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gityo/~(Nl,                 Friday     tk 31st     ckyO/    October, 2014.


?resent:        All        Justices


Mark          c Lawlor,                                                Petitioner,

    against           Record No. 131972

Keith W. Davis, Warden, Sussex I
 State Prison,                                                         Respondent.


                  Upon a Petition for a Writ of Habeas Corpus


        Upon consideration of the petition for a writ of habeas corpus
filed December 16, 2013, and the respondent's motion to dismiss,
the Court is of the opinion that the motion should be                  anted
that the wr            should not issue.
        Mark Eric Lawlor was convicted in the              rcuit Court of Fairfax
County of capital murder in                 commission of, or subsequent to,
r       or attempted rape, Code       §    18.2-31(5), and capital murder
the commission of abduction with                ent to defile, Code    §   18.2­
31(1), and was sentenced to               ath on each conviction.     This Court
affirmed Lawlor's convictions                 upheld his sentences of de           in
Lawlor v. Commonwealth, 285 Va. 187, 738 S.E.2d 847, cert. den
       U.S.       , 134 S. Ct. 427    (2013).
        The victim, Genevieve Or             ,was found on the floor of the
living area of her studio apartment.                  door to Orange's
apartment was unlocked and there were no signs of forced entry.
Orange had been struck at least 47 t               s with one or more blunt
objects.        Some of Orange's wounds were consistent with having been
struck wi                   a frying         Others were consistent with having                        en
struck                th a hammer.            eauent           cal examinat                established
that                        had aspirated blood and sustained defensive wounds to
her hands                     arms,        eating she              been alive              conscious
during some part of the beating.
                           's body lay near her couch, which was saturated with
blood.                      was naked from the waist down, her bra and t-shirt had
been pushed up over her breasts, and semen was smeared on her
abdomen                     right thigh.     Her soi                    bloodi              sand
underpants had been f                        to the floor nearby.                A         metal
was found near Orange's body.                     Its wooden handle                       broken off and
was found                    the kitchen sink, near a bent and bloody metal frying
pan.
          Lawlor resided in Orange's apartment building.                                  He also worked
there as a leasing consultant and had access to ke                                        to each
apartment.                  Testing of        semen on Orange's abdomen and thigh
showed DNA consistent                      th Lawlor's DNA.              At trial, Lawlor's
atto                      admitted       or had kill         Orange, but contested the
allegations of premeditation, rape                                 abduction.
                                         CLAIMS (I),        (II)    &    (V)
          In claims             (I) and (II), Lawlor alleges the Commonwealth failed
to disclose exculpatory information as required by Brady v.
Ma
~~L.   ........ _ _
                      , 373 U. S. 83
                      

                                         (1963), and          sented false testimony or
allowed it to go uncorrected in violation of                                         v.    Illinois    360
U.S.      264             (1959), and Gi lio v. Unit           States, 405 U.S. 150 (1972).
          As                Court has stated previously:
              [], the United States    reme Court held that
"the                    prosecution of evidence favorable to
an accused upon reauest violates due process where the
                                                       2

evidence is material either to guilt or to punishment,
irrespect     of the good   ith or bad faith of the
   secution."   [373 U.S.] at 87.

     Exculpatory e dence is material if there is a rea       Ie
probability that the outcome of the    oceeding would have been
different     the evidence been disclosed to the defense.   "A
reasonable               is one which is sufficient to
                     in the outcome of      proceeding.

Muhammad v. Warden, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007)
(citations       tted) .    Furthermore,         s Court has previously held
that,    "to find that a violation of Napue occurred                . , we must
dete     ne first t        the testimony [at issue] was false, second
that the       secution knew of the         lsity, and finally that
falsity af            the jury's judgment."        Tele     z v. Commonwealth,
273 Va. 458, 4         643 S.E.2d 708, 729 (2007).
        In a portion of claims (I)              (II), Lawlor alleges Detective
John Tuller lied in his curriculum v                 which        Commonwealth
submitted to t        defense pursuant to            §    19.2-264.3:4, with its
notice of intent to introduce e             rt testimony.      The notice named
Tuller as the Commonwealth's               rt in bloodstain pattern
interpretation.       In his curriculum vitae, Tuller stated he had
testified as an expert in b              tain      tern inte        ation in six
cases.     However,        two of the cases Tuller             ified,
testified only as a          ct witness.    Tuller further stated           was a
current member of the International Association of Bloodstain
Pattern Analysts      (IABPA).    However, Tuller's membersh            with the
IABPA had expired.         Tuller cIa      d he attended a crime scene
investigation seminar at the Miami Metro-Dade Police Training
Institute.     However, the Mi          Metro-       Police        rtment has no

                                           3

record of his attendance.          Finally, Tuller r       sented t          in 2003
he attended the 3loodstain Users Group S             nar at the Vi          nia
Jepartment of Forensic Science (DFS).            However, DFS         ed ever
prese~t      such a s      nar.
       The Court rejects these portions of cla             (I) and (II).          The
reco    , including the affidavits of Lawlor's counsel and the
manuscript record, demonstrates that the alleged inconsistencies in
Tuller's curriculum        tae were known or available to Lawlor at the
time of his trial.       Thus, the Court holds that these portions of
claims (I) and (II) are barred because t             se non-juri      cti
issues could have been raised at trial and on direct appeal and,
t       are not cognizable in a petition            r a writ of habeas corpus.
          v. Parr       , 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974),
cert. denied, 419 U.S. 1108 (1975).
       In another portion of claims (I)              (II), Lawlor contends
Tuller lied in        s testimony to           trial court when questioned
about his          rt qualifications.     At trial, Tuller repeated his
assertion he had testified as an expert in bloodstain                   ern
interpretation in six cases.             ler also stated all six cases were
homi    des, and         the defendant in each case was convicted.
However, Tuller testified as an expert in only four cases.
Additionally, according to Tuller's curriculum vitae, one of the
cases in which         had testi     ed as an expert invol         a malicious
wounding and not a homicide.          Finally, of the six cases Tuller
identified in his curriculum           tae, one was Lawlor's          liminary
hearing, which had not, at the time of Tuller's testimony, resulted
in a conviction.


                                          4

       The Court rejects t      se portions of claims (I) and (II).
Because the alleged inconsistencies in Tuller's representation of
his qualifications were known or available to Lawlor at the t                      of
his tr     1, the Court hol      that these           ions of claims (I) and
(I ) are barred.       These non-juri      ctional issues could have been
raised at trial and on direct appeal and, thus, are not cognizable
in a       ition      r a writ of habeas corpus.        Sla       215 Va. at 29,
205 S.E.2d at 682.
       In cla       (V), Lawlor argues he was denied the effect
assistance of counsel         cause counsel failed to investigate and
confront Detective Tuller's representations rega                ng his
   lifications to testify as an                rt.   Lawlor contends        thad
counsel challenged Tuller's             rt qualifications, there is a
reasonable probability that t           court would have sustained Lawlor's
   ection to Tuller's certification as an expert witness, that his
testimony would have been           luded, and            he would not have
been convicted of c         tal murder.    Lawlor argues that had Tuller
not testified,          Commonwealth would have had no evidentiary basis
to argue           or abducted Orange by moving her from the couch to the
floor.     Lawlor further contends that without Tuller's testimony,
prosecutors would not have been able to rely on his opinions to
argue Lawlor was capable of preme           tation.     Lawlor contends the
Commonwealth relied on Tuller's opinion that Lawlor had tried to
clean up the crime scene after the murder to demonstrate
premeditation.        Lawlor further contends the Commonweal             relied on
Tuller's expert opinion to show the victim was in a vulne                    e
position when she was attac                     lly, Lawlor contends that had
Tuller been permitted to testi            as an expert        bloodstain pattern

                                          5

interpretation despite counsel's objections, counsel could have
used      s false statements to impeach h           before the jury.
        The Court hoI     that cIa         (V) fails to satis      the prej
prong of the two-part test enunciated in Strickland v. Wa
466 U.S. 668, 687 (:984).          The reco      ,including Tuller's affidavit
and attached exh        ts and the affidavit of Lawlor's trial counsel,
demonstrates that         ler's curriculum vitae conta             multiple
errors.     Of t   six cases in which Tuller claimed to have testifi
as an expert in bloodstain            tern       erpretation, he had testified
as an expert in only four.          Tuller was not a current member of the
IABPA, his membership having                red years before Lawlor's trial.
Tuller attended the Miami-Dade Police Training Institute's Crime
Scene Investigat         Seminar          January 2003, not January 2002, as
Tuller stated.     The Bloodstain Users Group Seminar Tuller attended
in 2003 was not a 40          r course and was not presented by DFS, as
Tuller's curri           vitae stated.        Although      or's counsel was
aware of at least one of the              screpancies in Tuller's curriculum
  tae before trial, counsel fail              to pursue an ade       e
investigation or even ask Tuller about it dur                their pretrial
interview with            In addition, Tuller's testimony that he had
testifi      as an e     rt in blo        tain pattern interpretation          six
cases and that all six             been          r cases and had resulted in
convictions was clearly incorrect                 inconsistent with Tuller's
curriculum vitae.       Counsel, however, failed to             stion Tuller
about the      screpancies.
        Assuming, without       iding, that these inaccuracies would have
precl        Tuller from testifying as an expert or, had he been
permitted to testify as an                rt, would have impeached his

                                            6

expertise, Lawlor cannot show a reasonable probability of a
different outcome.      Tuller's expert testimony was not cruci          to
prove Law     r abducted Orange.    The Commonwealth was not required to
      sent evidence that Lawlor moved Orange from the couch to
floor to prove he abducted her.        H[T]he physical detention of a
person, with the intent to deprive him of his personal liberty, by
     rce, intimidation, or deception, without any asportat            of the
     ctim from one place to another, is sufficient."       Scott v.
COIillllonwealth, 228 Va. 519,   526, 323 S.E.2d 572, 576 (1984).       The
record, including the trial transcript, demonstrates there was
overwhelming evidence to prove Lawlor us           force to physically
detain Orange.     Dr. Constance DiAngelo, an Assistant Chief Medical
Examiner and forensic pathologist, testified Orange sustained
"severe, heavy trauma" when she was stuck in the           ad and face over
thirty times with a blunt object.          Some of the blows left divots in
Orange's skull, which was fractured so badly that it opened as if
it were hinged.     Dr. DiAngelo testified Orange sustained at least
seventeen additional       fensive wounds to her hands and arms.
Combined with the blood in         r lungs, this indicated Orange was
al       for at least    rt of       attack.    The jury did not require
Tuller's expert opinion to conclude that Lawlor detained Orange by
physical force.
        In addition, the jury could reasonably infer, without the
benefit of Tuller's expert testimony, that Lawlor moved Orange from
the couch to the floor.      Dr. DiAngelo testifi       that the trauma to
Orange's head occurred while she was on the couch.          Orange was
discovered lying on the floor,       flat on her back, perpendicu       r to
the couch, with her feet near the end of the couch where the pool

                                       7
of blood from her head was.        The jury could reasonably infer from
this evidence that Orange did not            llingly move from the couch to
the floor.
      Further, DiAngelo's testimo         and the Commonwealth's
photographs of the blood-soaked couch left no reasonable doubt that
Orange was attacked there.        Finally, the Commonwealth did not rely
on Tuller's expert testimony to argue premeditation.           Rather, to
show premeditation, the Commonwealth relied on the location, force
and number of        ows to Orange; evidence of Lawlor's rational,
competent behavior while purchasing and consuming drugs with
Michael Johnson, who had          cilitated Lawlor's purchase of drugs;
Lawlor's ability to plan, as evi             ed by his obtaining the
victim's      ys, traveling to her apartment, and using a back exit to
avoid detection a        r the murder; the obvious evidence of his
ineffectual attempts to clean up the crime scene by placing the
bloody pan and broken handle in the kitchen;            s ev       disposal
of        hammer and his     oody clothes; and       s lying about his
knowledge of the crime.       Thus, Lawlor has failed to demonstrate
that there is a reasonable probability that, but for the errors
alleged       claim (V), the result of the proceeding would have been
dif   rent.
                                   CLAIM (III)

      In claim (III) (A), Lawlor contends he was denied the right to
plead guilty and to have his sentence determined by a jury.              Lawlor
contends that under Code      §   19.2 257, to plead guilty a defendant
must waive his right to have a jury determine his sentence.              Lawlor
argues that when applied to a defendant charged with a capital
offense, Code    §   19.2-257 violates the Sixth Amendment under
                                        8

decisions in Blakel            v. Washi            542 u. S. 296 (2004), Ri           v.

Arizona, 536 U.S. 584           (2002), and         rendi v. New Jerse          530 U.S.
466 (2000), because it requires the judge to determine the
appropriate sentence on the basis of facts not "reflected in the
jury verdict or admitted by the defendant."                  Blakel      542 U.S. at
303-04.
        The Court holds that claim (III) (A)             is barred because this
non-juri        ct       1 issue could have been raised at trial and on
direct appeal and, thus, is not                    izable in a petition for a writ
of habeas corpus.         Sl             215 Va. at 29, 205 S.E.2d at 682.
        In claim (I I I) (B), Lawlor contends he was                  ed the ef            i ve
assistance of counsel because counsel failed to protect his right
to plead guilty and to have                  aggravati      factors of vileness and
future dangerousness, which must be proven beyond a reasonable
doubt before a sentence of death may be imposed,                      termined by a
jury.     Lawlor contends counsel should have argued                    t Code    §   19.2­
257 violates the Sixth Amendment because it requires the                    J          to
determine the appropriate sentence on the basis of facts not
"reflect        in the jury verdict or admitted by the defendant."
Blakel , 542 U.S. at 303-04.
        The Court holds that cIa             (III) (B) fails to satisfy
prejudice prong of the two-part test enunciated in Strickland.
Under Code      §    19.2-264.4, the sentencing          ury must consider, among
other things,         "the circumstances surrounding the offense."                It is
the ju     's         y to consider all the evidence, both favorable and
unfavorable,           fore fixing punishment.         St     r v. Commonwealth,
220 Va. 260, 275 76, 257 S.E.2d 808, 819 (1979).                  Thus, even if
Lawlor had been permitt             to       ad      Ity and have his sentence

                                              9

   ermined by a jury, the sentencing jury necessarily would have
had access to the evidence presented in the guilt phase of Lawlor's
trial, including the evidence adduced at trial of the brutal nature
of Lawlor's cr      s.       n addition, although Lawlor argues a guilty
  ea would have      rmitted him to show remorse and accept
respons   ility in front of the jury, the record,              including the
trial transcr      , demonstrates that counsel effect                ly proceeded
as if Lawlor had entered a guilty plea.                From opening statement
through the        of trial, Lawlor's trial counsel conceded Lawlor
had murdered Orange.        The record further est           ishes that the
crimes were extremely brutal, t            t t       victim suffer
significantly, that immediately a                 r the murder Lawlor insisted
had no knowledge of the crimes and attempted to cast su                  icion on
his neighbor, and t           a   er his DNA was discovered on the victim,
Lawlor insisted he was being framed.                Under the circumstances,
Lawlor cannot show that had he been permitted to plead guilty and
have his sentence           ermined by a jury, the ju          would have reached
a different outcome.        Thus, Lawlor has failed to demonstrate that
there is a reasonable probability that, but for the errors alleged
in claim (III) (8), the result of the proceeding would have been
different.
                                     CLAIM (IV)

     In cIa      (IV) (A)         a port          of claim (IV) (C), Lawlor
contends he was denied a fair trial because t                 prosecution used
four of its f       peremptory strikes to remove all persons of
Hispanic and Pacific-Island ethnicity from the jury venire and the
trial court failed to ensure those strikes were not based upon the
ethnicity of        jurors.
                                           10 

       The Court holds that claim (IV) (A) and this portion of claim
( V) (C) are     rred because these non-jurisdictional issues could
have been raised at trial and on direct appeal and, thus, are not
cognizable in a petition for a writ of habeas corpus.                 Sla            215
Va. at 29, 205 S.E.2d at 682.
       In claim (IV) (B) and another      rtion of claim (IV) (C), Lawlor
contends he was denied the effective assistance of counsel because
counsel failed to object to the      Co~monwealthls        removal of all
  rsons of Hispanic and Pacific-Island ethnicity from the jury
venire.    The   Co~monwealth   used peremptory strikes to remove G
Alvarez, Fredericka Wall, Vene        a Fernandez, and Dave Lunasco from
the venire of twenty-four qualif              jurors.    Lawlor all         s that
Alvarez, Wall, and Fernandez were               only members of the panel of
Hispanic ethnicity, and that Lunasco was the only person of
Paci     c-Island ethni   ty.    Lawlor contends that the removal of all
  spanic and Pacific-Island jurors was prima facie evidence of
discrimination, and that counsel unreasonably f               led to object to
their exclusion.
       The Court holds that claim (IV)        (B)   and this portion of claim
(IV) (C) satisfy neither the performance nor t               prejudice prong of
the two      rt test enunci        in Strickland.        The principles
applicable to        11    s of racial motivation for the exercise of
  remptory 	strikes on a jury panel in              ially were set out by the
   ted States Supreme Court in          son v. Kentuc           476 U.S. 79
(1986), and s       equently have been refined in decisions of this
Court.




                                       11 

        As the Court       s stated previously:

             When a defendant makes a Batson challen    to the
        use of a peremptory strike, he must show that the
        individual "is a member of a cognizable racial group,"
        and "make a prima facie showing that the    remptory
        strike was made on racial grounds." Mere exclusion of
        members of a particular race by usi   peremptory strikes
        "does not    self establish such a pr    facie case under
        Batson." To establish a prima fa e case, the defendant
        must also "identify facts and circumstances that raise an
        inference that potential jurors were excluded based on
        their race."

         r v. Commonwealth      271 Va. 362, 407,      626 S.E.2d 383, 412
(2006) (internal citations omit            ) {citing -Yarbr    v.
                                                       -----="--­

Commonwealth, 262 Va. 388, 394, 551 S.E.2d 306, 309 (2001)                 (quoting
Batson, 476 U.S. at 96), and Jackson v. Commonwealth, 266 Va. 423,
436, 587 S.E.2d 532, 542        (2003)).
        Once a   fendant makes a pr             facie case, the burden      ifts
to the    Co~~onwealth     "to produce race-neutral explanations for
striking         juror."    ---"-­
                                     , 271 Va. at 407,     626 S.E.2d at 412
(quot       Jackson, 266 Va. at 436, 587 S.E.2d at 542).             The
defendant can then argue the Commonwealth's                lanations were a
pretext for unconstitutional discr              nation.   Id.
        Lawlor has failed to establish a prima facie case of
purposeful discrimination that counsel should have recognized and
     llenged, and that the trial court would have accepted.                 though
Lawlor asserts that the Commonwealth's perempto                 strikes resulted
i~        exclusion of all       rsons of Hispanic and Pacific-Island
ethnicity from the jury, he proffers no basis for his               assertio~

Lhat the strikes were racially motivated other than observi                  that
four of the five jurors struck by                Commonwealth were either of
                                           12
Hispanic or Pacif        Island ethnicity.                 Lawlor does not assert that
the jurors the Commonwealth chose to strike were members of the
same race as either Lawlor or the victim, or identify any other
"'facts and        rcumstances that raise an inference that potential
jurors were excluded based on their race. , ..                         Jun              r
                                                                       .::...:::::.:.:..:~=
                                                                                                271 Va. at
407,   626 S.E.2d at 412     (quoting Ya
                                      -'=-=':"=":'~-"--=---L:"::'
                                                                     262 Va. at 394, 551
S.E.2d at 309).      ~hus,   Lawlor has failed to demonstrate that
counsel's performance was         ficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding wou        have been different.
                                   C:i.,AIM (VI)
        In a portion of claim (VI), Law                       contends                        was denied the
    ffective assistance of counsel because counsel                                   il          to ask Dr.
W.     exander Morton, Jr., a psychopharmacologist appointed by the
trial court to assist Lawlor, to opine whether consumption of "the
better part of a case of beer and at least two to three eight-balls
of crack cocaine" would render a person incapable of                                             1   ration
and premeditation.       Lawlor contends t                          when the Commonwea
object      to s      testimony and the trial court ruled it was
inadmiss     le, trial counsel unreasonably agreed not to present such
evidence without first arguing it was admissible.                                        In support of
     is claim, Lawlor has provided an affidavit from Morton in which
he states his opinion, to a reasonable degree of scientific




~  The Court rejects Lawlor's assertion that he is not required to
show prejudice under Strickland. Counsel's failure to object to
the Commonwealth's peremptory strikes is not a "structural error."
See Jackson v. Warden, 271 Va. 434, 436, 627 S.E.2d 776, 781
 (2006) .
                                  13
certainty, that Lawlor would not have been able to form the
necessary intent to premeditate after ingesti               that quantity of
alcohol and cocaine.
             Court holds that this         ion of claim (VI) satisfies
neither the performance nor the prejudice prong of t                two-part
test enunciated in Strickla            The proffered expert opinion, that
Lawlor did not premeditate at             time of the killing, was properly
ruled inadmissible because it went to the "precise or ult                      fact
   issue" in the case and "to have admitted the opinion would have
invaded the province of the jury."              Wa   v. Commonwealth    219 Va.
683,   696, 251 S.E.2d 202, 210 (1979) (internal quotation marks and
citations omitt       ).
        In       tion, the record, including the trial transcript,
demonstrates that on the eveni          before the murder, Lawlor and
Michae       Johnson purchas   three "eight-balls," or approximate              ten
and a half grams, of coca            and that together they consumed
between ei         and nine grams.     Johnson testifi        he and Lawlor
consumed all of the first and second "ei               -ball," of which Johnson
had consumed about two grams.          Of the third eight-ball, of whi
       son and Lawlor consumed half, Johnson testified Lawlor had
consumed about a gram of the cocaine and that he had consumed less
than one gram.       Johnson testifi      he and Lawlor          been        king
beer, but was unable to say how much beer Lawlor had actually
consumed.       Thus, the evidence established that Lawlor              consumed
approximately six grams of cocaine and an unknown quantity of beer.
Therefore, the proffered opinion, which assumed Lawlor consumed
"the better part of a case of beer"                  between seven and ten
of cocaine, was not based on facts in                 dence and would not have

                                         14 

been admissible.    See S        on v. Commonwealth, 227 Va. 557, 565-66,
318 S.E.2d 386, 391 (1984)
        Further, the record, including the trial transcr
demonstrates that Morton testified as to the hypothetical effect
that consumption of large quantities of cocaine and alcohol would
have on a      son in Lawlor's position.          Morton testified that
consumi     alcohol and cocaine toget           r negat   ly impacts an
individual's ability to think rationally and make                 isions and
that the consumption of alar          amount of alcohol and cocaine could
cause     olent behavior and cause an individual to become
"unpredictable, impulsive, and unstable."             Morton          that a
  rson consuming three           a half grams of cocaine over the course
of an eight hour period would expe             ence profound psychiatric
symptoms, including inability to think clearly, paranoia, and
aggression, and these symptoms would increase at higher doses,
  though the ef          s would vary depending on the individual.           Thus,
Lawlor has fail      to demonstrate that counsel's             rformance was
deficient or that there is a reasonable probability that, but for
counsel's alleged errors, the result of the proce                ng would have
been different.
        In another portion of cia       (VI), Lawlor contends he was
denied the effective assistance of counsel because counsel fai
to provide Morton with an opportunity to interview Lawlor before
trial.     Lawlor contends that had Morton interviewed him, Morton
would have been able to opine that Lawlor's               ior drug use and
addiction affected his reaction to the drugs he consumed in the
hours before the murder and "further diminished his ability to
premeditate and      1      rate."   Lawlor contends this opinion would

                                        15 

have opened the door to other evidence of his history of drug use
and addiction, which the trial court had found to be inadmissible
in the guilt phase of the trial.
     The Court holds that this portion of cIa                     (VI)    satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland.               Morton's opinion about Lawlor's
suscept    ility to the effects of the drugs he consumed before
murder would not have opened the door to evidence of his history of
drug use and addiction.        An expert may not relate hearsay ev
to the jury when providing his opinion testimony.                    Wr           v.
Commonwealth, 245 Va. 177, 197, 427 S.E.2d 379, 392                      (1993), vacated
on other     rounds,   512 U.S. 1217         (1994); see also     Buc~anan        v.
Commonwealth, 238 Va. 389,           416,    384 S.E.2d 757,      773 (1989).          Lawlor
fa Is to proffer any           dence Morton could have gleaned from an
interview with him that would have been admissible.                       T~us,    Lawlor
has failed to demonstrate that counsel's performance was defi                            ent
or that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would                   ~ave    been
  fferent.
                              CLAIMS        (VII)    & (VIII)

     In claim (VIII) (A), Lawlor contends the jury instructions were
defective because      t~ey   fail      to define specific intent, instructed
the jury they could infer Lawlor's intent from the natural and
probable consequences of his acts, and fai                      to distinguish
between premeditated          rst degree murder and first degree murder in
the commission of rape or abduction.
     The Court holds that claim (VIII) (A)                is barred because             is
non-jurisdictional issue could have been raised at trial and on
                                              16 

direct appeal and, thus, is not cognizable in a petition for a writ
of habeas corpus.             Sla    on, 215 Va. at 29, 205 S.E.2d at 682.
        In a     rtion of claim (VIII) (B), Lawlor contends                     was denied
the effective assistance of counsel because counsel fail                          to
request instructions de               ning specific intent, stating that
specific         ent differs from general intent, and explaining the
difference between                  two.   Lawlor contends that without such
instructions,       jurors would not have understood that they had to
find that Lawlor had the specific intent to kill Orange, and
it was not sufficient to find he had the general intent to do an
act that resulted in her death, before convicting him of capital
murder or premeditated first degree murder.
        The Court holds that this portion of claim (VIII)                 (B)    does not
satis      the performance prong of                  two-part test enunciated in
Strickland.       Generally, courts now disfavor instructing jurors on
specific versus general intent and the difference between the two.
See                  ed States v. Perez         43 F.3d 1131, 1138        (7th         r.
1994)    (not       instructions distinguishing between                 cific
general intent are not as helpful to juries as those stating
"pre     se mental state required for the particular cr                    "); Unit
=s~t=a~t~e=s__
             v~.-=~~=l=i~n,    26 F.3d 1523, 1527       (10th Cir. 1994)    (noting
instructing jury in terms of specific intent                      s been disfavored
because of t          confusing and ambiguous nature of such
instructions); see also Qnited States                 v~   Jobe, 101 F.3d 1046, 1059
(5th Cir. 1996) (no error in failing to give instruction defining
specific intent where t               al court instruct          jury on element of
intent and clearly defined the term "knowingly"); cf. Dixon v.
United States, 548 U.S. 1, 7 (2006)                  (recogniz    g lithe movement away

                                              17 

from the traditional dichotomy of general versus specific intent
and toward a more specifically defined hierarchy of culpable mental
states") .
     Here, the record,   including the trial transcript and the jury
instructions, demonstrates the jury was instructed that to find
Lawlor guilty of capital or premeditated first degree murder, they
had to find the killing was      Ilful, deliberate, and premeditated.
The jury was further instructed:
     will 1, deliberate, and premeditated means a specific
     intent to kill adopted at some time before the killing
     but which need not exist for any particular length of
     time.  An intent to kill may be formed only a moment
     before the fatal act is committed, provided the accused
     has time to think and did intend to   11.

This instruction properly instructed the jury about the requisite
intent necessary to support a finding of premeditated murder.      Any
additional definition of the term specific intent, which was itself
used to define "willful, deliberate, and premeditat     , .. would have
been redundant and potentially confusing, and counsel was not
deficient for failing to make a contrary argument.     Thus, .wawlor
has failed to demonstrate that counsel's      rformance was deficient.
     In another portion of claim (VIII) (B), Lawlor contends he was
denied the ef     ive assistance of counsel because counsel failed
to adequately object to a jury      struction that instructed the jury
they could infer Lawlor's intent from the natural and probable
consequences of    s acts.    Lawlor contends that although this
instruction has been approved by this Court, it was improper in
this case because it suggested the jury could determine it was
Lawlor's purpose to kill Orange because the natural and probable

                                    18 

consequence of his conduct was to cause her death.         Lawlor argues
this blurs the distinction between specific intent to kill and
general intent to do an act which, while not intended to do so,
results in death.
        The Court holds that this portion of cIa       (VI I I) (B) does not
satis      the performance prong of the two-part test enunciated in
Strickland.     7he natural and probable consequence of striking
Orange 47 times with a blunt object, principally in the head, was
her death.     7he instruction properly      rmitted, but did not
require, t      jury to in   r from the fact that when Lawlor struck
her 47 times with a blunt object, he intended to kill her.           Counsel
was not ineffective for       iling to object to this instruction.
Thus, Lawlor has failed to demonstrate that counsel's performance
was deficient.
        In another portion of claim (VIII) (B) and a portion of claim
(VII), Lawlor contends he was denied the effective assistance of
counsel because counsel failed to ask that the instructions on
first degree murder use the terms "premeditated first degree
murder" and "felony first degree murder" to dif         rentiate between
premeditated first degree murder and first degree murder in the
commission of rape, attempted rape, or abduction.         Lawlor contends
the instructions given were confusing because they used the term
"first           murder" to describe two different theories under
which Lawlor could be convicted of          rst degree murder.   Lawlor
argues the lack of a descriptive label in the instructions could
have confused the jury because under Virginia law, voluntary
intoxication is a defense only to premeditated murder, and not to
felony first degree murder.      He further argues that the lack of a

                                     19 

descript      label could also have confused the jury because in
closing argument counsel conceded Lawlor was guilty of first degree
murder.    Although counsel argued Lawlor was incapable of
premeditation and that the murder occurred during an altercation,
the   ury could have been confused and assumed couns        was conceding
premeditation because the instruction        not clearly label
different theories of first degree murder.
      The Court holds that these portions of claims (VI I I) (B) and
(VII) do not satisfy the performance prong of the two-part test
enunci       in Strickland.   The record, incl   ng the trial
transcript, demonstrates that        jurors were instruct
           The defendant is charged with the cr    of capital
      murder in the commission of or subsequent to      or
      attempted rape.  The Commonwealth must       beyond a
      reasonable doubt each of the following elements of that
      cr

            (1) 	 That the defendant   11   Genevieve
                           and
            (2 ) That the killing was will    , del   rate,
                   and premeditated; and
            (3 ) That the killing was of a    rson in the
                   commission of, or subsequent to rape or
                   attempted rape.

            If you  nd the Commonwealth has proved beyond a
      reasonable doubt each of the above elements of the crime
      as charged, then you shall find the   fendant guilty
      capital murder in the commission of or subsequent to rape
      or attempted rape and shall not fix the punishment until
      your verdict has been returned and further evidence is
      heard by you.

           If you find from the evidence that the Commonwealth
      has proven beyond a reasonable doubt the defendant killed
      Genevieve Orange and that the killing occurred in the

                                    20 

    co~mission of, or subsequent to rape or attempted rape,
    bJt that the killing was not willful, deliberate and
    premeditated, then you shall find the defendant guilty of
    first degree murder and shall not fix the punishment
    until your verdict has been returned and further evidence
    has been heard by you.

         If you find from the    dence that the Commonwealth
    has not proven beyond a reasonable doubt that the killing
    occurred in the commission of, or subsequent to rape or
    attempted      but the Commonwealth has proved beyond a
    reasonable doubt:

         (1)     That the defendant killed Genevieve
                  Orange; and
         (2 )    That the killing was willful, del   rate,
                  and premeditated; and
         (3 )    That the killing was malicious,

    then you shall find the defendant guilty of first degree
    mJrder and shall not fix the punishment until your
    verdict has been returned and further evidence has been
    heard by you.

         If you find from the evidence that the Commonwealth
    has proven beyond a reasonable doubt that the defendant
    killed Genevieve Orange and that the killing was
    malicious but that the Commonwealth has not proven beyond
    a reasonable doubt that the killing was willful,
    deliberate and premeditated and was not in the commission
    of, or subsequent to rape or attempted rape, then you
    shall find the defendant guilty of second degree murder
    but shall not fix the punishment until your verdict has
    been returned and further evidence is heard by you.

         If you find that the Co~~onwealth has failed to
    prove beyond a reasonable doubt any of the crimes listed
    above, then you    11 find the defendant not guilty.

    The =ury received a nearly identical instruction on the charge
of capital murder in       commission of abduction with intent to

                                   21 

defile.   These instructions were not confusing.      They clearly
delineated the distinctions between capital murder; premeditated
first degree murder; first degree murder in the commission of a
rape, attempted rape or abduction; and second degree murder.
Counsel was not ineffective for      iling to argue to the contrary.
Thus, Lawlor has failed to demonstrate that counsel's performance
was deficient.
     In another portion of claim (VII), Lawlor contends he was
denied the ef     ctive assistance of counsel because counsel        iled
to realize, until the end of the guilt phase of the trial, that
Lawlor cou      be convicted of first de      murder even if the jury
found he was incapable of premeditation, if the jury found he
killed Orange in the commission of rape or abduction.       Lawlor
argues that because counsel failed to understand the applicable
law, counsel based Lawlor's guilt-phase        fense on the theory that
Lawlor was so intoxicated at the t         of the offenses that he was
incapable of premeditation.
     The Court holds that this portion of claim (VII) fails to
satisfy the prejudice prong of the two-part test enunciated in
Strickland.     Lawlor   ils to identify any defense theory that
counsel could have, but did not, argue because of counsel's alleged
failure to recognize that Lawlor could be convicted of first degree
felony murder, or to show that such a        fense would have been
successful.     See Hinton v. Alabama, 571 U.S.         , 134 S. Ct.
1081, 1089 (2014) (per curiam) (even where counsel makes a mistake of
law, petitioner challenging a criminal conviction still bears the
burden of showing a reasonable probability that, absent counsel's
error, the fact finder would have had a reasonable doubt as to

                                    22 

petitioner's guilt).      Thus,      or has failed to demonstrate that
there is a reasonable probability that, but for counsel's alleged
errors, the result of the proceeding would have been dif            rent.
       In another portion of cIa      (VII), Lawlor contends he was
deni    the effective assistance of counsel because counsel focused
closing argument almost exclusively on voluntary intoxication and
asked the jury to find him guilty of first degree murder without
differentiating between premeditated first de           murder and          rst
         felony murder.    Lawlor argues this suggested to the jury
that counsel was conceding t       evidence proved premeditation.
       The Court holds that this portion of claim (VII) satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland.       The record, including the trial
transcript, demonstrates that counsel argued during closing
argument that Lawlor's crimes were not premeditated and               jury
would not have reasonably believed counsel was conceding the
evidence was sufficient to prove premeditation.         Thus,   ~awlor   has
failed to demonstrate that counsel's performance was de              ent or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
                                  CLAIM (IX)

       In a portion of claim (IX),    ~awlor   contends he was de           the
effective assistance of counsel because counsel          iled to move for
a mistrial when jurors overheard portions of a bench conference.
Lawlor contends that in the guilt phase of the trial during
counsel's cross examination of Detective Brian Colligan, counsel
questioned why Colligan initially became su         icious of Law            The
                                      23
trial court called counsel to a bench conference, during which the
prosecutor noted the answer to counsel's           stion included Lawlor's
prior abduction conviction.     The trial court told Lawlor's counsel
he was about to cause a mistrial if he pursued the question and
that the court was "not going to declare it if you do it."         Lawlor
contends defense counsel should have asked for a mistrial at that
po      ,because the jury could hear both the prosecutor's statement
and the trial court's admonishment of Lawlor's counsel.         In support
of this claim, Lawlor prof     rs the affidavit of Michael Chick, Jr.,
a member of Lawlor's defense team.         Chick avers that the courtroom
was small and that he could hear portions of most of the bench
conferences, even from his position in the back of the courtroom,
especially those that were "heated."         Chick avers that during the
conference about Colligan's testimony, he heard the t         al court
advise counsel "in an angry tone," that he "was not going to
a mistrial if [counsel] continued with his line of questioning."
Chick further avers that he told counsel that he heard "that
conversation, and that it was likely that the jurors could hear it
too."
        The Court holds that this portion of claim (IX)     satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland.     Lawlor fails to proffer any support
for his allegation that the jury overheard the prosecutor mention
Lawlor's prior abduction conviction.         Although Chick avers he
overheard portions of many bench conferences, especially those that
were heated, and that he specifically heard the trial court tell
counsel he was not going to grant a mistrial, Chick does not state
that he heard the prosecutor's remark or provide any reason to

                                    24 

believe the jury heard it.    Lawlor does not suggest the
prosecutor's voice was loud or "heated" when he made the cOJTh.'1lent,
which appears to have been made specifically to prevent any
   dence of the prior conviction from being inadvertently
introduced during the guilt phase of the t a l .
     In addition, while "[rJulings made in words or manner
indicating antagonism or resentment toward counsel may convey the
impression that the feeling inc       s also counsel's client,"
        v.   Commonwealth, 190 Va. 48, 56, 55 S.E.2d 446, 450     (1949),
Lhe record in the present case, including the t      al transcripts,
does not demonstrate such "antagonism or resentment" in the trial
court's admonishment of counsel during this bench conference.
Assuming the jury heard the exchange, the tr     1 judge's warning

that counsel was about to cause a mistrial, which the court would
not grant, likely suggested to the jury the court's       spleasure
with the possibility that counsel was about to do something that
would negatively impact Lawlor or that counsel's behavior could
potentially negatively impact Lawlor.     Further, the trial court
instructed the jury at the beginning of the trial that they were to
base their verdict solely on the instruction of law and the
evidence presented at trial, that "no statement or ruling or remark
  might make from the bench is intended in any way to indicate to
you what my personal opinion might be," that       e purpose of a bench
conference was to ensure that the only       dence received by the
jury was that "which is appropriate and proper under our laws," and
that the jury should not hold such conferences against either the
Comrnonweal th or the defendant.   "It is presumed that a jury will
follow the instructions given by the trial court."      Muhamrnad, 274

                                   25 

Va. at 18, 646 S.E.2d at 195 (citation omitted).     Thus, Lawlor has
failed to demonstrate that counsel's performance was deficient or
that there is a reasonable probability that, but for counsel's
alleged errors, the result of the proceeding would have been
different.
     In another portion of claim (IX), Lawlor contends he was
denied the effective assistance of counsel because counsel failed
to move for a mistrial when jurors overheard portions of a second
bench conference.   Lawlor contends that while discussing last
minute changes to jury     tructions, the trial court loudly
admonished counsel, stating "[y]ou know, you've had this case for
two years, and we're now sting here-this is the best you can do
with jury    tructions?"   Lawlor contends that during this
conference the trial court further admonished counsel for failing
to include an approved instruction with the wr     ten instructions
presented to the court that morning, saying, "I gave you that pile
back yesterday and said return those instructions to me."      Lawlor
alleges that these comments were audible to everyone in the
courtroom, that they were prejudicial to him because they suggested
defense counsel was unprepared and uninformed, and that defense
counsel should have asked for a mistrial.   In support of this
claim, Lawlor relies on the affidavits of Chick, Meghan Shapiro,
and Thomas Walsh, also members of Lawlor's defense team, who each
aver that they heard the trial court loudly and sharply reprimand
counsel.
     The Court holds that this portion of claim (IX) satisfies
neither the performance nor the prejudice prong of the two-part
test enunciated in Strickland.   Assuming the jury heard the trial

                                  26 

court's comments, Lawlor does not allege that the jury heard the
rest of the bench conference and does not articulate how the jury
would have known whether the judge was admonishing defense counsel
or the prosecutor.    In addition, the trial court had p           ously
instructed the jury that t    y were to base their verdict solely on
the instructions and the      dence, and that "no statement or ruling
or remark I might make from the bench is intended in any way to
indicate to you what my personal opinion might be."         "It is
presumed that a jury will follow the instructions given by the
trial court."   Muhammad, 274 Va. at 18, 646 S.E.2d at 195 (citation
omitted); see also United States v. Lomax, 87 F.3d 959,          962   (8th
Cir. 1996)   (appellate court assumed that, even if jury overheard
bench conference, they disregarded the information in compliance
with the judge's instruction directing jury to consider only
evidence presented at t a l l .    Thus, Lawlor has failed to
demonstrate that counsel's performance was deficient or that there
is a reasonable probability that, but for counsel's alleged errors,
the result of the proceeding would have           n different.
                                  CLAIM (X)
     In claim (X), Lawlor contends he was denied the effective
assistance of counsel because, during the sentencing phase, counsel
opened the door to the admission of evidence of Lawlor's abuse of
his former fianc     ,Amanda Godlove.       Lawlor argues the Commonwealth
elicited testimony from Godlove that Lawlor had abducted her in
1998, a cr      for which he had been convicted, but did not elicit
any testimony regarding Lawlor's relationship with or violence
toward Godlove prior to the abduction.         On cross-     nation,
Lawlor's counsel asked Godlove about her relationship with Lawlor

                                     27 

prior to     abduction, eliciting testimony from Godlove that
Lawlor had anger control issues, Godlove only agreed to marry
Lawlor because she was afraid to refuse his proposal, and she ended
their relationship because she was afraid of Lawlor.       On redirect,
the Commonwealth elicited testimony about the tenor of Lawlor's
entire relationship with Godlove, including specific acts of
violence toward Godlove.   Lawlor's counsel objected to this
testimony, but the trial court found counsel had opened            door
for the admission of the evidence through cross-examination.
Lawlor contends this evidence, which included testimony that Lawlor
sometimes went into a "white hot rage," that he had thrown an
ashtray at Godlove, hit her, grabbed her, and twice choked her to
the point of unconsciousness, would not have been admitted if not
for counsel's error and that but for the admission of the           dence,
the Commonwealth could not have proved the aggravating factor of
future dangerousness and the jury would not have sentenced Lawlor
to death.
     The Court holds claim (X) fails to satisfy the prejudice prong
of the two-part test enunciated in Strickland.       The record,
including the trial transcript, demonstrates that at the t           the
testimony complained of was admitted, Godlove had already testi            ed
that prior to the abduction, but after she and Lawlor had ended
their relationship, Lawlor called her at work and approached her
office, and as a result of Lawlor's behavior she felt the need to
have two men escort    r to her car every night when she left work
"for [her] safety."   Godlove testi      ed she and her mother had
established a routine whereby s       would phone her mother every
night when she left work, and her mother knew how long it would

                                  28 

then take Godlove to get home.     Godlove would again call her mother
as she approached the house, and upon arriving home Godlove would
pull into the garage but stay in her car, with the windows rolled
up, the doors locked, and      r hand on        remote control for the
garage door until the door had       ly closed before getting out of
her car.   These measures were to ensure Godlove's safety.          Godlove
testified that on the evening of the abduction she had followed
this routine, but when she got near         r house she noticed a car
which was not normally there and which matched the description she
had of Lawlor's car.     Godlove then called her mother and asked her
to meet her at the door.     Then she drove past her home to see if
the car followed her.    When it did not,     she turned around and went
home.   She pulled into her garage and waited in        r car, doors
locked, windows rolled up, hand on the           ge door opener, watching
the door in the rear view mirror.        Before the door closed, Lawlor
rolled under it and approached the car, demanding to talk with
Godlove.   When she told him to leave, he got very angry and started
banging on the car.     Godlove's mother saw what was happening and
told Lawlor she was going to call the police.        According to
Godlove's testimony "normally, that would be enough of a deterrent"
but on this night Lawlor said he did not care.        Godlove's mother
opened t    garage door and motioned to Godlove to drive away.          When
Godlove attempt     to do so, Lawlor climbed onto the hood of the car
and began hitting and kicking the windshield until he managed to
put a hole in it.     Lawlor reached through the windshield, turned
off the car, opened the door, dragged Godlove out, threw her into
his car, and drove away.     Eventually, Lawlor's rage dissipated and
he freed Godlove after she feigned a severe asthma attack.

                                    29
     Based upon this testimony, the jury knew Godlove was afraid of
Lawlo~   long before he abducted her.      Thus, Lawlor has failed to
demonstrate that but for counsel's alleged errors, the result of
the proceeding would have been different.
                               CLAIM (XI)
     In claim (XI), Lawlor contends he was denied the effective
assistance of counsel because counsel failed to elicit from
Lawlor's therapist, Mary Fisher, evidence that Lawlor had                ed
to her that he had been sexually abused by his father.        In support
of this claim, Lawlor   p~ovides   an affidavit from Fisher in which
she avers she is a nurse practitioner          cializing in psychological
and mental health issues.    She treated Lawlor in the       11 of 2005,
and she diagnosed Lawlor with poly-substance abuse, poly-substance
dependence, and post-traumatic stress disorder (PTSD) as a result
of being the victim of childhood physical and sexual abuse.         Fisher
avers that Lawlor disclosed to her in their initial meetings that
he had been physically and sexually abused multip         times and that
he had been sexually abused by his father.          sher further avers
that Lawlor suffered from flashbacks of being sexually abused by
his father and of his sister being sexually abused by their father.
Fisher further avers that she provided this information to Lawlor's
defense team prior to trial.       Lawlor contends that had the jury
known he had been sexually abused by his father,       there is a
reasonable likelihood that the jury would not have sentenced him to
death.
     The Court holds claim (XI) satisfies neither the performance
nor the prejudice prong of the two-part test enunciated in
Strickland.    The record, including the trial transcript,

                                      30
demonstrates that Fisher testified on Lawlor's behalf during the
sentencing phase of his trial.     Fisher testified that she had
diagnosed Lawlor with PTSD, that such a diagnosis re      red at least
one qualifying traumatic event in the patient's past, and that she
had based her diagnosis of Lawlor, in part, on his "revelation of
both physical and probable history of sexual abuse" of "himself and
family members."    When asked what that revelation of probable
sexual abuse was, Fisher responded that the revelation was
"innuendo that he also had a history of sexual abuse himself,
      but I don't     I     he ever specifically said that at that
point until we terminated treatment."
      Fisher further testified that in her init    I meetings with
Lawlor there was some "reference made to possible abuse by a peer,
but    was not specifically addressed in the short time that we had
to talk."      sher went on to explain that when dealing with a new
patient it was important to ask open-ended questions and establish
a trusting relationship and that it is not unusual for a patient to
initially deny having a history of sexual abuse.     Fisher elaborated
that she would not have expected Lawlor to immediately disclose all
of the sexual abuse he suffered.     Fisher further testified that
Lawlor had specifically described flashbacks involving traumatic
events with peers, and "violent incidents between he [sic] and his
dad and his sister that he was involved in."
      Finally, Fisher testified that toward the end of Lawlor's
treatment, which lasted several weeks and spanned four to five
sessions, she had referred Lawlor for inpatient treatment, for
which he had     en refused, and that during the intake procedure
Lawlor reported he had a history of physical and sexual abuse by

                                    31 

someone he lived with after he ran away from home at t       age of
sixteen.    Thus, despite being asked numerous open-ended questions
by Lawlor's counsel, Fisher's testimony established that during her
treatment of Lawlor, he never specifically stated he had been
sexually abused, although he had suggested that might be the case,
and that his suggestions of abuse involved peers, not his father.
The first direct report of sexual abuse, according to Fisher's
testimony, was in Lawlor's intake report.      To the extent this
testimony differs from Fisher's affidavit, this Court need not
decide which is more credible.     Counsel could reasonably have
determined, based on Fisher's testimony at trial, that if asked
directly if Lawlor had ever reported to her that he had been
sexual~y   abused by his father,   Fisher's response would have been,
"No."    As Lawlor concedes, he had repeatedly attempted throughout
the course of the trial to establish that he had been sexually
abused by his father, and counsel could reasonably have determined
that asking this question would have been more detrimental than
helpful to his case.    Thus, Lawlor has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
                               CLAIM (XII)
        In claim (XII), Lawlor contends he was denied the effect
assistance of counsel because counsel failed to present testimony
from Dr. James Hopper, a clinical psychologist with expertise in
the long-term effects of childhood abuse, who was appointed by the
trial court to assist Lawlor.      Lawlor contends that Dr. Hopper's
testimony should have been presented as part of his mitigation

                                     32
evidence to put Lawlor's prior bad acts and Orange's murder into
context by showing Lawlor's criminal acts were rooted in the trauma
he suffered during his childhood and adolescence.   Lawlor further
contends that Dr. Hopper's testimony should have been presented to
show Lawlor's mental health and substance abuse treatment programs
had been ineffective because they fail    to address his underlying
mental health issues, and to support the central mitigation theme
that Lawlor was an abused and neglected child who turned to drugs
and alcohol, that his violent acts had been the result of his
addictions, and that he should not be sentenced to death.
     Lawlor proffers that Dr. Hopper would have testified the abuse
and neglect Lawlor suffered as a child negatively affected his
ability to plan, make decisions, and regulate his emotions and
behavior.   Dr. Hopper would have testified that Lawlor's history of
neglect and abuse and the resulting behavioral and interpersonal
deficits led Lawlor to addiction and a cycle of sobriety and
relapse, often involving criminal act    ty and incarceration, and
this cycle was exacerbated by the lack of treatment for his
underlying issues.   Lawlor     her proffers Dr. Hopper would have
testified Lawlor's cocaine and alcohol binge on the night of the
murder was an inevitable result of his initial success maintaining
sobriety and a good job, which led him to distance himself from his
support network and stop attending Alcoholics Anonymous (AA)
meetings.   When his grandmother and a friend subsequently died,
Lawlor had completely isolated himself from his support network and
began a downward spiral.
     The Court holds claim (XII) satisfies neither the performance
nor the prejudice prong of the two-part test enunciated in

                                  33
Strickland.   The Un    ed States Supreme Court has held that, in
determining whether a petitioner has established prejudice based
upon counsel's failure to present additional mitigation evidence, a
reviewing court should consider whether a competent attorney, aware
of the evidence, would have introduced it at sentencing and
whether, had the jury been confronted with the evidence, there is a
reasonable probability it would have returned a different sentence.
     v. Belmontes, 558 U.S. 15, 20 (2009).     In evaluating this
second question, a reviewing court must consider all t      relevant
evidence the jury would have considered, not just the proffered
additional mitigation evidence but also any rebuttal evidence the
prosecution might have offered, and determine if the petitioner has
shown "a reasonable probability that the jury would have rejected a
capital sentence after it weighed the entire body of mitigating
evidence."    Id.
     Here, the record, including the trial transcript, demonstrates
that much of the mitigating evidence Lawlor faults counsel for
failing to introduce was cumulative of the substantial mitigation
evidence already introduced.     Many witnesses, including Lawlor's
family members, probation officers, and Mary Fisher, presented
evidence that Lawlor was an abused and neglected child who turned
to drugs and alcohol.     Dr. Morton, Lawlor's expert
psychopharmacologist, and Fisher presented evidence that
individuals who suffer childhood trauma and have untreated
psychiatric problems often turn to drugs and alcohol to "self­
   icate," and that Lawlor's mental health and substance abuse
treatment programs had been ineffective because they failed to
address his underlying mental health issues.     Morton and John

                                    34
Sullivan, the clinical coordinator for S               s to Recovery, a program
that Lawlor completed just months               fore he killed Orange,
presented evidence that Lawlor's addictions had precipitated
numerous violent acts.         Morton and Sullivan also presented evidence
regarding the cycle of addiction, sobriety, and relapse, and Morton
explained how such cycles may be aggravated by untreated underlying
psychiatric problems.          The cumulative mitigating evidence Lawlor
contends counsel should have introduced would not have               ded
Lawlor.    §~~   i<L._ at 22   (finding no prej udice where       itioner's
proffered mitigating evidence "was merely cumulative" of the
mitigating evidence counsel had presented) .
       In addition, the record, including the trial transcript,
demonstrates that some of the mitigating evidence Lawlor faults
counsel for failing to adduce would have contradicted mitigating
evidence that Lawlor had already introduced.              Lawlor's mitigation
witnesses testified Lawlor began to discontinue his participation
in AA meetings as soon as he graduated from Steps to Recovery and
his participation was no longer required.              When Lawlor's friend
died in July 2008, however,             ci       e of support he had generated
while at Steps to Recovery was still available to him.              Members of
that      rcle gave Lawlor a ride to the memorial, called and
encouraged him to go to AA meetings, and even went to Lawlor's
place of employment to persuade him to do so.              Steps to Recovery
encouraged graduates to visit and held alumni nights once a month.
Friends and members of Lawlor's church remained available to and
supportive of him.       The proffered expert testimony that Lawlor no
longer had a support network available to him would have
contradicted his own witnesses.

                                         35 

       Further, the additional mitigation evidence Lawlor contends
should have been introduced would have opened the door to rebuttal
evidence from Dr. Hagan, who had examined Lawlor in accordance with
Code   §   19.2-264.3:1.   The record, including Dr. Hagan's report,
demonstrates that Dr. Hagan's rebuttal testimony would have been
potentially damaging to Lawlor.       It was Dr. Hagan's opinion that
Lawlor was not suffering from severe emotional or mental
disturbance at the time of the murder, and that Lawlor was fully
able to apprec       e the criminal nature of his acts and had the
capacity to control his conduct, as evidenced by Lawlor's
deliberate and strategic behavior in the hours leading up to the
murder.       It was Dr. Hagan's opinion that Lawlor's behavior toward
others, especially women, was "entirely self-centered and devoid of
empathy," that Lawlor appeared to have no real concept of guilt or
remorse and had a "poor reputation for truthfulness," even among
his biggest supporters, and that Lawlor often responded to
rejection with "sudden, unpredictable and serious violence."         Dr.
Hagan noted that Lawlor had 40 or more se          s, programs,
interventions, and treatment providers, as well as prescriptive
care available to him between 1978 and 2008, and that         either
turned down or failed to appear for other services.       Finally, it
was Dr. Hagan's opinion that while Lawlor's "dreadful developmental
circumstances" contributed to his difficulties and shaped his
character, interpersonal problem-solving ability, and patterns of
emotional regulation, those circumstances did not cause his attack
on Orange.
       Cons      ring all the relevant evidence the jury would have had
before it, including the Commonwealth's rebuttal evidence, Lawlor

                                      36 

cannot show a reasonable probability the jury would have rejected a
capital sentence had counsel submitted the proffered mitigation
evidence.   Nor, given the cumulative or conflicting nature of much
of the evidence and the damaging nature of the Commonwealth's
rebuttal evidence, was it unreasonable for counsel to decide not to
submit this evidence.      Thus, Lawlor has failed to demonstrate that
counsel's performance was deficient or that there is a reasonable
probability that, but for counsel's alleged errors, the result of
the proceeding would have been different.
                                CLAIM (XIII)
     In claim (XIII) (A) and a portion of claim (XIII) (C), Lawlor
contends that, during the guilt phase of his trial, the evidence
was in dispute whether he raped or attempted to rape Orange.
Lawlor contends the jury verdict, under the indictment cha              ng him
alternately with capital murder in the commission of rape or
attempted rape,   left the dispute unresolved.          Lawlor argues that
because the question was unresolved, the prosecutor's questions and
argument during the sentencing phase of the t            al asserting that
Lawlor had raped Orange were improper.         Lawlor contends this
confused the jurors and led them to presume he had raped Orange and
to improperly base their sentencing decision on that presumption.
     The Court rejects claim (XIII) (A)     and this portion of claim
(XIII) (C) because this non-ju     sdictional issue could have been
raised at trial and on direct appeal and,        thus,    is not cognizable
in a petition for a writ of habeas corpus.         Sl
                                                   ---";~-
                                                           on   215 Va. at 29,
205 S.E.2d at 682.
     In claim (XIII) (B)    and a portion of claim (XIII) (C), Lawlor
contends he was denied the effective assistance of counsel because

                                     37 

counsel failed to object to the prosecutor's improper questions and
argument during the sentencing phase of trial.         Lawlor contends
that the prosecutor's questions to Lawlor's mitigation witnesses
and closing argument improperly asserted that Lawlor had raped
Orange, and that whether Lawlor had completed the rape was a
question left unresolved by the jury's verdict. Therefore, Lawlor
argues, any assertion that he was guilty of a completed rape was
improper, and he was prejudiced by counsel's failure to object
because the jury was likely to infer counsel conceded that he was
guilty of rape.
     The Court holds that claim (XI I I) (B) and this portion of claim
(XIII) (C)   fail to satisfy the prejudice prong of the two-part test
enunciated in Strickland.     "Under Code   §   18.2-31(5) willful,
deliberate, and premeditated killing is capital murder if committed
in the cowmission of or subsequent to either rape or attempted
rape."   Lawlor, 285 Va. at 222, 738 S.E.2d at 866.        The jury was
permitted to find Lawlor guilty if it found either predicate.            Id.
at 222, 738 S.E.2d at 867.     The sentencing phase jury was composed
of the same jurors who convicted Lawlor during the guilt phase of
tal.     Consequently, the jurors knew during the sentencing phase
which predicate they had found in the guilt phase.         Lawlor
therefore cannot establish that he was prejudiced by the
prosecutor's references to rape.     Thus, Lawlor has failed to
demonstrate that, but for counsel's alleged errors, the result of
the proceeding would have been different.




                                    38 

                            CLAIMS (XIV)       & (XV)

     In claim (XIV) and a portion of claim (XV), Lawlor contends
the cumulative effect of counsel's deficient performance undermines
confidence in the jurors' decision.
     The Court holds that claim (XIV) and this portion of claim
(XV) are without merit.      As addressed previously, Lawlor has failed
to demonstrate prejud        as a result of counsel's alleged errors.
"Having rejected each of           itioner's individual claims, there is
no support for the proposition that such actions when considered
collectively have deprived petitioner of his constitutional             ght
to effective assistance of counsel."           Lenz v. Warden of the Sussex
I State Prison, 267 Va.     318, 340, 593 S.E.2d 292, 305, cert.
denied,   542 U.S.   953 (2004).

     In the remaining portion of claim (XV), Lawlor contends the
cumulative effect of trial errors produced a trial that was
fundamentally unfair, thereby depr             ng him of his constitutional
right to due process.
     The Court holds that this portion of claim (XV) is barred
because this non-jurisdictional issue could have been raised at
trial and on direct appeal and, thus, is not cognizable in a
petition for a writ of habeas corpus.            Sl       215 Va. at 29, 205
S.E.2d at 682.
     Upon consideration whereof, Lawlor's motion to make the joint
appendix from the direct appeal part of the record is granted.
Lawlor's motions for discovery,        for expert assistance, and for an
evidentiary hearing are denied.

                                        39 

     Upon consideration of Lawlor!s motion to strike the Warden!s
evidence and the Warden's motions to stri    Lawlor's affidavits,
the motions are denied.   The exhibits and affidavits are considered
pursuant to the appropriate evidentiary rules.
     Upon consideration of the Warden!s motions to amend the motion
to dismiss and to file a supplemental affidavit, the motions are
granted.

     Accordingly, the petition is dismissed and the respondent
shall recover from petitioner the costs expended in his defense
herein.
     This order shall be published in the Virginia Reports.


Respondent's costs:

     Attorney's fee            $50.00


                               A Copy,

                                 Teste:



                                                   Clerk




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