Before HALL, SPROUSE, and
WILKINSON, Circuit Judges.
SPROUSE, Circuit Judge:
Through this habeas corpus
proceeding, Derick Lynn Peterson collaterally attacks a
Virginia state court judgment convicting him of capital
murder and sentencing him to death. The United States
District Court for the Eastern District of Virginia
dismissed his petition for a writ of habeas corpus. We
Peterson was convicted of
fatally shooting Howard Kauffman during the robbery of a
Hampton, Virginia, grocery store on February 7, 1982. The
details of the crime are recounted in the opinion affirming
his conviction on direct appeal. Peterson v. Commonwealth,
225 Va. 289, 292-93, 302 S.E.2d 520, 523, cert. denied, 464
U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 reh'g denied, 464
U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983).
Peterson was tried before
a jury and found guilty of capital murder, robbery, and use
of a firearm in the commission of a felony. The jury fixed
his punishment at life imprisonment for the robbery and
three years for the firearm count. A separate proceeding was
then held before the same jury to set Peterson's penalty for
the capital murder. See Va.Code Ann. Sec. 19.2-264.3(C). The
Commonwealth sought the death penalty, urging that there was
a probability Peterson "would commit criminal acts of
violence that would constitute a continuing serious threat
to society." Va.Code Ann. Sec. 19.2-264.4(C).
During the penalty trial,
the Commonwealth presented three witnesses. Two of them,
Sheila Coffey and Carrie Ann Baize, were victims of other
armed robberies by Peterson. Baize testified that Peterson
held up a drug store the morning after Kauffman's murder and--apparently
by accident--shot a woman. Baize also said Peterson had
threatened her when she testified at a preliminary hearing.
The Commonwealth's third witness was a probation officer who
testified about Peterson's record, including several adult
felony convictions and a number of juvenile charges, some of
which were resolved at intake, dismissed, or not prosecuted.
Peterson's trial counsel did not object. Peterson's mother
testified on his behalf.
During its deliberations,
the jury asked the court whether it was possible to give a
life sentence without parole. The court responded:
The only response I can
give you on that, Mrs. [Forewoman], is that it's the
function of the jury, duty of the jury, to impose such
sentence as they consider just under the evidence and the
instructions of the Court.
And you should not concern
yourself with what may thereafter happen. It may not be a
very satisfactory answer, but it's the only one I can give
The jury recommended the
death sentence. Peterson's convictions and sentences were
affirmed on direct appeal. Peterson v. Commonwealth, 225 Va.
289, 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S.Ct.
202, 78 L.Ed.2d 176 reh'g denied, 464 U.S. 1004, 104 S.Ct.
515, 78 L.Ed.2d 702 (1983).
Peterson next petitioned
for a writ of habeas corpus in the Circuit Court of the City
of Hampton. The petition was dismissed and Peterson appealed
to the Virginia Supreme Court, which transferred his case to
the Virginia Court of Appeals. A panel of the intermediate
appeals court dismissed the death penalty part of the
holding it did not have jurisdiction to consider a case in
which a sentence of death had been imposed.
Peterson v. Bass, 2 Va.App. 314, 316-18, 343 S.E.2d 475,
477-78, aff'd en banc by an equally divided court, 349
S.E.2d 409 (1986).
Peterson appealed that
jurisdictional question to the Virginia Supreme Court, which
affirmed the decision of the Court of Appeals but also "reviewed
the issues presented to but not decided by the Court of
Appeals" and concluded they were without merit. Peterson's
petitions for rehearing and certiorari were denied. 484 U.S.
Peterson then sought
relief in federal district court, which denied his petition
for a writ of habeas corpus. It is from this order that
Peterson now appeals.
constitutional challenges concerning the future
dangerousness factor in Virginia's capital sentencing scheme,
the introduction of his juvenile records, the failure to
inform the jury about parole, and the proportionality review
conducted by the Virginia Supreme Court. Peterson also
asserts that he was denied effective assistance of counsel
at trial. We review these contentions seriatim.
A. Future Dangerousness
Peterson submits that
imposition of the death penalty based on a jury finding of
future dangerousness is unconstitutionally arbitrary because
future dangerousness cannot be accurately or reliably
predicted. The Supreme Court has explicitly rejected this
contention, explaining that
prediction of future
criminal conduct is an essential element in many of the
decisions rendered throughout our criminal justice system....
[A]ny sentencing authority must predict a convicted person's
probable future conduct when it engages in the process of
determining what punishment to impose. For those sentenced
to prison, these same predictions must be made by parole
authorities. The task that a ... jury must perform in
answering the statutory question in issue is thus basically
no different from the task performed countless times each
day throughout the American system of criminal justice.
Jurek v. Texas, 428 U.S.
262, 275-76, 96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976) (footnotes
omitted); see also Barefoot v. Estelle, 463 U.S. 880,
896-97, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983). In
light of Jurek, we have held the constitutionality of
Virginia's future dangerousness provision to be "beyond
question." Briley v. Bass, 750 F.2d 1238, 1245 (4th
Cir.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85
L.Ed.2d 152 (1985); Giarratano v. Procunier, 891 F.2d 483,
489 (4th Cir.1989). These cases control the result here. See
also Smith v. Commonwealth, 219 Va. 455, 476-79, 248 S.E.2d
135, 148-49 (1978), cert. denied, 441 U.S. 967, 99 S.Ct.
2419, 60 L.Ed.2d 1074 (1979).
B. Juvenile Records
Peterson asserts that his
constitutional rights were violated when a probation officer
recounted Peterson's juvenile record during the penalty
trial. He urges that Virginia has established a statutory
scheme designed to strictly limit access to juvenile records,
see Va.Code Ann. Secs. 16.1-299 et seq., and that no
provision of Virginia law authorizes the introduction of
juvenile records in a capital sentencing proceeding before a
jury. Peterson claims that by departing from its own
regulations the Commonwealth denied him due process of law.
See generally Bluth v. Laird, 435 F.2d 1065, 1071 (4th
We find no merit to
Peterson's contention that Virginia proscribes the use of a
defendant's juvenile record in capital sentencing. In fact,
the opposite is true: the Virginia Supreme Court has held
that "evidence relating to juvenile offenses and
unadjudicated criminal activity" is admissible because "a
trier of fact called upon to decide whether or not to impose
the death sentence is entitled to know as much relevant
information about the defendant as possible." Beaver v.
Commonwealth, 232 Va. 521, 528-30, 352 S.E.2d 342, 346-47,
cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781
(1987); O'Dell v. Commonwealth, 234 Va. 672, 700, 364 S.E.2d
491, 507, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102
L.Ed.2d 154 (1988). The court applied this principle in
Peterson's direct appeal, explicitly stating that Virginia's
capital sentencing provisions do "not restrict the
admissible evidence to the record of convictions." 225 Va.
at 298, 302 S.E.2d at 526.
Contrary to Peterson's
assertions, this line of cases does not conflict with
Virginia statutory law governing juvenile court records.
Indeed, the same provision that protects the confidentiality
of juvenile records makes those records available for
preparation of presentence reports. See Va.Code Ann. Sec.
We therefore do not reach the constitutional issue advanced
Peterson next asserts that
the sentencing jury should have been "told of the effects of
parole," presumably that, under a life sentence, Peterson
would have been ineligible for parole for twenty years.
The Virginia Supreme Court rejected this argument on
Peterson's direct appeal, stating that "it is improper to
inform the jury as to the possibility of parole." 225 Va. at
297, 302 S.E.2d at 525. See Williams v. Commonwealth, 234
Va. 168, 178-80, 360 S.E.2d 361, 367-68 (1987) (collecting
cases), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d
Peterson urges that this
holding is unconstitutional because it prevents the jury
from considering relevant mitigating evidence. See McCleskey
v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 95 L.Ed.2d 262
(1987); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct.
2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion);
see generally McKoy v. North Carolina, --- U.S. ----, 110
S.Ct. 1227, 108 L.Ed.2d 369 (1990).
He points to California v.
Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983),
in which the Supreme Court upheld California's requirement
that a capital sentencing jury be instructed that the
governor has the power to commute a life sentence. Peterson
urges that, if the Supreme Court's wide-ranging evidentiary
standard for capital sentencing proceedings supports the
result in Ramos, it certainly mandates that juries be
informed about the prospect of the defendant's parole. Cf.
id. at 1001-04 & n. 19, 103 S.Ct. at 3453-55 & n. 19.
We disagree; we believe
that Ramos left to the states the decision concerning what,
if anything, a jury should be told about commutation, pardon,
and parole. Cf. id. at 1013-14 & n. 30, 103 S.Ct. at 3459-60
& n. 30. "While
not exactly on point, we think Ramos indicates that the
Court would decide that while it is constitutionally
permissible to instruct the jury on the subject of parole,
such an instruction is not constitutionally required."
Turner v. Bass, 753 F.2d 342, 354 (4th Cir.1985), rev'd on
other grounds sub nom. Turner v. Murray, 476 U.S. 28, 106
S.Ct. 1683, 90 L.Ed.2d 27 (1986). Our holding in Turner
controls here. Accord O'Bryan v. Estelle, 714 F.2d 365,
388-89 (5th Cir.1983), cert. denied, 465 U.S. 1013, 104 S.Ct.
1015, 79 L.Ed.2d 245 (1984); cf. Boyde v. California, ---
U.S. ----, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990) ("states
are free to structure and shape consideration of mitigating
D. Proportionality Review
Peterson argues that the
proportionality review conducted by the Virginia Supreme
Court was constitutionally flawed. While proportionality
review is not mandated under the Constitution, Pulley v.
Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984),
the Virginia code requires review of "[w]hether the sentence
of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." Va.Code Ann. Sec. 17-110.1(C)(2).
Peterson asserts that his
due process and equal protection rights were violated by the
manner in which the Virginia high court conducted this
review. He argues that the court erred by considering only
cases in which the death penalty had been imposed, and not
those in which the death penalty had been sought but the
defendant received another sentence.
The Virginia Supreme Court
discussed its proportionality review mechanism in Whitley v.
Commonwealth, 223 Va. 66, 81, 286 S.E.2d 162, 171, cert.
denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982),
which was decided prior to Peterson's direct appeal:
All capital murder cases,
including not only those in which the death penalty was
imposed and reviewed by this Court but also those in which
the jury or trial judge imposed a life sentence and the
defendant petitioned this Court for appeal of his conviction,
have been inventoried and indexed apart from other criminal
See also Va.Code Ann. Sec.
17-110.1(E). Peterson asserts that if the court had
conducted a full Whitley review in his case, it would have
said so. Instead, he urges that the court considered only
cases in which the death penalty had been imposed.
However, in examining
Peterson's sentence, the Virginia Supreme Court stated that
"we have examined the records in all capital-murder cases
reviewed by this Court, with particular emphasis given those
cases in which the death sentences were based upon the
probability that the defendants would be continuing threats
to society." 225 Va. at 301, 302 S.E.2d at 528. As the
United States District Court reasoned:
The [Virginia Supreme]
Court clearly states that it reviewed all cases, but decided
to place emphasis on cases most similar to petitioner's
where the death penalty was imposed based on future
dangerousness. There is nothing violative of due process
where the Virginia Supreme Court reviews all capital murder
cases but decides to place weight with cases most similar to
the case at bar.... [T]here is no statutory requirement that
the Virginia Supreme Court review and discuss each and every
capital murder case in its opinion, see Va.Code Ann, Sec.
17-110.1, and indeed, such a requirement would be
questionable in its wisdom. As the Virginia Supreme Court
stated, supra, that it reviewed all such cases, this Court
will accept that statement as true.
We agree with and adopt
this analysis. In any event, "this court may not issue a
writ of habeas corpus on the ground that the [Virginia]
Supreme Court has made an error of state law." Shaw v.
Martin, 733 F.2d 304, 317 (4th Cir.), cert. denied, 469 U.S.
873, 105 S.Ct. 230, 83 L.Ed.2d 159 (1984); see also Pulley,
465 U.S. at 41-42, 104 S.Ct. at 874-75.
E. Ineffective Assistance of Counsel
Finally, Peterson urges
that his counsel was ineffective during the guilt and
penalty stages of his trial. Our consideration of these
claims is, of course, governed by Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which
holds that a defendant claiming ineffective assistance of
counsel "must show that counsel's representation fell below
an objective standard of reasonableness" and that this "deficient
performance prejudiced the defense." Id. at 687, 104 S.Ct.
Peterson's first three
allegations of ineffective assistance of counsel relate to
issues discussed supra. He submits that counsel was
ineffective in failing (1) to call an expert witness
challenging the reliability of the future dangerousness
criterion, (2) to object to the introduction of Peterson's
juvenile record or to offer explanatory evidence to the jury,
and (3) to present evidence or request the jury be told
about parole. Having examined the merits of these claims and
having discerned no error, we conclude that Peterson was not
prejudiced by counsel's failure to raise them at trial. See
id. at 697, 104 S.Ct. at 2069.
Peterson also asserts that
his counsel was ineffective in failing to object to two jury
instructions. The first was offered during the guilt phase
of the trial:
You may infer malice from
the deliberate use of a deadly weapon unless, from all the
evidence, you have a reasonable doubt as to whether malice
A "deadly weapon" is any
object or instrument, not a part of the human body, that is
likely to cause death or great bodily injury because of the
manner, and under the circumstances, in which it is used.
Peterson says this
instruction impermissibly shifted the burden of persuasion
from the prosecution to the defense. See Francis v.
Franklin, 471 U.S. 307, 316-18, 105 S.Ct. 1965, 1972-73, 85
L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510,
514-24, 99 9S.Ct. 2450, 2454-59, 61 L.Ed.2d 39 (1979); Hyman
v. Aiken, 824 F.2d 1405, 1409-10 (4th Cir.1987); Baker v.
Muncy, 619 F.2d 327, 330-32 (4th Cir.1980). However,
Peterson relies on cases in which the jury could have
understood the instruction as creating a presumption and
thereby shifting the burden of persuasion. Here, the
instruction was not burden-shifting.
The responsibility of the
trier of fact is "to draw reasonable inferences from basic
facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The
disputed "charge merely instructed the jury as to what a
reasonable inference would be. The individual jurors were
not required to draw any inference." United States v. Love,
767 F.2d 1052, 1059 (4th Cir.1985), cert. denied, 474 U.S.
1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986). This is
particularly clear when the instruction is viewed in the
context of the entire charge. See Cupp v. Naughten, 414 U.S.
141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).
It distinctly told the
jury that the Commonwealth bore the burden of proving each
element of the crime and that there was "no burden on the
defendant to produce any evidence." See Warlitner v.
Weatherholtz, 447 F.Supp. 82, 87 (W.D.Va.1977) (holding
similar instruction constitutional), appeal dismissed, 598
F.2d 617 (4th Cir.1979); see also Reeves v. Reed, 596 F.2d
628 (4th Cir.1979) (approving similar instruction).
Considering the disputed
instruction both in isolation and in context, we do not
think there was a "reasonable likelihood" that the jury
could have interpreted it as relieving the prosecution of
its burden. See Boyde v. California, --- U.S. ----, 110 S.Ct.
1190, 1197, 108 L.Ed.2d 316 (1990). Because the instruction
was constitutional, Peterson was not prejudiced by his
counsel's failure to object to it. See Strickland, 466 U.S.
at 697, 104 S.Ct. at 2069.
Peterson also contends
that his counsel was ineffective in failing to object to an
instruction given during the penalty phase of his trial. The
instruction first explained that the Commonwealth was
required to prove beyond a reasonable doubt one of two
statutory aggravating circumstances, future dangerousness or
vileness. See Va.Code Ann. Sec. 19.2-264.4(C). The
instruction then continued:
If you find from the
evidence that the Commonwealth has proven beyond a
reasonable doubt either of the two alternatives, then you
may fix the punishment of the defendant at death or if you
believe from all the evidence that the death penalty is not
justified, then you shall fix the punishment of the
defendant at life imprisonment.
If the Commonwealth has
failed to prove either alternative beyond a reasonable doubt,
then you shall fix the punishment of the defendant at life
Peterson asserts that this
instruction improperly placed on him the burden of proving
that the death penalty was not justified. Again, we do not
think there is a reasonable likelihood that the jury,
considering the language in context, would have understood
the instruction as placing the burden on Peterson. We have
already reviewed a virtually identical instruction and found
it to be constitutional in Briley v. Bass, 750 F.2d 1238,
1242-44 (4th Cir.1984), cert. denied, 470 U.S. 1088, 105
S.Ct. 1855, 85 L.Ed.2d 152 (1985). We therefore hold that
Peterson's counsel was not ineffective in failing to object
to the instruction here.
In conclusion, because we
find no constitutional error, we affirm the decision of the
district court dismissing Peterson's petition for a writ of
Aug. 22, 1991.