Va. man executed for raping, killing an elderly woman

WashingtonPost.com

Associated Press - August 19, 2011

JARRATT, Va. — A man who raped and suffocated an 88-year-old woman was executed, becoming Virginia’s first inmate to be given a lethal injection using a revised three-drug cocktail. Jerry Terrell Jackson, 30, was pronounced dead at 9:14 p.m. Thursday at Greensville Correctional Center. Asked if he had any final words, Jackson shook his head and said “no” under his breath. As he waited for the drugs to be administered, he tapped his foot as he lay strapped to a stainless steel gurney. The execution team took about 15 minutes to insert two intravenous lines, one into each arm. Within four minutes of the lines being inserted, he was pronounced dead.

Jackson was sentenced to death for the 2001 rape and murder of seamstress Ruth Phillips in her Williamsburg apartment.

Like other states, Virginia recently replaced sodium thiopental with pentobarbital after a nationwide shortage of the sedative, which is administered before two other drugs that stop the inmate’s breathing and heart. Attorneys in some states have contested the use of pentobarbital, but federal courts have ruled the change is not significant enough to stop executions. Pentobarbital has been used in two dozen executions this year, according to the Death Penalty Information Center.

Richard Phillips, who found his mother dead on Aug. 26, 2001, said the execution was long overdue. Neither Phillips nor other members of the victim’s family witnessed the execution. Ruth Phillips, a widow for 30 years, followed her son to Virginia from New Hampshire in the late 1990s. She worked as a seamstress making slip covers and draperies up until her death. Richard Phillips said he had wanted her to move close to him so she would be safe. Authorities say Jackson broke into her apartment. When she awoke and found him rummaging through her purse, she offered him anything if he would leave. Instead, he put a pillow over her face and raped her, according to authorities. They said Jackson then fled in her car and used the $60 he stole from her apartment to buy marijuana.

“I’m sorry Mrs. Phillips lost her life due to something that I done,” Jackson had said recently. “I’m sorry to Mr. Philips that he hurt so much. I’m sorry that he lost his mother.”

Jackson nearly got a reprieve last year when U.S. District Judge Leonie Brinkema allowed a two-day evidentiary hearing in which Jackson’s brother and sister testified about the abuse he suffered at the hands of his father and stepfather while growing up. Brinkema ordered that Jackson at the time should receive a new sentencing hearing, saying the testimony “painted a graphic picture of an unwarranted, continuous, sadistic course of conduct that terrorized and dehumanized Jackson throughout his childhood.” But earlier this year, a federal appeals court overturned that ruling on a technicality. Recently, Jackson’s attorneys had argued jurors should get a chance to hear those graphic details of childhood abuse.

That argument was not enough to sway Gov. Bob McDonnell, who denied a request to commute Jackson’s sentence to life in prison last week. The U.S. Supreme Court denied a request earlier in the day Thursday to block the execution.

In a telephone interview with The Associated Press last Friday, Jackson talked about the abuse, which began with a broken arm when he was 19 months old and continued with sexual abuse and beatings with a fist, belt and once a two-by-four for more than a decade. Jackson acknowledged killing Phillips. Although he said it wasn’t an excuse for what he did, Jackson said he didn’t think it would have happened if he could have escaped the abuse as a child. “I don’t think I would have ended up this way,” he said. “I don’t think I would be on death row.”

The Rev. Christine Payden-Travers, who has written to and visited with Jackson for several years, called him a loyal and caring friend to many people. She was with Jackson until he was taken into the death chamber. She then witnessed the execution, holding her Bible, sometimes shutting her eyes and appearing to mouth a prayer. She had called up until the final hours for Jackson’s life to be spared. Payden-Travers and Jackson’s attorney declined to comment after the execution.

Jackson had followed news reports about the use of pentobarbital, including a recent Georgia execution in which there was some evidence the inmate suffered when the drug was used. He said he was concerned about its use. Department of Corrections spokesman Larry Traylor said the execution team had trained on the amended protocol using the new drug, read to “carry out the order of execution in a professional and constitutional manner.”

Jackson executed for 2001 slaying in Williamsburg

By Frank Green - TimesDispatch.com

August 19, 2011

JARRATT -- Jerry Terrell Jackson was executed by injection Thursday night for the rape and murder of an 88-year-old Williamsburg woman he suffocated with a pillow and robbed of $60. Jackson, 30, was pronounced dead at 9:14 p.m., said officials at the Greensville Correctional Center where Virginia executions are carried out. Asked if he had any last words, Jackson shook his head, indicating no.

It was the first execution in Virginia using the sedative pentobarbital as the first of three drugs administered in lethal injections. Virginia and most states traditionally used another drug that is no longer available. Larry Traylor, spokesman for the Virginia Department of Corrections, said there were no complications.

Jackson was escorted into the execution chamber by execution team members at 8:53 p.m. He was quickly ushered onto the gurney and strapped in. At 8:55 p.m., curtains were closed, blocking the view of witnesses while an IV line was inserted in each of his arms. After the curtains reopened, Jackson declined to make a last statement and the first of three chemicals started flowing. His chest moved as he breathed, his right toe appeared to tap and he moved his head a bit, but the movements quickly ceased. He was pronounced dead by a doctor who was remotely monitoring his heartbeat.

Jackson was sentenced to death for the slaying of Ruth Phillips in August 2001. Jackson broke into her apartment, where she lived alone, assaulted her and fled with her automobile. Her partially clothed body was discovered by her son, Richard Phillips, who went to check on her when she failed to attend church and did not answer her phone.

Jackson's lawyers did not contest his guilt but challenged his death sentence in unsuccessful appeals to the U.S. Supreme Court and Gov. Bob McDonnell. They said Jackson's trial lawyers failed to interview and present testimony from Jackson's brother and sister about the physical, psychological and sexual abuse Jackson suffered as a child. They argued that the testimony could have persuaded at least one juror to vote for a sentence of life without parole instead of death.

The Virginia Attorney General's Office, however, countered that the jury heard a great deal of evidence about the abuse suffered by Jackson and that testimony from his brother and sister would only have been cumulative.

McDonnell turned down Jackson's request for clemency last week, and the U.S. Supreme Court rejected his appeal Thursday afternoon.

Traylor said Jackson spent his last day in part by visiting with family members. No surviving family members of Ruth Phillips witnessed the execution. Jackson's was the 109th execution carried out in Virginia since the U.S. Supreme Court allowed the death penalty to resume in 1976. His death leaves Virginia's death-row population at 10.

Virginia executes man who raped, killed elderly woman

By Matthew Ward - Reuters.com

Aug 18 2011

CHESAPEAKE, Va (Reuters) - A man convicted of raping and killing an elderly Virginia woman was executed by lethal injection on Thursday, the first inmate put to death in that state this year, the attorney general's office said. Jerry Terrell Jackson, 30, was executed at the Greensville Correctional Center, south of the state capital, Richmond. "Tonight, the death sentence of Jerry Jackson was carried out by the Commonwealth of Virginia for the brutal rape and murder of Ruth Phillips," Virginia's Attorney General Ken Cuccinelli said in a statement.

Jackson, on death row since 2003, entered the Williamsburg apartment of 88-year-old Phillips on August 26, 2001. He told police he did not know Phillips was home. But she was lying in bed at the time and confronted Jackson. She told him to take what he wanted and leave, but he held a pillow against her face until she stopped screaming, raping her at the same time.

Jackson was pronounced dead at 9:14 p.m., Corrections spokesman Larry Traylor said. Jackson was the first inmate to be put to death in Virginia this year, and the first ever in that state to be executed with a drug mixture that included pentobarbital, a sedative. Jackson was the 32nd person executed in the United States this year.

After killing Phillips, Jackson left the apartment through a back window with $60. He stole Phillips' car and used the money to purchase marijuana. Phillips' body was found by her son after she did not attend church or answer her telephone. A fingerprint on a piece of paper inside a wallet next to Phillips' bed and DNA from hair found on and around her body implicated Jackson, and a jury found him guilty of capital murder.

Jackson met with family members, his spiritual advisor and attorneys today, Traylor said, and the inmate requested a last meal but asked for details to remain private. Jackson made no final statement, he added.

Traylor said there were no complications with the execution. Virginia, like other states, switched to using pentobarbital instead of sodium thiopental in its lethal injection regime after the sole U.S. supplier of sodium thiopental recently ceased production. The Supreme Court earlier on Thursday denied an appeal to stay the execution.

Jackson v. Commonwealth, 267 Va. 178, 590 S.E.2d 520 (Va. 2004) (Direct Appeal).

Background: Defendant was convicted in a jury trial in the Circuit Court, James City County, Samuel Taylor Powell, III, J., of murder, rape, burglary, robbery, and petit larceny, and sentenced to death. Defendant appealed.

Holdings: The Supreme Court, Cynthia D. Kinser, J., held that: (1) defendant's confession to police was admissible; (2) prospective juror, who stated that defendant would have to present some evidence, was not required to be struck; (3) prospective juror, who stated in response to confusing questions that he would automatically impose the death penalty, was not required to be struck; (4) prospective juror, who initially stated that she would not be able to consider all mitigating factors in deciding to impose death, was not required to be struck; (5) defendant was not prejudiced by alleged juror misconduct in speaking about case to one another prior to close of evidence; (6) trial court did not abuse discretion in allowing jury to read transcript of video taped confession; (7) photographs of victim's face and vaginal area were admissible; (8) evidence was sufficient to support jury's finding of premeditation; and (9) death sentence was not excessive. Affirmed.

OPINION BY JUSTICE CYNTHIA D. KINSER.

A jury convicted Jerry Terrell Jackson of two counts of capital murder for the premeditated killing of Ruth W. Phillips in the commission of rape or attempted rape, and in the commission of robbery or attempted robbery in violation of Code §§ 18.2–31(5) and –31(4), respectively. The jury also convicted Jackson of statutory burglary, in violation of Code § 18.2–90; robbery, in violation of Code § 18.2–58; rape, in violation of Code § 18.2–61; and petit larceny, in violation of Code § 18.9–96. At the conclusion of the penalty phase of a bifurcated trial, the jury fixed Jackson's punishment at death on each of the capital murder convictions, finding “that there is probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society.” The jury also fixed punishment of two life sentences for the rape and the robbery convictions, a 20–year sentence for the burglary conviction, and a 12–month sentence for the petit larceny conviction. The circuit court sentenced Jackson in accordance with the jury's verdict.FN1 FN1. The circuit court also imposed fines in the total amount of $102,500 as fixed by the jury.

Jackson appealed his non-capital convictions to the Court of Appeals pursuant to Code § 17.1–406(A). We certified that appeal (Record No. 031518) to this Court under the provisions of Code § 17.1–409 for consolidation with the defendant's appeal of his capital murder convictions (Record No. 031517) and the sentence review mandated by Code § 17.1–313. After considering Jackson's assignments of error and conducting our sentence review, we find no error in the circuit court's judgments and will affirm Jackson's convictions and the imposition of the death penalty.

I. FACTS

A. GUILT PHASE

Around 7 p.m., on Sunday, August 26, 2001, Richard Phillips discovered the body of his 88–year–old mother, Ruth Phillips, lying “twisted and exposed” on a bed in her bedroom. Phillips explained that his mother's “leg was twisted around, and her pubic region was exposed[; h]er breast was exposed[; and h]er nightgown was up around her neck.” Mrs. Phillips lived alone in an apartment located in Williamsburg, and her son had become concerned about her well-being that day because she had not attended church and was not answering her telephone. After finding his mother's body, Phillips went outside and used a cellular telephone to call the “911” emergency number. While waiting for emergency personnel to arrive, he noticed that the screen on a bathroom window in the apartment had been removed.

A subsequent autopsy of Mrs. Phillips' body revealed a contusion on her nose and some hemorrhaging of minute blood vessels in her cheeks and eyes. There were also two lacerations to her vagina, one on the exterior area and the other one on the interior area. The medical examiner who performed the autopsy opined that the cause of death was asphyxia. Death by asphyxia, according to the medical examiner, occurs when the brain is without a supply of oxygen for four to six minutes although unconsciousness may come about within 15 to 30 seconds. An investigator with the James City County Police Department, Jeff Vellines, went to Mrs. Phillips' apartment and collected several items of physical evidence. He found a window screen, mirror case, and cosmetic items outside the apartment near the master bathroom window. Inside, Vellines discovered a black pocketbook lying on the floor next to Mrs. Phillips' bed, and a brown wallet underneath the pocketbook. The wallet did not contain any money. However, a white square piece of paper found in the wallet contained one latent fingerprint of value for identification purposes. That fingerprint was later compared with the fingerprints of the defendant and found to be “one and the same.”

Another investigator at the crime scene recovered a hair from Mrs. Phillips chest area and another hair on the bed below the stomach area. During the autopsy of Mrs. Phillips' body, additional hairs were collected from her left thigh area. Microscopic examination of those hairs by a forensic scientist revealed that one of the hairs recovered from Mrs. Phillips' thigh area and the other two hairs were pubic hairs, but they were not consistent with samples of Mrs. Phillips' pubic hair. These same three hairs along with samples of the defendant's blood and hair were later subjected to mitochondrial DNA analysis. According to the forensic scientist who performed the testing, Jackson could not be excluded as the source of the hairs found on Mrs. Phillips' body and bed. The “mtDNA sequence data” of each of those hairs matched the “corresponding mtDNA sequence of the blood” taken from the defendant.

In December 2001, Vellines and Eric Peterson, also an investigator with the James City County Police Department, interviewed Jackson in the James City County Law Enforcement Center. After waiving his Miranda rights, Jackson admitted entering Mrs. Phillips' apartment, searching through and taking money out of her purse, and then exiting through a back window. Jackson stated that he did not know that Mrs. Phillips was at home, and that, when he turned on the light and was going through her purse, Mrs. Phillips, who was lying in bed, confronted him and stated, “What do you want? I'll give you whatever, just get out.” In the defendant's words, “[I]t just scared me and I covered her up [.]” Jackson acknowledged that he held a pillow over her face for two or three minutes and tried to make her “pass out” so she could not identify him. Jackson stated that, when Mrs. Phillips stopped screaming, that was his “cue that she [had] passed out.” He also admitted that he inserted his penis into her vagina while he was holding the pillow over her face. Continuing, Jackson stated that he took Mrs. Phillips' automobile when he left her apartment and drove it to another apartment complex, where he abandoned the vehicle with the keys lying on top of it. He also used $60 that he had taken from her purse to purchase marijuana. Throughout the interview, Jackson denied that anyone else was with him during this incident and insisted that he did not mean to kill Mrs. Phillips.

At trial, Jackson testified to a different version of the events that supposedly transpired at Mrs. Phillips' apartment.FN2 The defendant claimed that, on the day in question, he had been playing basketball until around midnight at the apartment complex where Mrs. Phillips lived. Jackson stated that, as he was leaving, he came in contact with Alex Meekins and Jasper Meekins. Jackson decided to participate in their plan to break into Mrs. Phillips' apartment. According to Jackson, Alex entered the apartment through a window and then let Jasper and the defendant in through the front door. While Jackson was looking through Mrs. Phillips' purse, she woke up and asked what was going on. Jackson testified that the following events then took place in Mrs. Phillips' bedroom: FN2. Jackson also testified at a hearing on a motion to suppress his confession. His testimony at that hearing also differed from his statement to the police.

Jasper Meekins, he put the pillow over her face and smothered her. While he was smothering her, I think she was struggling, but I told him at the end when I heard some sound, she was gurgling, I told him to stop. I pushed him off. As we were leaving, I pulled her nightgown down. I put the blanket over her, and I picked the pillow up initially and I didn't like what I saw, so I put the pillow back. Jackson explained that he confessed to Peterson because he thought that was what Peterson wanted to hear, and because he just wanted to “get out of there as fast as [he] could.” Jackson also explained that he never told the investigators about Jasper's and Alex's participation in the crime because he was “scared for [his] family on the streets” and had concerns about being a “snitch.” At trial, Jackson denied raping or killing Mrs. Phillips. He also denied having any knowledge about who raped Mrs. Phillips or about how his pubic hairs got on her body.FN3 FN3. A mitochondrial DNA analysis of blood taken from Alex Meekins showed that his mtDNA sequence did not correspond to the mtDNA sequence of the three hairs recovered from Mrs. Phillips' body.

B. SENTENCING PHASE

During the sentencing phase of the bifurcated trial, the Commonwealth introduced into evidence 18 orders showing Jackson's convictions or adjudications of delinquency for such offenses as grand larceny, petit larceny, trespassing, drug possession, receiving stolen property, contempt of court, identity fraud, statutory burglary, credit card theft, and obtaining money under false pretenses. The jury also heard evidence from two correctional officers about two incidents involving the defendant while he was incarcerated. In the first incident, Jackson refused to obey the orders of a correctional officer, and that refusal led to a scuffle with several officers as they attempted to remove Jackson's hand cuffs. The other incident involved an altercation between the defendant and another inmate.

In mitigation of the offenses, Jackson presented evidence about his adjustment and behavioral problems when he was a youth. In 1993, he was diagnosed with an “adjustment disorder with depressed mood and attention deficit, hyperactivity disorder.” Jackson was evaluated again in 1996 because he was having behavioral problems at home and was not doing well in school. Jackson expressed resentment toward his stepfather and acted out his negative feelings by behaving aggressively. However, testing indicated that Jackson had average intellectual functioning. During his school years, Jackson took medication for attention deficit hyperactivity disorder, but his mother reported to Jackson's pediatrician that her son continued to have behavioral problems at school, including fights. The defendant was eventually placed in a special school for students who cannot be controlled in a regular classroom setting. There was also evidence that the defendant suffered physical abuse as a child. FN4 FN4. We will summarize additional facts and proceedings as necessary to address specific issues.

II. ANALYSIS

A. DISMISSAL OF INDICTMENTS

Jackson assigns error to the circuit court's refusal to dismiss the capital murder indictments on the basis that Code § 19.2–264.4(B) is unconstitutional. The defendant raised this claim in a pre-trial motion and supporting memorandum. The circuit court denied the motion. Jackson now argues that Code § 19.2–264.4(B) contains “a relaxed evidentiary standard that leads to inherently unreliable determinations of aggravating factors and unreliable death sentences.” Citing the decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Jackson also seems to suggest that, in Virginia, the aggravating factors of future dangerousness and vileness are not decided by a jury based on proof of those factors beyond a reasonable doubt.FN5 We find no merit in the defendant's arguments. FN5. Any argument about the vileness aggravating factor is irrelevant because Jackson's sentence of death was predicated on the jury's finding of future dangerousness.

First, before the sentence of death may be imposed, the Commonwealth must prove at least one of the statutory aggravating factors beyond a reasonable doubt. Code § 19.2–264.4(C). Pursuant to Code § 19.2–264.3, a jury makes that determination, unless a jury trial is waived. Code § 19.2–257. Thus, to the extent Jackson suggests otherwise, he is incorrect. [1] [2] Next, Code § 19.2–264.4(B) does not contain a relaxed evidentiary standard or produce unreliable determinations of aggravating factors. Evidence relevant to sentencing in the penalty phase of a capital murder trial is admissible, “subject to the rules of evidence governing admissibility.” Id. We have held that this statute does not permit admission of irrelevant evidence. See Powell v. Commonwealth, 267 Va. 107, 121, 590 S.E.2d 537, 546 (2004) (decided this day); Remington v. Commonwealth, 262 Va. 333, 357, 551 S.E.2d 620, 634–35 (2001). Presentence reports from probation officers are specifically not admissible. Id. And, in Virginia, hearsay evidence also is not admissible during a penalty phase proceeding. Lovitt v. Warden, 266 Va. 216, 259, 585 S.E.2d 801, 826 (2003).

Finally, we note that, although the defendant argues that the full procedural safeguards employed during the guilt phase of a capital murder trial must also be provided in the penalty phase, he never identifies what procedural safeguards were missing in his penalty phase proceeding. He also fails to enunciate what unreliable information was admitted into evidence during the penalty phase of his trial as a result of the supposed relaxed evidentiary standard. In other words, Jackson's complaints about the provisions of Code § 19.2–264.4(B) are merely hypothetical in nature. Thus, we conclude that the circuit court did not err in refusing to dismiss the indictments.

B. SUPPRESSION OF DEFENDANT'S STATEMENT

Jackson filed a pre-trial motion to suppress the statement that he made to the police investigators. After hearing evidence and argument of counsel, the circuit court denied the motion, finding that Jackson's statement was voluntary and not the product of any psychological or physical coercion.

The defendant assigns error to the court's decision and argues that, “[b]ased on the totality of the circumstances, [his] will was overcome, his capacity for self-determination was critically impaired and his confession was not the product of a free and unconstrained choice.” Jackson claims that the investigators who questioned him engaged in trickery and deceit because of statements such as, “I will work with you ... I will be with you, thick and thin, boy ... I will be in your corner” and “I'm here for you.” As further evidence that his will was overborne, Jackson points to his repeated denials of culpability during the first part of the interrogation, his initial confession to a different crime, and his lack of knowledge that the crime for which he was being interrogated carried a possible sentence of death. In accordance with his testimony at the suppression hearing, Jackson claims that he simply told the investigator what the investigator wanted to hear so that he, the defendant, would be free to go.

We find no merit in Jackson's arguments. The circuit court found, and we agree, that there was no evidence of any promises of leniency, any force, any threats, any intimidation, any coercion, or any deprivation of the defendant's physical or mental needs. Such “subsidiary factual determinations are entitled to a presumption of correctness.” Swann v. Commonwealth, 247 Va. 222, 231, 441 S.E.2d 195, 202 (1994). The court also noted that the defendant had a reported IQ score of 100 and an educational level sufficient to read and write. Furthermore, Jackson signed a waiver of his Miranda rights at the beginning of the interview. And, he obviously understood the implications of making statements to the police because he had been charged with crimes on two previous occasions after confessing to those crimes.

A defendant's waiver of Miranda rights is valid if made knowingly, voluntarily, and intelligently. Id.; Jenkins v. Commonwealth, 244 Va. 445, 453, 423 S.E.2d 360, 366 (1992). “The test for 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.’ ” Id. at 453–54, 423 S.E.2d at 366 (quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)). When determining whether a defendant's statement was voluntarily given, we examine the totality of the circumstances, which include the defendant's background and experience as well as the conduct of the police in obtaining the waiver of Miranda rights and confession. Swann, 247 Va. at 231, 441 S.E.2d at 202; Correll v. Commonwealth, 232 Va. 454, 464, 352 S.E.2d 352, 357 (1987). Using these principles, we conclude that the defendant's statement was made knowingly, intelligently, and voluntarily. Thus, the circuit court did not err in admitting Jackson's incriminating statement.

C. JURY SELECTION

The defendant assigns error to the circuit court's failure to strike three prospective jurors for cause. An accused has a constitutional right to be tried by an impartial jury. See U.S. Const. amends. VI and XIV; Va. Const. art. I, § 8. By statute, a trial court is required to excuse any prospective juror who cannot “stand indifferent in the cause.” Code § 8.01–358. However, [b]ecause the trial judge has the opportunity, which we lack, to observe and evaluate the apparent sincerity, conscientiousness, intelligence, and demeanor of prospective jurors first hand, the trial court's exercise of judicial discretion in deciding challenges for cause will be not disturbed on appeal, unless manifest error appears in the record. Pope v. Commonwealth, 234 Va. 114, 123–24, 360 S.E.2d 352, 358 (1987) (citing Calhoun v. Commonwealth, 226 Va. 256, 258–59, 307 S.E.2d 896, 898 (1983)); accord Bell v. Commonwealth, 264 Va. 172, 191, 563 S.E.2d 695, 709 (2002); Green v. Commonwealth, 262 Va. 105, 115–16, 546 S.E.2d 446, 451 (2001); Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402 (1993). Thus, on appellate review, we defer to the trial court's decision whether to retain or exclude prospective jurors. Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999). Guided by these principles, we will now review the voir dire of the three jurors that the defendant claims should have been struck for cause. In doing so, we consider the prospective juror's entire voir dire, not just isolated portions. Id.; Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767 (1988).

(1) Juror Reinsberg - The defendant moved the circuit court to excuse this prospective juror because, among other reasons, she indicated at one point during her voir dire that she would probably require the defense to put on evidence during the trial. However, her overall responses to voir dire questions relevant to this particular issue reveal that she could “stand indifferent to the cause” and would not require the defendant to present evidence to establish his innocence:

[DEFENSE COUNSEL]: Do you have any feelings about the case from what you have read in the Gazette or from what you may have read in the Daily Press earlier? MS. REINSBERG: The seriousness of it. [DEFENSE COUNSEL]: Other than the seriousness? MS. REINSBERG: The charges. [DEFENSE COUNSEL]: Would you require the defense to put on evidence to change your mind or influence your decision considering what you have read? MS. REINSBERG: Probably. THE COURT: Let me ask, what do you mean by that? MS. REINSBERG: From what we have read, I don't know, I was thinking the newspaper— THE COURT: Is accurate? MS. REINSBERG: Is accurate, so I would—I would want to know, it was accurate or inaccurate. Sometimes certain parts can be made up. That shouldn't be. [DEFENSE COUNSEL]: May I go on? Considering that response, have you formed an opinion of some sort as to the guilt or innocence of the Defendant if you are going to require us to put on evidence? MS. REINSBERG: No. [DEFENSE COUNSEL]: That's based on what you have seen or read? MS. REINSBERG: (Nods head.) Just the one article. [DEFENSE COUNSEL]: Have you formed an opinion on what you have heard, the facts of what you have read, have you formed an opinion as to what punishment Mr. Jackson should receive as a result of what you— MS. REINSBERG: No. [DEFENSE COUNSEL]: You said that you would probably require us to put on some evidence. Tell us what you would be looking for from the defense. MS. REINSBERG: Well, were there other people involved, for one. * * * [COMMONWEALTH'S ATTORNEY]: Judge, just a couple [of] follow-up questions if I may. Ms. Reinsberg, one of the questions [defense counsel] asked you involved a response in which you said you would want to hear if other people were involved. Understanding that you read the newspaper, correct? MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]: That was Saturday's Gazette? MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]: Are you willing to put aside any opinions or thoughts you have regarding that newspaper article and judge this case based on the facts presented during the course of the trial? MS. REINSBERG: Definitely. [COMMONWEALTH'S ATTORNEY]: And are you going to hold the Commonwealth; that is, myself and Mr. McGinty, in our case to the proper burden of we have to prove the case beyond a reasonable doubt? MS. REINSBERG: Uh-huh. [COMMONWEALTH'S ATTORNEY]: And you understand that at sentencing, if the jury has convicted the Defendant of capital murder, that the burden is on us to prove certain things beyond a reasonable doubt— MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]:—before you can impose the death penalty? MS. REINSBERG: Right, I understand. [COMMONWEALTH'S ATTORNEY]: Are you open-minded to both the death penalty and life in prison? MS. REINSBERG: Definitely. [COMMONWEALTH'S ATTORNEY]: Do you agree with the concept that the Defendant does not have to present any evidence at trial? MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]: In fact, the Defendant doesn't have to present any evidence at sentencing? MS. REINSBERG: Right. [COMMONWEALTH'S ATTORNEY]: Are you willing to follow that principle of law? MS. REINSBERG: Yes.

The voir dire of prospective juror Reinsburg demonstrates that the circuit court correctly concluded that this juror understood both the Commonwealth's burden of proof and the fact that the defendant did not have to present any evidence. As we have previously stated, “[t]he real test is whether jurors can disabuse their minds of their natural curiosity and decide the case on the evidence submitted and the law as propounded in the court's instructions.” Townes v. Commonwealth, 234 Va. 307, 329, 362 S.E.2d 650, 662 (1987); accord Eaton v. Commonwealth, 240 Va. 236, 247, 397 S.E.2d 385, 392 (1990). Prospective juror Reinsberg satisfied this test. Thus, we find no manifest error in the circuit court's decision refusing to strike this juror for cause.

(2) Juror Baffer - Relying on the following series of questions, Jackson claims that the circuit court erred in refusing to strike prospective juror Baffer for cause:

[DEFENSE ATTORNEY]: Do you hold the belief that death is the appropriate punishment for a person who commits a murder, rape and/or robbery unless he can convince you otherwise? MR. BAFFER: Yes. [DEFENSE ATTORNEY]: Why is that? MR. BAFFER: Because I believe in the State of Virginia, the Penal Code in the—it's prescribed. * * * [DEFENSE ATTORNEY]: You were asked an “automatic” question by the Commonwealth. Would you automatically vote to impose the death penalty on a person you determine beyond a reasonable doubt constituted a continuing serious threat to society? MR. BAFFER: Yes. This isolated portion of juror Baffer's voir dire is misleading because this prospective juror, when asked by the Commonwealth whether he would automatically impose the death penalty if the defendant were found guilty of capital murder, answered “No.” The circuit court then engaged in the following exchange with prospective juror Baffer: THE COURT: Mr. Baffer, let me ask you one question. [Defense counsel] asked you a question. He said that if you found beyond a reasonable doubt that a consideration of the Defendant's history and background there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, he asked you if you found that, would you always vote to impose the death penalty, and you said yes. Is that your understanding of what the law in Virginia is? MR. BAFFER: I'm not sure what the law of Virginia is on that. You said automatically impose the death penalty? THE COURT: If you found—you convicted the Defendant of capital murder and then you made a second finding, go to the second phase where evidence is presented regarding the possible sentence. You have two possible sentences, life in prison or death, and the Court would instruct you that before you could impose the death penalty, you must find beyond a reasonable doubt that after consideration of the Defendant's history and background, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, you made that finding, is it your understanding that you must then impose the death penalty? MR. BAFFER: I don't know that I must impose. I mean, get him out of society. Life without parole removes him from society. THE COURT: That's correct. MR. BAFFER: If he would pose a danger, that would be adequate that he doesn't come back into society. THE COURT: What would be adequate, life without parole? MR. BAFFER: That would be adequate too, life without parole. THE COURT: The question [defense counsel] asked you is if you found that this future danger existed, would you automatically vote to impose the death penalty? MR. BAFFER: No, I would say no to that, if the alternative is he got life without parole, that would be adequate. THE COURT: Well, that is your alternative. You only have two choices. If the Defendant is found guilty of capital murder, you have two choices: One is the death sentence; the other is life in prison without parole. They are your only two options, and if you were to find the Defendant guilty of capital murder, and if you found the condition of future dangerousness existed, could you consider both? MR. BAFFER: I could consider both. THE COURT: Would you automatically impose the death penalty if you found future dangerousness existed? MR. BAFFER: No, if he was removed from society.

As stated previously, we must consider this juror's entire voir dire. See Vinson, 258 Va. at 467, 522 S.E.2d at 176. Upon doing so, it is clear that, while prospective juror Baffer stated at one point, in response to confusing questions by defense counsel, that he would automatically impose the death penalty, he subsequently clarified his position and stated that he would follow the court's instructions and consider both sentencing alternatives. We have held that it is improper to ask prospective jurors speculative questions regarding whether they would automatically impose the death penalty in certain hypothetical situations without reference to a juror's ability to consider the evidence and follow the court's instructions. Schmitt v. Commonwealth, 262 Va. 127, 141, 547 S.E.2d 186, 196 (2001). Thus, we conclude that the circuit court ruled properly in seating this juror.

(3) Juror Berube - [12] Jackson moved to strike prospective juror Berube on the basis that she answered “No” to one question asking whether she would be able to consider all mitigating factors in making her decision whether to impose a life sentence without parole or the death penalty. However, the answer to this one isolated question does not accurately portray this juror's positive assertions during voir dire that she would follow the court's instructions and consider all mitigating evidence when making her sentencing decision. Furthermore, when overruling the defendant's motion to strike this juror, the circuit court noted that juror Berube had given careful thought to her answers and that she did not initially understand what mitigating factors are. Thus, we conclude that the circuit court did not err in finding that this juror would be fair and impartial.

D. JUROR MISCONDUCT

During a recess on the third day of trial, the jurors asked whether they could discuss among themselves the evidence and testimony that had already been presented. The parties and the circuit court agreed that the jurors should not do so until after the close of all the evidence and the jury's deliberations began. When the jury returned to the courtroom after the recess, the court instructed the jurors that they should deliberate and discuss the evidence only after all the evidence had been introduced. The court further admonished the jurors to keep an open mind and to refrain from deciding any issue until the case was submitted to them for their deliberations. [13] The defendant did not object to those instructions or ask for a mistrial at that time. Thus, to the extent that Jackson now argues that the court should have granted a mistrial as soon as it learned of the jury's question, which suggested, in Jackson's view, that the jury had already been discussing the case, such a claim was not preserved for appeal. See Rule 5:25. Jackson filed a post-trial motion for a new trial and/or an evidentiary hearing based on allegations that the jury had discussed his guilt or innocence prior to the close of all the evidence. In support of the motion, the defendant submitted an affidavit from alternate juror Picataggi. In the affidavit, Picataggi stated that she had “witnessed and heard discussion of this case, and its outcome, among the jurors before the close of evidence and in direct violation of the instructions of the court.”

At a hearing on Jackson's motion, defense counsel advised the court that he had contacted all the jurors after the conclusion of the trial because of his concerns about the jury's question on the third day of trial. Counsel also told the court that this alternate juror agreed to speak with him but that many of the jurors would not do so or stated that such alleged discussions among the jurors did not occur before the close of the evidence. Defense counsel asked the court to summons all the jurors to an evidentiary hearing and to question them individually about what, if any, discussions occurred before the jury retired to deliberate. The court decided to summons only alternate juror Picataggi to a hearing for the purpose of questioning her about the allegations stated in her affidavit.

At that hearing, Picataggi explained, in response to questions from the court, that she had heard three discussions, two in the jury room and one at a local restaurant where the jury had gone for lunch. She acknowledged that no third person, such as the restaurant owner or a waitress, participated in any of those discussions, either by comments to the jury or by comments from any of the jurors. Picataggi could not recall whether any discussions ensued after the jurors asked the court during a recess whether they could discuss the evidence they had already heard. Picataggi also could not remember exact words used, but she described a discussion in regard to the testimony of the detective and [the defense counsel's] questioning him in regard to the videotape and that was discussed among the jurors in that—well, they didn't particularly like the way that he was questioning the detective, but that ultimately he got to the truth or to the bottom of it.

However, she admitted that at no time did any juror come to a conclusion about Jackson's guilt or innocence. During cross-examination by the defendant, Picataggi indicated that the discussions concerned things that had happened in the courtroom and matters that had been presented there, and were not necessarily limited to comments about the lawyers' styles of questioning.

After hearing Picataggi's testimony, the circuit court denied the defendant's motion for further investigation and for a new trial. The court concluded that the jurors' comments addressed the cross-examination of investigator Peterson and defense counsel's techniques of attacking that witness's credibility. The court found “no probable misconduct and clearly no prejudice” to the defendant.

On appeal, Jackson argues that the evidence of jurors' discussions “establishes a probability of prejudice and brings into question the fairness of the trial.” The defendant also asserts that the comment that “he got to the truth or to the bottom of it” went to the issue of guilt or innocence. At a minimum, the circuit court, according to Jackson, should have conducted an evidentiary hearing at which all the jurors should have been questioned. We do not agree with the defendant's position.

In Virginia, we strictly adhere “ ‘to the general rule that the testimony of jurors should not be received to impeach their verdict, especially on the ground of their own misconduct.’ ” Jenkins, 244 Va. at 460, 423 S.E.2d at 370 (quoting Caterpillar Tractor Co. v. Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 750 (1987)). We have also generally “ ‘limited findings of prejudicial juror misconduct to activities of jurors that occur outside the jury room.’ ” Id. (quoting Caterpillar Tractor Co., 233 Va. at 83, 353 S.E.2d at 751.) For example, in Haddad v. Commonwealth, 229 Va. 325, 330–331, 329 S.E.2d 17, 20 (1985), evidence showing juror misconduct in the form of expressing an opinion to third persons during trial proceedings was sufficient to establish a probability of prejudice to the accused.

Applying this same probability of prejudice standard, we find that Jackson failed to carry his burden to establish such prejudice. See id. Upon reviewing Picataggi's affidavit, the circuit court properly convened an evidentiary hearing to investigate further her allegations of juror misconduct. See Kearns v. Hall, 197 Va. 736, 743, 91 S.E.2d 648, 653 (1956) (when allegations of jury misconduct are sufficient to indicate the verdict was affected thereby, a trial court has a duty to investigate and determine whether, as a matter of fact, the jury did engage in misconduct). The evidence presented at that hearing amply supported the court's conclusions that there was probably no misconduct and clearly no prejudice to the defendant.

At best, Picataggi could only recall juror discussions regarding defense counsel's techniques of cross-examination and the comment “he ... got to the bottom of it.” She could not remember any other specific comments by the jurors, or whether any juror discussions about the evidence transpired after the court instructed them not to do so in response to the jury's question. And, Picataggi admitted that no juror expressed an opinion about Jackson's guilt or innocence. That fact distinguishes this case from Haddad. Thus, we conclude that neither a new trial nor any further investigation by the circuit court was warranted. We said many years ago that “[i]f gossip of [jurors] among themselves, or surmise, is to be the basis of new trials there would be no end to litigation.” Margiotta v. Aycock, 162 Va. 557, 568, 174 S.E. 831, 835 (1934). That statement remains true today.

E. VIDEO–TAPED CONFESSION AND TRANSCRIPT

Jackson asserts that the circuit court erred in allowing the jury to use a transcript of his video-taped confession while the video was played during the trial, in overruling his motion for a mistrial because of problems that occurred while watching the video tape and using the transcript, and in allowing the jury to review the video-taped confession during their deliberations. We find no merit to any of these claims.

The circuit court directed that a transcript of the video tape be prepared because portions of the video tape were inaudible and the court concluded that it would be helpful for the jurors to have the transcript while they were viewing the video tape. At trial, Jackson claimed the transcript was not accurate and thus objected to the jury's use of it. The circuit court disagreed and found that the transcript was as accurate as it could be and that it was incomplete because some portions of the video tape were inaudible. Before the jurors watched the video tape, the court instructed them that the transcript was “merely a guide ... [and was] not evidence.” The court further instructed that the evidence was the tape itself and the audio portion of it, and that the transcript would be retrieved after the video tape was played and could not be taken into the jury room during deliberations. Finally, the court told the jury that, although there would be places in the transcript stating that the video tape was inaudible, it was, nevertheless, the jury's “responsibility to listen to the tape and determine what, in fact, [was] being said.” The court reminded the jurors of these instructions when they finished viewing the video tape.

“A court may, in its discretion, permit the jury to refer to a transcript, the accuracy of which is established, as an aid to understanding a recording.” Fisher v. Commonwealth, 236 Va. 403, 413, 374 S.E.2d 46, 52 (1988); accord Burns v. Commonwealth, 261 Va. 307, 330, 541 S.E.2d 872, 888 (2001). Although Jackson argues on appeal that the transcript was inaccurate, he points only to the fact that some words were missing because the video tape was inaudible at certain points, that the transcript was incorrectly paginated, and that one page was missing. However, those problems did not render the transcript inaccurate. In light of the lengthy instructions that the circuit court gave the jurors regarding the purpose of the transcript and their use of it, we are persuaded that the court did not abuse its discretion in allowing the jury to use the transcript of the defendant's video-taped confession. See id. (trial court did not abuse its discretion by allowing jury to use transcript that was not complete).

During the playing of the video tape, it was discovered that the pages in one juror's transcript were partially out of order. After that problem was corrected, the court directed the Commonwealth to rewind the video tape approximately two minutes. Subsequently, it was discovered that the jurors' transcripts were missing one page. Playing of the video tape was momentarily stopped while that problem was corrected. Because of these problems and Jackson's assertion that the jurors rarely looked up from the transcript and thus did not watch the video tape, he moved for a mistrial at the conclusion of the playing of his video-taped confession. The circuit court overruled the motion, finding that the jurors had paid close attention to both the video tape and the transcript. The court also noted that the amount of the video tape that was replayed was minimal and that all the problems with the transcripts were quickly corrected. The court did not err in overruling the motion for a mistrial.

Finally, Jackson claims that undue emphasis was placed on his confession and investigator Peterson's testimony regarding his interrogation of the defendant because the jury was allowed to take the video tape into the jury room during deliberations. However, Code § 8.01–381 provides that “[e]xhibits may, by leave of court, be” carried into the jury room. “Exhibits requested by the jury shall be sent to the jury room or may otherwise be made available to the jury.” Id. Thus, any exhibit introduced into evidence, including a defendant's written or recorded statement, is available to jurors during their deliberations. See Pugliese v. Commonwealth, 16 Va.App. 82, 90, 428 S.E.2d 16, 23 (1993). That jurors may put emphasis on certain evidence, perhaps a particular exhibit or testimony of a certain witness, is simply part of what they do when weighing and considering the evidence. Id. Thus, the court did not abuse its discretion in allowing the jury to take the video tape into the jury room during deliberations.

F. PHOTOGRAPHS

Jackson first challenges the circuit court's ruling allowing the Commonwealth to use an “in-life” photograph of the victim. Mrs. Phillips' son identified the photograph during his direct examination, FN6 and the Commonwealth displayed the photograph during its closing argument in the guilt phase of the trial for approximately seven seconds. The court did not allow the jury to take the photograph into the jury room. The defendant claims that the photograph had no probative value and was used to arouse the sympathies of the jury. FN6. The circuit court noted for the record that the “in-life” photograph of Mrs. Phillips was displayed in the Commonwealth's case-in-chief for approximately 15 to 20 seconds but that it was not passed to the jury.

We conclude that the circuit court did not abuse its discretion in allowing the use of the “in-life” photograph of Mrs. Phillips. See Bennett v. Commonwealth, 236 Va. 448, 471, 374 S.E.2d 303, 317 (1988) (no abuse of trial court's discretion to admit photograph showing victim one month before she died). The photograph was displayed only twice for brief periods of time. Additionally, the photograph was not given to the jury or taken into the jury room during deliberations. The defendant also claims that the circuit court erred in admitting into evidence photographs of Mrs. Phillips taken during the autopsy. He specifically challenges the admission of duplicate photographs of Mrs. Phillips' face and an enlarged photograph of her vaginal area. The defendant asserts that any probative value of these photographs was outweighed by their prejudicial and inflammatory effect upon the jury.

Although Jackson does not identify the challenged photographs by exhibit number, we assume that he is complaining about two photographs of Mrs. Phillips' face, Commonwealth Exhibit Numbers 47 and 48; and the enlarged photograph of her vaginal area, Commonwealth Exhibit Number 51. These are the photographs to which the defendant objected at trial. The Commonwealth introduced each of these during the medical examiner's testimony. Number 47 depicted the front of Mrs. Phillips' face, and number 48 was a side view. Number 51 showed a laceration in the rear portion of her vaginal area. Each photograph depicted different injuries suffered by Mrs. Phillips.

We agree with the circuit court's conclusion that the two facial photographs were “not shocking” or “gruesome” and that Number 51 was simply “part of the facts of this particular case.” Thus, the court did not abuse its discretion in admitting these photographs. The photographs were relevant to the issues of premeditation, intent, and malice. See Gray v. Commonwealth, 233 Va. 313, 342, 356 S.E.2d 157, 173 (1987); Stockton v. Commonwealth, 227 Va. 124, 144, 314 S.E.2d 371, 384 (1984). And, contrary to the defendant's argument, any prejudicial effect of the photographs did not outweigh their probative value.

G. USE OF PILLOW FOR DEMONSTRATIVE PURPOSES

During closing argument, the Commonwealth used a pillow to demonstrate the length of time that Jackson held the pillow over Mrs. Phillips' face. The Commonwealth asked the jury how such an act could not be indicative of a specific intent to kill. The defendant objected on the basis that the Commonwealth was not using the actual pillow found at the crime scene and that the demonstration would incite and inflame the jury. The circuit court overruled the objection but directed the Commonwealth to tell the jury that the pillow was “not the actual size and shape of the pillow used” to suffocate Mrs. Phillips and that the Commonwealth was using a pillow only for demonstrative purposes.

“Admission of items of demonstrative evidence to illustrate testimonial evidence is ... a matter within the sound discretion of a trial court.” Mackall, 236 Va. at 254, 372 S.E.2d at 768. We conclude that the circuit court did not abuse its discretion. As directed by the court, the Commonwealth instructed the jury that the pillow was not the actual pillow found at the crime scene and that it was being used for demonstrative purposes. Furthermore, the court also told the jury that the pillow was not the one found on Mrs. Phillips' bed. Finally, the Commonwealth's demonstration did not distort the evidence concerning the manner of Mrs. Phillips' death.

H. AUTOPSY REPORT

Jackson asserts that the circuit court erred in admitting the autopsy report into evidence and allowing that report to be given to the jury. When the defendant objected to the introduction of the report, the court indicated that it would redact any opinion expressed by the medical examiner in the report. Although Jackson asserts on brief that the report was admitted into evidence during the medical examiner's testimony, that factual statement is not accurate. The defendant cross-examined the medical examiner about his report, but at no point during his testimony was the autopsy report admitted into evidence. The report is not marked as an exhibit and is only stamped as having been filed in both the General District Court and the Circuit Court of the City of Williamsburg and County of James City.

Although Code § 19.2–188 provides that “[r]eports of investigations made by the Chief Medical Examiner, his assistants or medical examiners ... shall be received as evidence in any court or other proceeding,” the autopsy report concerning Mrs. Phillips was not admitted into evidence in this case. Thus, this claim has no merit.FN7 FN7. In Fitzgerald v. Commonwealth, 223 Va. 615, 630, 292 S.E.2d 798, 806–07 (1982), we held that the Commonwealth was not required to elect between introducing an autopsy report or a medical examiner's t

I. SUFFICIENCY OF EVIDENCE

Jackson moved to strike the Commonwealth's evidence as to guilt on the basis that the evidence was insufficient to prove that he possessed the willful, premeditated, and deliberate intent to kill Mrs. Phillips. The defendant asserts that his testimony showed that the death of Mrs. Phillips was accidental and not premeditated. We do not agree.

When the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the prevailing party at trial, in this case the Commonwealth, and accord to it all reasonable inferences fairly deducible therefrom. Commonwealth v. Bower, 264 Va. 41, 43, 563 S.E.2d 736, 737 (2002); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We are obliged to affirm the judgment of the circuit court unless that judgment is plainly wrong or without evidence to support it. Code § 8.01–680; Beavers v. Commonwealth, 245 Va. 268, 282, 427 S.E.2d 411, 421 (1993). When proof of premeditation is the subject of a sufficiency challenge, evidence showing that the premeditation was only slight or momentary is sufficient to sustain the conviction. Id. This is so because “[p]remeditation is an intent to kill that needs to exist only for a moment.” Green v. Commonwealth, 266 Va. 81, 104, 580 S.E.2d 834, 847 (2003) (citing Peterson v. Commonwealth, 225 Va. 289, 295, 302 S.E.2d 520, 524 (1983)). The question of premeditation is generally a factual issue. Id.

Despite Jackson's self-serving testimony that he did not smother Mrs. Phillips with a pillow and told Jasper Meekins to stop doing so, the jury could have concluded, based on the defendant's confession, that he placed a pillow over Mrs. Phillips face and held it there for four to six minutes even though she would have become unconscious within 15 to 30 seconds. That evidence is sufficient to show that the defendant had a willful, premeditated, and deliberate intent to kill Mrs. Phillips. See id. Thus, we will not reverse the jury's finding of premeditation.

J. TESTIMONY FROM VICTIM'S SON

Jackson claims that the circuit court abused its discretion by allowing Mrs. Phillips' son to testify during the sentencing phase of the trial because he remained in the courtroom after he testified during the guilt phase in violation of the court's order sequestering the witnesses. According to the defendant, the son's presence in the courtroom throughout the trial unduly influenced the jury. We do not agree.

Pursuant to the provisions of Code § 19.2–265.01, a victim, which includes Mrs. Phillips' son, see Code § 19.2–11.01(B), “may remain in the courtroom and shall not be excluded unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial.” We cannot say in this case that the court abused its discretion by allowing Mrs. Phillips' son to remain in the courtroom after he testified during the guilt phase of the trial. The court correctly concluded that Mrs. Phillips' son did not learn anything while he was present in the court that would have changed or affected his victim impact testimony during the penalty phase. Thus, the defendant was not prejudiced by the fact that Mrs. Phillips' son testified during the penalty phase after having heard much of the testimony during the guilt phase. See Bennett, 236 Va. at 465, 374 S.E.2d at 314 (a trial court has discretion to decide whether a witness who violates an order excluding witnesses from the courtroom can testify, and prejudice to the defendant is one factor to consider when answering that question).

K. ISSUES PREVIOUSLY DECIDED

In assigning error to the circuit court's denial of the defendant's pretrial motion challenging the constitutionality of Virginia's capital murder statutes, Jackson presents several reasons why he contends that the death penalty on its face and as applied violates the Sixth Amendment, the Eighth Amendment, and the Fourteenth Amendment to the United States Constitution, as well as Article I, §§ 8, 9, and 11 of the Constitution of Virginia. We have previously rejected these arguments and find no reason to depart from our precedent.

(1) The aggravating factor of future dangerousness is unconstitutionally vague because it does not provide meaningful guidance to the sentencing jury so as to avoid an arbitrary and capricious infliction of the death penalty—rejected in Bell, 264 Va. at 203, 563 S.E.2d at 716; Lovitt v. Commonwealth, 260 Va. 497, 508, 537 S.E.2d 866, 874 (2000); Smith v. Commonwealth, 219 Va. 455, 476–78, 248 S.E.2d 135, 148–49 (1978). (2) Virginia's capital murder statutes do not require instructions to the jury regarding the duty to consider mitigating evidence, the meaning of mitigating evidence, the absence of any burden of proof on a defendant with regard to the mitigation evidence presented, and the liberty that each juror has to consider and give effect to mitigating evidence—rejected in Buchanan v. Angelone, 522 U.S. 269, 275–76, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Lovitt, 260 Va. at 508, 537 S.E.2d at 874; Mickens v. Commonwealth, 252 Va. 315, 320, 478 S.E.2d 302, 305 (1996); Joseph v. Commonwealth, 249 Va. 78, 82–83, 452 S.E.2d 862, 865 (1995). (3) The use of unadjudicated conduct to prove the aggravating factor of future dangerousness fails to comport with the constitutional requirement of reliability for capital sentencing—rejected in Bell, 264 Va. at 203, 563 S.E.2d at 716; Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992); Stockton v. Commonwealth, 241 Va. 192, 210, 402 S.E.2d 196, 206 (1991). (4) A sentence of death under Code § 19.2–264.5 is unconstitutional because a trial court may consider hearsay evidence contained in a post-sentence report—rejected in Lenz v. Commonwealth, 261 Va. 451, 459, 544 S.E.2d 299, 303–04 (2001); Cherrix v. Commonwealth, 257 Va. 292, 299–300, 513 S.E.2d 642, 647 (1999). (5) A sentence of death under Code 19.2–264.5 is unconstitutional because a trial court is not required to set aside a death penalty upon a showing of good cause—rejected in Chandler v. Commonwealth, 249 Va. 270, 276, 455 S.E.2d 219, 223 (1995); Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675–76 (1994). (6) Virginia's death penalty statutes do not provide for meaningful appellate review, including the proportionality review—rejected in Emmett v. Commonwealth, 264 Va. 364, 374–75, 569 S.E.2d 39, 46 (2002); Lenz, 261 Va. at 459, 544 S.E.2d at 304; Bailey v. Commonwealth, 259 Va. 723, 740–42, 529 S.E.2d 570, 580–81 (2000); Satcher, 244 Va. at 228, 421 S.E.2d at 826. (7) The expedited review of death penalty cases is unconstitutional—rejected in Morrisette v. Commonwealth, 264 Va. 386, 398, 569 S.E.2d 47, 55 (2002).

L. ISSUES WAIVED

At oral argument, the defendant indicated that he was withdrawing assignment of error number 8, that the circuit court “erred in denying defendant's motion to dismiss capital murder indictment for failure to allege aggravating elements.” In response to questions from the Court, he also acknowledged that he was no longer asking the Court to reverse his conviction on the basis that the circuit court erred by failing to grant a change in venue, as asserted in assignment of error number 7. Specifically, defense counsel stated, “We could [seat] a jury.... So to say that venue alone is not what I am seeking in this case for an error.” Thus, we will not consider these two assignments of error.

Next, we note that the defendant did not brief assignment of error number 20, that the circuit court “erred in allowing the prosecutor in his argument during the penalty phase to argue matters beyond those introduced during that phase of the case.” In accordance with our precedent, we will not consider this assigned error. See Wolfe v. Commonwealth, 265 Va. 193, 207, 576 S.E.2d 471, 479 (2003); Kasi v. Commonwealth, 256 Va. 407, 413, 508 S.E.2d 57, 60 (1998).

III. STATUTORY REVIEW

A. PASSION AND PREJUDICE

Pursuant to the provisions of Code § 17.1–313(C), we are required to determine whether the defendant's sentence of death was imposed under the influence of passion, prejudice, or other arbitrary factors. On this issue, Jackson claims that the jury's verdict fixing his punishment at death was the result of passion and prejudice because the circuit court failed to grant a change of venue and because the court did not strike prospective jurors Reinsberg, Baffer, and Berube for cause. As already noted, we rejected the substantive issue regarding those three jurors and did not address the change of venue question because the defendant withdrew it as a substantive basis for a reversal of his conviction. We nonetheless have examined both of these issues to ascertain whether they created an atmosphere of passion and prejudice that influenced the jury's sentencing decision. We conclude that they did not do so.FN8 We also find no other indication that the sentence of death was imposed under the influence of passion, prejudice, or other arbitrary factors. FN8. We note that a jury was seated with relative ease in this case. See Thomas v. Commonwealth, 263 Va. 216, 231, 559 S.E.2d 652, 660 (2002) ( “The ease with which an impartial jury can be selected is a critical element in determining whether the prejudice in the community stemming from pretrial publicity is so wide-spread that the defendant cannot get a fair trial in that venue.”)

B. PROPORTIONALITY REVIEW

We are also required to determine whether the sentence of death in this case is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Code § 17.1–313(C)(2). To comply with this statutory directive, we compare this case with “similar cases” by focusing on instances where the victim was murdered during the commission of robbery or rape and the death penalty was imposed based upon the future dangerousness aggravating factor. The purpose of our proportionality review is to identify and invalidate the aberrant death sentence. See Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999).

Our review in this case leads to the conclusion that the defendant's sentence of death is not excessive or disproportionate to sentences generally imposed in this Commonwealth for capital murders comparable to Jackson's murder of Mrs. Phillips. Although we consider all capital murder cases presented to this Court for review, see Burns, 261 Va. at 345, 541 S.E.2d at 896–97; Whitley v. Commonwealth, 223 Va. 66, 81–82, 286 S.E.2d 162, 171 (1982), we cite the following cases as examples: Roach v. Commonwealth, 251 Va. 324, 468 S.E.2d 98 (1996); Beavers, 245 Va. 268, 427 S.E.2d 411; Yeatts v. Commonwealth, 242 Va. 121, 410 S.E.2d 254 (1991); O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491 (1988). With regard to the proportionality analysis, the imposition of the death penalty in Beavers is particularly persuasive because of the striking similarity between the facts in that case and those presented here. Both cases involved elderly women who were raped by their assailant and smothered with a pillow.

IV. CONCLUSION

For the reasons stated, we find no error in the judgments of the circuit court or in the imposition of the death penalty. We also see no reason to commute the sentence of death in this case. Therefore, we will affirm the judgments of the circuit court.

Jackson v. Kelly, ____F.3d ____, WL 1534571(4th Cir. 2011) (Habeas).

Background: State prisoner filed habeas petition after his convictions for murder, burglary, robbery, rape, and petit larceny were affirmed on appeal, 267 Va. 178, 590 S.E.2d 520, and his state habeas petition was denied, 271 Va. 434, 627 S.E.2d 776. The United States District Court for the Eastern District of Virginia, Leonie M. Brinkema, J., 699 F.Supp.2d 838, granted petition in part. Prisoner appealed.

Holdings: The Court of Appeals, Duncan, Circuit Judge, held that: (1) prisoner's submission of oversized habeas brief to Supreme Court of Virginia, along with motion to permit extra pages, constituted “properly filed application”; (2) prisoner would have been entitled to equitable tolling if his submission did not constitute “properly filed application”; (3) district court's reliance on evidence that it had obtained from its own hearing violated Antiterrorism and Effective Death Penalty Act (AEDPA); (4) Supreme Court of Virginia did not unreasonably determine that counsel's alleged ineffective assistance did not have substantial likelihood of affecting outcome of penalty-phase proceedings; (5) Supreme Court of Virginia was not clearly unreasonable in determining that prisoner had not “demonstrate[d] how additional evidence of his good character, such as his love for his grandmother and his desire that his parents reunite, would have affected the jury's determination”; (6) prisoner had not been prejudiced by alleged ineffective assistance of counsel in penalty-phase proceedings of death penalty case in not presenting expert testimony linking childhood abuse to adult behavior; (7) counsel did not provide ineffective assistance by not objecting to lack of specific mitigation instruction; and (8) deference had to be accorded to supported factual finding by Supreme Court of Virginia. Reversed.

DUNCAN, Circuit Judge:

In the fall of 2002, a jury found petitioner Jerry Jackson guilty of breaking into 88–year–old Ruth Phillips's home, raping her, and smothering her to death with a pillow from her bed. Jackson was sentenced to death. Jackson's direct and collateral appeals were denied by the Supreme Court of Virginia. Jackson sought federal habeas relief, which the district court granted as to his penalty-phase claims following an evidentiary hearing. The government appealed, urging that the district court abused its discretion by holding the evidentiary hearing and that relief was erroneously granted on Jackson's claims that counsel's development and presentation of mitigation evidence, as well as his failure to object to alleged instructional error, were constitutionally deficient. Jackson has cross-appealed, asserting additional claims arising out of alleged instructional error.

We assess the merits of Jackson's petition under the deferential standards spelled out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (“AEDPA”). Our review is informed by the Supreme Court's recent guidance in Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). For the reasons described below, we conclude that, based on the record available to the state court that adjudicated Jackson's claims on the merits, the writ was improvidently granted.

I.

A.

On Sunday, August 26, 2001, 88–year–old Ruth Phillips did not show up to church. Jackson v. Commonwealth, 267 Va. 178, 590 S.E.2d 520, 524 (2004) ( “ Jackson I ”). Concerned by her absence, Mrs. Phillips's son tried reaching her by telephone. Id. When there was no answer, he went to her Williamsburg, Virginia, apartment to check on her. Id. After letting himself in, he found his mother's body “lying ‘twisted and exposed’ on a bed in her bedroom.” Id. As he later described it, her “leg was twisted around, and her pubic region was exposed[; h]er breast was exposed[; and h]er nightgown was up around her neck.” Id. (alterations in original). Mrs. Phillips's autopsy showed that she had died of asphyxia, which “occurs when the brain is without a supply of oxygen for four to six minutes.” Id. The autopsy also found a bruise on her nose and lacerations on the exterior and interior of her vagina. Id. A crime scene investigator recovered a hair from Mrs. Phillips's chest and another from the bed underneath her stomach; more hairs were found in the vicinity of her left thigh. Id. Forensic analysis revealed that several of the hairs were pubic hair that was inconsistent with samples taken from Mrs. Phillips. Id. These hairs were later found “to be consistent with [Jackson's] mtDNA to the exclusion of 99.998% of the population with a 95% degree of confidence.” Jackson v. Warden of the Sussex I State Prison, 271 Va. 434, 627 S.E.2d 776, 783 (2006) ( “ Jackson II ”).

In December 2001, investigators conducted a videotaped interview with Jackson. Jackson I, 590 S.E.2d at 524. After waiving his Miranda rights, he “admitted entering Mrs. Phillips' apartment, searching through and taking money out of her purse.” Id. Jackson claimed he did not know Mrs. Phillips was home when he flipped on the light and began to sift through her purse. Id. As a result, he was “scared” when Mrs. Phillips, who had been lying in bed, exclaimed: “What do you want? I'll give you whatever, just get out.” Id. Jackson acknowledged that when he realized Mrs. Phillips had seen him, “he held a pillow over her face for two or three minutes and tried to make her ‘pass out’ so she could not identify him” and further “admitted that he inserted his penis into her vagina while he was holding the pillow over her face.” Id. at 524–25. Jackson added that after exiting through a back window, he drove away in Mrs. Phillips's car, which he ultimately abandoned. Id. at 524–25. He also reported that he used the sixty dollars he stole from Mrs. Phillips's purse to buy marijuana. Id. at 525. Jackson repeatedly insisted that he had not intended to kill Mrs. Phillips. Id.

A Virginia grand jury indicted Jackson in March 2002 and charged him, inter alia, with two counts of capital murder for the premeditated killing of Phillips in the commission of rape or attempted rape and in the commission of robbery or attempted robbery. Id. at 523. Jackson's trial was bifurcated into a guilt and a penalty phase. During the guilt phase, Jackson retreated from his earlier statement to law enforcement, testifying that he had confessed to investigators because he believed “that was what [they] wanted to hear” and that an accomplice had in fact smothered Phillips. Id. at 525. Jackson further “denied having any knowledge about who raped Mrs. Phillips or about how his pubic hairs got on her body.” Id. The jury found Jackson guilty of both capital counts and of various other state crimes. Id. at 523. Following penalty-phase proceedings—which we discuss in greater detail below—the jury found a “probability that [Jackson] would commit criminal acts of violence that would constitute a continuing threat to society” and recommended a death sentence on both capital counts. J.A. 983–85. In April 2003 the state circuit court accepted the jury's recommendation and imposed a death sentence. Jackson appealed his convictions. The Supreme Court of Virginia affirmed in January 2004. See Jackson I, 590 S.E.2d at 520. The United States Supreme Court declined review. Jackson v. Virginia, 543 U.S. 891, 125 S.Ct. 168, 160 L.Ed.2d 155 (2004).

B.

On December 3, 2004, Jackson “filed an oversized habeas petition with the [Supreme Court of Virginia] along with a motion for leave to exceed the court's 50–page limit.” J.A. 2384. The Supreme Court of Virginia denied the motion for extra pages and directed Jackson to file a “corrected petition.” Id. at 1140. Jackson filed an amended petition on January 4, 2005, alleging fourteen distinct claims of constitutional error.

The Supreme Court of Virginia rejected each of Jackson's habeas arguments and denied his petition on its merits on March 24, 2006. See Jackson II, 627 S.E.2d at 780. We briefly review the state court's analysis of Jackson's claims at issue in this appeal: (1) that defense counsel FN1 provided constitutionally deficient representation by failing to interview Jackson's siblings and by failing to present evidence of Jackson's positive traits; FN2 and (2) that the participation of two jurors who indicated they would not consider certain mitigating factors unless instructed to do so—coupled with the absence of a specific mitigation instruction—constituted constitutional error on the part of the prosecutor, defense counsel, and the trial court.

The Supreme Court of Virginia rejected Jackson's argument that counsel's failure to interview his brother and sister, Damien and Chandal Jackson, constituted ineffective assistance of counsel. The court reasoned that Jackson's claim did not satisfy the “prejudice” prong of the Supreme Court's two-part Strickland test for constitutionally deficient representation. Jackson II, 627 S.E.2d at 786 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). It did not address whether his claim satisfied the first prong of the test, i.e., whether “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also McHone v. Polk, 392 F.3d 691, 704 (4th Cir.2004) (noting that when a defendant “fails to demonstrate sufficient prejudice from certain acts or omissions” a court “need not decide whether counsel's performance in those respects was, in fact, deficient under Strickland ”).

The court anchored its determination in two related findings. First, it concluded that counsel had presented ample mitigation evidence in the form of seventeen mitigation witnesses. The court noted that the jury had heard “the testimony of physicians, psychologists, social workers, and a pastor who had treated, evaluated, and/or counseled [Jackson] and his family, to substantiate that [he] was the victim of child abuse.” FN3 Jackson II, 627 S.E.2d at 786. The court also cited counsel's elicitation of testimony from “the police officer who investigated the charges of child abuse against petitioner's stepfather and from several of petitioner's neighbors, friends, and family members, including his mother, father, and stepfather.” Id. at 786–87. In light of this mitigating evidence of Jackson's traumatic childhood, the court deemed the testimony that would have been offered by Jackson's siblings “largely cumulative,” FN4 reasoning that it amounted to mere “anecdotal evidence of specific instances of the abuse from the perspective of [the] siblings.” Id. at 787.

As a second, related basis for its holding, the court found that talking to Jackson's siblings would not have altered counsel's trial strategy. The court cited counsel's “strategic decision not to call ... Damien [ ] to testify because Damien's successful transition from the abusive environment into a military career would have diminished the mitigating effect of [Jackson's] abusive upbringing.” Id. Observing that counsel was aware of Jackson's abusive background when he opted not to have Damien testify, the court found no suggestion in the record that counsel's strategy “would have been altered by knowing the specific details of the abuse.” Id. As a result, the court held that Jackson had “failed to demonstrate ... a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052).

The state court also rejected Jackson's claim that counsel “had failed to adequately investigate and present available mitigation evidence concerning [Jackson's] good character,” holding that it satisfied neither prong of the Strickland analysis. Id. With regard to counsel's performance, the court found that the record of the penalty-phase proceedings “demonstrate[d] that the jury heard evidence of petitioner's good qualities, including evidence that petitioner was well-mannered and cooperative, followed directions, was motivated and ambitious, and had positive relationships outside of his immediate family environment.” Id. As for the second prong, the court noted that Jackson had not shown that “additional evidence of his good character, such as his love for his grandmother and his desire that his parents reunite, would have affected the jury's determination,” and, as a result, could not demonstrate prejudice. Id.

The Supreme Court of Virginia further held that Jackson's claims arising out of alleged instructional error lacked merit. It first rejected Jackson's argument that two jurors were not qualified for service because they “indicated that they would not consider age and background as mitigation evidence unless the trial court instructed them to do so” and were not specifically given such an instruction.FN5 Id. The court found the claim procedurally defaulted, as Jackson had not raised it at trial or on direct appeal. Id. Jackson's related argument that the government's failure to request an instruction that emphasized age and background as mitigation evidence amounted to prosecutorial misconduct was also deemed defaulted. Id. at 788.

The Supreme Court of Virginia denied on its merits Jackson's non-defaulted argument that his counsel's failure to request an age-and-background instruction constituted ineffective assistance of counsel. Id. at 787. In doing so, the court explicitly rejected Jackson's underlying assertion that both jurors' qualification had been “conditioned” upon the delivery of a particular instruction. Id. at 787. To the contrary, the court explained, “[b]oth jurors were qualified upon the trial court's determination that they would be fair and impartial.” Id. As a result, the court reasoned, the failure to request an instruction could not have been prejudicial. Id. The state court cited additional reasons why Jackson's claim satisfied neither prong of the Strickland analysis. It observed that a request by defense counsel for a particularized instruction “would have been properly refused” under Virginia law. Id. at 788 (citing George v. Commonwealth, 242 Va. 264, 411 S.E.2d 12, 23 (1991); LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644, 661 (1983)). Consequently, the court reasoned, counsel's omission was not unreasonable. Id. The court further noted that “the jury was instructed to consider petitioner's history, background, and mitigating factors,” in the context of its assessment of “whether petitioner posed a future danger to society.” Id. (emphasis added).

Having rejected these arguments, along with Jackson's other habeas claims, the Supreme Court of Virginia denied his petition for relief. The United States Supreme Court again denied certiorari in January 2007. Jackson v. Kelly, 549 U.S. 1122, 127 S.Ct. 943, 166 L.Ed.2d 721 (2007).

C.

The federal district court for the Eastern District of Virginia granted Jackson a stay of execution in September 2006, and appointed habeas counsel in early December of that year. On December 11, 2006, Jackson moved for an extension of the deadline for his federal habeas petition, to a date “not later than April 17, 2007.” J.A. 1310. Jackson asserted that April 17 was when the statutory one-year limitation period—which had been tolled by his filing of his state habeas petition on December 3, 2004—would expire. See 28 U.S.C. § 2244(d)(1)-(2).

The court granted an extension to March 16, 2007, explaining that it did not count the tolling period from December 3, 2004, but instead from January 4, 2005—the date that Jackson filed his amended petition. The court noted that the Supreme Court of Virginia's habeas decision had identified January 4 as the date Jackson's petition was filed. On December 18, 2006, Jackson filed a “Notice,” asserting once again that the tolling period should be counted from December 3, 2004. Jackson provided his “Notice” to the government, but the government did not respond. Three days later, on December 21, 2006, the government filed a motion for reconsideration of the extension to March 16, urging that no extension was warranted. The government made no mention of Jackson's “Notice” nor did it otherwise address the tolling period. The court denied the government's motion for reconsideration on January 19, 2007, reaffirming that Jackson had until March 16 to file his petition.

On March 8, 2007, Jackson filed a second motion to extend the deadline to April 17. Again, the government opted not to respond. The district court granted the motion the next day, concluding that Jackson's calculation, which treated December 3, 2004, as the date his state habeas petition was filed, reflected “a correct statement of the law.” J.A. 1356. On April 17, 2007, Jackson filed his petition for federal habeas relief.

Jackson's petition included a request for an evidentiary hearing, which the court granted on February 28, 2008. The court's initial order did not specify why the request had been granted but stated generally that Jackson's mitigation claim “ha[d] not been adequately developed in the record.” Id. at 1516. In response to a government motion to reconsider the evidentiary hearing, the court clarified that the proceeding was warranted because Jackson's filings “alleged sufficient facts that, if fully established, would entitle him to relief on two of the 17 claims raised in his federal habeas petition.” Id. at 1527–28.

The court held the evidentiary hearing on April 30 and May 1, 2008. Nine witnesses testified, including Jackson's siblings and the two attorneys who had represented Jackson at trial. On August 14, 2008, the court denied Jackson relief as to the guilt phase of his trial. Some eighteen months later, on March 29, 2010, the court granted Jackson relief as to the penalty phase, finding that counsel rendered ineffective assistance by failing to investigate and argue key mitigation evidence and by failing to challenge the lack of a jury instruction on age and background. See Jackson v. Kelly, 699 F.Supp.2d 838 (E.D.Va.2010) (“ Jackson III ”). The court recognized “the extremely deferential standards for collateral review of a state court judgment” but concluded that the Supreme Court of Virginia had erred by denying relief. Id. at 843. We review the court's lengthy analysis, which is the subject of both the government's appeal and Jackson's cross-appeal. In light of Cullen's admonition that our review is limited “to the record that was before the state court that adjudicated the claim on the merits,” 131 S.Ct. at 1398, we avoid discussion of the evidence taken in the federal evidentiary hearing.

1.

The district court first assessed Jackson's claims that his counsel had provided ineffective assistance at the penalty phase by failing to (1) interview Jackson's siblings, (2) present scientific evidence linking childhood abuse to adult behavior, or (3) present evidence of Jackson's positive traits. The court began with counsel's failure to interview Jackson's brother and sister. As the Supreme Court of Virginia had not addressed whether counsel's omission satisfied the ineffectiveness prong of the Strickland analysis, the district court assessed that portion of his claim de novo. Id. at 844 (citing Porter v. McCollum, ––– U.S. ––––, 130 S.Ct. 447, 452, 175 L.Ed.2d 398 (2009)). The court discussed counsel's efforts to develop mitigation evidence related to Jackson's abusive upbringing. The court noted that counsel had pursued that goal by “assembl[ing] a collection of Jackson's medical, social, and educational records, which contained references to numerous instances of abuse.” Id. It further observed that counsel had interviewed Jackson, as well as his mother, father, stepfather, godmother, uncle, cousin, and pastor. Id. at 847–48 & n. 13. While recognizing the steps that counsel had taken, the court held that additional research had been warranted. The court rested its conclusion on the contents of the records counsel had assembled, which it discussed in some detail.FN6 Id. at 846–47. In doing so, it identified numerous reports documenting severe abuse and neglect, as well as allegations of sexual abuse. Id. at 846–47.

The court emphasized, moreover, that the records' troubling contents reflected only “incomplete, limited snapshots of Jackson's childhood, documenting only four or five instances of abuse and providing mental health assessments from a few isolated time periods.” Id. at 846. Faced with these glimpses into Jackson's background, the court reasoned, “a reasonable attorney would have realized that a thorough investigation into Jackson's home life was essential.” Id. at 847. In this regard, the court noted, Jackson's parents were unreliable sources of information, as Jackson's father and stepfather had been implicated in incidents of abuse, and his mother had at least tacitly “endorse[d]” it. Id. at 848.

Against this backdrop, the court held that counsel's decision not to speak to Jackson's siblings “was a critical and glaring omission.” Id. at 849. The court observed that both siblings were older than Jackson and had lived in the same household as Jackson for significant stretches of his childhood. Id. at 849. As a result, the court found, both “were the only credible witnesses” regarding the incidents of abuse documented in the record. Id. In the court's view, “Damien or Chandal could have offered detail to the reported abuse, described the nature of Jackson's relationship with his father and stepfather, or indicated whether there were other unreported problems.” Id.

The court rejected the notion that counsel's investigation reflected a “strategic choice” to avoid “the jury drawing unfavorable comparisons between Jackson and his siblings” for two reasons. Id. First, it found that “counsel did not rely on this ‘strategy’ at trial,” citing instances on direct examination in which counsel “opened the door” to cross-examination about Damien, as well as counsel's own comparison of Jackson to his brother in closing argument. Id. at 849–50. Second, the court concluded that counsel could not have made a reasonable strategic choice without first speaking to Jackson's siblings to assess what testimony they could offer. Id. at 850. The court next reviewed counsel's failure to present expert testimony to link Jackson's abusive childhood to his adult behavior. Id. at 851. The court observed that determining whether this omission constituted ineffective assistance was “difficult,” as counsel's failure to “discover and present the crucial evidence of Jackson's abusive childhood” precluded his establishing “the basis for introducing scientific evidence linking the effects of such a childhood abuse to adult behavior.” Id. Despite this obstacle, the court found, without further explanation, that “counsel's ... failure to connect the dots between childhood abuse and adult behavior must be viewed as yet another instance of deficient performance under Strickland.” Id. at 851–52. The court then turned to Jackson's claim that counsel had failed to investigate and adduce evidence of his positive traits. The court rejected the Supreme Court of Virginia's factual conclusion that such evidence had been presented. Id. at 852. It explained that much of the evidence cited by the state court “consisted of hearsay statements recited by a psychologist who had never treated Jackson personally, but read from reports describing Jackson's demeanor during a counseling session when he was approximately twelve years old.” Id. It also found that the state court had treated “isolated statements” by a prison guard and Jackson's mother as positive character evidence. Id. (citing the guard's statement that he had not had problems with Jackson until a particular incident and Jackson's mother's testimony that she had been “able to communicate better and talk more” with Jackson while he was in prison).

The district court deemed the Supreme Court of Virginia's factual finding “an unreasonable determination of the facts in light of the evidence,” id. (quoting 28 U.S.C. § 2254(d)(2)), reasoning that “[t]hese bland, hearsay comments offered no real insight into Jackson's character or personality,” id. The court further found that Jackson had shown by “ ‘clear and convincing evidence,’ that no evidence of his positive traits was ever presented to the jury.” Id. (quoting 28 U.S.C. § 2254(e)(1)). The court also rejected the possibility that the paucity of positive character evidence presented reflected the absence of such evidence or a strategy to avoid evidence “inconsistent with the defense's mitigation theme.” Id. at 852–53.

Having concluded that counsel's performance was constitutionally deficient in the three respects described above, the court turned to the prejudice prong of the Strickland analysis. Id. at 854. To assess the impact of counsel's behavior on Jackson's sentence, the court reviewed the evidence presented at the penalty phase of his trial. See id. at 855. The court first described the government's presentation, which it found consisted of testimony from Mrs. Phillips's son, two prison officers, and “a victim of a burglary Jackson committed the evening before Phillips was murdered.” Id. The court observed that the government had introduced evidence of Jackson's “extensive” criminal history,FN7 but noted that his record “consisted mostly of property crimes and contempt violations.” Id. at 855. The court did not reference the evidence of Jackson's rape and murder that the government had presented to the jury in the penalty phase. See id.

The court then briefly reviewed the testimony of the seventeen witnesses defense counsel had called during the penalty phase. Id. at 855–57. These witnesses included: (1) an emergency room doctor who had examined Jackson when he was eleven; (2) a clinical psychologist whose associate had evaluated Jackson when he was eleven; (3) a records custodian from the Newport News Health Department; (4) a child psychologist who had evaluated Jackson when he was fourteen; (5) a pediatrician who had examined Jackson when he was fourteen; (6) a records custodian from the New Horizon Family Counseling Center; (7) a clinical psychologist who had interviewed Jackson when he was fifteen; (8) a police officer who investigated an assault and battery on Jackson by his stepfather when Jackson was eleven; and (9) a social services official who had investigated multiple allegations of child abuse against Jackson. Id. at 855–57.

The district court also noted mitigating testimony from three individuals who had interacted with Jackson and his family when he was a child: (10) the family's pastor; (11) Jackson's neighbor and godmother; and (12) Jackson's cousin and godsister. Id. at 857. The court cited additional testimony from four members of Jackson's family: (13) Jackson's uncle; (14) Jackson's biological father; (15) Jackson's stepfather; and (16) Jackson's mother. Id. at 857–58. Jackson himself was the seventeenth and final mitigation witness. Id. at 858. The court measured the testimony of these seventeen mitigation witnesses against the testimony elicited at the evidentiary hearing. See id. at 858–61. In light of its assessment of that material, the court flatly rejected the Supreme Court of Virginia's determination that the failure to interview Jackson's siblings did not satisfy Strickland's prejudice prong. See id. at 862. It noted that the Supreme Court of Virginia did not hold an evidentiary hearing and found that the state court erred by deferring to “trial counsel's premature, uninformed ‘strategic’ choice.” FN8 Id.

The court also rejected the Supreme Court of Virginia's determination “that the new evidence of abuse proffered by Jackson was cumulative.” Id. The court emphasized that an assessment of prejudice arising out of counsel's performance during a capital case's penalty phase “is not a rote cataloging exercise” to “ensure[ ] that counsel presented some testimony on each potential area of mitigation.” Id. at 863. Given its determination that the Supreme Court of Virginia's inquiry had amounted to such an exercise, the court found that the state court had unreasonably applied federal law by failing to consider “the ‘entire evidentiary picture’ presented to the jury.” Id. (quoting Strickland, 466 U.S. at 696, 104 S.Ct. 2052).

In the district court's view, counsel's presentation amounted to “a parade of ineffective record witnesses,” “contradictory testimony from character witnesses who reported little or no abuse,” and “unchallenged testimony” from Jackson's abusers that his problems “were his own fault.” Id. The court concluded that this evidentiary showing prejudiced Jackson, id. at 863–64, and that prejudice “was compounded” by the absence of testimony linking childhood trauma to psychological development, id. at 864. The court deemed it unnecessary to decide whether Jackson had shown independent prejudice arising out of the failure to present evidence of his positive traits, as that omission was prejudicial when viewed “in combination with” the failure to interview Jackson's siblings. Id. As a result, the court found habeas relief warranted on all three of Jackson's claims related to counsel's development and presentation of mitigation evidence.

2.

The court then addressed Jackson's assertion that counsel's failure to challenge the lack of a particularized mitigation instruction amounted to constitutionally deficient representation.FN9 Id. at 864. The court recounted the colloquies of two jurors at voir dire, which it concluded showed that “[t]rial counsel and the trial court knew ... that [these] jurors felt that neither age nor troubled background were mitigating factors.” Id. at 865. The court found that, under these circumstances, the failure to specifically instruct the jury to consider age and background in mitigation “tr [od] on the guarantees of the Eighth Amendment.” Id. In support of its conclusion, it cited the Supreme Court's admonition that although “[t]he sentencer ... may determine the weight to be given relevant mitigating evidence,” it “may not give it no weight by excluding such evidence from ... consideration.” Id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 114–15, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)).

The court recognized that “failure to instruct a jury as to specific mitigating factors is generally not constitutional error.” Id. at 866 (citing Buchanan v. Angelone, 522 U.S. 269, 278, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998)). Nevertheless, it found that the “entire context in which the instructions were given,” id. (quoting Buchanan, 522 U.S. at 278, 118 S.Ct. 757), suggested “a defect of constitutional proportion,” id. The court cited three factors as creating a “context” in which a particularized instruction was mandated: the two jurors' responses during voir dire, the fact that Jackson was twenty years old when he raped and murdered Mrs. Phillips, and the evidence of Jackson's abusive background presented during mitigation. Id.

The court rejected the Supreme Court of Virginia's conclusion that Jackson's claim of instructional error did not satisfy the first prong of the Strickland analysis. The court noted that the state court's finding that counsel's performance was reasonable relied on its conclusion that the trial court would have “properly refused” any request for a particularized instruction. Id. at 867 n. 31 (quoting Jackson II, 627 S.E.2d at 787). The court found this assessment so unsupported by the record as to not merit AEDPA deference. Id. at 867 (citing Uttecht v. Brown, 551 U.S. 1, 20, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007)). The court cited the trial court's statement that jurors would consider age “when they're told it's a factor” as indisputable evidence that the trial court appreciated “the need for a clarifying instruction,” and would have provided one if asked to do so. Id. The court similarly rejected the Supreme Court of Virginia's determination that the future dangerousness instruction's charge to jurors to consider Jackson's history and background precluded a finding of prejudice on Strickland's second prong, finding the court's reasoning “contrary to” Supreme Court caselaw. Id. at 867–68. (citing Penry v. Lynaugh, 492 U.S. 302, 323–24, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)).

Having rejected the Supreme Court of Virginia's Strickland analysis, the court conducted its own assessment of whether counsel's failure to request a “proper instruction” constituted ineffective assistance of counsel. See id. at 866. On the first prong, the court held that counsel's behavior was objectively unreasonable, as counsel had conceded that his failure to challenge the instructions was not a strategic choice and counsel “was unquestionably aware” of at least one juror's need for a specific instruction. Id. at 866–67. With regard to the second prong, the court cited the “clear constitutional mandate that the jury consider age and troubled background” in mitigation, as well as “the specific voir dire in this case” as showing “a strong likelihood” that the trial court would have provided a specific mitigation instruction “had counsel only asked for it.” Id. at 867. On the basis of these findings, the court found habeas relief warranted on this claim as well. Id.

In light of its determination that penalty-phase relief was appropriate on several of Jackson's claims, the district court vacated his death sentence. Id. at 870. In April of 2010 the government filed notice of appeal. Jackson filed notice of cross-appeal on May 3, 2010. On August 6, 2010, the district court denied Jackson a certificate of appealability, holding that he had not shown that Virginia courts' resolution of those claims “was debatable or wrong.” J.A. 2510. We granted Jackson a certificate of appealability for his cross-appeal claims on November 4, 2010.

III.

Before turning to the substantive claims on appeal and cross-appeal, we address two procedural arguments made by the government: (1) that Jackson's federal habeas petition was barred by the statute of limitations and (2) that the district court abused its discretion by holding an evidentiary hearing. FN10 We conclude that Jackson's federal habeas petition was not time barred, but that the district court erred by relying on evidence it obtained from its own hearing when assessing Jackson's mitigation-related Strickland claims, which had been adjudicated on their merits by the Supreme Court of Virginia.

A.

The government argues that Jackson's federal habeas petition was time-barred, urging that the district court's grant of an extension to April 17, 2007 erroneously extended Jackson's filing deadline beyond the one-year statutory deadline. See 28 U.S.C. § 2244(d)(1). The government concedes that the statute of limitations is tolled during the period in “which a properly filed application for State post-conviction or other collateral review ... is pending.” Id. § 2244(d)(2). However, it urges that Jackson's oversized brief, which he submitted on December 3, 2004, did not constitute a “properly filed application.” Counting from January 4, 2005, the date that Jackson's corrected petition was filed, the government argues that the statute of limitations expired on March 16, 2007. We disagree.

Jackson's submission of an oversized habeas brief and a motion to permit the extra pages to the Supreme Court of Virginia constituted “delivery and acceptance ... in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Jackson's initial petition was neither rejected nor dismissed by the Supreme Court of Virginia. Jackson was instead directed to file a “corrected petition” in a timely manner. J.A. 1140. The Supreme Court of Virginia's emphasis on “correction” indicates to us that the requested alteration constituted an amendment to Jackson's initial filing.

In any event, it is apparent from the record that Jackson relied on the federal district court's grant of an extension to April 17, 2007 when timing the submission of his federal habeas brief. Significantly, the government raised no objection to Jackson's statute-of-limitations calculations prior to that deadline, nor did it otherwise suggest that Jackson's federal habeas petition should be time-barred. Even if the government were correct that Jackson's oversized petition was not “properly filed,” under these circumstances, Jackson would undoubtedly be entitled to equitable tolling. See Green v. Johnson, 515 F.3d 290, 304 (4th Cir.2008) (noting that equitable tolling is appropriate when “due to circumstances external to the party's own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result”).

B.

The government also urges that the district court erred by holding an evidentiary hearing. We consider that argument in light of the Supreme Court's recent delineation of such hearings' limited role in federal habeas proceedings.

In Cullen v. Pinholster, the Supreme Court clarified that AEDPA limits federal habeas review “to the record that was before the state court that adjudicated the claim on the merits.” 131 S.Ct. at 1398. In other words, when a habeas petitioner's claim has been adjudicated on the merits in state court, a federal court is precluded from supplementing the record with facts adduced for the first time at a federal evidentiary hearing. See id. at 1399 (“It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.”). The district court did not have the benefit of Cullen's guidance when it determined that a hearing was warranted because Jackson had “alleged sufficient facts that, if fully established, would entitle him to relief on two of the 17 claims raised in his federal habeas petition.” J.A. 1527–28. It is now clear, however, that the court's reliance on material developed at the federal evidentiary hearing was at odds with AEDPA's placement of “primary responsibility [for habeas review] with the state courts,” and illustrated the difficulties inherent in “allow[ing] a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo.” Cullen, 131 S.Ct. at 1399. Mindful that “evidence introduced in federal court has no bearing on § 2254(d)(1) review,” id. at 1400, we proceed to assess Jackson's petition on the basis of the facts contained in the state-court record.

IV.

We turn to the standards by which we evaluate the merits of the issues before us on appeal and cross-appeal. Our review is bounded by the familiar contours of AEDPA deference, which, as recently reinforced by the Supreme Court's unanimous decision in Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), helps to ensure “confidence in the writ and the law it vindicates.” Id. at 780. We may grant habeas relief on claims adjudicated on their merits in state court only if that adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Appleby v. Warden, 595 F.3d 532, 535 (4th Cir.2010) (internal quotations omitted) (citing 28 U.S.C. § 2254(d)).

A state court's holding is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at” an opposite result. Lewis v. Wheeler, 609 F.3d 291, 300 (4th Cir.2010) (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). By contrast, a “state court unreasonably applies federal law when it ‘identifies the correct governing legal rule from th[e] Court's cases but unreasonably applies it to the facts of the particular ... case,’ ” or “unreasonably extends a legal principle from [the Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 300–01 (quoting Williams, 529 U.S. at 407, 120 S.Ct. 1495) (alterations in original). In short, to obtain federal habeas relief, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786–87; see also Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (noting that on AEDPA review, the pertinent question “is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold”).

To demonstrate ineffective assistance of counsel, Jackson must show “that counsel's performance was deficient, and that the deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). This two-part analysis presents a “high bar” to petitioners, and we must assess their efforts to surmount it with “scrupulous care, lest intrusive post-trial inquiry threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington, 131 S.Ct. at 788 (internal quotations omitted).

Even if Jackson could satisfy the “difficult standard” of Strickland's first prong, James v. Harrison, 389 F.3d 450, 457 (4th Cir.2004), he would still be required to show prejudice. In a capital case, “the prejudice inquiry centers on ‘whether there is a reasonable probability that, absent [counsel's] errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” Williams v. Ozmint, 494 F.3d 478, 484 (4th Cir.2007) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052) (alterations in Ozmint ). Such a showing “requires a substantial, not just conceivable, likelihood of a different result.” Cullen, 131 S.Ct. at 1403 (internal quotations omitted). When making this determination we review the “totality of the evidence before the ... jury.” Ozmint, 494 F.3d at 484.

V.

Against the backdrop of these highly deferential standards we proceed to the issues before us. We begin with the government's challenge to the grant of federal habeas relief on Jackson's mitigation-related claims. We then turn to the government's appeal of the district court's grant of relief on Jackson's claims of instructional error and to Jackson's related claims on cross-appeal. For the reasons described below, we conclude the writ was improvidently granted.

A.

Like the Supreme Court of Virginia, we bypass whether defense counsel's performance was deficient and proceed directly to the prejudice prong of the Strickland analysis. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also McHone, 392 F.3d at 704. We conclude that the state court's finding that Jackson had not shown prejudice arising from any alleged mitigation-related deficiencies was not “clearly unreasonable” and that the district court erred by holding otherwise.

We first address Jackson's claim that counsel's failure to interview his siblings had a substantial likelihood of affecting the outcome of penalty-phase proceedings. Given the array of evidence of childhood abuse presented to the jury, nothing in the state-court record shows that the Supreme Court of Virginia unreasonably determined that the failure to develop and present testimony from Jackson's siblings did not constitute Strickland prejudice.

As described above, counsel called seventeen mitigation witnesses, including nine professionals, many of whom had treated or worked with Jackson when he was a child, five family members, Jackson's godmother, the family's pastor, and Jackson himself. These mitigation witnesses' testimony shed considerable light on Jackson's traumatic childhood. For instance, in response to probing inquiries from counsel, the social worker who had researched multiple instances of Jackson's childhood abuse read an account of her investigation suggesting that Jackson and his brother had been “outright raped.” J.A. 899. The jury also heard record evidence that Jackson's stepfather harangued him in the midst of counseling sessions, stating that “he hate[d] him and that [Jackson wa]s evil.” Id. at 825. These are just two of many, striking examples of physical and emotional abuse presented to the jury at the penalty phase.FN11

Even the district court's selective summary FN12 of the proceedings at trial illustrates the severity of the accounts of abuse presented to the jury in mitigation. See Jackson III, 699 F.Supp.2d. at 855–58. Testimony from Jackson's trial recounted by the district court included descriptions of Jackson suffering a broken arm when he was less than two years old (an injury which neither of his parents could explain); being sexually assaulted; receiving medical treatment on multiple occasions for severe bruising; finding himself locked out of his apartment by his biological father at a young age; being struck with a belt; enduring a beating in the eye and chest with a large stick; and, on at least one occasion, having to strip naked and perform exercises before being beaten. See Jackson III, 699 F.Supp.2d. at 855–58. The district court also cited testimony that Jackson's father “had a reputation for alcohol consumption” and that his stepfather had been criminally prosecuted for child abuse, which resulted in a suspended sentence, a protective order, and mandatory counseling. Id.

Against the backdrop of this mitigation evidence, the Supreme Court of Virginia supportably found that the testimony described in Jackson's siblings' affidavits would have been “largely cumulative” of material already before the jury, as they amounted to “anecdotal evidence of specific instances of the abuse from the perspective of [Jackson's] siblings.” Jackson II, 627 S.E.2d at 787. As a result, the state court reasoned, the failure to develop and present Jackson's siblings as witnesses was not substantially likely to have affected the outcome of penalty-phase proceedings. Given the breadth and depth of evidence of childhood abuse provided to the jury, we cannot say that determination was clearly unreasonable. See Harrington, 131 S.Ct. at 791.

We also see no basis on which to conclude that counsel's alleged failure to present positive character evidence prejudiced Jackson. The district court's contrary finding reflected a lack of deference to the Supreme Court of Virginia's threshold factual conclusion “that the jury heard evidence of [Jackson's] good qualities.” Jackson II, 627 S.E.2d at 787. The district court's dismissal of the statements on which the Supreme Court of Virginia relied as “bland, hearsay comments,” which “offered no real insight into Jackson's character or personality,” Jackson III, 699 F.Supp.2d at 852, constituted an assessment of the potency of the positive mitigation evidence rather than the existence of such evidence. Put otherwise, the bare insistence that the positive statements cited by the Supreme Court of Virginia did not constitute “genuine” evidence was far from a refutation by clear and convincing evidence of the Supreme Court of Virginia's factual conclusion. See 28 U.S.C. § 2254(e)(1). Although it invoked AEDPA's language, the district court did not give that standard sufficient “operation or function in its reasoning.” Harrington, 131 S.Ct. at 787.

More fundamentally, the district court's “reweigh[ing of] the evidence in aggravation against the totality of available mitigating evidence,” was conspicuously one-sided. Wiggins, 539 U.S. at 534, 123 S.Ct. 2527; see also Emmett v. Kelly, 474 F.3d 154, 170 (4th Cir.2007). Specifically, the district court failed to mention considerable evidence regarding the horrific circumstances of Jackson's rape and murder of Mrs. Phillips. This omission was particularly striking in light of the government's careful emphasis on the disturbing details of Jackson's crimes at closing.

The troubling circumstances highlighted by the government included the fact that Jackson intruded upon the “sanctity of [Mrs. Phillips's] home,” despite the fact that her car was parked outside; that he had entered through a window that she had left “open just a little bit so she did not have to use [her] air conditioner, so she could save some money,” J.A. 960; that he ignored her plea to take what he wanted and leave; that after raping and murdering her, he absconded with her car; that he left his victim with her dress pulled up and her body grotesquely twisted; and that he used the money he took from her purse to buy drugs.

The government also pointedly emphasized Jackson's own testimony during the guilt phase, noting that his retreat from his earlier videotaped statement “absolutely showed no remorse.” Id. at 961. The government further observed that Jackson “had the audacity” to claim that Mrs. Phillips had not been raped and to attempt to shift blame to his alleged accomplices. Id. at 961–62. This body of aggravating evidence only reinforces our determination that the Supreme Court of Virginia was not clearly unreasonable in determining that Jackson had failed “to demonstrate how additional evidence of his good character, such as his love for his grandmother and his desire that his parents reunite, would have affected the jury's determination.” Jackson II, 627 S.E.2d at 787. [14] Finally, we turn to Jackson's assertion that counsel failed to present expert testimony linking childhood abuse to adult behavior. The Supreme Court of Virginia did not address this claim, see supra n. 2, and the district court declined to make an independent finding of prejudice arising from the absence of psychological testimony, see Jackson III, 699 F.Supp.2d at 864. In light of the balance of aggravating and mitigating evidence discussed above, we are unconvinced that such expert testimony would have yielded “a ‘substantial’ ... likelihood of a different result.” Cullen, 131 S.Ct. at 1403 (quoting Harrington, 131 S.Ct. at 791). In sum, we find that even if counsel's development and presentation of mitigation evidence was deficient, any deficiencies did not amount to prejudice under Strickland's second prong.

B.

The remaining claims on which the district court granted relief, as well as Jackson's claims on cross-appeal, all involve alleged instructional error, arising out of the trial court's failure to specifically instruct the jury on particular mitigating factors. We begin with the claim on which habeas relief was granted, i.e., that counsel's failure to object to the lack of a specific mitigation instruction constituted constitutionally deficient representation. As this argument was adjudicated on a complete factual record in state court, we review it through the “doubly” deferential lens of AEDPA and Strickland, Cullen, 131 S.Ct. at 1403; Harrington, 131 S.Ct. at 788, and conclude that it lacks merit.

We briefly recount the disputed jurors' colloquies at voir dire. Juror Dana Metheny initially responded “No” when asked by defense counsel whether she would “be able to consider the age of Mr. Jackson in making a decision on whether to impose life without the possibility of parole, or death.” J.A. 639. She repeated her answer after counsel clarified that the question was whether she would consider “age or any other evidence that we may put before you if we so elect ... in mitigation that you may consider; family, doctors, past, the way he grew up.” Id. at 639–40. However, she repeatedly responded “Yes” when asked if she would consider such issues if instructed to do so by the court. E.g., id. (“If the Court tells you to consider issues in mitigation, such as age, such as background, such as family, such as psychological or psychiatric issues, would you consider those issues in mitigation before you voted for death?” “Yes.”).

Juror Wendy Berube expressed similar reluctance to consider age as mitigating evidence. When asked whether she would consider factors in mitigation, she responded “Yes. I mean, I would consider everything,” adding “I don't think that age matters, if that is what you're asking.” Id. at 665–66 (emphasis added). When queried “If the Court instructs you age matters, would you then consider it?” she responded “Yes.” Id. at 666. She gave the same response when asked if she would “follow the Court's instructions?” Id. In deeming both jurors qualified to serve, the trial court stated: “They don't know whether [age is] a factor for them to consider or not ... [B]ut when they're told that it's a factor they must consider or they should consider, not what weight they'd give to it, they all agree that they'll consider it.” Id. at 671. [16] The district court's grant of habeas relief was anchored in its reading of the jurors' colloquies and the trial court's statement as a clear indication that neither juror was qualified to serve unless they were “specifically instructed” to consider various types of mitigation evidence. Jackson III, 699 F.Supp.2d at 866. However, the Supreme Court of Virginia supportably found that the “contention that qualification of these jurors was ‘conditioned’ upon the giving of a specific instruction is not supported in fact or in law.” Jackson II, 627 S.E.2d at 788. Neither the district court's analysis nor Jackson's argument on appeal shows that the state court's conclusion was clearly unreasonable. As a result, AEDPA mandates that we defer to the state court's assessment.FN13

Both jurors plainly expressed their willingness to consider any and all mitigation evidence if instructed to do so by the judge. The trial court provided just such an instruction, admonishing the jury that “in determining the appropriate punishment you shall consider any mitigation 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.” J.A. 617 (emphasis added).

Significantly, both age and background had been expressly presented to the jury by defense counsel as mitigating factors. We have already described counsel's argument that Jackson's traumatic childhood should be weighed in mitigation. Counsel also specifically emphasized Jackson's relative youth at the time he committed the rape and murder. See, e.g., Id. at 972 (“[Y]ou have a videotape back there [of Jackson's confession] ... [W]atch that 19–year–old kid talk.”); id. at 973 (“Life for a 20–year–old man without the possibility of parole. Ever. That's what we ask.”). More fundamentally, there is simply no factual or legal basis for the district court's apparent assumption that either juror was “conditionally” qualified and that a specific mitigation instruction was therefore constitutionally mandated. Tellingly, in his brief and at oral argument, Jackson could not cite a single case in which such conditional qualification had been recognized. Nor were we able to find one. As the Supreme Court of Virginia found, “[b]oth jurors were qualified upon the trial court's determination that they would be fair and impartial.” Jackson II, 627 S.E.2d at 788; see also Bell v. Cone, 543 U.S. 447, 456, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (noting “the presumption that state courts know and follow the law” (internal quotation omitted)). Nothing more was required.

By the same token, the district court's reliance on cases in which factfinders declined to give any consideration to mitigating evidence was misplaced. As explained above, there is no evidence here that either of the jurors refused to consider such evidence following the trial court's instruction. Cf. Morgan v. Illinois, 504 U.S. 719, 736, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (discussing jurors who “obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty”); Eddings v. Oklahoma, 455 U.S. 104, 113, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (noting trial judge's erroneous conclusion that “ as a matter of law he was unable even to consider the [mitigating] evidence” of defendant's family history). Both jurors stated that they would listen to an instruction to consider mitigating evidence; they were ultimately admonished to do just that. Absent any indication that the Supreme Court of Virginia's analysis was clearly unreasonable, counsel's failure to object to the lack of a specific mitigating instruction cannot support a claim for habeas relief.

For the same reasons, Jackson's claims on cross-appeal lack merit. Jackson argues that (1) Juror Berube should not have been seated in the first place because she would not consider age as a mitigating factor, (2) both disputed jurors were rendered unfit for service when no specific instruction was given and the trial court erred by not removing them on its own motion, and (3) defense counsel's failure to move to strike the jurors when a specific mitigating instruction was not provided was unreasonable. However, as the Supreme Court of Virginia supportably found, the jurors' service was not “conditional.” Any concerns the jurors expressed were adequately addressed by the general mitigation instruction.

VI.

For the foregoing reasons we reverse the district court's grant of habeas relief in this case. REVERSED

FN1. Jackson was represented at trial by two attorneys, Patrick Kelley and Andrew A. Protogyrou. Jackson v. Kelly, 699 F.Supp.2d 838, 843 n. 6 (E.D.Va.2010) (“ Jackson III ”). All references to defense counsel with respect to the penalty phase of Jackson's trial are to Protogyrou, who was responsible for that portion of the trial.

FN2. As part of his claim that counsel's development and presentation of mitigation evidence was constitutionally deficient, Jackson's state-court habeas petition also asserted that counsel failed to present expert evidence about the impact of childhood abuse on development. The Supreme Court of Virginia did not explicitly address this point, which Jackson again raised in his federal habeas petition.

FN3. The court discussed this testimony in detail, noting that it included information that petitioner's stepfather received a suspended jail sentence for physically abusing petitioner; hospital and doctor's office records indicating petitioner had been physically disciplined with a belt resulting in lasting bruises; records that petitioner had suffered various fractures of unknown origin to his extremities; that petitioner often appeared bruised; that reports of abuse were made to the James City County Department of Social Services and that twice the abuse was determined to be “founded;” that petitioner was allowed to drink beer as a young child; that petitioner and his stepfather had a bad relationship and that, even during counseling, petitioner's stepfather constantly berated petitioner by calling petitioner “evil;” that petitioner's “problems were compounded by the weakness of [his] parental subsystem” and lack of “material resources” which required petitioner to be left unsupervised; that petitioner's family did not follow through with counseling or recommendations; and that on at least one occasion, petitioner had been sexually abused. Jackson II, 627 S.E.2d at 786.

FN4. Jackson's habeas petition included an eight-page affidavit from Damien Jackson and a five-page affidavit from Chandal Jackson, which detailed the testimony they would have offered at trial.

FN5. We provide additional detail on the jurors' statements below in the context of our discussion of Jackson's claims of alleged instructional error.

FN6. The court summarized the records that it concluded “should have prompted further investigation” as follows (all citations are to the joint appendix that was before the district court): [A] report generated after a particularly severe beating by Tim Knight [Jackson's stepfather], when Jackson was twelve years old, notes, “There is a previous history of abuse by [redacted] and this incident appears to be much more severe. In addition, neither of the victims reported the abuse; Jerry's injuries were discovered by accident and he was reluctant to cooperate with the investigation.” Id. at 539. The “planned, calculated” nature of that incident also leads to the conclusion that more abuse was occurring: “Both boys indicated that [redacted] made them strip naked and exercise so that they would be too tired to run from him during their punishment; [redacted] then beat both of them with his belt while they were naked.” Id. at 625, 538. Another report of the same incident states: “This is the 3rd incident of known physical abuse of Jerry by Mr. Knight and the 1st resulted in maiming charges,” Id. at 625 (emphasis in original), and estimating “the likelihood of reoccurance [sic] [is] high. The children did not report the abuse, & Jerry was afraid to cooperate w/ DSS. They appeared to accept their parents' decision that they deserved the beatings.” Id. Another report contains a passing reference to a beating with a two-by-four. Id. at 617. A report made when Jackson was nine years old states, “Worker asked if similar incidents had occurred & he stated that about two weeks earlier he had gotten his [redacted].” Id. at 670. A social worker later wrote of Jackson, then age thirteen, “I get the impression that Jerry has been physically beaten by all the adults in his life, starting with his natural father.” Id. at 533. Another record notes that Jackson's mother and stepfather “seem[ed] to be confused about how to handle Jerry, since the Court has mandated that Tim cannot use physical punishment.” Id. at 2727.

The records also contain indications of serious neglect at an early age, which should have been explored further. See, e.g., id. at 652 (A police report from 1988, when Jackson was seven years old, states “neighbors called the police when they found 2 children huddled in the stairwell—not the first time.... [redacted] locked them out of the apt.”); id. at 2729 (referring to Jackson's “weak parental subsystem”); id. at 2677–79 (referring to “lack of parental attention”); id. at 2769 (referring to Jackson feeling “loss and abandonment”).

The records in counsel's possession also contained leads to other types of mitigation evidence. One report, for instance, contains a reference to Jackson “drinking alcohol” at age twelve, id. at 619, another to an allegation of sexual abuse by a relative, id., and another to an unexplored allegation that Jackson, at age seven, had been “outright raped” by a visitor at his grandmother's house. Id. at 2799–2800. These pieces of information, together with Jackson's report to his attorney (reflected in counsel's notes) that someone forced Jackson and his brother to masturbate in front of them, Tr. at 237 (“Made him + brother masturbate in front of him.”), that he was “molested for years”, id. at 236, and that his brother was raped by an uncle while Jackson hid in the closet fearing he would be raped next, id. at 357, indicate the likely existence of a wealth of mitigating evidence completely unexplored by trial counsel. Those records also document that Damien would have direct knowledge of the abuse because he was referenced in the reports as well. Jackson III, 699 F.Supp.2d at 846–47 (alterations in original and footnote omitted). The court also cited “passing references to diagnosable depression.” Id. at 847. FN7. The government introduced “18 orders showing Jackson's convictions or adjudications of delinquency for such offenses as grand larceny, petit larceny, trespassing, drug possession, receiving stolen property, contempt of court, identity fraud, statutory burglary, credit card theft, and obtaining money under false pretenses.” Jackson, 590 S.E.2d at 525.

FN8. The court reasoned in particular that the state court had mistakenly viewed as dispositive its determination that speaking with Jackson's siblings would not have altered counsel's strategy. Id. (citing Jackson II, 627 S.E.2d at 786–87). The court observed that, under the Supreme Court's standard articulated in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the pertinent “question is not whether, subjectively, Jackson's own counsel would have introduced the evidence,” but instead “whether, objectively, ‘a competent attorney, aware of this evidence, would have introduced it.’ ” Id. (emphasis added) (quoting Wiggins, 539 U.S. at 535, 123 S.Ct. 2527). As a result, it deemed the state court's analysis “contrary to, and an unreasonable application of, Wiggins.” Id.

FN9. We do not summarize the district court's analysis of Jackson's second claim of instructional error, which challenged counsel's failure to ask the district court to clarify for the jury that mitigation factors need not be unanimously found. Jackson has abandoned this argument, in light of the Supreme Court's decision that relief on this issue is foreclosed on collateral review. See Appellee's Br. at 69 (citing Smith v. Spisak, –––U.S. ––––, 130 S.Ct. 676, 684, 175 L.Ed.2d 595 (2010)).

FN10. Because we hold that the writ was improvidently granted, we bypass the government's argument that some of the claims on which the district court granted relief were procedurally defaulted.

FN11. The district court noted that this disturbing language appeared in the written records assembled by counsel; indeed, it cited these two statements as data reviewed by counsel that should have prompted further investigation. Jackson III, 699 F.Supp.2d at 847. However, the court failed to mention that these same accounts were read to the jury. In summarizing the witnesses' presentations of these reports, the court blandly alluded to the former incident as an alleged sexual assault and to the latter as “verbal[ ] abus[e].” Id. at 856–57.

FN12. The district court's minimization of the potency of mitigation evidence at trial is notably illustrated by its assertion that the trial court “warned” defense counsel about the dryness of his evidence. See Jackson III, 699 F.Supp.2d at 845. The pertinent statement was not a “warning.” It was instead offered as a rationale for continuing with mitigation witnesses after counsel noted that Jackson had not taken his medication, which Jackson explained “help[ed him] to stay awake.” J.A. 887. The trial court noted that he had seen Jackson “looking down and looking around,” but reasoned that such behavior was understandable given the nature of the witnesses' testimony. J.A. 888.

FN13. The district court erred when it declined to afford such deference to the state court's fact finding. Jackson III, 699 F.Supp.2d at 853. The Supreme Court of Virginia found that any request for a specific instruction “would have been properly refused.” Jackson II, 627 S.E.2d at 788. In support of its holding the state court cited Virginia precedents illustrating the appropriateness of general instructions. See id.; see also Gray v. Commonwealth, 233 Va. 313, 356 S.E.2d 157, 178 (1987) ( “[F]ailure to list mitigating factors inures to the benefit of a defendant.”); LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644, 661 (1983) (“We have repeatedly held that an instruction is improper which singles out one portion of the evidence for special emphasis.”).

This body of caselaw may be why the trial court did not present an itemized instruction on its own initiative. In any event, Virginia precedent on this point, as well as the trial court's decision to proceed with a general instruction, provided sufficient support for the state court's determination so as to warrant AEDPA deference.