UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHNILE L. DUBOIS,
Petitioner-Appellant,

v.
                                                                No. 97-21
FRED W. GREENE, Warden,
Mecklenburg Correctional Center,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-1132-AM)

Argued: March 2, 1998

Decided: May 26, 1998

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joseph N. Bowman, Alexandria, Virginia; Mark Evan
Olive, VIRGINIA CAPITAL REPRESENTATION RESOURCE
CENTER, Richmond, Virginia, for Appellant. Pamela Anne Rumpz,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee. ON BRIEF: Robert Lee,
VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Richmond, Virginia; Joseph J. McCarthy, DELANEY, MCCARTHY,
COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant.
Richard Cullen, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Johnile Dubois, who pled guilty to capital murder and
was sentenced to death in the Virginia courts, seeks a certificate of
appealability and an appeal from the district court's dismissal of his
petition for habeas corpus relief pursuant to 28 U.S.C. § 2254.
Dubois' conviction and sentence were affirmed on direct appeal to the
Virginia Supreme Court on September 17, 1993. Dubois v.
Commonwealth, 246 Va. 260 (1993), cert. denied, 511 U.S. 1012
(1994). Dubois then filed a petition for state habeas corpus relief,
which was denied by the Virginia Supreme Court on March 15, 1996.
J.A. at 279. On January 2, 1997, Dubois filed the instant federal
habeas corpus petition and on June 30, 1997, the district court dis-
missed Dubois' petition. J.A. at 447. For the reasons that follow, we
deny Dubois' application for a certificate of appealability and dismiss
this appeal.

I.

The facts of this case have been adequately summarized by the Vir-
ginia Supreme Court:

          On November 20, 1991, Dubois and three other men
          entered a convenience store in Portsmouth. Three store
          employees were in the store. Shari Watson was working
          near the rear of the store. Philip C. Council and Angela Gar-
          cia were working as cashiers in the front. As Dubois and his

                    2
companions entered the store, Dubois, the only man armed
with a gun, fired in Watson's direction, barely missing her
head.

One of the men ordered Garcia and Council to open the
cash registers. When Council, frightened and suffering from
mental and neurological difficulties stemming from an auto-
mobile accident, could not open the register quickly, three
of the robbers jumped over the counter and began to beat
him. Dubois then shot Council in the chest at point blank
range. The register was opened and Dubois took approxi-
mately $400 in cash and fled with his accomplices. Council
died from the gunshot wound. . . .

Dubois was indicted on charges of capital murder, rob-
bery, use of a firearm while committing capital murder, use
of a firearm while committing a robbery, attempted murder,
and use of a firearm while attempting to commit murder.
Dubois entered into a plea agreement with the Common-
wealth. Under its terms, Dubois agreed to plead guilty to all
charges and to cooperate fully in the prosecution of his co-
defendants' cases. In exchange, the Commonwealth agreed
not to seek the death penalty in his case.

At his arraignment on August 4, 1992, Dubois, repre-
sented by counsel, entered guilty pleas to all the charges,
including the capital murder count. At the hearing, Dubois,
under oath and in response to the trial judge's questions,
stated that he understood the charges against him, the plea
agreement and the possible consequences of his pleas.
Dubois also stated that he understood that the maximum
sentence for the capital murder was death and that the trial
court was not bound by the plea agreement and could
impose a death sentence.

After the Commonwealth summarized the evidence it
would have presented at trial, Dubois reaffirmed his guilty
pleas. The court found that Dubois had entered the pleas
knowingly, intelligently, and voluntarily and that the evi-

          3
          dence supported those pleas of guilty. The court then
          ordered a presentence report.

          At the sentencing hearing, Dubois stated that he had read
          and understood the presentence report. In response to the
          court's inquiries, Dubois indicated that he did not wish to
          question the probation officer who prepared the report nor
          did he wish to present any mitigating evidence. The court
          proceeded to hear argument from counsel. Dubois's counsel
          argued that the court should not impose the death penalty
          because the record before the court did not support imposi-
          tion of the death penalty, that Dubois had expressed
          remorse, and that he had cooperated with the police as
          required under the plea agreement. The Commonwealth
          acknowledged that, pursuant to the terms of the plea agree-
          ment, it was not asking for the death penalty, but urged the
          court to impose the maximum sentence possible consistent
          with the agreement.

          The trial court, after considering the record before it, sen-
          tenced Dubois to death for the capital murder of Philip
          Council. The judge found that Dubois presented a continu-
          ing serious future threat to society.

Dubois v. Commonwealth, 246 Va. 260, 262-63 (1993) (citations
omitted).

II.

In the instant petition for federal habeas relief, Dubois raises the
following claims:

          I. The trial court denied Mr. Dubois due process of law by
          imposing an illegal sentence not authorized by Virginia
          law in violation of Mr. Dubois' constitutional rights.

          II. The plea agreement was dispositional in nature and the
          trial court was without jurisdiction to enter a death sen-
          tence.

                     4
III. Mr. Dubois was denied effective assistance of counsel
and due process of law by the lack of notice that the
death penalty was at issue, after the prosecution had
formally notified the defense and the court that it
would not seek a death sentence and would not prove
any statutory aggravating circumstances at the sen-
tencing hearing, in violation of Mr. Dubois' rights
under the Fifth, Sixth, Eighth, and Fourteenth Amend-
ments to the United States Constitution and sections 1,
8, 9, and 11 of Article One of the Virginia Constitu-
tion.

A. A capital defendant is entitled to the due process of
law at the sentencing hearing, which includes the
effective assistance of counsel and notice of the mat-
ter at issue.

B. Mr. Dubois had neither actual nor constructive notice
that the death sentence could be imposed after the
commonwealth formally abandoned any attempt to
obtain the death sentence.

IV. The trial court failed to put Mr. Dubois on notice that
he would have to rebut evidence of future dangerous-
ness and failed to put him on notice that it would con-
sider information unknown to him and for which he
was unprepared at the sentencing hearing, in violation
of Mr. Dubois' rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Con-
stitution and sections 1, 8, 9, and 11 of Article One of
the Virginia Constitution.

V. Mr. Dubois' guilty pleas were not voluntary, knowing,
and intelligent in violation of Mr. Dubois' rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution and section 1, 8, 9, and
11 of Article One of the Virginia Constitution.

VI. The trial court improperly requested and relied upon
victim impact statements in imposing sentence on Mr.
Dubois.

          5
VII. The trial court erred in requesting and considering a
presentence report in violation of Va. Sup. Ct. R.
3A:8(C)(2).

VIII. The trial court erred in accepting and entering Mr.
Dubois' guilty pleas before determining whether to
accept the plea agreement.

IX. Trial counsel failed to provide Mr. Dubois with rea-
sonable and effective assistance of counsel and denied
Mr. Dubois his right to effective assistance of counsel
in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution and
sections 1, 8, 9, and 11 of Article One of the Virginia
Constitution.

A. Trial counsel failed to assert the trial court's lack of
jurisdiction to sentence Mr. Dubois to death and
failed to object to the trial court's assumption of pro-
secutorial functions.

B. Trial counsel failed to request that the trial court sen-
tence Mr. Dubois separately for his capital and non-
capital offenses.

i. Trial counsel failed to move to recuse the
judge after he presided over the case of Mr.
Dubois' co-defendants Garrett Porter and
Johnson Ruffin.

C. Trial counsel failed to request an order either speci-
fying aggravating circumstances to be considered or
limiting issues to be tried at the sentencing hearing.

D. Trial counsel failed to perform a reasonable and ade-
quate investigation of the case.

i. Trial counsel failed to make a complete and
proper discovery request.

           6
ii. Trial counsel failed to corroborate and negoti-
ate an accurate summary of the evidence
before agreeing to allow the commonwealth to
summarize the evidence to the trial court.

iii. Trial counsel failed to object to the prosecu-
tor's inaccurate summary of facts at the guilt
hearing.

iv. Trial counsel failed to adequately investigate
the case at guilt and at sentencing, making
their communications with and supervision of
the expert appointed to assist the defense
inadequate and meaningless.

v. Trial counsel failed to reasonably and ade-
quately investigate the accuracy or sufficiency
of information contained in the presentence
report.

vi. Trial counsel failed to investigate and corrob-
orate information contained in the victim
impact statements and failed to object to the
trial court's improper consideration of these
statements and the improper information
included in the statements.

vii. Trial counsel failed to investigate, develop,
and present evidence to rebut the [sic] statu-
tory aggravating circumstances.

viii. Trial counsel failed to investigate or present
any mitigating evidence on behalf of Mr.
Dubois.

E. Trial counsel failed to object to the trial court's
improper request for victim impact statements.

F. Trial counsel failed to object to the trial court's
improper request for a presentence report.

           7
G. Trial counsel failed to object to the trial court's fail-
ure to follow the procedure mandated regarding plea
agreements.

H. Trial counsel failed to object to the trial court's con-
sideration of extra-judicial evidence in sentencing
Mr. Dubois.

I. Trial counsel failed to object when the prosecutor
breached the plea agreement by arguing for a death
sentence.

J. Trial counsel failed to object when the trial court vio-
lated the plea agreement.

K. Trial counsel failed to move to withdraw Mr.
Dubois' guilty pleas after the trial court improperly
requested and considered the presentence report and
victim impact statements.

L. Trial counsel failed to withdraw Mr. Dubois' guilty
pleas after the prosecutor breached the terms of the
plea agreement.

M. Trial counsel failed to request that the trial court rule
on Mr. Dubois' motions and to renew ignored
motions.

N. Trial counsel failed to safeguard Mr. Dubois' consti-
tutional rights against self-incrimination when coop-
erating with the probation officer preparing the
presentence report.

O. Trial counsel unreasonably and improperly intro-
duced privileged and confidential evidence damag-
ing to Mr. Dubois.

P. Trial counsel failed to object to the trial court's
incorrect statements to Mr. Dubois regarding his
rights on appeal.

           8
Q. Trial counsel failed to request the opportunity to
present evidence on Mr. Dubois' parole eligibility.

R. Trial counsel failed to provide effective assistance on
appeal.

S. Trial counsel's errors individually and collectively
prejudiced Mr. Dubois and deprived him of the effec-
tive assistance of counsel.

X. The trial court failed to preserve crucial evidence
needed as part of the record on appeal in violation of
Mr. Dubois' rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitu-
tion and sections 1, 8, 9, and 11 of Article One of the
Virginia Constitution.

XI. The prosecutor engaged in substantial misconduct by
violating his agreement not to seek the death penalty
in violation of Mr. Dubois' rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and sections 1, 8, 9 and 11
of Article One of the Virginia Constitution.

XII. The Commonwealth's attorney engaged in miscon-
duct when he failed to reveal information to the
defense in violation of Brady v. Maryland and Napue
v. Illinois, in violation of Mr. Dubois' rights under
the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution and sections 1, 8, 9,
and 11 of Article One of the Virginia Constitution.

XIII. The trial court erred in incorrectly advising Mr.
Dubois that if he pleaded guilty, he had no right to
appeal the trial court's decision in violation of Mr.
Dubois' rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Consti-
tution and sections 1, 8, 9, and 11 of Article One of
the Virginia Constitution.

          9
          XIV. The trial court erred in making a finding of future
          dangerousness beyond a reasonable doubt when
          there was insufficient evidence to support such a
          finding in violation of Mr. Dubois' rights under the
          Fifth, Sixth, Eighth, and Fourteenth Amendments to
          the United States Constitution and sections 1, 8, 9,
          and 11 of Article One of the Virginia Constitution.

          XV. The Virginia Supreme Court failed to conduct consti-
          tutionally adequate proportionality review and other
          appellate review in violation of Mr. Dubois' rights
          under the Fifth, Sixth, Eighth, and Fourteenth
          Amendments to the United States Constitution and
          sections 1, 8, 9, and 11 of Article One of the Virginia
          Constitution.

          XVI. The court-appointed psychologist did not perform an
          adequate evaluation of Mr. Dubois in violation of
          Mr. Dubois' rights under the Fifth, Sixth, Eighth,
          and Fourteenth Amendments to the United States
          Constitution and sections 1, 8, 9, and 11 of Article
          One of the Virginia Constitution.

          XVII. The trial court erred in relying upon the results of
          the forensic evaluation to make a finding of future
          dangerousness in violation of Mr. Dubois' rights
          under the Fifth, Sixth, Eighth, and Fourteenth
          Amendments to the United States Constitution and
          sections 1, 8, 9, and 11 of Article One of the Vir-
          ginia Constitution.

J.A. 320-26 (Dubois' petition for federal habeas corpus relief filed in
district court).

III.

During state post-conviction proceedings, the Virginia Supreme
Court held Claims II, IV, VI, VII, VIII, X, XI, XII, XIII, XIV, XV,
XVI, XVII to be procedurally barred under the state procedural rule

                    10
of Slayton v. Parrigan, 215 Va. 27 (1974), which prevents a state
habeas petitioner from raising claims that could have been but were
not raised and adjudicated during the petitioner's trial or upon direct
appeal. The Virginia Supreme Court also held Claims IX(B),
IX(D)(i)-(iii), IX(M), IX(O)-(P) to be procedurally barred under the
state procedural rule of Anderson v. Warden, 222 Va. 511 (1981),
which prevents a state habeas petitioner from challenging the truth
and accuracy of representations made by him as to the adequacy of
his court-appointed counsel and the voluntariness of his guilty plea
unless the prisoner offers a valid reason why he should be permitted
to controvert his prior statements. J.A. at 279. The rule of Slayton is
a valid procedural rule. Smith v. Murray , 477 U.S. 527, 533-39
(1986); Turner v. Williams, 35 F.3d 872, 890 (4th Cir. 1994). So, too,
is the Anderson rule.1 Accordingly, these above-referenced claims are
procedurally defaulted for the purposes of federal habeas review.

Neither has Dubois carried his burden of establishing the requisite
"cause" and "actual prejudice" necessary to excuse these procedural
defaults. In his brief, Dubois asserts -- in one conclusory phrase and
without citation to any authority, Appellant's Br. at 18 -- that his pro-
cedural defaults are excused under the "cause" and "actual prejudice"
standard. First, with respect to Claims II, VI, VII, VIII, XI, and XIII,
_________________________________________________________________
1 We are not persuaded by petitioner's argument that the rule of
Anderson was overruled by United States v. Cronic, 466 U.S. 648
(1984), and Strickland v. Washington, 446 U.S. 668 (1984). Although
these cases, and Cronic in particular, suggest that in determining whether
counsel's performance was constitutionally ineffective, a federal court
entertaining such a claim "attach[es] no weight to either [the defendant's]
expression of satisfaction with counsel's performance at the time of his
trial, or to his later expression of dissatisfaction," 466 U.S. at 657 n.21,
the Anderson rule is a procedural rule holding that a prisoner raising a
state habeas petition is not permitted to present a set of facts directly con-
trary to his earlier statements made in open court. To the extent that
Strickland and Cronic define the substantive standards for reviewing
ineffective assistance of counsel claims under the Sixth Amendment,
they do not foreclose Virginia from enforcing a procedural rule such as
Anderson. Furthermore, we have reviewed these claims and have con-
cluded that they do not justify issuance of the writ under the Strickland
standard even if they were not defaulted under an adequate and indepen-
dent state procedural rule. See also Part IV, infra.

                    11
Dubois would presumably assert -- although he has not framed any
argument as such -- that he has demonstrated "cause" to excuse these
procedural defaults because he has also alleged elsewhere that his
failure to raise these claims in state court was the result of ineffective
assistance of counsel. As we discuss infra, Dubois does not establish
that his failure to raise any of these claims resulted from constitution-
ally ineffective assistance of counsel, and therefore Dubois has not
carried his burden of demonstrating "cause" for these procedural
defaults. Murray v. Carrier, 477 U.S. 478 (1986).

Second, Dubois argues that his Slayton default of Claim XV -- the
denial of constitutionally adequate proportionality review -- is
excused because he was unable to raise this claim until after the Vir-
ginia Supreme Court conducted such review and subsequently
affirmed his sentence on direct review. To the extent that Claim XV
raises a facial challenge to all proportionality review in Virginia,
however, such a claim clearly could have been raised during Dubois'
first appeal on direct review and prior to the Virginia Supreme
Court's proportionality review of his sentence. And to the extent that
Claim XV raises an as applied challenge to the proportionality review
that Dubois received by the Virginia Supreme Court, Dubois could
have raised that claim in a rehearing petition in his direct review to
the Virginia Supreme Court. And, in any event, we have examined the
proportionality review conducted by the Virginia Supreme Court, see
Dubois, 246 Va. at 267-68, and we cannot conclude that Dubois has
been denied any federal constitutional right to adequate and meaning-
ful proportionality review.

Third, Dubois contends that several other of his defaults were the
result of prosecutorial or trial court misconduct-- presumably Claims
IV, X, and XII -- although Dubois does not specifically refer to any
claims in this regard. None of these claims, however, allege any inten-
tional or deliberate misconduct by the trial court or prosecution
designed to prevent the timely raising of a claim of the type necessary
to establish "cause" for a procedural default under Amadeo v. Zant,
486 U.S. 214 (1988), and related cases.

Finally, even if Dubois could demonstrate "cause" for his failure to
properly raise any of these claims in state court, he has not demon-
strated the requisite "actual prejudice" necessary to excuse any of

                     12
these procedural defaults. Other than one oblique-yet-conclusory
assertion, see Appellant's Br. at 18 (under"non-opt-int law[ ] the dis-
trict court erred in identifying certain claims as defaulted"), Dubois
has not argued to this Court that he has been actually prejudiced by
his failure to raise any of these defaulted claims in state court under
proper procedural rules,2 and we conclude from our review of the alle-
gations raised in Dubois' habeas petition that Dubois has not carried
his burden of demonstrating "actual prejudice" to excuse any of these
procedural defaults.

Accordingly, Dubois' claims II, IV, VI, VII, VIII, IX(B), IX(D)(i)-
(iii), IX(M), IX(O)-(P), X, XI, XII, XIII, XIV, XV, XVI, and XVII
are all not cognizable for the purposes of the instant federal habeas
petition.3

IV.

As Dubois' federal habeas petition was filed after the effective date
of the Antiterrorism and Effective Death Penalty Act of 1996, 110
_________________________________________________________________
2 Dubois does argue that under the"opt-in" procedural default provi-
sions, 28 U.S.C. § 2264, his procedural defaults are excused. Appellant's
Br. 14-20. However, none of Dubois' arguments in this regard excuse his
procedural defaults when analyzed under non-opt-in procedural default
standards, particularly because Dubois' primary argument in his brief is
that 28 U.S.C. § 2264 enhanced a habeas petitioner's ability to have pro-
cedural defaults excused by, inter alia, eliminating the need to show
actual prejudice. Appellant's Br. at 16 ("Congress eliminated the addi-
tional threshold need to show prejudice" under the "opt-in" provisions of
section 2264 and thus created a "less draconian version of the rule [of
procedural default] than that which had evolved in the case law since
1979").
3 The district court concluded that Virginia was an "opt in" state and
therefore applied the new procedural default standards set forth at 28
U.S.C. § 2264 as amended by the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA), 110 Stat. 1214. Because we conclude that
several of Dubois' claims are procedurally defaulted under the pre-
AEDPA law, we do not reach the issue of whether Virginia qualifies as
an "opt in" state within the meaning of section 107 of the AEDPA. To
the extent that the district court held that Virginia qualifies as an "opt in"
state, we vacate that portion of the district court's judgment.

                    13
Stat. 1214 (AEDPA), the AEDPA's amendments to chapter 153 of
Title 28 apply to Dubois' claims. Lindh v. Murphy, 117 S. Ct. 2059,
2068 (1997); Breard v. Pruett, 134 F.3d 615, 618 (1998). Dubois
brought the instant petition for relief pursuant to 28 U.S.C. § 2254(a).
Section 2254(d) of that title, as amended by the AEDPA, now pro-
vides that:

          An application for a writ of habeas corpus on behalf of a
          person in custody pursuant to the judgment of a State court
          shall not be granted with respect to any claim that was adju-
          dicated on the merits in State court proceedings unless the
          adjudication of the claim -- (1) resulted in a decision that
          was contrary to, or involved an unreasonable application of,
          clearly established Federal law, as determined by the
          Supreme Court of the United States; or (2) resulted in a
          decision that was based on an unreasonable determination of
          the facts in light of the evidence presented in the State court
          proceeding.

28 U.S.C. § 2254(d). Accordingly, we review federal claims adjudi-
cated on the merits in state court under the standard of review set
forth in amended section 2254(d).

Dubois claims that he was denied due process of law when the Vir-
ginia courts imposed a death sentence in violation of Virginia law
(Claim I). The gravamen of this claim is that "the trial court had nei-
ther the authority nor the power to impose the penalty of death unless
the Commonwealth first proved at the sentencing hearing beyond a
reasonable doubt at least one of two statutorily defined aggravating
circumstances," and that "[t]he trial court could not properly find an
aggravating circumstance to exist beyond a reasonable doubt because
the Commonwealth failed to take any action to meet its burden of
proof." J.A. at 339-40 (Dubois' federal habeas petition). To the extent
that this claim alleges only a violation of state law, Dubois is not enti-
tled to relief. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S.
62, 73 (1991) ("it is not the province of a federal habeas court to reex-
amine state-court determinations on state-law questions"). Further-
more, the Virginia Supreme Court has essentially rejected this claim
and concluded that the evidence in the record supported the trial
court's finding of aggravating circumstances, Dubois, 246 Va. at 263-

                     14
67, and Dubois has not carried his burden of disproving that determi-
nation. To the extent that this claim alleges a violation of the Due Pro-
cess Clause or any other federal right, Dubois does not appear to have
raised this precise claim in state court -- a failure which forecloses
our ability to award habeas relief based upon this non-exhausted
claim, see 28 U.S.C. § 2254(b)(1)-- and in any event Dubois has not
cited to any Supreme Court (or other applicable) precedent to which
the Virginia Supreme Court's adjudication of this claim is contrary or
an unreasonable application. See 28 U.S.C.§ 2254(d)(1).

Dubois next claims that the trial court was without jurisdiction to
enter a death sentence because his plea agreement with the Common-
wealth was dispositional and was therefore valid only in the event that
Dubois did not receive the death penalty (Claim II). As discussed
supra, this claim is procedurally defaulted. This claim also raises only
a question of state law and is therefore not cognizable on federal
habeas. Moreover, the Virginia Supreme Court on direct appeal from
Dubois' conviction and sentence concluded that the plea agreement
here did not foreclose imposition of the death penalty, and we agree
with the Virginia Supreme Court's interpretation of Virginia law. See,
e.g., Dubois, 246 Va. at 265 ("there is no dispute that the trial court
was in no way bound to accept the Commonwealth's recommenda-
tion. Rule 3A:8; Johnson v. Commonwealth , 214 Va. 515 (1974)").
This construction of the plea agreement is also consistent with the
behavior of Dubois' trial counsel, J.A. at 33 (letter from attorney to
Dubois), as well as Dubois' conduct, J.A. at 12-17, both of which
indicate that Dubois pled guilty pursuant to the plea agreement with
the knowledge that the agreement only limited the prosecution's abil-
ity to argue in favor of the death penalty but that it did not prevent
the trial court from imposing the death penalty. This claim is therefore
without merit.

Dubois next claims that he was denied several constitutional rights
because he had no notice that the death penalty would be an issue dur-
ing proceedings in the trial court (Claim III). The record, however,
clearly establishes that the court questioned Dubois and that Dubois
knew (or, at the very least, was on notice) at the time of his guilty
plea that he could receive the death penalty notwithstanding the plea
agreement. For example, the following colloquy occurred between
Dubois and the trial court:

                    15
Court: Do you understand, with respect to this negotiated
plea agreement, the Court is not bound by anything you,
your attorneys and the Commonwealth Attorney's Office
have agreed to?

Dubois: Yes.

Court: Do you further understand, notwithstanding what that
agreement may be, if it calls for a recommendation, I have
the power and authority to reject that recommendation?

Dubois: Yes.

Court: If it calls for a recommendation, and I reject it, you
have no right to withdraw your pleas of guilty?

Dubois: Yes.

Court: Do you understand further, if I reject it, I also have
the power to sentence you to a term greater than they may
be recommending?

Dubois: Yes. . . .

Court: What is the maximum punishment for capital mur-
der?

Dubois: The death penalty.

Court: What is the maximum punishment for robbery?

Dubois: Life. . . .

Court: You understand that the maximum punishment for
capital murder being sentenced to die in the electric chair,
do you still desire to enter your pleas of guilty and enter into
that negotiated plea agreement?

Dubois: Yes.

           16
J.A. at 14-17. The Virginia Supreme Court also found that Dubois
acknowledged that the trial court was not bound by the plea agree-
ment, Dubois, 246 Va. at 262, and counsel for Dubois also indicated
this understanding. See, e.g., J.A. at 54. Accordingly, Dubois was on
notice that he could receive the death penalty, and Dubois is not enti-
tled to habeas relief based upon this claim.

We also reject Dubois claim that his guilty plea was not voluntary,
knowing and intelligent (Claim V). As discussed supra, Dubois
explicitly acknowledged in open court that he could receive the death
penalty notwithstanding his plea agreement. J.A. at 11-18. The trial
court also asked Dubois about his education level (one year of col-
lege), whether he understood the nature of the charges against him,
discussed the elements of the crimes with his attorneys, received
advice from his attorneys regarding those elements, had enough time
to discuss possible defenses, and entered his guilty pleas of his own
free will and without coercion. Dubois answered affirmatively to
these five questions, J.A. at 12-13, and then the trial court specifically
found that Dubois' plea was knowingly and voluntarily entered. J.A.
at 27. Dubois has not carried his burden of disproving this finding,
and neither has he otherwise demonstrated that his guilty plea was not
knowing, intelligent, and voluntary. We therefore reject this claim.

Dubois next claims that the trial court erred in making a finding of
future dangerousness beyond a reasonable doubt (Claim XIV). Again,
to the extent that this claim alleges a violation of state law only, it is
not cognizable here. Also, the Virginia Supreme Court affirmed the
trial court's finding of future dangerousness, and the facts in the
record are clearly sufficient to support that finding of future danger-
ousness. See Dubois, 245 Va. at 264-65 (discussion of all the evi-
dence, including the murder of Council, Dubois' prior criminal record
for other crimes of violence, his several arrests for assault, robbery,
and armed robbery, his admissions of involvement in an attempted
murder in Boston, his drug dealing, and general reports of his antiso-
cial personality and excitability). We therefore reject this claim, as
well.

In his next claim, Dubois argues that, under Virginia law, he is
entitled to proportionality review, that the Virginia Supreme Court's
failure to perform "meaningful" proportionality review deprived him

                     17
of this statutory right in violation of the Due Process Clause, and that
proportionality review is otherwise constitutionally required in his
case (Claim XV). First, and as discussed above, this claim is proce-
durally defaulted. Second, Dubois cites to no Supreme Court case that
there is a constitutional right to such proportionality review, and no
case that "meaningful proportionality review" is the type of state-
created right whose deprivation violates due process. Cf. Pulley v.
Harris, 465 U.S. 37, 42-51 (1984) (holding no constitutional right to
proportionality review). Third, the Virginia Supreme Court in this
case conducted a thorough and adequate proportionality review under
its procedures, see Dubois, 246 Va. 267-68, and after reviewing
Dubois' allegations we cannot conclude that the state deviated from
its statutory duty to conduct proportionality review (if at all) so egre-
giously as to violate Dubois' federal constitutional rights. We accord-
ingly conclude that this claim is without merit.

Finally, Dubois raises a number of claims of ineffective assistance
of counsel. (Claims III, and IX(A)-(S)). Although in the district court
below, Dubois raised twenty six different claims and sub-claims of
ineffective assistance, on appeal Dubois has in effect only briefed one
ineffective assistance claim -- a new claim which is different from
the claims raised below. In this new claim, which is undoubtedly
waived for the purposes of this appeal, Dubois contends that his trial
counsel incorrectly advised him that under the terms of the plea
agreement he would be ineligible to receive the death penalty whereas
in actuality the trial court was free to impose the death penalty under
the agreement. Even if this contention were not waived, Dubois has
not carried his burden of proving the elements of this claim because
all of the record evidence to which Dubois cites-- particularly the
letters from attorneys to Dubois -- unequivocally establishes that
Dubois' counsel only advised Dubois that under the plea agreement
the Commonwealth would not seek the death penalty in exchange for
Dubois' cooperation, not that Dubois would be immune from receiv-
ing the death penalty. J.A. 33, 34, 40, 41. This understanding of the
plea agreement is further confirmed by Dubois' statements at his
arraignment where he acknowledged that the trial court was free to
impose the death penalty notwithstanding the plea agreement. Fur-
thermore, Dubois' contention that his attorneys falsely informed him
that under Virginia law he would be ineligible for the death penalty
under the plea agreement is inconsistent with his other contentions

                     18
that the trial court violated Virginia law by sentencing Dubois to
death notwithstanding the plea. Therefore, Dubois has not proven the
necessary predicate for this certainly-waived claim; Dubois has not
proven that his trial counsel advised him that he would be legally
immune from the death penalty under the terms of his negotiated plea
agreement.4

Dubois does not brief any of his remaining twenty five ineffective
assistance claims other than to provide a conclusory laundry list of the
titles of each of these claims and to assert that he is therefore entitled
to relief. See Appellant's Br. at 35-39. As discussed supra, several of
these claims are procedurally defaulted and not cognizable on federal
habeas review. We seriously doubt that Dubois has even properly
presented the remaining claims to this court given the superficiality
with which they have been treated and briefed by habeas counsel.
However, even assuming (counterfactually) that Dubois has properly
raised these claims of ineffective assistance of counsel that have been
rejected on the merits by the Virginia Supreme Court, we are unable
to conclude, after our review of the briefs, the record, the submissions
below, and after having had the benefit of oral argument, that the Vir-
ginia Supreme Court's rejection of any of these claims -- either indi-
vidually or collectively -- was contrary to or an unreasonable
application of the very stringent standards established by the Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984), Hill v.
Lockhart, 474 U.S. 52 (1985), Evitts v. Lucey, 469 U.S. 387 (1985).

Dubois has therefore failed to make a "substantial showing of the
_________________________________________________________________
4 To the extent that Dubois may argue that his trial counsel correctly
advised him of the legal consequences of the plea agreement but were
nonetheless ineffective for advising him to accept the plea, we cannot
conclude that an attorney's recommendation that his client accept such
an agreement falls below the range of objectively competent legal advice
under Strickland. For, even though the agreement did not guarantee that
Dubois would avoid the death penalty, it nevertheless prevented the
Commonwealth from arguing in favor of death, and the agreement
would naturally reduce the chances of someone in Dubois' position
receiving the death penalty. Dubois' trial counsel therefore acted within
the range of professionally and constitutionally conduct as defined by the
Supreme Court in Strickland and related cases.

                     19
denial of a constitutional right," 28 U.S.C.§ 2253(c)(2), and accord-
ingly we deny Dubois' application for a certificate of appealability
and dismiss this appeal.

DISMISSED

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