penetrated the left side of her head, passed through the temporal and frontal lobes of her brain, and lodged in the inner frontal sinus of her face. Another bullet entered the right side of her chest and went into the upper lobe of her right lung. A third bullet penetrated the left side of her back. This was the only non-lethal wound. The fourth bullet entered the right side of Mrs. Vaughan's back and penetrated two lobes of her right lung. According to the forensic pathologist who performed the autopsy, Dr. Jose Abrenio, this wound caused hemorrhaging in her thoracic cavity, which led to difficulty in breathing and had the effect of suffocating her. Dr. Abrenio also opined that Mrs. Vaughan survived ‘seconds to minutes' after she was first shot.

“Four days after the murder, a warrant was issued to search Green, his residence, and automobile. During the search of his home, six bullets were retrieved from the trunk of a tree in his yard. The bullets were found behind a ‘makeshift target’ hanging on the tree. Forensic testing on those six bullets and the four bullets recovered from Mrs. Vaughan's body during the autopsy revealed that all ten ‘caliber 25 Auto full metal jacketed bullets' had been fired from one weapon. About 35 to 50 feet from the tree, 16 25-caliber empty cartridge casings were also recovered.

“After Green was arrested, he executed a form waiving his Miranda rights and agreed to be questioned by law enforcement officers. During that interrogation, Green admitted that he and his cousin, David Green, robbed the Vaughans' grocery store and that he selected their store because he knew the Vaughans kept a lot of money there. Green and his cousin had originally planned to wear masks to conceal their faces.

However, they discarded the masks after they had to wait behind the store in their automobile for about an hour because other people were in the grocery store. Green also admitted that he shot both of the Vaughans, hitting Mrs. Vaughan four times.” Green v. Commonwealth, 266 Va. 81, 580 S.E.2d 834, 837-39 (2003) (“ Green v. Commonwealth II ”).

In June 2000, Green was convicted of the capital murder of Mrs. Vaughan during the commission of robbery; and of the non-capital crimes of robbery, malicious wounding of Mr. Vaughan, and three counts of illegal use of a firearm. The jury fixed Green's punishment at death for the capital murder conviction; life imprisonment for the robbery conviction; 20 years imprisonment for the malicious wounding conviction; and three years imprisonment for each of the firearms convictions.

On October 6, 2000, the trial judge sentenced Green in accord with the jury's verdict. Green's trial counsel appealed his capital murder conviction and death sentence but not his non-capital convictions.

In June 2001, the Supreme Court of Virginia reversed Green's capital murder conviction and death sentence, holding that the trial judge abused his discretion by refusing to remove two potential jurors from the venire based on their lack of impartiality. See Green v. Commonwealth, 262 Va. 105, 546 S.E.2d 446 (2001) (“ Green v. Commonwealth I ”).

The supreme court concluded that one juror had formed a fixed opinion about the punishment Green should receive if convicted of the capital murder, and the other juror had formed a fixed opinion about the case based on pretrial publicity. Although this decision necessitated a new trial on the capital murder charge, it did not affect Green's unappealed non-capital convictions. See id. at 447 (“Green did not appeal his non-capital convictions. Therefore, those convictions are not before this Court and are not affected by this opinion.”).

Green's retrial occurred in the latter part of 2001, and a jury again convicted him of capital murder during the commission of robbery and fixed his punishment at death. Green's criminal record, including the non-capital convictions and sentences he received at the first trial, was presented to the jury during the sentencing phase of the retrial. In January 2002, the trial judge sentenced Green in accord with the jury's recommendation.

In June 2003, the Supreme Court of Virginia affirmed Green's capital murder conviction and death sentence. See Green v. Commonwealth II. Pertinent to this appeal, the supreme court summarized evidence presented during the penalty phase of Green's second trial:

The jury also heard evidence from Dr. Scott W. Sautter, an expert in neuropsychology who had tested Green's I.Q. on two separate occasions using two different tests, the “Wechsler abbreviated intelligence scale” and the “Wechsler [A]dult [I]ntelligence [S]cale [R]evised.” Dr. Sautter testified that, while the formats of the two tests are similar, the “two tests are not exactly the same.” Dr. Sautter reported that Green had a full-scale I.Q. score of 74 on the Wechsler Adult Intelligence Scale and a score of 55 on the “abbreviated” test....

Two clinical psychologists testified for the Commonwealth in rebuttal to Dr. Sautter's testimony. Dr. Lynda J. Hyatt reported that Green had an I.Q. score of 84 on the “Ammons & Ammons quick test,” which placed Green in the category of “low average” mental functioning. Dr. Thomas A. Pasquale evaluated Green's personality as well as his intellectual functioning. Dr. Pasquale diagnosed depression, alcohol dependency, drug abuse, anti-social personality disorder, and malingering.

According to Dr. Pasquale, Green had a full-scale I.Q. score of 74 on the Wechsler Adult Intelligence Scale, placing him in the “borderline range” of intellectual functioning. 580 S.E.2d at 839-40 (alterations in original). On February 23, 2004, the Supreme Court of the United States denied Green's petition for a writ of certiorari. See Green v. Virginia, 540 U.S. 1194, 124 S.Ct. 1448, 158 L.Ed.2d 107 (2004).

Green was represented by the same counsel for both of his trials and direct appeals. However, on June 26, 2003, Green was appointed new counsel to represent him on his state habeas petition, which was filed April 22, 2004. In that petition, Green asserted, inter alia, the two claims now before us: (1) he is mentally retarded and, therefore, his sentence violates the Eighth Amendment as interpreted in Atkins, and (2) his trial counsel rendered ineffective assistance by failing to appeal his non-capital convictions after his first trial.

On February 9, 2005, the Supreme Court of Virginia dismissed Green's state habeas petition. See Green v. Warden of Sussex I State Prison, No. 040932 (Va. Feb. 9, 2005) (“ Green v. Warden ”). The supreme court held that Green's ineffective assistance claim was untimely under state law:

Petitioner is challenging his counsel's failure to appeal his non-capital convictions that became final on October 30, 2000. The provisions of Code § 8.01-654 state that a petition for writ of habeas corpus shall be filed within two years from the date of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later. Any challenges petitioner wished to make regarding his appellate counsel's failure to appeal his non-capital convictions needed to be filed no later than October 30, 2002, or two years from the date of final judgment in the trial court on those charges. Green v. Warden, at 2-3.

The supreme court also held that Green failed to prove that his Atkins claim was not “frivolous” for purposes of Virginia Code § 8.01-654.2, which provides that the supreme court shall consider a claim of mental retardation filed under the statute and “if it determines that the claim is not frivolous, it shall remand the claim to the circuit court for a determination of mental retardation; otherwise, [it] shall dismiss the petition.” The supreme court explained:

The legislature has defined mental retardation as: [A] disability, originating before the age of 18 years, characterized concurrently by (I) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills. Code § 19.2-264.3:1.1(A).

This Court has previously held that the ceiling for a classification of mental retardation is an I.Q. score of 70. The record shows that Green was administered four standardized tests for measuring intellectual functioning. Green scored an 84 on the Ammons & Ammons quick test, a 74 on the Wechsler Adult Intelligence Scale, Third Edition, a 74 on the Wechsler Adult Intelligence Scale, Revised, and below a 70 on the Abbreviated Wechsler Adult Intelligence Scale. Based on these test scores, Green has failed to meet his burden of proving that his claim of mental retardation is not frivolous. Green v. Warden, at 9-10 (internal citation omitted).

Green thereafter filed a petition for rehearing, which the supreme court denied without comment on April 29, 2005. The Supreme Court of the United States denied Green's petition for a writ of certiorari (relating to his state habeas case) on December 5, 2005. See Green v. True, 546 U.S. 1066, 126 S.Ct. 809, 163 L.Ed.2d 636 (2005).

Green filed his federal habeas petition on December 1, 2005, naming Virginia Department of Corrections Director Gene M. Johnson as the respondent. Johnson moved to dismiss the petition, and the case was referred to a magistrate judge for the issuance of a report and recommendation. The magistrate judge held an evidentiary hearing and issued a thorough report, in which he recommended that the petition be denied and the motion to dismiss be granted. See Green v. Johnson, No. 2:05cv340, 2006 WL 3746138 (E.D.Va. Dec.15, 2006) (“ Green v. Johnson I ”).

Although the magistrate judge made several important subsidiary rulings in Green's favor, he ultimately concluded, inter alia, that (1) Green failed to prove that he is mentally retarded under Virginia Code § 19.2-264.3:1.1(A) and (2) Green's ineffective assistance of counsel claim is untimely under 28 U.S.C. § 2244(d). Both parties filed objections to the report. With one minor, irrelevant exception, the district court adopted the recommendation and dismissed the petition. See Green v. Johnson, No. 2:05cv340, 2007 WL 951686 (E.D.Va. Mar.26, 2007) (“ Green v. Johnson II ”).

The district court granted Green a COA on his Atkins and ineffective assistance of counsel claims, and although Green agrees with much of the district court's reasoning, he challenges the ultimate dismissal of his claims. Conversely, Johnson agrees with the ultimate dismissal of Green's claims, but he disagrees with some of the district court's reasoning, and he presents several alternate bases to support their dismissal.

*****

The magistrate judge's report recommending that the district court deny Green's habeas petition similarly accords the state court opinion the required deference. In making his recommendation, the magistrate judge initially and correctly recognized that, under § 2254(e)(1), the factual determinations of the state court were presumed to be correct unless Green “rebutt[ed] the presumption of correctness by clear and convincing evidence.” See Green v. Johnson, No. 2:05CV340, 2006 WL 3746138, at *39 (E.D.Va. Dec. 15, 2006); see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir.2006).

The magistrate judge then rejected the state court's finding on the “significantly subaverage intellectual functioning” prong of the definition of mental retardation. It is not completely clear whether the magistrate judge based this determination solely on the arguments presented by Green in his state court pleadings, but what is entirely clear is that the magistrate judge was not restricted to these pleadings by AEDPA, especially after having properly conducted the evidentiary hearing under § 2254(e).

Certainly the extensive evidence presented during the three-day evidentiary hearing offered a “clear and convincing” rebuttal to the presumption of correctness afforded the state court's findings and provided the proper basis for the magistrate judge's decision. 2006 WL 3746138 at **38-49.

The magistrate judge then considered whether Green satisfied the second prong of Virginia's statutory definition of mental retardation, namely, that Green possess “significant limitations in adaptive behavior.” Va.Code Ann. § 19.2-264.3:1.1(A) (2007). Because the Supreme Court of Virginia had not addressed whether Green satisfied this prong, the magistrate judge was forced to address the issue in the first instance (and so in this respect “ de novo ”).