VIRGINIA:

     In the Supreme Court of Virginia held at the Supreme
Court Building in the City of Richmond, on Friday, the 12th
day of April, 2013.


Present: Kinser, C.J., Lemons, Goodwyn, Millette, and
Powell, JJ., and Lacy and Koontz, S.JJ.


William Charles Morva,                        Petitioner,

against         Record No. 102281

Warden of the 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 3, 2010, and the respondent’s

motion to dismiss, the Court is of the opinion that the

motion should be granted and the writ should not issue.

     Petitioner, William Charles Morva, was convicted in

the Circuit Court of Washington County of capital murder

while in custody, Code § 18.2-31(3), capital murder of a

law-enforcement officer, Code § 18.2-31(6), capital murder

of more than one person within a three-year period, Code

§ 18.2-31(8), assaulting a law-enforcement officer, Code §

18.2-57(C), escape, Code § 18.2-478, and two counts of use

of a firearm in the commission of murder, Code § 18.2-53.1.

After finding the aggravating factors of vileness and

future dangerousness, the jury fixed Morva’s sentence at
death for each of the three capital murder convictions and

sixteen years’ imprisonment for the remaining convictions.

The trial court sentenced Morva in accordance with the

jury’s verdicts.   This Court affirmed Morva’s convictions

and upheld his sentence of death in Morva v. Commonwealth,

278 Va. 329, 683 S.E.2d 553 (2009), cert. denied, ___ U.S.

___, 131 S.Ct. 97 (2010).

                            CLAIM (I)

     In claim (I), Morva alleges that a juror concealed

information during voir dire that, if disclosed, would

likely have resulted in the juror’s exclusion from the jury

panel for cause.   Morva contends juror Richard M. Bouck

failed to disclose that he had two relatives in law-

enforcement who were also close friends, that he knew the

relatives were within the scope of the voir dire question,

and that he intentionally chose not to reveal those

relationships.

     Morva argues that had Bouck disclosed this

information, which Morva did not discover until after his

direct appeal was final, Bouck could have been stricken for

cause and, as a result of Bouck’s failure to disclose the

relationships, Morva’s Sixth Amendment right to an

impartial jury was violated.    The Court holds that this

claim is without merit.


                                2
     In support of this claim, Morva relies on the

affidavit of a law student who interviewed jurors on

Morva’s behalf, after Morva’s appeal became final.   The law

student describes an interview with Bouck and relates a

number of hearsay statements purportedly made by Bouck.

The record, including Bouck’s affidavit, demonstrates that

Bouck and the interviewer discussed two men who worked in

law-enforcement, Bouck’s step-mother-in-law’s nephew and a

former co-worker’s brother.   In his affidavit, Bouck

asserts that he “barely know[s] either of these men.    They

are, at best, mere acquaintances.   They are not relatives

or close friends.”

     Morva fails to proffer any evidence, such as

affidavits from Bouck’s friends or family or from the

individuals Bouck identified as persons known to him to be

in law-enforcement, to support his allegation that Bouck

failed to answer honestly when asked by the trial court if

he had “any close friends or family members or associates

who are employed in law enforcement.”   Thus, Morva has

failed to demonstrate that juror Bouck failed to answer

honestly a material question during voir dire and he has

consequently failed to show he was denied the right to an

impartial jury.   See McDonough Power Equip., Inc. v.

Greenwood, 464 U.S. 548, 556 (1984).


                              3
                        CLAIM (II)(A)

     In claim (II)(A), Morva asserts his due process rights

were violated because he was visibly restrained during

trial.   Morva alleges he wore visible handcuffs upon

entering and exiting the courtroom while jurors were

present, wore leg restraints that were visible to jurors

beneath counsel table, and wore a stun belt under his

clothing that was sufficiently bulky to attract attention.

Morva also alleges that the remote control for the stun

belt held by an officer in proximity to Morva was visible

to the jury.

     The Court holds claim (II)(A) 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.   Slayton v. Parrigan,

215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied,

419 U.S. 1108 (1975).

                        CLAIM (II)(B)

     In claim (II)(B), Morva asserts he was denied the

effective assistance of counsel because counsel failed to

object to any restraints Morva was made to wear during

trial, absent a judicial determination of necessity.    In

addition, he asserts that counsel failed to ensure that the

restraints were invisible and failed to ensure that


                              4
security and court personnel were advised that the jurors

should not see or learn about the restraints.

     Morva contends counsel should have taken remedial

steps, such as placing litigation bags or boxes in front of

counsel table, monitoring strict compliance with the rule

that restrained defendants not be moved into or out of the

courtroom when jurors are present, and providing Morva with

a blazer to hide the bulge from the stun belt.   Morva

contends he was prejudiced because the visible restraints

undermined the presumption of innocence, and, at

sentencing, underscored the message presented by the

Commonwealth that he was a danger to society.    He asserts

that this contributed to his decision not to take the stand

to present evidence of his “fear that he would die if he

remained in, or was returned to, the toxic Montgomery

County [J]ail.”

     The Court holds claim (II)(B) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland v. Washington, 466 U.S. 668,

687 (1984).   The record, including the manuscript record,

the affidavits of several jurors, and the affidavit of

Charles Partin, Master Deputy with the Montgomery County

Sheriff’s Office, who was responsible for coordinating

transportation and security for Morva in connection with


                              5
his trial, demonstrates that Morva’s right to a fair trial

was not undermined by courtroom security.   The record

indicates that all visible restraints were removed from

Morva prior to the jurors entering the courtroom; Morva

wore a stun belt that was beneath his clothing and thus

designed to be invisible to jurors, and a leg-stiffening

restraint strapped to Morva’s leg was worn under his pants

and was not visible on the outside of his clothing.

Accordingly, Morva’s allegation that he wore restraints

visible to the jurors and was prejudiced because visible

restraints undermined the presumption of innocence, or at

sentencing indicated he was a danger to society, has no

merit.

     Although some jurors executed affidavits after the

trial stating that during the trial they became aware that

Morva was wearing a stun belt, Morva proffers no evidence

to suggest Morva’s counsel was or should have been aware

any juror had learned that information during trial.

Because Morva was not visibly restrained in the presence of

the jury and because there is no evidence that counsel was

or should have been aware that jurors had learned Morva was

wearing a stun belt under his clothing, trial counsel’s

failure to object to the restraints or stun belt placed on

Morva was not deficient performance.   Moreover, the


                             6
security measures were justified given Morva’s demonstrated

history, which showed a willingness to use violence to

effect and maintain an escape from custody, and were not

inherently prejudicial.    See Porter v. Commonwealth, 276

Va. 203, 263, 661 S.E.2d 415, 446 (2008).   Thus, Morva 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 (III)

     In a portion of claim (III), Morva asserts he was

denied the effective assistance of counsel because counsel

failed to point out that Jennifer Preston, who witnessed

Morva shoot Derrick McFarland, was not looking at McFarland

at the time of the shooting and could not have seen the

gestures McFarland made.   Morva contends he interpreted

McFarland’s “movements” as an attempt to draw a weapon and

that Morva did not know until later that McFarland was

unarmed.

     Morva also argues that counsel did not use Preston or

other witnesses to “point out the significance of the dark,

Special Weapons and Tactics [S.W.A.T.] team/paramilitary-

style uniform McFarland wore that night.”   Counsel failed

to note that the dark color of the uniform and the multiple


                               7
pockets and bulges made it difficult to detect the absence

of a weapon, which would have rebutted the Commonwealth’s

assertion that Morva knew McFarland was unarmed.

     The Court holds that this portion of claim (III)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland.    The

record, including the trial transcript, demonstrates

Preston testified that the events she witnessed, including

the shooting, took mere seconds.   She testified that she

observed McFarland standing very still with his hands

outstretched in a supplicating gesture, and Morva standing

very still and pointing a gun at McFarland.   She stated she

clearly saw the expression on each man’s face, and then she

saw Morva shoot McFarland.   There is no evidence in the

record, and Morva proffers none, that Preston was not

looking at McFarland when Morva pulled the trigger.

     The witnesses testified that McFarland’s uniform

consisted of a dark shirt with a patch and matching

trousers.   Morva does not proffer any evidence, nor is

there any in the record, to support his claim that

McFarland’s uniform was paramilitary or likely mistaken for

that of armed law-enforcement personnel.   Furthermore,

Morva fails to provide evidence of any gestures made by




                              8
McFarland that would indicate he was reaching for a firearm

before he was shot.

     Even if McFarland was armed and was wearing a

paramilitary type uniform, Morva shot McFarland as he stood

in front of Morva with his hands in a supplicating gesture.

Counsel was not ineffective for failing to raise a

frivolous argument that Morva was justified in shooting

McFarland.   Thus, Morva 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 (III), Morva contends he

was denied the effective assistance of counsel because

counsel failed to obtain a corrective jury instruction when

Preston testified improperly that McFarland looked at her

with “warning eyes to tell me there was danger.”   Although

counsel objected that the statement was speculative, and

the court agreed, counsel did not ask for a curative

instruction.   Morva contends the jury was instructed that

they may not arbitrarily disregard believable testimony,

and as there was nothing innately unbelievable about

Preston’s testimony, the jury was compelled to consider it.

Morva contends further that the error was compounded


                              9
because Preston was also allowed to testify that McFarland

“looked scared,” and “like he was trying to appease

[Morva],” who was “scowling” and “looking angry.”

     The Court holds that this portion of claim (III)

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 objected to Preston’s speculation as to what

information she perceived McFarland was attempting to

impart to her, which objection was sustained.   Thus, such

testimony was not admitted into evidence.

     Preston was permitted to describe what she observed,

and she demonstrated for the jury how McFarland was

standing.   Preston also testified that she was in the

hallway with McFarland and Morva, that Morva was standing

two feet from McFarland pointing a “big gun” at McFarland’s

face while McFarland stood very still with his hands

outstretched, and that Morva then shot McFarland.    Under

these circumstances, Morva cannot demonstrate that

counsel’s failure to ask for a curative instruction

concerning Preston’s perceptions of the information the

victim was attempting to convey with his facial expression

was deficient performance.   The testimony was excluded from

evidence and to ask for a curative instruction may have


                              10
emphasized the testimony.   See Manetta v. Commonwealth, 231

Va. 123, 127 n.2, 340 S.E.2d 828, 830 n.2 (1986).     Such

tactical decisions are an area of trial strategy left to

the discretion of counsel and should not be second-guessed

in habeas corpus.   See Strickland, 466 U.S. at 689-90.

Thus, Morva 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 (III), Morva maintains he

was denied the effective assistance of counsel because

counsel failed to adequately cross-examine Officer Brian

Roe.   Morva contends that Roe’s testimony regarding Eric

Sutphin’s gun holster being snapped shut contradicted other

witnesses who reported, but did not testify, that upon

seeing Sutphin’s body later, the weapon was in its holster,

but the holster was unsnapped.      Morva contends this

information supports his account that he believed Sutphin

was drawing a weapon, that he warned Sutphin not to draw

his weapon, and that Morva only fired after the warning was

given.

       The Court holds that this portion of claim (III)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland.      No


                               11
witnesses testified that Deputy Sutphin’s holster was

unsnapped and Officer Roe could not have been cross-

examined on the hearsay reports of others.   Morva fails to

establish that more comprehensive cross-examination would

have resulted in Officer Roe changing his unequivocal,

uncontradicted testimony.    Thus, Morva 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 (IV)

     In claim (IV), Morva argues he was denied the

effective assistance of counsel because counsel failed to

adequately investigate and develop evidence relating to the

conditions at Montgomery County Jail.    Morva contends that

conditions at the jail included extreme overcrowding, non-

existent medical care, an ever-present threat of violent

attack, and lack of privacy when going to the bathroom.

Morva contends that this evidence would have helped jurors

understand how Morva’s “horrendous experience at the jail

influenced his actions.”    Morva further contends that

failure to provide this information “undermines confidence

in [the] jurors’ decision at the trial’s guilt and penalty

phases.”


                                12
     The Court holds that claim (IV) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.      The record, including

Morva’s exhibits, demonstrates that Morva was not exposed

to any unique conditions of confinement and Morva was not

denied medical treatment.    Morva’s conditions of

confinement would not have provided a viable defense to the

murders he committed, and would not have mitigated the

murders.   Counsel is not ineffective for failing to raise

frivolous arguments.   Thus, Morva 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 (V)

     In claim (V), Morva alleges he was denied the

effective assistance of counsel because counsel failed to

present evidence and argument of Morva’s belief that “the

specific combination of his longstanding and significant

medical problems and lack of immediate treatment options

while incarcerated presented an imminent, life-threatening

situation, and that he would die soon if he remained in the

jail.”   Morva contends that his escape from the jail and

subsequent killing of the two victims to avoid being


                               13
returned to the jail “were motivated by his belief that his

actions were acts of self-defense and necessary responses

to the immediate threat posed by his particular experience

of the circumstances at the jail.”    Thus, according to

Morva, even if the jury found his “fear to be unreasonable,

the evidence was sufficient to present argument and

instruction . . . with regard to a potential lesser-

included offense and in mitigation of the death sentence.”

     The Court holds that claim (V) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.     There is no support in law

for the proposition that one attempting to escape legal

incarceration because of what he perceives as a threat of

harm is thereby privileged to kill any individual, no

matter how innocent or lacking in culpability, who presents

a bar to that escape.   Moreover, the record, including the

trial transcript and Morva’s exhibits, demonstrates no

person could reasonably have apprehended imminent death or

serious bodily harm from McFarland or Sutphin.

     Morva’s alleged fear that his return to Montgomery

County Jail might result in his death within a few months

from some unnamed danger did not create a valid claim of

self-defense, nor was it reasonably probable that the jury

would have perceived his alleged fear as mitigating


                              14
evidence for his murder of two innocent people.    Also, the

record does not support Morva's allegation that he was

persistently denied necessary medical attention.    In fact,

he had been taken to the hospital for medical treatment at

the time he attacked two of the victims and escaped.

Counsel is not ineffective for failing to pursue a

frivolous position or argument.    Thus, Morva 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 (VI)(A)

     In claim (VI)(A), Morva asserts he received multiple

punishments in violation of the double jeopardy clause.

Morva contends his case is indistinguishable from Clagett

v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), in that

Morva’s capital conviction and death sentence for killing

both McFarland and Sutphin within three years was

derivative of the underlying capital murders of McFarland

and Sutphin.   Morva contends “the legislature must be

deemed to have authorized a defendant’s conviction and

death sentence for multiple-homicide offenses only when he

is not also convicted and sentenced to death for the

predicate murders.”


                              15
      The Court holds that claim (VI)(A) 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.     Slayton, 215 Va.

at 29, 205 S.E.2d at 682.

                          CLAIM (VI)(B)

      In claim (VI)(B), Morva asserts he was denied the

effective assistance of counsel because counsel failed to

object to, and thus failed to protect Morva from, multiple

convictions and multiple punishments in violation of the

double jeopardy clause.    Morva contends that had counsel

objected, the third death sentence would not have been

imposed or would have been vacated.

      The Court holds that claim (VI)(B) satisfies neither

the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.      In Payne v. Commonwealth,

257 Va. 216, 227-29, 509 S.E.2d 293, 300-01 (1999), this

Court addressed whether a defendant could be subjected to

multiple punishments where the convictions are for the

violation of distinct statutory provisions for which

separate statutory punishments are authorized.     The Court

held that such punishments do not violate double jeopardy.

Id.




                               16
     Morva was sentenced to death for three separate

capital offenses:   capital murder while in custody, Code §

18.2-31(3), capital murder of a law-enforcement officer,

Code § 18.2-31(6), and capital murder of more than one

person within a three-year period, Code § 18.2-31(8).    The

elements of capital murder while in custody are: (1) the

willful, deliberate, and premeditated killing; (2) of

another; (3) by a prisoner of a state or local correctional

facility, or while in the custody of an employee of such

facility.   The elements of capital murder of a law-

enforcement officer are:   (1) the willful, deliberate, and

premeditated killing; (2) of a law-enforcement officer; (3)

for the purpose of interfering with the performance of his

official duties.    The elements of capital murder of more

than one person within a three-year period are: (1) the

willful, deliberate, and premeditated killing; (2) of more

than one person; (3) within a three-year period.   The

elements of each of these capital offenses are different

and each carries its own separate penalty.

     There was no double jeopardy violation under the

circumstances of this case, and counsel is not ineffective

for failing to raise a frivolous argument.   Thus, Morva has

failed to demonstrate that counsel’s performance was

deficient or that there is a reasonable probability that,


                               17
but for counsel’s alleged errors, the result of the

proceeding would have been different.

                           CLAIM (VII)

        In claim (VII), Morva contends he was denied the

effective assistance of counsel because counsel

unreasonably failed to investigate and present powerful

mitigation evidence that Morva had saved a man’s life and

helped the Commonwealth prosecute the man’s assailant.

Morva alleges that he once put his own life at risk to help

the victim of an assault, Kevin Grizzard, and that Morva’s

later testimony against one of the assailants led to that

person’s conviction.    Morva also alleges that, as a result

of his own actions, he suffered bullying and harassment,

including while he was confined in the Montgomery County

Jail.    Morva contends that both he and Grizzard would have

testified to the events in question, if they were called at

an evidentiary hearing, and that there is a reasonable

probability that the omitted testimony would have provided

jurors with a better understanding of Morva’s background

and character, and would have moved at least one juror to

select life without parole as the appropriate sentence.

        The Court holds that claim (VII) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.       Morva fails to proffer an


                                18
affidavit from Grizzard to verify that he would have

testified as Morva contends, and the affidavits Morva has

provided contain hearsay statements concerning the attack

and Morva’s involvement.    Furthermore, the information

provided by Morva establishes that Grizzard had been

recruited by Morva to participate in a number of burglaries

in 2005, and that Morva had become increasingly anti-social

leading up to the murders, had expressed his disdain for

law-enforcement, and felt justified in his criminal

behavior.    Counsel is not ineffective for failing to

present evidence that has the potential of being “double-

edged.”   Lewis v. Warden, 274 Va. 93, 116, 645 S.E.2d 492,

505 (2007).   Such tactical decisions are an area of trial

strategy left to the discretion of counsel and should not

be second-guessed in habeas corpus.       See Strickland, 466

U.S. at 689-90.   Thus, Morva 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 (VIII)

     In claim (VIII), Morva asserts he was denied the

effective assistance of counsel because counsel failed to

conduct an adequate investigation into Morva’s childhood


                                19
and family background, and failed to meaningfully present

the limited evidence they uncovered about Morva’s home

life.    Morva contends counsel “cut short” the investigation

into Morva’s family, which Morva contends would otherwise

have revealed “influential genetic and environmental

factors at play.”    Morva contends counsel should have

pursued information regarding Morva’s father’s ties to

Hungary because Morva’s father fled Hungary during the

revolution and was a Catholic of Jewish heritage who had

suffered through the Holocaust.      Morva argues this

information was necessary for jurors to accurately

understand Morva’s background.

        The Court holds that claim (VIII) satisfies neither

the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.       The record, including

Morva’s exhibits, demonstrates that counsel conducted an

exhaustive investigation and spoke with the witnesses upon

whose affidavits Morva now relies.      These affidavits

contain vast amounts of negative information that shows

Morva as self-absorbed, manipulative, aggressive, and

uncaring.    As such, testimony from these witnesses would

have been “double-edged.”    Lewis, 274 Va. at 116, 645

S.E.2d at 505.    Furthermore, Morva has not demonstrated

what impact, if any, his parents’ upbringings had on his


                                20
actions.   The information about his parents that Morva now

provides does not concern Morva’s personal background or

history, or the circumstances of the offense, and does not

mitigate Morva’s actions.    Thus, Morva 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 (IX)(A)

     In claim (IX)(A), Morva asserts he did not receive

constitutionally guaranteed assistance of experts in the

preparation of his defense because the experts who

evaluated Morva did not serve as advocates for him, but

instead improperly maintained objectivity.   In order to

fulfill the constitutional guarantee of expert assistance,

Morva asserts that the experts should have identified,

developed and presented evidence to cast Morva’s history,

character, background, and mental condition in the light

most favorable to him.

     The Court holds claim (IX)(A) 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.    Slayton, 215 Va. at

29, 205 S.E.2d at 682.


                               21
                        CLAIM (IX)(B)

     In claim (IX)(B), Morva contends he was denied the

effective assistance of counsel because counsel failed to

object after being put on notice that the appointed experts

would not act in Morva’s best interest or advocate on his

behalf.   As a result, the experts did not fulfill their

roles as advocates and Morva was denied his constitutional

right to expert assistance.

     The Court holds that claim (IX)(B) satisfies neither

the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.     Morva proffers no authority

for his contention that the experts appointed to assist

Morva should be biased in Morva’s favor.    Morva was

entitled to, and received, “access to [] competent” mental

health experts to “conduct an appropriate examination and

assist in evaluation, preparation, and presentation of”

Morva’s defense, as required by Ake v. Oklahoma, 470 U.S.

68, 84 (1985).   Thus, Morva 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.




                              22
                            CLAIM (X)

     In claim (X), Morva asserts he was denied the

effective assistance of counsel because counsel failed to

conduct an adequate enough investigation to enable the

mental health experts to make an informed and accurate

diagnosis.   Morva contends counsel should have obtained

information from Morva’s family and friends about the

symptoms of his descent into mental illness.     He also

claims that counsel should have obtained medical records

from Morva’s immediate family, and that without such

information, mental health experts under-diagnosed the

severity of Morva’s mental illness.

     The Court holds that claim (X) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.      Morva proffers no competent

evidence to substantiate his claim that he suffered from a

“true mental illness,” or that providing additional

information to the mental health experts who examined Morva

in preparation for trial and sentencing would have changed

the experts’ conclusions.    Thus, Morva 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.


                               23
                          CLAIM (XI)

     In a portion of claim (XI), Morva asserts he was

denied the effective assistance of counsel because counsel

failed to provide appointed mental health experts with even

the minimal information counsel had obtained that would

have enabled the experts to make an informed and accurate

diagnosis.   Morva contends counsel should have given the

mental health experts the names of several individuals with

whom Morva spent time in the years before the murders.    He

contends that had counsel done so, the experts would have

interviewed these individuals and would likely have

determined Morva suffered from a “true mental illness” such

as delusional or schizophrenic disorder.

     The Court holds that this portion of claim (XI)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland.    Morva

proffers no competent evidence to substantiate his claim

that he suffered from a “true mental illness,” or that

providing additional information to the mental health

experts who examined Morva in preparation for trial and

sentencing would have changed the experts' conclusions.

Thus, Morva has failed to demonstrate that counsel’s

performance was deficient or that there is a reasonable




                              24
probability that, but for counsel’s alleged errors, the

result of the proceeding would have been different.

     In another portion of claim (XI), Morva asserts he was

denied the effective assistance of counsel because counsel

failed to reconcile the expert testimony with that of lay

witnesses.    Morva contends these conflicts led the jury to

conclude that all of Morva’s penalty phase evidence was

unreliable.

     The Court holds that this portion of claim (XI)

satisfies neither the “performance” nor the “prejudice”

prong of the two-part test enunciated in Strickland.    Morva

fails to state how counsel could possibly have reconciled

the testimony of all the various witnesses, who had each

known and spent time with Morva at different periods of his

life, and who each had different experiences with and

perceptions of him.   Thus, Morva 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), Morva asserts he was denied the

effective assistance of counsel because counsel failed to

object to damaging evidence that lacked a proper


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evidentiary foundation and was therefore irrelevant to the

jurors’ sentencing decisions.    Specifically, Morva contends

counsel should have objected when the Commonwealth elicited

testimony from Morva’s mental health experts regarding

narcissism and predatory aggression because neither expert

found a basis for diagnosing Morva as having narcissistic

personality disorder or predatory aggression.

     The Court holds that claim (XII) satisfies neither the

“performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.       Morva’s experts found that

Morva “met diagnostic criteria for narcissistic personality

disorder” or had “narcissistic personality features.”

Thus, there was sufficient foundation for the Commonwealth

to question Morva’s experts regarding narcissistic traits.

Moreover, the Commonwealth presented evidence that showed

Morva’s actions were aggressive, premeditated, and goal

oriented and that Morva did not regret his actions, thus

establishing a foundation for the questions regarding

predatory aggression.   Counsel was not ineffective for

failing to raise a frivolous argument by objecting to such

evidence.   Thus, Morva has failed to demonstrate that

counsel’s performance was deficient or that there is a

reasonable probability that, but for counsel’s alleged




                                26
errors, the result of the proceeding would have been

different.

                         CLAIM (XIII)

     In claim (XIII), Morva contends he was denied the

effective assistance of counsel because counsel failed to

impeach Gregory Nelson by causing him to admit part of his

in-court testimony was inconsistent with interview

statements he made to police officers.    Nelson testified

during the penalty phase of the trial that he and Morva

participated in various crimes and that Morva had

threatened Nelson and others.

     Counsel attempted to impeach Nelson by showing that in

his interviews with police, Nelson did not say that Morva

had threatened him.   When Nelson denied this, counsel

attempted to use the interview statements to refresh

Nelson’s recollection, but the Commonwealth’s objection was

sustained because Nelson had not signed the statements.

Morva contends that although counsel reserved the right to

recall the police officers and Nelson, counsel failed to do

so as a result of inadvertence instead of strategy.    Morva

contends impeaching Nelson through the police officer's

testimony would have minimized the effect of evidence

regarding Morva's future dangerousness.




                                27
     The Court holds that claim (XIII) satisfies neither

the “performance” nor the “prejudice” prong of the two-part

test enunciated in Strickland.     Morva does not provide the

police report, or affidavits from the police officers or

from Nelson to demonstrate the testimony they would have

provided had counsel recalled them.    In addition, Morva

proffers no evidence to support his claim that counsel’s

“failure was the result of inadvertence.”    Thus, Morva 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.

     Upon consideration whereof, Morva’s motions for leave

to supplement the record, to amend the petition for a writ

of habeas corpus, for discovery and production of

documents, for appointment of experts, and for an

evidentiary hearing are denied.    Morva’s motion for en banc

consideration is denied as moot.

     Upon consideration of the respondent’s motion to

strike portions of Morva’s appendix and Morva’s reply, the

motion to strike is denied.   The exhibits contained in the

appendices are considered pursuant to the appropriate

evidentiary rules.




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     Accordingly, the petition is dismissed and the

respondent shall recover from Morva 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:



                                Patricia L. Harrington, Clerk




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