                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1


WILLIAM CHARLES MORVA,

                Petitioner - Appellant,

           v.

DAVID ZOOK, Warden, Sussex I State Prison,

                Respondent - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:13−cv−00283−MFU−RSB)


Argued:   March 22, 2016                     Decided:   May 5, 2016


Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn and Senior Judge Davis joined.


ARGUED: Jonathan P. Sheldon, SHELDON, FLOOD & HAYWOOD, PLC,
Fairfax, Virginia, for Appellant.      Alice Theresa Armstrong,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.    ON BRIEF: Teresa L. Norris, BLUME NORRIS &
FRANKLIN-BEST, LLC, Columbia, South Carolina, for Appellant.
Mark R. Herring, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
DIAZ, Circuit Judge:

       William        Charles       Morva     appeals         the     district       court’s

dismissal    of       his   petition    for       a   writ     of   habeas    corpus,    and

challenges several aspects of his capital convictions and death

sentence.        First, Morva argues that the Virginia circuit court’s

refusal     to     appoint      a    prison-risk-assessment                expert    compels

relief under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 28 U.S.C. § 2254(d).                          But because Morva has

identified       no    clearly      established        federal       law    requiring   the

appointment of a nonpsychiatric expert, we reject this claim.

       Next, Morva asserts three related ineffective-assistance-

of-counsel       claims       regarding     his       counsel’s       investigation     and

presentation of mitigating evidence in his capital sentencing

hearing.     Reviewing these claims through the deferential lens of

§ 2254(d), we find neither deficient performance nor resulting

prejudice under Strickland v. Washington, 466 U.S. 668 (1984).

Last, we determine whether Morva has shown cause to excuse his

procedurally defaulted claim that counsel was ineffective for

stipulating       at    the     guilt   phase         of    trial    that    Morva    was   a

prisoner in lawful custody at the time of the alleged capital

murder.          Finding      the    underlying            claim    insubstantial      under

Martinez v. Ryan, 132 S. Ct. 1309 (2012), we hold that he has

not.

       Accordingly, we affirm the district court’s judgment.

                                              2
                                     I.

                                     A.

     In the summer of 2006, Morva was in jail awaiting trial in

Montgomery     County,   Virginia,       on   burglary-,   robbery-,   and

firearm-related charges.     He had been in jail for approximately

one year when he escaped and committed the crimes we address in

this appeal.     We set out the relevant facts of Morva’s crimes,

as recited by the Supreme Court of Virginia:

        Morva was scheduled to go to trial on August 23,
     2006. In the evening on August 19, 2006, he informed
     the jail personnel that he required medical attention
     due to an injury to his leg and forearm.   During the
     early morning hours of August 20, 2006, Sheriff’s
     Deputy Russell Quesenberry, who was in uniform and
     armed with a Glock .40 caliber semi-automatic pistol,
     transported Morva to the Montgomery Regional Hospital
     located in Montgomery County. Morva was wearing waist
     chains, but Deputy Quesenberry did not secure Morva’s
     allegedly injured arm.

        Upon arrival at the hospital, Morva “kept trying” to
     walk on Deputy Quesenberry’s right side even though he
     was ordered to walk on Deputy Quesenberry’s left side.
     Quesenberry was required to have Morva walk on his
     left because Quesenberry wore his gun on his right
     side.   Quesenberry observed that Morva’s limping was
     sporadic and “sort of went away.” Also, Nurse Melissa
     Epperly observed Morva walking as if he were not
     injured.

        After the hospital treated Morva, Morva requested to
     use the bathroom.     Deputy Quesenberry inspected the
     bathroom and allowed Morva access.        While in the
     bathroom, Morva removed a metal toilet paper holder
     that was screwed to the wall.     As Deputy Quesenberry
     entered the bathroom, Morva attacked him with the
     metal toilet paper holder, breaking Quesenberry’s
     nose,   fracturing    his   face,   and  knocking   him
     unconscious.     Morva then took Quesenberry’s gun.

                                     3
    Prior to leaving the bathroom, Morva confirmed that
    Quesenberry’s gun was ready to fire, ejecting a live
    round from the chamber.

       After escaping from the bathroom, Morva encountered
    Derrick McFarland, an unarmed hospital security guard.
    Morva pointed Quesenberry’s gun at McFarland’s face.
    McFarland stood with his hands out by his side and
    palms facing Morva.      Despite McFarland’s apparent
    surrender, Morva shot McFarland in the face from a
    distance of two feet and ran out of the hospital,
    firing five gunshots into the electronic emergency
    room doors when they would not open.    McFarland died
    from the gunshot to his face.

       In the morning of August 21, 2006, Morva was seen in
    Montgomery County near “Huckleberry Trail,” a paved
    path for walking and bicycling.          Corporal Eric
    Sutphin, who was in uniform and armed, responded to
    that information by proceeding to “Huckleberry Trail.”

       Andrew J. Duncan observed Morva and then later
    observed Corporal Sutphin on “Huckleberry Trail.”
    Four minutes later, Duncan heard two gunshots, less
    than a second apart. David Carter, who lived nearby,
    heard shouting, followed by two gunshots, and saw
    Corporal Sutphin fall to the ground.

       Shortly thereafter, Officer Brian Roe discovered
    Corporal Sutphin, who was dead from a gunshot to the
    back of his head. Corporal Sutphin’s gun was still in
    its holster with the safety strap engaged.    Officer
    Roe confiscated Corporal Sutphin’s gun to secure it
    and continued to search for Morva.

       Later that day, Officer Ryan Hite found Morva lying
    in a ditch in thick grass. Even though Morva claimed
    to be unarmed, officers discovered Quesenberry’s gun
    on the ground where Morva had been lying. Morva’s DNA
    was found on the trigger and handle of Quesenberry’s
    gun.

Morva v. Commonwealth (Morva I), 683 S.E.2d 553, 557 (Va. 2009).

After a six-day trial, the jury found Morva guilty of assault

and battery of a law-enforcement officer, escape of a prisoner

                               4
by force or violence, three counts of capital murder, 1 and two

counts of using a firearm in the commission of a murder.

                                                 B.

                                                 1.

      We   begin        with    a    brief      discussion        of    Virginia’s    capital

sentencing scheme.

      Under Virginia law, a capital sentencing hearing proceeds

in two stages.           See Tuggle v. Netherland, 516 U.S. 10, 12 n.1

(1995)     (per    curiam).           First,         the   jury    decides       whether     the

Commonwealth           has     proved      at     least      one        of    two   statutory

aggravating factors beyond a reasonable doubt: the defendant’s

future dangerousness and the vileness of his capital offense

conduct.          Va.    Code       Ann.     §§ 19.2-264.2,            19.2-264.4(C).         In

evaluating the aggravating factor of future dangerousness, the

jury is limited to considering the defendant’s criminal record,

his   prior       history,          and    the       circumstances           surrounding    the

commission        of     the    capital         offense.           §§ 19.2-264.2,          19.2-

264.4(C).     If the jury fails to find an aggravating factor, it

must impose a sentence of life imprisonment; if, however, the

jury finds one or both of the statutory aggravating factors, it

has full discretion to impose either the death sentence or life

      1Morva was charged with the capital murder of Derrick
McFarland, the capital murder of Eric Sutphin, and the capital
offense of premeditated murder of more than one person within a
three-year period.


                                                 5
imprisonment.      See §§ 19.2-264.2, 19.2-264.4(C)–(D); Tuggle, 516

U.S. at 12 n.1.

       Although Virginia juries are not instructed to give special

weight   to    aggravating       factors    or    to   balance       aggravating    and

mitigating evidence, Swann v. Commonwealth, 441 S.E.2d 195, 205

(Va.   1994),    juries    are    constitutionally        required       to   consider

relevant      mitigating   evidence        in    determining     a    sentence     in   a

capital case, Eddings v. Oklahoma, 455 U.S. 104, 113–14 (1982).

                                           2.

       Prior to trial, Morva moved for the appointment of Dr. Mark

D. Cunningham, a prison-risk-assessment expert, to “rebut the

Commonwealth’s claim that Morva was a future danger to society

and to provide the jury with an assessment of the likelihood

that Morva would commit violence if he were sentenced to life in

prison.”      Morva I, 683 S.E.2d at 557.              The circuit court denied

the motion, stating that Virginia law barred as irrelevant Dr.

Cunningham’s testimony regarding the environment and structure

of a maximum-security facility as well as testimony regarding

rates of violence among individuals similarly situated to the

defendant.      Morva later moved for reconsideration, supported by

a letter from Dr. Cunningham, but the motion was denied.

       Morva also sought the appointment of a mental-health expert

and a mitigation specialist, which the circuit court granted.

The court appointed Dr. Bruce Cohen, a forensic psychiatrist;

                                           6
Dr. Scott Bender, a neuropsychologist; and Dr. Leigh Hagan, a

psychologist.        All     three    experts       prepared    capital-sentencing

evaluations.        Dr.    Cohen     and    Dr.    Bender    diagnosed        Morva   with

schizotypal personality disorder. 2                  Dr.     Cohen and Dr. Hagan,

however, noted that there was no evidence indicating that Morva

was experiencing “an extreme mental or emotional disturbance” at

the time of the capital offenses, or that he was “unable to

appreciate    the    criminality       of    his    conduct    or   to    conform      his

conduct to the requirements of the law.”                      J.A. 2013; see also

J.A. 2025–26 (showing in Dr. Bender’s evaluation that he did not

find to the contrary; rather, he did not consider the issue).

     At the sentencing phase, the Commonwealth tendered evidence

of both statutory aggravating factors.                       Morva called thirteen

witnesses, including Dr. Bender and Dr. Cohen.                      While Dr. Cohen

testified    to    Morva’s    absence       of     extreme    mental     or    emotional

disturbance and his ability to appreciate the criminality of his

conduct,    the     doctor    also    testified       that     Morva’s    schizotypal

personality       disorder     mitigated          against     imposing        the     death

sentence.      The jury ultimately found both aggravating factors

beyond a reasonable doubt and imposed the death sentence on each

of the three capital murder convictions.

     2 The disorder “shares some of the biologic, emotional, and
cognitive features of schizophrenia, but the symptoms are of
lesser severity.” J.A. 2015.



                                            7
      On direct appeal (and as relevant here), Morva challenged

the   circuit      court’s        denial      of    his   motion    to    appoint     Dr.

Cunningham    as      a    prison-risk-assessment          expert.        The    Supreme

Court of Virginia found no abuse of discretion, affirmed Morva’s

convictions     and       sentences,    and        subsequently    denied   rehearing.

Two   justices     dissented        from      the    majority’s     decision     on   the

prison-risk-assessment issue, finding that the circuit court’s

denial of Morva’s motion “result[ed] in a fundamentally unfair

trial in the sentencing phase” because absent Dr. Cunningham’s

testimony and assessment, Morva “was not permitted the means to

effectively respond to the Commonwealth’s assertions” of future

dangerousness.            Morva    I,   683    S.E.2d     at   568–69     (Koontz,    J.,

dissenting).

      The U.S. Supreme Court denied further review.

                                              C.

      Morva   then        sought   post-conviction         relief    in    the   Supreme

Court of Virginia.           His petition raised, in relevant part, three

of the ineffective-assistance-of-counsel claims before us now.

The Warden filed a motion to dismiss, supported with exhibits

and affidavits, including Dr. Bender’s, Dr. Cohen’s, and Dr.

Hagan’s capital-sentencing evaluations.                    Morva moved repeatedly

to supplement the record and for discovery, the appointment of

mental-health experts, and an evidentiary hearing.                           The court



                                              8
denied     Morva’s       motions    and    dismissed       the   habeas         petition,

finding no ineffective assistance.

       Morva subsequently filed a federal habeas petition under 28

U.S.C. § 2254, raising the claims on appeal here.                         The district

court held two hearings, permitted supplemental briefing, and

later issued a memorandum opinion dismissing the petition.                             The

court found that Morva was not entitled to relief under AEDPA’s

deferential standard.            It also held that Morva failed to show

cause for his defaulted ineffective-assistance claim.

       This appeal followed.



                                          II.

       Morva presents five claims.               First, he contends that the

Virginia       circuit    court’s    denial     of   his    motion     to       appoint   a

prison-risk-assessment expert violated his Eighth and Fourteenth

Amendment rights.          Next, Morva raises three related ineffective-

assistance-of-counsel         claims      regarding       counsel’s    investigation

into     his    childhood,       family    background,        and     mental-illness

history;       counsel’s    presentation        of   mitigating       evidence;         and

counsel’s assistance to the state-funded mental-health experts.

Finally,       Morva   appeals      the   denial     of    relief    on     a    separate

ineffective-assistance-of-counsel               claim,     raised     for       the   first

time in the district court, regarding his counsel’s decision

during the guilt phase of trial to stipulate to Morva’s status

                                           9
as a “prisoner in a state or local correctional facility,” who

was “imprisoned, but not yet had gone to trial,” and who was “in

lawful custody” at the time of the charged offenses.                        J.A. 282–

83.

      We consider each argument in turn, “reviewing de novo the

district    court’s      denial    of   [Morva’s]    petition    for    a    writ    of

habeas corpus.”          Gray v. Zook, 806 F.3d 783, 790 (4th Cir.

2015).

                                         A.

      We    turn     first    to   Morva’s    prison-risk-assessment           claim.

Because the Supreme Court of Virginia adjudicated this claim on

the merits, we may not grant Morva habeas relief unless the

court’s decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States” or “was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”                  Gordon v. Braxton,

780 F.3d 196, 202 (4th Cir. 2015) (quoting § 2254(d)).

      Our    evaluation       of    a    state’s     application       of     clearly

established        federal    Supreme    Court     precedent    depends       on    the

specificity        of   the   clearly    established     law.      “[W]here         the

‘precise contours’ of [a] right remain ‘unclear,’ state courts

enjoy ‘broad discretion’ in their adjudication of a prisoner’s

claims.”     Woods v. Donald, 135 S. Ct. 1372, 1377 (2015) (per

                                         10
curiam)     (second    alteration       in     original)       (quoting        White     v.

Woodall, 134 S. Ct. 1697, 1705 (2014)).                        Similarly, when the

Supreme Court has not yet “confront[ed] ‘the specific question

presented by [a particular] case,’ the state court’s decision

[cannot] be ‘contrary to’ any holding” of the Supreme Court.

Id.   (quoting      Lopez   v.   Smith,      135   S.   Ct.     1,   4     (2014)      (per

curiam)).

      “A state court’s determination that a claim lacks merit

precludes federal habeas relief so long as ‘fairminded jurists

could     disagree’    on    the      correctness       of     the     state      court’s

decision.”         Harrington    v.    Richter,    562       U.S.    86,    101    (2011)

(quoting    Yarborough      v.   Alvarado,      541     U.S.    652,     664    (2004)).

Thus, “[t]he question under AEDPA is not whether a federal court

believes     the    state   court’s      determination         was     incorrect        but

whether     that    determination       was     unreasonable—a           substantially

higher    threshold.”       Schriro     v.     Landrigan,      550     U.S.    465,     473

(2007).

      The Supreme Court of Virginia did not unreasonably reject

Morva’s claim that he was constitutionally entitled to a state-

funded prison-risk-assessment expert.                   Morva improperly frames

the court’s alleged error as an unconstitutional prohibition on

his right to present mitigating evidence.                    But this presents the

issue “at too high a level of generality.”                    Woods, 135 S. Ct. at

1377.     Rather, Morva challenges the Supreme Court of Virginia’s

                                          11
decision that due process did not require the appointment of a

state-funded         nonpsychiatric           expert—particularly               where    other

state-funded experts had been provided—because he did not make

the required showing under Virginia law.

       We conclude that the Supreme Court of Virginia reasonably

applied    clearly     established         federal         law    in    rejecting       Morva’s

challenge.       Notably, the U.S. Supreme Court has never addressed

a    capital    defendant’s        right      to     a   state-funded       nonpsychiatric

expert.    The Court has only ruled on an indigent defendant’s due

process right to a state-funded psychiatrist when he makes “a

preliminary showing that his sanity at the time of the offense

is    likely    to    be     a    significant        factor       at    trial.”         Ake   v.

Oklahoma, 470 U.S. 68, 74, 79 (1985).                           Since Ake, “the Supreme

Court ha[s] flatly declined to resolve the question of what, if

any,    showing      would       entitle   an      indigent       defendant       to    [state-

funded]    non-psychiatric             assistance          as    a     matter    of     federal

constitutional law.”               Weeks v. Angelone, 176 F.3d 249, 265–66

(4th Cir. 1999).

       Absent federal precedent on the issue, the Supreme Court of

Virginia       has   crafted       a   rule     to       determine      when     due    process

requires a state-funded nonpsychiatric expert.                                  In Husske v.

Commonwealth,        the     court     announced          the    “particularized         need”

standard: “an indigent defendant who seeks the appointment of an

expert witness, at the Commonwealth’s expense, must demonstrate

                                              12
that the subject which necessitates the assistance of the expert

is ‘likely to be a significant factor in his defense,’ and that

he will be prejudiced by the lack of expert assistance.”                                  476

S.E.2d 920, 925 (Va. 1996) (citation omitted) (quoting Ake, 470

U.S. at 82–83).           To satisfy this burden, the defendant must

demonstrate that the “expert would materially assist him in the

preparation of his defense” and that the expert’s absence “would

result in a fundamentally unfair trial.”                    Id.

      We have said that the Husske standard is “congruent with

the requirements of the federal Constitution.”                              Bramblett v.

True, 59 F. App’x 1, 9 (4th Cir. 2003); see also Page v. Lee,

337   F.3d     411,     415–16     (4th       Cir.    2003)    (finding       that    North

Carolina’s particularized-need test, which mirrors Virginia’s,

“is   surely    a     reasonable       interpretation         of   Ake”).        Thus,    the

Supreme Court of Virginia did not unreasonably apply clearly

established         federal      law     in        requiring       Morva    to     show     a

particularized need for his requested expert.

      Turning to the Supreme Court of Virginia’s application of

the   Husske    test     to    Morva’s        case,    we   find     no    constitutional

violation warranting habeas relief under § 2254(d).                              The court

first addressed the three cases on which Morva relied in support

of his claim—Gardner v. Florida, 430 U.S. 349 (1977), Skipper v.

South   Carolina,        476     U.S.     1    (1986),      and     Simmons      v.   South

Carolina, 512 U.S. 154 (1994)—and found they did not dictate the

                                              13
result he urged.         Morva I, 683 S.E.2d at 564–66.                The court then

discussed      Virginia        precedent      on   the     relevance         of    prison-

environment evidence to a future-dangerousness assessment and,

finding      irrelevant       and    therefore     inadmissible        an    “essential”

part    of     Dr.     Cunningham’s         proffered      testimony         (i.e.,       his

testimony regarding prison life, prison security, and statistics

on    similarly      situated       defendants’     instances       of      violence      in

prison), concluded that “the circuit court did not err or abuse

its discretion in denying [Morva’s] motion” because Morva did

not satisfy the particularized-need test.                   Id. at 565–66.

       The Supreme Court of Virginia’s conclusion that Gardner,

Skipper,     and     Simmons    do    not    support     the    constitutional          rule

Morva     asserts      is      neither      contrary      to,    nor        involves      an

unreasonable        application      of,    clearly      established        federal     law.

Gardner concerned a court’s imposition of the death penalty on

the basis of a confidential presentence report that was never

disclosed to the defense.              430 U.S. at 353 (plurality opinion).

Vacating      and    remanding       the    case   for    resentencing,           the   U.S.

Supreme Court announced that the imposition of a death sentence

“on    the   basis     of     information     which      [the   defendant]          had   no

opportunity to deny or explain” is unconstitutional.                          Id. at 362

(plurality      opinion)       (emphasis      added)     (finding      a    due    process

violation); id. at 364 (White, J., concurring in the judgment)

(finding      an     Eighth    Amendment      violation);       id.      (Brennan,        J.,

                                             14
concurring     in     part       and    dissenting          in     part)     (joining       the

plurality’s due process reasoning).

      The Court relied on this general principle years later in

Skipper,     when    it     considered         a    capital       defendant’s       right    to

present mitigating evidence regarding future dangerousness when

the   prosecution          asserts      that        aggravating      factor,       lest     the

defendant     be    sentenced      to    death       on    information      he     was    never

allowed to challenge.             476 U.S. at 5 n.1.               The Court’s holding,

however, was narrow:

      [T]he only question before us is whether the exclusion
      from   the  sentencing   hearing   of  the   testimony
      petitioner proffered regarding his good behavior
      during the over seven months he spent in jail awaiting
      trial deprived [him] of his right to place before the
      sentencer   relevant   evidence   in   mitigation   of
      punishment. It can hardly be disputed that it did.

Id. at 4 (emphasis added).

      Finally, Simmons announced yet another narrow expansion of

a capital defendant’s right to introduce mitigating evidence.

The   Court        there    held       that        when    “the     defendant’s          future

dangerousness        is     at     issue,          and    state    law     prohibits        the

defendant’s release on parole, due process requires that the

sentencing     jury        be    informed          that   the     defendant        is    parole

ineligible.”        Simmons, 512 U.S. at 156 (plurality opinion); id.

at 177–78 (O’Connor, J., concurring in the judgment) (“Where the

State puts the defendant’s future dangerousness in issue, and

the   only    available          alternative         sentence       to     death    is     life

                                               15
imprisonment without possibility of parole, due process entitles

the defendant to inform the capital sentencing jury—by either

argument or instruction—that he is parole ineligible.”). 3

     These cases do not clearly establish a capital defendant’s

right to a state-funded nonpsychiatric expert.                        See White, 134

S.   Ct.    at    1702     (“‘[C]learly           established    Federal     law’   for

purposes of § 2254(d)(1) includes only ‘the holdings, as opposed

to   the   dicta,     of    this    Court’s         decisions.’”     (alteration     in

original)    (quoting       Howes       v.   Fields,    132     S.   Ct.   1181,    1187

(2012))).        Confined as we are under AEDPA, we conclude that the

Supreme Court of Virginia’s decision regarding a right whose

“‘precise contours’ . . . remain ‘unclear,’” is neither contrary

to nor an unreasonable application of federal law.                          Woods, 135

S. Ct. at 1377 (quoting White, 134 S. Ct. at 1705).

     The Supreme Court of Virginia’s separate determination that

Morva failed to show a particularized need for the expert also

does not run afoul of clearly established law.                             The court’s

classification of prison-environment evidence as irrelevant and

therefore inadmissible is not unreasonable under U.S. Supreme

Court    precedent.         Nor    is    the      court’s   similar    determination




     3  Together,  the   three-justice  plurality   and  Justice
O’Connor, joined by Chief Justice Rehnquist and Justice Kennedy,
“provid[ed] the dispositive votes necessary to sustain [the
judgment].” O’Dell v. Netherland, 521 U.S. 151, 158 (1997).


                                             16
regarding statistical evidence of similarly situated inmates and

instances of prison violence.

       A   defendant’s         constitutional           right      to   present       mitigating

evidence related to his character, criminal history, and the

circumstances         of     his   offense       does    not     upset     a    state      court’s

broad      discretion        in    determining         the   admissibility            of    other,

nonindividualized evidence.                 See Lockett v. Ohio, 438 U.S. 586,

604 & n.12 (1978) (plurality opinion) (“Nothing in this opinion

limits     the      traditional         authority       of   a     court    to       exclude,     as

irrelevant, evidence not bearing on the defendant’s character,

prior record, or the circumstances of his offense.”); see also

Johnson v. Texas, 509 U.S. 350, 362 (1993) (“[Lockett and its

progeny]       do     not    bar    a     State       from   guiding       the       sentencer’s

consideration of mitigating evidence.                        Indeed, we have held that

‘there      is      no . . .       constitutional         requirement           of    unfettered

sentencing        discretion        in    the     jury,      and    States       are    free      to

structure            and          shape         consideration              of         mitigating

evidence . . . .’” (second alteration in original)).                                   Thus, the

Supreme      Court      of     Virginia         did    not   unreasonably            apply    U.S.

Supreme Court precedent by deeming irrelevant evidence that did

not     relate       specifically          to     Morva’s        character,          background,

criminal         record,     or    the     circumstances           of   his      offense—i.e.,

evidence regarding general prison life and security offered to

show    that      Morva’s      “opportunities           to   commit      criminal          acts   of

                                                 17
violence in the future would be severely limited in a maximum

security prison.”          Burns v. Commonwealth, 541 S.E.2d 872, 893

(Va. 2001).

       Finally, the Supreme Court of Virginia did not unreasonably

decide the facts.           Morva contends otherwise, but he does not

identify the alleged factual error.                    We assume he takes issue

with   the     court’s     finding     that     the    inadmissible         evidence      of

general       prison    life     and   security        was   “essential”         to       Dr.

Cunningham’s proffered testimony.                 Morva I, 683 S.E.2d at 566.

But Dr. Cunningham’s own statements to the circuit court compel

this finding.          In his letter, he wrote that an individualized

prison-risk      assessment      “is    only    meaningful      if     it    takes    into

account the person’s future setting, if known, and the frequency

of serious violence by people with similar characteristics in

similar settings.”          J.A. 176.         His declaration also noted that

the    proffered       group-statistical         data    and    prison-environment

evidence       are     “necessary”     and      “critically         important”       to    a

“reliable violence risk assessment.”                  J.A. 145–46.          Accordingly,

we    hold    that     Morva’s    prison-risk-assessment             claim     does       not

warrant federal habeas relief.

                                           B.

       Next     we      consider       Morva’s        nondefaulted          ineffective-

assistance-of-counsel            claims.          First        we     determine           the

appropriate standard of review.               Then we turn to the merits.

                                           18
                                              1.

       The    district         court         applied        § 2254(d)        to        Morva’s

nondefaulted      claims,       and    we     review        that    decision      de    novo.

Gordon, 780 F.3d at 202.                   For AEDPA’s deferential standard to

apply to the state post-conviction-relief court’s dismissal of

these     claims,      the     court’s        decision        must     qualify         as    an

“adjudicat[ion] on the merits” under § 2254(d); otherwise, de

novo review is proper.                Id. (alteration in original) (quoting

§ 2254(d)).       “Whether a claim has been adjudicated on the merits

is a case-specific inquiry,” Winston v. Pearson (Winston II),

683    F.3d   489,     496    (4th     Cir.    2012),       but     “[a]    claim      is   not

‘adjudicated      on    the    merits’        when    the    state     court      makes      its

decision ‘on a materially incomplete record,’” Gordon, 780 F.3d

at 202 (quoting Winston v. Kelly (Winston I), 592 F.3d 535, 555

(4th Cir. 2010)).            “A record may be materially incomplete ‘when

a     state   court        unreasonably            refuses     to      permit       “further

development of the facts” of a claim.’”                            Id. (quoting Winston

II, 683 F.3d at 496).                 Morva argues that the state court’s

denial of the appointment of experts and an evidentiary hearing

resulted in a decision on a materially incomplete record.                                    We

disagree.

       Although      the     Supreme       Court     of     Virginia       precluded        some

factual       development             as       to         counsel’s         investigative

decisionmaking, the court did not act unreasonably.                             The record

                                              19
was substantial and contained sufficient evidence to answer the

Strickland inquiry.            Moreover, the record provided reasons for

counsel’s decisions not to interview or call certain witnesses

at   the    sentencing    phase,       and    included      cumulative        information

about Morva’s background that counsel received through witness

interviews.         And trial transcripts show the extent of mitigating

evidence presented to the jury.

      Moreover,       there    is     no   doubt     that     the    Supreme    Court   of

Virginia considered this substantial record in ruling on Morva’s

ineffective-assistance claims.                See Morva v. Warden of Sussex I

State      Prison    (Morva    II),    741    S.E.2d     781,       789–90    (Va.   2013)

(discussing     the     “double-edged”        nature     of    submitted       affidavits

regarding Morva’s background and character, and evaluating the

quality and implications of Morva’s mental-health evidence).

      We therefore review Morva’s remaining nondefaulted claims

under      AEDPA’s    highly    deferential         standard.         Under    AEDPA,   we

defer      to   the    state     court’s          judgment,     and     under    clearly

established Supreme Court precedent, the state court defers to

counsel’s presumptive “sound trial strategy.”                          Strickland, 466

U.S. at 689 (“Judicial scrutiny of counsel’s performance must be

highly deferential.”).              It was Morva’s burden before the state

court to show both that counsel’s performance was deficient—that

“counsel’s representation fell below an objective standard of

reasonableness”—and that he suffered prejudice as a result—by

                                             20
showing      “a    reasonable    probability       that,     but    for    counsel’s

unprofessional errors, the result of the proceeding would have

been    different.”       Id.    at    688,   694.     “The    likelihood      of   a

different      result   must    be    substantial,    not    just    conceivable.”

Richter, 562 U.S. at 112.

        “Surmounting Strickland’s high bar is never an easy task,”

id.    at    105   (quoting    Padilla   v.     Kentucky,    559    U.S.   356,   371

(2010)), and “[e]stablishing that a state court’s application of

Strickland was unreasonable [or contrary to clearly established

federal law] under § 2254(d) is all the more difficult,” id.

This double-deference standard effectively cabins our review to

a determination of “whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”                    Id.

                                         2.

        Morva asserts that counsel was ineffective in failing to

(1) adequately investigate his background, history, character,

and mental illness; (2) provide all available information to the

mental-health        experts    to     ensure     accurate    evaluations;        and

(3) adequately present the available mitigating evidence to the

jury.       Although Morva identifies these as three distinct claims,

his briefs address them together, and we will resolve them as

such.       The post-conviction-relief court found that Morva failed

to satisfy both Strickland prongs.                We first review the court’s



                                         21
decision     on    deficient      performance,            before    considering       whether

Morva met his burden as to prejudice.

                                              a.

       Regarding      deficient        performance,           the     Supreme       Court    of

Virginia held that counsel’s investigation and presentation of

mitigating evidence did not fall below an objective standard of

reasonableness.           See    Morva       II,     741     S.E.2d    at     789    (calling

counsel’s investigation “exhaustive,” finding that counsel spoke

with     the       affiants      on        whom     Morva’s         claim     relies,       and

characterizing        the     affiants’           would-be    testimony       as     “double-

edged”    (quoting       Lewis   v.    Warden        of    Fluvanna     Corr.       Ctr.,   645

S.E.2d 492, 505 (Va. 2007))).                     Similarly, the court found that

counsel adequately assisted the mental-health experts.                                 Id. at

790 (finding that Morva failed to show an indication of “true

mental illness” to alert counsel).

       The     Supreme    Court       of    Virginia’s        decision        on    deficient

performance does not warrant federal habeas relief.                                 As to the

investigation, Morva challenges trial counsel’s alleged failure

to     investigate       Morva’s      multigenerational              family     history     by

conducting “little or no investigation of [Morva’s] immediate

family”      and   only     “cursory       interviews        with    [Morva’s       mothers’]

family members.”          Appellant’s Br. at 50, 57.                   The record shows,

however, that counsel hired a mitigation expert and interviewed

many of the family-member affiants who did not testify at trial

                                              22
and    on    whom    Morva        relies   to    show    ineffective         assistance,

including Morva’s mother, sister, paternal half-sister, one of

his brothers, and two of his aunts.                     Notably, Morva’s mother’s

affidavit      provides       a    thorough     account       of     Morva’s     father’s

Hungarian background and American immigration and of her own

family      history,    J.A.      1071–1082,     and    it    also    states    that   she

“shared a good deal of information contained in th[e] affidavit

with     [Morva’s       capital        defense         team]”       through      “several

conversations with [them] over a period of more than a year,”

id. at 1115.

       While Morva complains that counsel could have interviewed

other family members and spent more time gathering information

from those family members that were interviewed, he points to no

U.S.     Supreme    Court      case    establishing          that    counsel’s     effort

constitutes deficient performance or that counsel’s decision not

to pursue this line of mitigating evidence was constitutionally

unreasonable.        See Strickland, 466 U.S. at 689 (“[A] court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is,

the    defendant       must    overcome     the    presumption            that . . .   the

challenged action ‘might be considered sound trial strategy.’”

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).

       Indeed,      clearly        established     federal          law    supports    the

Supreme Court of Virginia’s deference to counsel’s performance

                                           23
in this instance.               See Wiggins v. Smith, 539 U.S. 510, 533

(2003)      (“Strickland        does        not   require         counsel       to    investigate

every    conceivable         line     of     mitigating           evidence      no    matter    how

unlikely      the      effort     would       be       to    assist       the    defendant       at

sentencing.”); Strickland, 466 U.S. at 691 (finding that when

counsel      has       “reason         to     believe            that     pursuing           certain

investigations         would     be    fruitless            or   even    harmful,       counsel’s

failure      to     pursue      those        investigations             may     not     later    be

challenged        as   unreasonable”).                 Given      the    doubly       deferential

standard of AEDPA, we cannot conclude that the Supreme Court of

Virginia      unreasonably          applied        Strickland           when    it     held     that

counsel’s     investigation            into       Morva’s        family       history    was     not

“outside the wide range of professionally competent assistance.”

466 U.S. at 690.

      Regarding        the     presentation            of   mitigating         evidence,      Morva

has   not    shown     that     counsel       performed           deficiently.          The     jury

heard     from      thirteen      witnesses,            including         the    mental-health

experts who evaluated Morva.                       Witnesses testified to Morva’s

absent      parents      and     his        tumultuous           relationship         with     them,

including that his mother was at times homeless and unable to

care for him; Morva’s own nomadic lifestyle and homelessness as

a young adult; his ongoing health problems; his nonviolent and

compassionate nature; and his odd, somewhat fantastical beliefs

and behavior.

                                                  24
       These sympathetic and humanizing facts compose the bulk of

the affidavits Morva presented to the Supreme Court of Virginia

to show inadequate investigation and presentation of mitigating

evidence.          That the mitigating evidence Morva insists should

have    been       presented     at    trial       is    merely   cumulative     to     the

evidence actually heard by the jury further undercuts Morva’s

claim for deficient performance.                        See Wong v. Belmontes, 558

U.S.    15,     22–23   (2009)    (per       curiam)      (rejecting     the   view    that

counsel should have presented additional “humanizing evidence”

about     the      defendant’s        “difficult         childhood”      and   “positive

attributes,” and stating that “[a]dditional evidence on these

points would have offered an insignificant benefit, if any at

all”).

       The same can be said about the additional evidence that

Morva says counsel should have provided to the mental-health

experts.        Dr. Bender and Dr. Cohen found that Morva suffered

from     schizotypal      personality          disorder.          In     reaching      this

diagnosis, they conducted interviews with Morva, his mother, and

his sister; performed diagnostic tests and evaluations of Morva;

and considered a plethora of documents from counsel, including

reports       of    interviews        with     Morva’s      acquaintances.            Morva

presents no evidence that counsel should have believed these

sources were insufficient for the experts to conduct a reliable

and    accurate      mental-health       evaluation,        or    that   providing      the

                                              25
cumulative evidence that Morva identifies would have materially

altered their assessments of his mental condition.

      Morva    contends         that    it   was    objectively   unreasonable      for

counsel to fail to provide the experts certain family medical

records and the names of three acquaintances who he claims had

“invaluable insight into [his] mental state.”                        Appellant’s Br.

at 66.       But Dr. Bender and Dr. Cohen learned, through their

evaluations and interviews, of Morva’s maternal family history

of schizophrenia.              And Morva did not show the Supreme Court of

Virginia     how    his    three       acquaintances’     relationships      with   him

gave them “invaluable insight” into his mental health at the

time of the capital offenses, or that counsel should have known

of   their    value       to    the     defense.      Thus,    the   court   did    not

unreasonably apply Strickland or its progeny when it held that

Morva failed to substantiate his claim that counsel performed

deficiently.

                                             b.

      As to prejudice, the Supreme Court of Virginia found that

“Morva   has       not    demonstrated       what    impact,    if   any,”   the    new

family-background evidence “had on his actions,” and concluded

that the information “does not mitigate Morva’s actions.”                       Morva

II, 741 S.E.2d at 789.                 The court also found that Morva failed

to show that “the mental health experts who examined Morva in

preparation for trial and sentencing would have changed the[ir]

                                             26
expert[]     conclusions”      if    they       had    received      the       additional

information from counsel.           Id. at 790.         These decisions are not

unreasonable.

      On appeal, Morva presents a cumulative prejudice argument.

He contends that the “inadequate investigation of [his] multi-

generational      history      deprived        [the]    jurors       of    a     complex,

multifaceted      description        of        [him]    as     a     human           being.”

Appellant’s Br. at 69.         Additionally, he claims that had counsel

given the mental-health experts all known Morva-family history

and   the    contact    information       of    Morva’s      close    acquaintances,

“there is a reasonable probability [that] the court-appointed

mental health experts would have diagnosed Morva with” a more

serious mental illness.             Id. at 76.         In turn, counsel “could

have had an explanation for the jury that Morva’s mental illness

was   a     but-for    cause   of    the       violence,     reducing          his     moral

culpability and providing a strong argument for life in prison

rather than a death sentence.”             Id. at 79.

      This claim fails.         First, Morva’s arguments relate to the

jury’s finding that his conduct was vile, but it does nothing to

combat the future dangerousness aggravating factor.                              And the

jury imposed the death penalty not only on the basis of what

Morva had done, but also on the probability that he might commit

violent crimes in the future.



                                          27
       Second, Morva fails to show a reasonable likelihood that

the evidence of his family history and the anecdotal evidence of

his mental state—had it been presented—would have resulted in a

life   sentence.        His   argument      regarding     the    probability       of   a

different diagnosis is too speculative given the record and the

lack of any support from the mental-health experts.                       See Pooler

v. Sec’y, Fla. Dep’t of Corr., 702 F.3d 1252, 1268, 1279 (11th

Cir. 2012)       (finding     no    § 2254(d)     error   with    the    state   post-

conviction-relief court’s determination that the defendant did

not show prejudice because he “failed to demonstrate that [the

mental-health      experts]        would   have   changed   their       opinions      had

they conducted more in-depth psychological evaluations or been

provided with his records” (quoting Pooler v. State, 980 So. 2d

460, 469 (Fla. 2008) (per curiam))); Roberts v. Dretke, 381 F.3d

491, 500 (5th Cir. 2004) (finding that the prisoner failed to

establish    Strickland       prejudice      in   part    because   “there       is     no

evidence    in    the    record       suggesting     that    [the       mental-health

expert] would change the psychiatric diagnosis in his report

based on a review of Roberts’s [undisclosed] medical records”). 4


       4
       Morva unsuccessfully sought to supplement the record with
an affidavit and unsworn preliminary report from two clinical
psychologists who, years after the capital offenses and Morva’s
schizotypal-personality-disorder    diagnosis,   reviewed    the
documents produced throughout the litigation. The affidavit and
report, which the Supreme Court of Virginia declined to
consider, push for additional mental-health evaluations to
(Continued)
                                           28
       Further,     the     record    lacks       the    alleged     “red    flags”    that

would have “‘point[ed]’ [the experts] to a more serious mental

illness.”     Appellant’s Br. at 58 (quoting Rompilla v. Beard, 545

U.S. 374, 392 (2005)).           Dr. Cohen thoroughly explained the eight

(out   of   nine)    symptoms        indicative         of   schizotypal      personality

disorder that Morva displayed.                Dr. Cohen discussed each symptom

individually       and    also   distinguished           the    personality        disorder

from   an   acute     disease        state    with      examples     of     how    symptoms

manifest     in    both     conditions.            Morva’s      three     acquaintances’

accounts of his mental state are consistent with Dr. Cohen’s

account of the schizotypal symptoms Morva manifested after the

capital offenses.           It is therefore unlikely the experts would

have   changed      their    minds     on    the   basis       of   the   acquaintances’

anecdotes.        And there is no reasonable probability that at least

one juror would have changed his sentencing vote on the basis of

additional    lay-witness        testimony         regarding        Morva’s       “complex,

multifaceted” humanity.




determine whether Morva had a more serious mental illness at the
time of the capital offenses.      Morva also attached to his
federal habeas petition a declaration from a psychiatrist, who
did not evaluate him directly but reviewed some litigation
documents and the trial mental-health experts’ evaluations, and
opined that Morva suffers from schizophrenic symptoms. However,
these submissions do nothing to show that Dr. Cohen, Dr. Bender,
and Dr. Hagan would have come to a different medical conclusion
at the time of Morva’s sentencing—the prejudice question before
us now.


                                             29
      Last, when we “reweigh the evidence in aggravation against

the totality of available mitigating evidence,” it is clear that

Morva fails to show prejudice.              Wiggins, 539 U.S. at 534.                   Even

the   most       sympathetic     evidence       in    the     record       about   Morva’s

troubled     childhood     and    mental    health 5        does     not     outweigh     the

aggravating       evidence     presented    at       trial.         “While    we   have   no

doubt     that    the   conditions    in    the      home     and    the     treatment     of

[Morva     and     his]    siblings    made          for    an      unpleasant      living

environment, they do not tip the aggravation-mitigation scale in

favor of mitigation.”            Phillips v. Bradshaw, 607 F.3d 199, 219

(6th Cir. 2010).          Because the Supreme Court of Virginia’s no-

prejudice determination was neither contrary to nor involved an

unreasonable application of clearly established law, we reject

Morva’s ineffective-assistance claims.

                                           C.

      Finally, we turn to Morva’s claim of ineffective assistance

arising from counsel’s stipulation at the guilt phase of trial.

To convict Morva of prisoner escape, the jury was required to


      5The affidavit of Constance “Connie” Beth Dye, one of
Morva’s aunts, relates the most revealing and troubling
information about Morva’s childhood.      Ms. Dye characterizes
Morva’s father as a moody and controlling “monster” and his
mother as absent and mentally troubled. See J.A. 1030–43. She
also details the squalor of Morva’s early childhood: the house,
including the children’s room, smelled bad and was littered with
trash and food remnants, and the children were malnourished and
dirty. See J.A. at 1032–38.


                                           30
find that Morva was, prior to escaping, lawfully imprisoned and

not yet tried or sentenced, or lawfully in the custody of law

enforcement.       See Va. Code Ann. § 18.2-478.                 Recall that, when

he escaped and committed the capital offenses, Morva was in jail

awaiting     trial     on    pending     charges     for,    inter      alia,    armed

robbery.      After the trial court ruled, in Morva’s favor, to

prohibit     the   introduction        into    evidence     of   the   substance    of

Morva’s pending charges, defense counsel and the Commonwealth

stipulated to the following:

       [O]n the dates in question for the crimes charged,
       that is August 20th and August 21st of 2006, . . . the
       Defendant was a prisoner in a state or local
       correctional facility. . . .     [T]he Defendant was
       imprisoned, but not yet had gone to trial on the
       criminal offenses, and . . . the Defendant was in
       lawful   custody.    That   is  the   extent  of   the
       stipulation.

J.A. 282–83.

       Morva contends that this stipulation improperly admitted an

essential    element        of   the   capital-murder     charge       involving   the

shooting of Derrick McFarland, the hospital security guard.                         To

satisfy its burden as to capital murder, the Commonwealth was

required to prove that Morva shot and killed McFarland when he

was “confined in” jail or otherwise “in the custody of” a jail

employee.      See Va. Code Ann. § 18.2-31(3).                   Morva argues that

when    he    killed        McFarland,        he   had    escaped       from    Deputy

Quesenberry’s custody and was not physically confined in jail,


                                          31
so    the   stipulation          precluded     either       a    successful      motion    to

strike or an acquittal on that charge.

       Morva concedes that the claim, raised for the first time to

the    district         court,    is    procedurally        defaulted.           He    argues,

however,     that       his    state     post-conviction         counsel’s       failure    to

raise the claim in the Supreme Court of Virginia, serves as

cause to excuse his procedural default.                     We do not agree.

       A    habeas      petitioner       is   generally         barred    from    obtaining

federal habeas review of a claim if he failed to exhaust the

claim in state court.                  See Coleman v. Thompson, 501 U.S. 722,

750 (1991).        In Martinez, the Supreme Court carved out a “narrow

exception”         to    the     Coleman      rule.         132     S.    Ct.     at     1315.

Specifically, Martinez held:

       [W]hen a State requires a prisoner to raise an
       ineffective-assistance-of-trial-counsel   claim  in   a
       collateral proceeding, a prisoner may establish cause
       for    a   default    of   an    ineffective-assistance
       claim . . . . where appointed counsel in the initial-
       review collateral proceeding, where the claim should
       have been raised, was ineffective under the standards
       of Strickland v. Washington. To overcome the default,
       a prisoner must also demonstrate that the underlying
       ineffective-assistance-of-trial-counsel   claim  is   a
       substantial one, which is to say that the prisoner
       must demonstrate that the claim has some merit.

Id. at      1318     (citation         omitted).      Because       state     prisoners     in

Virginia     cannot       raise    ineffective-assistance               claims    on    direct

appeal,      and    because       state    post-conviction          counsel       failed    to

challenge      counsel’s         stipulation,         the       claim    is   squarely      in


                                              32
Martinez territory.              See Fowler v. Joyner, 753 F.3d 446, 462

(4th Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015).

       The district court, however, properly found that this was

“no[t]       [a]       substantial        claim        of    ineffective         assistance       of

counsel”         and    dismissed    it     for    procedural            default.        Morva    v.

Davis (Morva III), No. 7:13-cv-00283, 2015 WL 1710603, at *28

(W.D. Va. Apr. 15, 2015).

       Even if the stipulation, which mirrors the elements of the

prisoner escape offense, conceded an element of the capital-

murder charge under section 18.2-31(3), it does not constitute

ineffective assistance.               It is not objectively unreasonable for

counsel to stipulate to a fact that the government can prove.

See United States v. Toms, 396 F.3d 427, 433–34 (D.C. Cir. 2005)

(finding no deficient performance when counsel stipulated to a

fact       the     government       was     prepared         to    show        through    witness

testimony).

       The Commonwealth could easily have shown that Morva was a

“prisoner         confined”     despite      the        fact      that    he    was   physically

outside of the jail and had escaped law enforcement’s custody.

In     Mu’Min      v.     Commonwealth,           the       defendant      was     charged       and

convicted of capital murder under section 18.2-31(3) 6 for killing

someone after escaping from an off-site prison work detail.                                      See

       6    At the time, section 18.2-31(3) was codified as 18.2-
31(c).       See Mu’Min, 389 S.E.2d at 889.


                                                  33
389    S.E.2d     886,       889–90       (Va.       1990)    (describing           the        facts

underlying      the     conviction),        aff’d      on     other       grounds       sub     nom.

Mu’Min v. Virginia, 500 U.S. 415 (1991).                                  On appeal to the

Supreme Court of Virginia, the defendant challenged as overly

prejudicial       the    admission         into      evidence        of    a     copy     of    his

previous conviction, which was offered to prove the “prisoner

confined in a state or local correctional facility” element of

the capital murder charge.                  Id. at 894.              The court found no

reversible error and noted that a jury instruction, which was

expressly charged to define the “prisoner confined” element on

the basis of the defendant’s legal status as an inmate and not

on his physical location or whether he escaped, was “a correct

statement of the law.”            Id. at 894 & n.7.

       Mu’Min makes clear that the Commonwealth could have shown,

through   evidence          of   Morva’s     pending         charges,       that    he     was     a

“prisoner confined” when he killed McFarland.                                  Cf. Simmons v.

Commonwealth,         431    S.E.2d       335,       335–36        (Va.    Ct.     App.       1993)

(explaining that, in the context of escape under Virginia law,

the    defendant        remained      a    “prisoner          in     a    state,     local        or

community correctional facility” even while released on furlough

because the term refers to the prisoner’s legal status, which

“is not dependent upon actual physical presence in such facility

or    otherwise    restricted         by    a     prisoner’s         location”).               Thus,

counsel’s strategic choice was not deficient performance.

                                                34
       Moreover,     the    stipulation      did    not    prejudice       Morva    for

substantially the same reason.               Jury Instruction No. 9, which

was charged without objection, provides that “[a] prisoner of a

state or local correctional facility remains a prisoner at all

times until he is released from that status by the proper state

authority.       A   prisoner    who   escapes      from    custody    retains      the

status     of    prisoner     during   the     entire       course    of    such        an

unauthorized absence.”           J.A. 492.         This instruction is almost

identical to the one charged in Mu’Min.                    See 389 S.E.2d at 894

n.7.     So even without the stipulation, the Commonwealth could

have   proven     that     Morva’s   killing   of    McFarland       satisfied      the

elements    of    capital     murder   under   section       18.2-31(3).           As    a

result, Morva’s claim that his counsel was ineffective is not

substantial and was properly dismissed for procedural default.



                                       III.

       For the foregoing reasons, we affirm the district court’s

judgment.

                                                                             AFFIRMED




                                        35
