PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVE EDWARD ROACH,
Petitioner-Appellant,

v.
                                                                        No. 98-26
RONALD ANGELONE, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-97-693-R)

Argued: March 3, 1999

Decided: May 4, 1999

Before WIDENER, NIEMEYER, and KING, Circuit Judges.

_________________________________________________________________

Certificate of appealability denied and appeal dismissed by published
opinion. Judge King wrote the opinion, in which Judge Widener and
Judge Niemeyer concurred.

_________________________________________________________________

COUNSEL

ARGUED: Steven Marc Schneebaum, PATTON BOGGS, L.L.P.,
Washington, D.C., for Appellant. Robert Quentin Harris, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellee. ON BRIEF: Benjamin G. Chew, Willa
B. Perlmutter, Susan M. Mathiascheck, PATTON BOGGS, L.L.P.,
Washington, D.C., for Appellant. Mark L. Earley, Attorney General
of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee.

_________________________________________________________________

OPINION

KING, Circuit Judge:

In 1995, Steve Edward Roach ("Roach"), was convicted of capital
murder in the State of Virginia and sentenced to death. In 1996, the
Supreme Court of Virginia affirmed the sentence, Roach v.
Commonwealth, 468 S.E.2d 98 (Va. 1996), and the Supreme Court of
the United States denied certiorari. Roach v. Virginia, 519 U.S. 951
(1996). Upon exhausting his state collateral remedies, Roach peti-
tioned the United States District Court for the Western District of Vir-
ginia for a writ of habeas corpus. See 28 U.S.C.A. § 2254 (West
Supp. 1998). After reviewing the parties' legal arguments and con-
ducting an evidentiary hearing, the district court, on July 29, 1998,
denied habeas corpus relief.

Roach has appealed to this court, pursuant to 28 U.S.C. § 1291,
from the final order of the district court. In addition, Roach has filed
with us a petition for a certificate of appealability, pursuant to 28
U.S.C. § 2253(c)1 and Fed. R. App. P. 22. On appeal, Roach raises
_________________________________________________________________

1 28 U.S.C. § 2253(c) provides, in pertinent part:

           (1) Unless a circuit justice or judge issues a certificate of
          appealability, an appeal may not be taken to the court of appeals
          from -

          (A) the final order in a habeas corpus proceeding in which
          the detention complained of arises out of process issued by
          a State Court

....

           (2) A certificate of appealability may issue . .. only if the
          applicant has made a substantial showing of the denial of a con-
          stitutional right.

                    2
five issues that he claims warrant habeas relief. After careful consid-
eration of each of Roach's contentions and the entire record, we find
that Roach has failed to make a substantial showing of the denial of
a constitutional right and that there is no basis for federal habeas cor-
pus relief. Accordingly, we deny the petition for a certificate of
appealability and dismiss the appeal.

I.

On December 3, 1993, Mary Ann Hughes ("Mrs. Hughes") was
shot and killed in her home. The cause of death was a single shotgun
blast to the chest. Mrs. Hughes's purse, containing her credit card and
approximately sixty dollars in cash, and her 1981 Buick Regal were
stolen. During the early morning hours of December 4, 1993, a Not-
toway County deputy sheriff observed Mrs. Hughes's automobile
parked in the parking lot of a shopping center in Blackstone, Virginia.
The deputy subsequently identified Roach as the driver of the car.
Later that same morning, Roach was videotaped while attempting to
use Mrs. Hughes's credit card at an automated teller machine in Lou-
isburg, North Carolina.

On December 5, 1993, a South Carolina State Trooper observed
Mrs. Hughes's automobile traveling at an excessive rate of speed.
When the trooper attempted to detain the vehicle, the driver stopped
the car on the left shoulder of the road and escaped into the adjacent
woods. The driver's clothes matched the description of the clothes
Roach was observed wearing on the night of the murder.

The items retrieved from the vehicle included Mrs. Hughes's purse,
a blue jacket, a number eight load shotgun shell, and a plastic bag
from a Winn-Dixie grocery store. Roach's latent palm prints and fin-
gerprints were also recovered from the interior of the automobile.
_________________________________________________________________
28 U.S.C.A. § 2253 (West 1996). The showing which Roach is required
to make in order to obtain a certificate of appealability under 28 U.S.C.
§ 2253, as amended by the Anti-Terrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), has not changed from the showing required of
habeas corpus petitioners prior to 1996. See Mackall v. Angelone, 131
F.3d 442, 444, n.3 (4th Cir. 1997), cert. denied , 118 S. Ct. 907 (1998).

                     3
On December 6, 1993, Roach returned to the Commonwealth of
Virginia and voluntarily surrendered to Sheriff William Morris for
questioning. During questioning, Roach initially attempted to deny his
involvement in the murder and theft and implicate others. However,
when presented with evidence independently gathered by police,
Roach confessed to the crimes. Roach told the Sheriff:

         I went over there and saw her counting the money and as I
         was leaving, I had the shotgun laying at the door and I shot
         her, took the money, the car and left, went to North Caro-
         lina. And I cashed--I tried to use--use the credit card but--
         about four times[,] but it wouldn't work.

Roach v. Commonwealth at 103.

Because Roach was seventeen years old at the time of the murder
of Mrs. Hughes, juvenile petitions were issued charging him with
murder, using a firearm in the commission of murder, and robbery.
The Commonwealth gave notice of its intent to try Roach as an adult
and a transfer hearing was held in the juvenile court. The juvenile
court found probable cause to believe that Roach committed the
crimes and advised the Commonwealth's attorney that he could seek
indictments against Roach before a grand jury.2

Roach was indicted and tried on charges of (1) capital murder of
Mrs. Hughes in the commission of robbery while armed with a deadly
weapon, in violation of Va. Code § 18.2-31(4); (2) use of a firearm
in the commission of murder in violation of Va. Code§ 18.2-53.1;
and (3) robbery by violence to the person of Mrs. Hughes, in violation
of Va. Code § 18.2-58. The jury found Roach guilty on all three
charges and the Commonwealth sought the death penalty.
_________________________________________________________________
2 At the time of Roach's indictment and trial, transfers from the juve-
nile court system to the circuit court system were controlled by Va. Code
§ 16.1-269. Under that statute, the juvenile court was required to deter-
mine only if there was probable cause to believe Roach had committed
an offense that would be a felony had it been committed by an adult. Va.
Code § 16.1-269 was repealed in 1994 and replaced with a similar provi-
sion. See Va. Code Ann. § 16.1-269.1 (Michie 1997).

                    4
In order to lawfully sentence a convicted defendant to death in Vir-
ginia, a jury must unanimously find, beyond a reasonable doubt, the
presence of one of two aggravating factors. See Va. Code § 19.2-
264.2 (Michie 1977). Those aggravating factors are colloquially
known as the "future dangerousness predicate" and the "vileness pred-
icate." At the sentencing phase of Roach's trial, the trial judge, find-
ing the evidence of vileness insufficient as a matter of law, withdrew
that predicate from the jury's consideration. The judge allowed the
jury to consider the future dangerousness predicate alone. The jury,
unanimously finding beyond a reasonable doubt that Roach repre-
sented a future danger to society, recommended the death penalty.
The trial judge accepted the jury's recommendation and sentenced
Roach to death.

On direct appeal, the Supreme Court of Virginia affirmed Roach's
death sentence and the Supreme Court of the United States denied
certiorari. Roach v. Commonwealth, supra ; Roach v. Virginia, supra.
After exhausting all state collateral remedies, Roach filed his petition
for a writ of habeas corpus in the Western District of Virginia. In his
thorough Memorandum Opinion, Chief Judge Samuel G. Wilson con-
sidered each of Roach's contentions and found no basis for federal
habeas relief. Accordingly, the district court dismissed the petition.
Roach now appeals that dismissal. The issues raised on appeal, as
characterized by Roach, are as follows:

           1. The proportionality review conducted by the
          Supreme Court of Virginia was constitutionally defective, in
          violation of Roach's due process rights;

           2. The evidence proffered by the Commonwealth during
          the penalty phase of the trial was constitutionally insuffi-
          cient to support the jury's finding of future dangerousness;

           3. The trial court violated Roach's due process rights by
          refusing to instruct the jury regarding Roach's potential
          parole eligibility if sentenced to life imprisonment;

           4. The trial court violated Roach's due process rights by
          erroneously instructing the jury that its decision regarding
          punishment had to be unanimous;

                    5
           5. The procedure by which Virginia transferred Roach
          from juvenile court to circuit court for trial as an adult
          denied him a constitutionally mandated individualized
          assessment of maturity and moral responsibility.

Although Roach has placed special emphasis on the proportionality
review issue, we have, in the circumstances of this case, made a com-
prehensive review of each of the issues presented by him on appeal.
We address each of these five issues in turn.

II.

Roach filed his federal habeas corpus petition on February 12,
1998, after the April 24, 1996 enactment of the AEDPA. Accordingly,
this Court must apply the deferential standard of review imposed by
the AEDPA's amendments to 28 U.S.C. § 2254(d). See 28 U.S.C.A.
§ 2254 (West 1994 & Supp. 1998); Green v. French, 143 F.3d 865,
868 (4th Cir. 1998), cert. denied, 119 S. Ct. 844 (1999). Under the
standards imposed by the AEDPA, a federal court may not grant a
writ of habeas corpus on issues adjudicated in a state court unless the
state proceedings:

          (1) resulted in a decision that was contrary to, or involved
          an unreasonable application of, clearly established fed-
          eral law, as determined by the Supreme Court of the
          United States; or

          (2) resulted in a decision that was based on an unreason-
          able determination of the facts in light of the evidence
          presented in the state court proceeding.

28 U.S.C.A. § 2254(d) (West 1996). There is no allegation that
Roach's sentence was based on an unreasonable determination of the
facts; Roach does not claim that he is actually innocent of the murder
of Mrs. Hughes. Therefore, our review is controlled by § 2254(d)(1).
This court has previously interpreted the language of § 2254(d)(1) as
authorizing habeas relief "only when the state courts have decided the
question by interpreting or applying the precedent in a manner that
reasonable jurists would all agree is unreasonable." Green v. French,
143 F.3d at 870.

                    6
A.

First, Roach argues that we must cause a writ of habeas corpus to
issue because the Supreme Court of Virginia failed to conduct a
meaningful proportionality review of his death sentence, in contra-
vention of the Eighth and Fourteenth Amendments. According to
Roach, the Supreme Court of Virginia failed to adequately review the
imposition of the death penalty against him, and such failure entitled
him to federal habeas relief as a violation of the Due Process Clause.3

1.

Under Virginia law,4 when a defendant has been convicted of a
capital crime and sentenced to death, the Supreme Court of Virginia
is required to determine "[w]hether the sentence of death was
imposed under the influence of passion, prejudice, or any other arbi-
_________________________________________________________________
3 It appears from the record that Roach failed to raise this argument in
his state habeas corpus petition. This issue, therefore, has not been
exhausted and could be properly treated as procedurally defaulted. See
Gray v. Netherland, 518 U.S. 152, 161-62 (1996). However, the issue of
procedural default generally is an affirmative defense that the Common-
wealth must raise and preserve. Yeatts v. Angelone, 166 F.3d 255, 261
(4th Cir. 1999). The Commonwealth has not asserted this defense here.
Despite the Commonwealth's failure to preserve the issue, this court has
the discretionary power to address a petitioner's procedural default sua
sponte. Id. at 262. However, as we have previously noted:

          the exercise of . . . discretion should not be automatic, but must
          in every case be informed by those factors relevant to balancing
          the federal interest in comity and judicial economy against the
          petitioner's substantial interest in justice. Additionally, the court
          should consider whether justice requires that the habeas peti-
          tioner be afforded with notice and a reasonable opportunity to so
          address the issue of procedural default.

Id. (citation omitted). Roach has not been provided with an opportunity
to address the issue of procedural default. After consideration of these
factors, we believe the proper course is to decline to address the issue of
procedural default sua sponte, and to address the proportionality review
issue on the merits.
4 See Va. Code Ann. § 17-110.1(c)(1),(2) (Michie 1983).

                     7
trary factor" and "[w]hether the sentence of death is excessive or dis-
proportionate to the penalty imposed in similar cases, considering
both the crime and the defendant." Roach v. Commonwealth, 468
S.E.2d at 113. When assessing whether the death sentence in question
is excessive or disproportionate to the penalty imposed in other cases,
the Supreme Court of Virginia considers "whether other sentencing
bodies in this jurisdiction generally impose the supreme penalty for
comparable or similar crimes, considering both the crime and the
defendant." Id. (citing Jenkins v. Commonwealth, 423 S.E.2d 360,
371 (Va. 1992)).

In its review of Roach's direct appeal, the Supreme Court of Vir-
ginia made a comprehensive comparison of the record from the trial
court in this case with the records of other capital murder cases in
Virginia, to determine whether the death penalty imposed on Roach
was excessive or disproportionate to the penalty imposed for similar
crimes. Id. Because Roach's jury imposed the death penalty on the
basis of the future dangerousness predicate alone, the court gave par-
ticular consideration to other capital murder cases in which robbery
was the underlying felony and the death penalty was based only on
the future dangerousness predicate.5 The court also reviewed capital
murder cases in which robbery was the underlying offense and a sen-
tence of life imprisonment was imposed. Id. Based upon its review of
the records from these cases, the court concluded that, while there
were exceptions, juries in Virginia "generally impose the death sen-
tence for crimes comparable or similar to Roach's murder of Mrs.
Hughes." Id. at 114. Therefore, the Supreme Court of Virginia found
the death penalty in this instance to be neither excessive nor dispro-
portionate to the penalty imposed in comparable cases. Id.
_________________________________________________________________

5 Those cases were compiled in Yeatts v. Commonwealth, 410 S.E.2d
254, 267-68 (Va. 1991), and supplemented in Chichester v. Common-
wealth, 448 S.E.2d 638, 652 (1994). Additionally, the Virginia Supreme
Court stated that it considered Chandler v. Commonwealth, 455 S.E.2d
219 (Va. 1995), and Joseph v. Commonwealth, 452 S.E.2d 862 (Va.
1995). Roach v. Commonwealth at 113.

                    8
2.

It is a well-settled proposition that the individual States are not
constitutionally required to provide defendants who have been con-
victed of capital crimes with "proportionality reviews" of their death
sentences. Pulley v. Harris, 465 U.S. 37, 50-51 (1994). It is also gen-
erally accepted that federal habeas corpus relief is unavailable where
a petitioner alleges the state court incorrectly or inadequately applied
state law. See Buchanan v. Angelone, 103 F.3d 344, 351 (4th Cir.
1996), aff'd, 118 S. Ct. 757 (1998); Fisher v. Angelone, 163 F.3d 835,
854 (4th Cir. 1998). As we recently reiterated in Fisher, "basic princi-
ples of federalism permit us to review only those state court decisions
that implicate federal constitutional rights." Id. In the present case, the
proportionality review conducted by the Supreme Court of Virginia
was mandated by a Virginia statute, not the federal constitution.
Therefore, absent some specific evidence that the review procedures
employed by that court constituted an independent violation of the
federal constitution, we shall not entertain Roach's contention that the
state court failed to follow state law. See id. at 854-55.

Recognizing the limited availability of federal habeas relief, Roach
argues that the proportionality review scheme, as applied to his case,
constitutes an independent violation of the Due Process Clause of the
Fourteenth Amendment. Roach's basic argument may be outlined as
follows: In order to avoid arbitrary and capricious sentencing and to
ensure that capital punishment is applied consistently and fairly, the
Eighth Amendment requires the States to institute procedures that
narrow the class of persons eligible for the death penalty. Furman v.
Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153
(1976); Zant v. Stephens, 462 U.S. 862 (1983). According to Roach,
Virginia has decided to review the proportionality of all death sen-
tences as the means of satisfying this constitutional requirement. Now
that it has elected to provide proportionality reviews, Roach argues,
Virginia must do so in accordance with the Due Process Clause. If the
State's actions do not comport with due process, this Court has the
authority to intercede.

Roach asserts that, since the reinstatement of the death penalty in
Virginia, the Supreme Court of Virginia has never overturned a death
sentence. When conducting its proportionality review, Roach claims

                     9
the court only reviews similar cases where the jury sentenced the
defendant to death. Roach asserts that the court never reviews cases
where similar defendants, convicted of similar crimes, were sentenced
to life imprisonment. Such a system, Roach maintains, is merely a
"rubber stamp" affirmance of the imposition of the death penalty and
not the "comparative analysis" required by the Due Process Clause.

Roach's assertions directly conflict with the statements made by
the Supreme Court of Virginia regarding the cases it reviewed. That
court stated that it reviewed capital murder cases in which robbery
was the underlying felony and the death penalty was based only on
the future dangerousness predicate. Roach v. Commonwealth, 468
S.E.2d at 113. Additionally, the court reviewed the records of capital
murder cases where robbery was the underlying offense and a sen-
tence of life imprisonment was imposed. Id. In response, Roach sim-
ply maintains that the court could not have reviewed those cases and
affirmed his death sentence.

Put simply, Roach would have this court attempt to"look behind"
the review conducted by the Supreme Court of Virginia and endeavor
to ascertain what that court "really did" (which, in his view, differs
from what the court stated it did). As we explain below, this would
be a virtually impossible task and the Constitution does not require
us to engage in such a speculative undertaking.

3.

As noted above, this Court does not have the power to reexamine
a state court's determination of state law. In Walton v. Arizona, 487
U.S. 639, 655 (1990), the Supreme Court was presented with a similar
challenge to the proportionality review of the Arizona Supreme Court.
The Court held that, where the statutorily defined aggravating factor
had been construed in a manner that furnished sufficient guidance to
the sentencer, proportionality review was not constitutionally
required. Id. at 655-56. In such an instance, the Court could lawfully
presume that the death sentence in question was not"wantonly and
freakishly imposed" and, therefore, the sentence was not dispropor-
tionate within any recognized meaning of the Eighth Amendment. Id.
The Court found that the Arizona Supreme Court undertook its pro-
portionality review in good faith and, held that the Constitution did

                    10
not require it to look behind the Arizona Supreme Court's conclusion
that the sentence was proportional. Id. at 656.

The same rationale is applicable here. In a capital case in Virginia,
the constitutionally mandated narrowing of the class of persons eligi-
ble for the death penalty occurs twice during the trial process. First,
during the guilt phase of the trial, the jury must decide if the defen-
dant falls within a statutorily defined class of capital offenders. See
e.g., Va. Code Ann. § 18.2-31(4) (Michie 1998). Second, during the
sentencing phase of the trial, the jury must unanimously find the pres-
ence of an additional aggravating factor. See Va. Code Ann. § 19.2-
264.2 (Michie 1977). The Supreme Court has found statutorily
defined aggravating factors to satisfy the narrowing requirement, see
Zant v. Stephens, supra, and we have ruled that Virginia's future dan-
gerousness predicate is constitutional. Giarratano v. Procurier, 891
F.2d 483 (4th Cir. 1989). Therefore, pursuant to Walton v. Arizona,
there being no allegation or indication that the Supreme Court of Vir-
ginia undertook its proportionality review in something other than
"good faith," we will not look behind its conclusion that the sentence
received by Roach was proportional to sentences received by similar
defendants for similar crimes.6 As this court noted in Buchanan v.
Angelone, 103 F.3d 344 (4th Cir. 1996), aff'd 118 S. Ct. 757 (1998),
"on collateral review, federal courts are not required to re-examine a
state court's good faith findings." Id. at 351 (citing Walton v. Arizona,
_________________________________________________________________
6 We agree with the reasoning of the district court which stated in its
Memorandum Opinion that:

          Even assuming that the failure by the Supreme Court of Vir-
         ginia to conduct its proportionality review in a meaningful man-
         ner could, under some circumstances, amount to a violation of
         the Fourteenth Amendment, Roach has not demonstrated that the
         Supreme Court of Virginia's review of Roach's sentence was so
         deficient as to amount to a federal constitutional violation . . . .
         The record thus demonstrates that the Supreme Court of Virginia
         conducted a thorough review of Roach's sentence in compliance
         with Virginia law. Although this court may view the matter dif-
         ferently, it may not review the state court's good-faith finding
         that the death sentence was not disproportionate or excessive
         when compared to the sentence imposed in similar cases.

Roach v. Angelone, No. 97-0693-R, at 11-12 (W.D. Va. July 29, 1998).

                   11
497 U.S. at 656). Accordingly, Roach's assertion of a due process
violation in the proportionality review afforded him by Virginia must
fail, and this court must deny federal habeas relief on this claim.

B.

Roach next argues that the evidence proffered by the Common-
wealth was insufficient, as a matter of constitutional right, to support
the jury's finding of future dangerousness. By allowing the jury to
consider this aggravating factor, Roach maintains, the trial court vio-
lated his Fourteenth Amendment due process rights.

As we explained in Turner v. Williams, 35 F.3d 872, 894 (4th Cir.
1994), the sufficiency of the evidence necessary to prove the exis-
tence of an aggravating factor is reviewed under the standard estab-
lished by Jackson v. Virginia, 443 U.S. 307 (1979). Under the
Jackson standard, a court must determine "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements . . . beyond a rea-
sonable doubt." Jackson at 319.

1.

Virginia's statutory scheme for capital sentencing requires a jury to
find the existence of at least one of two aggravating conditions before
it lawfully may impose the death penalty.

          [A] sentence of death shall not be imposed unless the court
          or jury shall (1) after consideration of the past criminal
          record of convictions of the defendant, find that there is a
          probability that the defendant would commit criminal acts of
          violence that would constitute a serious continuing threat to
          society or that his conduct in committing the offense for
          which he stands charged was outrageously or wantonly vile,
          horrible or inhuman in that it involved torture, depravity of
          mind or an aggravated battery to the victim; and (2) recom-
          mend that the penalty of death be imposed.

Va. Code Ann. § 19.2-264.2 (Michie 1977). 7
_________________________________________________________________
7 See also Va. Code Ann.§ 19.264.4(C) (Michie 1980).

                     12
In the present case, after evidence was presented in the sentencing
phase of the trial, the trial judge determined that the State had failed
to present sufficient evidence to allow the jury to consider the vile-
ness predicate. Therefore, the trial judge withdrew the vileness predi-
cate from the jury's consideration and permitted the jury to consider
only whether the State had proved beyond a reasonable doubt that
Roach represented a future danger to society.

2.

During the sentencing phase of the trial, the State presented evi-
dence regarding Roach's past criminal convictions. That evidence
demonstrated that within a seven-month period prior to the murder of
Mrs. Hughes, Roach had "broken and entered a private residence,
stolen a .357 Magnum pistol from that dwelling, committed two auto-
mobile larcenies, and violated a condition of his probation" by carry-
ing a shotgun, which he later used to murder Mrs. Hughes. Roach v.
Commonwealth, 468 S.E.2d at 112. Of significance, the jury was also
entitled to consider the evidence regarding the capital offense of
which Roach had been convicted. Murphy v. Commonwealth, 431
S.E.2d 48, 53 (Va. 1993). That evidence was devastating--Roach
murdered Mrs. Hughes with a shotgun as she stood in the doorway
of her own home in order to steal her social security money and auto-
mobile. Roach v. Commonwealth at 112. As the Supreme Court of
Virginia noted, under Virginia law, the facts and circumstances of the
capital crime alone may be sufficient to support a finding of future
dangerousness. Id.

This court may not substitute its view of the evidence for that of
the jury. Tuggle v. Thompson, 57 F.3d 1356, 1369 (4th Cir.), vacated
on other grounds, 516 U.S. 10 (1995). The Supreme Court of Virginia
concluded that a reasonable jury could find that, given the evidence
of Roach's escalating pattern of criminal behavior, culminating in the
murder of Mrs. Hughes, there was a probability that Roach would
commit criminal acts of violence that would constitute a continuing
serious threat to society. Roach v. Commonwealth at 112. Viewing the
evidence in the light most favorable to the prosecution, the conclusion
of the Supreme Court of Virginia does not constitute an unreasonable
application of, or conflict with, any clearly established federal law as

                     13
determined by the Supreme Court of the United States.8 See Green v.
French, 143 F.3d at 870. We agree with the Supreme Court of Vir-
ginia and with the district court that the evidence was sufficient to
support the finding of future dangerousness. The trial court did not
deprive Roach of any constitutional protections in this regard.

C.

Roach next argues that the trial court erred by failing to instruct the
jury that, if sentenced to life imprisonment, he would not become eli-
gible for parole for a minimum of twenty-five years. Roach asserts
that this court should extend the holding of Simmons v. South
Carolina, 512 U.S. 154 (1994), to include cases where, if sentenced
to life imprisonment, the defendant remains eligible for parole.

1.

In Simmons,9 the defendant was tried and convicted of capital mur-
der. Under South Carolina law, the defendant was ineligible for parole
because he had previously pleaded guilty to other violent offenses. Id.
at 156. Following the defendant's conviction, the State sought the
death penalty based on his future dangerousness. Id. at 157.

During the penalty phase of the trial, Simmons presented evidence
that the general public apparently misunderstood the meaning of the
term "life imprisonment." Id. at 159. According to the evidence pres-
ented, the majority of people believed that if sentenced to life impris-
_________________________________________________________________
8 After reviewing this claim, Judge Wilson properly concluded:

          The court cannot find that the Supreme Court of Virginia's con-
          clusion that this evidence, viewed in the light most favorable to
          the Commonwealth, was sufficient to prove future dangerous-
          ness conflicted with clearly established federal law as deter-
          mined by the United States Supreme Court.

Roach v. Angelone, No. 97-0693-R, at 10-11 (W.D. Va. July 29, 1998).
9 We have recognized that Justice O'Connor's concurring opinion actu-
ally represents the holding in Simmons. See Keel v. French, 162 F.3d
263, 269 (4th Cir. 1998); Mu'min v. Pruett, 125 F.3d 192, 199 (4th Cir.),
cert. denied, 118 S. Ct. 438 (1997).

                    14
onment in South Carolina, a convicted murderer would be paroled
within twenty to thirty years. Id. During trial, the judge had refused
to give any instructions to the jury regarding the defendant's ineligi-
bility for parole. Id. at 160. Even when the jury inquired as to whether
a sentence of life imprisonment carried with it the possibility of
parole, the trial judge simply instructed the jury that they were not to
concern themselves with parole or parole eligibility. Id. Shortly after
receiving this additional instruction, the jury returned with a sentence
of death. Id.

In her concurring opinion, Justice O'Connor noted that capital sen-
tencing proceedings must comport with the requirements of the Due
Process Clause and, in our adversary system, a criminal defendant
must be allowed the opportunity to meet the State's case against him.
Id. at 175. Future dangerousness is a factor upon which the States
may rely in seeking the death penalty, id.; California v. Ramos, 463
U.S. 992, 1002-03 (1983); however, where the State seeks to show
that the defendant will be a future danger to society, the presentation
of the fact that the defendant will never be paroled and released into
the general public will often be the only way in which a violent crimi-
nal can successfully meet the State's case. Id. at 177. Therefore, the
Court ruled, where the defendant is truly ineligible for parole, the Due
Process Clause entitles the defendant to inform the jury of that fact.
Id.

Roach now asserts that the logic of Justice O'Connor's holding in
Simmons should be extended to circumstances where a sentence of
life imprisonment includes the possibility of parole. Roach faces a
serious problem with this assertion--this court has repeatedly consid-
ered this argument and consistently rejected it. 10 As the Supreme
Court held, the decision whether or not to inform the jury of the possi-
bility of the defendant's early release is generally left to the States.
Simmons at 176. "In a State in which parole is available, the Constitu-
tion does not require (or preclude) jury consideration of that fact." Id.
_________________________________________________________________

10 See Keel v. French, 162 F.3d 263 (4th Cir. 1998); Wilson v. Green,
155 F.3d 396 (4th Cir.), cert. denied, 119 S. Ct. 536 (1998); Arnold v.
Evatt, 113 F.3d 1352 (4th Cir. 1997).

                    15
In Keel v. French, Keel was convicted of capital murder in North
Carolina and sentenced to death. Keel, 162 F.3d at 266. Keel argued
that the trial court's refusal to instruct the jury regarding his parole
status pursuant to Simmons was a violation of his Eighth Amendment
rights. Id. at 270. This Court, finding that Simmons limited the right
to receive such an instruction to those instances where the alternative
sentence is life without the possibility of parole, dismissed the peti-
tion. Id.

The Supreme Court of Virginia also considered this issue on
Roach's direct appeal. Relying on its prior decision in Joseph v.
Commonwealth, 452 S.E.2d 862 (Va. 1995), the court held that the
Simmons rule applied only if the defendant was ineligible for parole.
Because Roach would become eligible for parole in twenty-five years,
the court concluded that he was not entitled to such an instruction.
Roach v. Commonwealth, 468 S.E.2d at 105.11

2.

In order to obtain federal habeas relief, Roach must show that no
reasonable jurist could interpret the rule of Simmons as limited in
application to those defendants who are ineligible for parole under
state law. Green, 143 F.3d at 870. Roach simply cannot make that
showing. Had he not been sentenced to death, Roach would have been
eligible for parole in twenty-five years. Therefore, under this Court's
interpretation and application of Simmons, Roach is not entitled to
habeas relief on this claim.
_________________________________________________________________
11 After thoroughly reviewing this issue, the district court stated as fol-
lows:

          However compelling Roach's argument that the logic behind the
          decision in Simmons applies equally to his case, the court cannot
          find that the interpretation of Simmons adopted by the Supreme
          Court of Virginia is contrary to, or an unreasonable application
          of, clearly established federal law as determined by the United
          States Supreme Court.

Roach v. Angelone, No. 97-0693-R, at 7 (W.D. Va. July 29, 1998).

                    16
D.

Roach next contests the trial court's jury instruction regarding the
requirement of unanimity in the sentencing verdict. 12 Roach asserts
that the last sentence of this instruction, "any decision you make
regarding punishment must be unanimous," was improper. He argues
that it impermissibly shifted the burden of proof and effectively
instructed the jury that, in order to avoid the imposition of the death
penalty, the defendant was required to persuade all of the jurors that
one or more mitigating factors were applicable. This shifting of the
burden of proof, Roach maintains, is constitutionally defective, and
denied him the right to have all mitigating evidence considered and
given appropriate weight by the jury.

1.

Unfortunately, Roach has a procedural problem with this issue--he
failed to raise it on his direct appeal to the Supreme Court of Virginia.
The first time Roach asserted this alleged error was in his state habeas
corpus petition. The Supreme Court of Virginia, relying on its deci-
sion in Slayton v. Parrigan, 205 S. E.2d 680, 682 (Va. 1974), dis-
missed Roach's claim as procedurally barred. Roach v. Netherland,
No. 96-2568 (Va. April 30, 1997). In Slayton, a prisoner filed a peti-
_________________________________________________________________
12 The trial judge instructed the jury:

          You have convicted the defendant of an offense which may be
          punished by death. You must decide whether the defendant shall
          be sentenced to death or to imprisonment for life . . . . Before the
          penalty can be fixed at death, the Commonwealth must prove
          beyond a reasonable doubt, the following aggravating circum-
          stances, that after consideration of his history and background,
          there is a probability that he would commit criminal acts of vio-
          lence that would constitute a continuing serious threat to society.
          If you find from the evidence that the Commonwealth has
          proved that circumstance beyond a reasonable doubt, then you
          may fix the punishment of the defendant at death, but if you
          believe from all of the evidence that the death penalty is not jus-
          tified, then you shall fix the punishment of the defendant at . . .
          imprisonment for life . . . . Any decision you make regarding
          punishment must be unanimous.

                    17
tion for habeas corpus, alleging ineffective assistance of counsel and
an impermissibly suggestive pretrial identification. Id. at 681. The
sole issue before the Supreme Court of Virginia was whether the peti-
tioner had standing to attack the allegedly improper identification in
a habeas proceeding where the petitioner did not assert the defense at
trial and did not raise the issue on direct appeal. Id. Reasoning that
"a prisoner is not entitled to use habeas corpus to circumvent the trial
and appellate processes," the court ruled that the petitioner had no
such standing. Id. at 682.

Where a state court expressly denies a claim under a state proce-
dural default rule, the defendant is generally precluded from raising
that claim in a federal habeas corpus proceeding. Keel, 162 F.3d at
268 (citing Sawyer v. Whitley, 505 U.S. 333, 338 (1992)). The basis
for the procedural default, however, must be an adequate and inde-
pendent state ground. Coleman v. Thompson, 501 U.S. 722, 731-32
(1991). "We have repeatedly recognized that the procedural default
rule set forth in Slayton constitutes an adequate and independent state
law ground for decision." Fisher v. Angelone , 163 F.3d 835, 844 (4th
Cir. 1998).13 Therefore, absent a showing of actual innocence or cause
and prejudice, this claim is procedurally barred from federal habeas
review.

2.

As the district court noted, Roach does not maintain that he is actu-
ally innocent of the murder of Mrs. Hughes. This court, then, may
only inquire as to whether cause and prejudice exists to excuse a state
procedural default, not into whether the state court properly applied
its own law. Fisher at 844. Cause exists, and will serve to excuse the
failure to raise a claim during a state proceeding, where the factual or
legal basis for the claim was not reasonably available to the claimant
at the time of the state proceeding. McCleskey v. Zant, 499 U.S. 467,
494 (1991).
_________________________________________________________________

13 See also Mu'min v. Pruett, 125 F.3d 192, 196 (4th Cir.), cert. denied,
118 S. Ct. 438 (1997); Bennett v. Angelone , 92 F.3d 1336, 1343 (4th Cir.
1996); Spencer v. Murray, 18 F.3d 229, 232 (4th Cir. 1994).

                    18
The basis for Roach's claim here is that the trial court gave an erro-
neous instruction to the jury regarding the requirement of unanimity
in the sentencing verdict. Both the factual and legal bases for this
claim were available to Roach prior to his direct appeal. On its face,
then, this claim has been procedurally defaulted. Roach, however,
attempts to vault this sizable hurdle by asserting ineffective assistance
of appellate counsel as the cause for his failure to raise this issue on
direct appeal. Roach's argument is not compelling and must be
rejected.14

3.

In order to prove that he has been denied his Sixth Amendment
right to effective assistance of appellate counsel, Roach must satisfy
the two-prong test set forth in Strickland v. Washington, 466 U.S. 668
(1984). First, Roach must show that his counsel's representation in
the appellate proceedings fell below an objective standard of reason-
_________________________________________________________________
14 It is axiomatic that before a petitioner may obtain federal habeas
relief, he must first exhaust his state remedies. 28 U.S.C.A. § 2254(b)(1)
(West 1996). A claim is not exhausted until the petitioner has "fairly
presented" his claim to the state's highest court. Picard v. Connor, 404
U.S. 270, 275-78 (1971). The petitioner must have presented the sub-
stance of the claim, including the facts underlying the claim, to the state
court. Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). In this
instance, the district court found that Roach did not present the substance
of his claim of ineffective assistance of appellate counsel to the Supreme
Court of Virginia and, therefore, failed to exhaust his state remedies.
Accordingly, the district court concluded, the claim is procedurally
barred from federal habeas review. See Gray v. Netherland, 518 U.S.
152, 161-62 (1996).

Although the district court found Roach's claim of ineffective assis-
tance of appellate counsel barred from federal review, it went on to
address the merits of the claim. Upon review of the record, we agree with
the district court that this claim is procedurally barred. A contrary con-
clusion would establish Strickland v. Washington , 466 U.S. 668 (1984),
as the backdoor through which petitioners may avoid legitimate state
procedural bars. However, like the district court, we recognize the final-
ity of our decision in this death penalty appeal. Therefore, we have also
independently reviewed the asserted merits of Roach's ineffective assis-
tance claim and have found no basis for federal habeas relief.

                     19
ableness. Id. at 688. Second, he must show that his attorney's substan-
dard conduct prejudiced him to the extent that it deprived him of a
fair trial. Id. at 689. In other words, Roach must demonstrate that, but
for his attorney's deficient performance, there is a reasonable proba-
bility that the result of the proceedings would have been different. See
id. A reasonable probability is one that undermines confidence in the
outcome of the proceedings. Id.

Roach alleges that his counsel rendered ineffective assistance when
he failed to raise the allegedly improper jury instruction on direct
appeal before the Supreme Court of Virginia. According to Roach,
this improper instruction violated his Eighth and Fourteenth Amend-
ment rights under the holdings of Mills v. Maryland, 486 U.S. 367
(1988), and McCoy v. North Carolina, 494 U.S. 433 (1990).

In Mills and McCoy, the trial courts instructed their respective
juries that their findings as to mitigating circumstances had to be
unanimous. The Supreme Court found such instructions to be uncon-
stitutional. Mills at 384; McCoy at 444. Unlike the present case, how-
ever, both Mills and McCoy involved state sentencing schemes which
required the jury to make findings as to specific mitigating circum-
stances. Mills at 370; McCoy at 436. A jury instruction violates the
holdings of Mills and McCoy if there is a "reasonable probability" that
the jury applied the instruction in such a way as to preclude its con-
sideration of mitigating evidence. Boyde v. California, 494 U.S. 370,
380 (1990).

Unlike the sentencing schemes at issue in Mills and McCoy, the
Virginia sentencing scheme does not require juries to make findings
as to specific mitigating factors. Instead, juries are instructed to con-
sider all possible mitigating circumstances before rendering their sen-
tencing decision. Here, the trial judge instructed the jury to "consider
any evidence presented of circumstances which . . . in fairness or
mercy may extenuate or reduce the degree of moral culpability and
punishment." Additionally, the verdict form provided to the jury indi-
cated that it must consider all mitigating evidence and it did not limit
the jury's consideration of that mitigating evidence in any fashion.
Based upon these facts, the district court found it unlikely that the
general unanimity instruction given by the trial court prevented the
jury from considering and giving appropriate weight to the mitigating

                     20
evidence. Accordingly, the district court held that, to the extent the
Supreme Court of Virginia considered the merits of this claim, its
adjudication of the claim was reasonable under Strickland.15

We agree. In the present case, the trial judge instructed the jury to
consider any and all evidence presented in mitigation of the crime.
The verdict form reinforced that instruction. Based upon those facts,
we cannot find a reasonable probability that the jury applied the gen-
eral unanimity instruction in such a way as to preclude its consider-
ation of the mitigating evidence presented by Roach.

In determining whether petitioner has demonstrated that his coun-
sel's representation was inadequate, this court begins with the strong
presumption that counsel's conduct fell within the wide range of
objectively reasonable conduct. Evans v. Thompson, 881 F.2d 117,
124 (4th Cir. 1989). Because the jury instruction in question cannot
be said to violate Mills and McCoy, Roach's appellate counsel's fail-
ure to raise the issue of the instruction on direct appeal does not fall
outside that wide realm of objectively reasonable professional assis-
tance. Strickland, 466 U.S. at 689. Therefore, Roach's claim of inef-
fective assistance of appellate counsel fails on its merits, and it is
rejected.

E.

Finally, Roach argues that the procedure employed by the Com-
monwealth of Virginia to transfer him from the juvenile court system
into the circuit court system for trial as an adult violated his Eighth
_________________________________________________________________
15 In this regard, the district court stated as follows:

          The court finds that the instruction, when considered in conjunc-
          tion with the verdict form, did not create a "reasonable probabil-
          ity" that the jury applied the instruction in such a way as to
          preclude its consideration of mitigating evidence. Accordingly,
          to the extent that the Supreme Court of Virginia addressed this
          claim on the merits, its adjudication of the claim was reasonable
          under Strickland.

Roach v. Angelone, No 97-0693-R, at 17-18 (W.D. Va. July 29, 1998)
(citation omitted).

                     21
and Fourteenth Amendment rights. According to Roach, because Vir-
ginia's juvenile transfer procedure does not mandate a judicial finding
that the juvenile possesses the requisite maturity and moral responsi-
bility to be tried as an adult, it is unconstitutional.

1.

At the time of Roach's arrest and indictment, transfers from the
juvenile court system to the county court system were controlled by
Va. Code § 16.1-269.16 Under that statute, the juvenile court was
required to determine merely if there were probable cause to believe
the juvenile had committed an offense that would be a felony had it
been committed by an adult.

In the present case, after the prosecution gave notice of its intent
to try Roach as an adult, a transfer hearing was conducted in the
Greene County Juvenile and Domestic Relations District Court.
Roach v. Commonwealth at 98. The juvenile court found probable
cause to believe that Roach had committed the crimes and advised the
Commonwealth's attorney that he could seek indictments against
Roach before a grand jury. Id. The trial court then reviewed the trans-
fer order under Va. Code § 16.1-269 and found probable cause to
believe that Roach had committed the offenses in question. Id. Subse-
quently, Roach was indicted, tried, and convicted.

Roach advanced this claim on direct appeal before the Supreme
Court of Virginia. Relying on its previous decisions in Wright v.
Commonwealth, 427 S.E.2d 379, 383-84 (Va. 1993), vacated and
remanded, 114 S. Ct. 2701 (1994), aff'd 450 S.E.2d 361 (Va. 1994),
and Thomas v. Commonwealth, 419 S.E.2d 606, 609 (Va. 1992), the
Supreme Court of Virginia rejected Roach's argument and held that
the Commonwealth was not constitutionally required to provide indi-
vidualized consideration of a juvenile's moral culpability and matu-
rity under the Virginia transfer statute. Roach v. Commonwealth at
105.
_________________________________________________________________

16 Va. Code § 16.1-269 was repealed in 1994 and replaced with a simi-
lar provision. See Va. Code Ann. § 16.1-269.1 (Michie 1997).

                    22
In Thomas, a seventeen-year-old defendant appeared in juvenile
court charged with first degree murder and capital murder. Thomas at
607. The defendant and his counsel waived a preliminary hearing and
a transfer hearing in the juvenile court and the defendant was trans-
ferred to stand trial as an adult in circuit court. Id. at 608. Subse-
quently, the defendant's court-appointed lawyer was relieved and the
court appointed new counsel, who moved to remand the proceeding
to juvenile court for a full transfer hearing. Id. at 609. The trial court
denied the motion to remand and the defendant was tried, convicted,
and sentenced to death. Id. at 608.

On appeal, the Supreme Court of Virginia held that the Constitu-
tion required neither juvenile transfer hearings nor any other addi-
tional procedural safeguards for juveniles tried for capital crimes. Id.
at 609. According to the court, "Virginia's death penalty statutes pro-
vide for individual consideration of all those tried on capital charges,
with the `age of the defendant at the time . . . of the capital offenses'
a statutorily prescribed mitigating factor the jury may consider in
determining whether to fix punishment at death or life imprisonment."
Id.; see also Va. Code Ann. § 19.2-264.4(B)(v) (Michie 1998).

In Wright, a seventeen-year-old defendant was transferred from the
juvenile court system to the circuit court, where he was tried as an
adult and convicted of numerous violent offenses, including capital
murder. Wright, 427 S.E.2d at 381-82. After finding the existence of
the future dangerousness predicate, the jury fixed the defendant's sen-
tence at death. On appeal, the defendant argued that his Eighth
Amendment rights had been violated because Virginia's juvenile
transfer statute did not mandate consideration of his moral responsi-
bility and psychological maturity. Id. at 384. Relying on Stanford v.
Kentucky, Wright argued that he was deprived of the individual con-
sideration required before a state lawfully may impose the death pen-
alty on a minor. Id. The Supreme Court of Virginia disagreed.
Relying on its previous holding in Thomas, the court reiterated that
the Constitution did not require juvenile transfer hearings or any other
additional procedural safeguards for juveniles tried for capital
offenses, and that Virginia's death penalty statutes provided the requi-
site individualized consideration demanded by the Constitution. Id. at
384.

                     23
Now, in order to obtain federal habeas relief on this claim, Roach
must demonstrate that these holdings are contrary to or an unreason-
able application of clearly established federal law as decided by the
Supreme Court of the United States. In other words, Roach must
show that the Supreme Court of Virginia interpreted or applied the
precedent of the Supreme Court of the United States in a manner that
reasonable jurists would all agree is unreasonable. Green v. French,
143 F.3d at 870.

2.

According to Roach, in order to pass constitutional muster, a state's
laws must provide a fair basis for evaluating the culpability, moral
responsibility, and maturity of a juvenile before referring him for trial
and potential punishment as an adult. In order to make that determina-
tion, the State must provide the juvenile with "individualized consid-
eration."

Like the defendant in Wright, Roach relies upon Stanford v.
Kentucky, 492 U.S. 361, 375 (1989), for the proposition that the
Supreme Court has mandated that this individualized culpability anal-
ysis take place prior to a decision to transfer a juvenile for trial as an
adult for a capital offense. Because the juvenile court did not make
such an individualized determination in the present case, Roach
argues, his transfer to adult court for trial violated his Eighth and
Fourteenth Amendment rights.

In our view, Roach's interpretation of Stanford is overreaching. In
Stanford, the Supreme Court addressed whether the Eighth Amend-
ment prohibited the execution of sixteen- and seventeen-year-old cap-
ital offenders. The Court concluded that the imposition of capital
punishment under these circumstances did not violate the Eighth
Amendment. In the portion of the opinion cited by Roach,17 Justice
Scalia discussed why state laws denying minors the right to drink
alcoholic beverages, vote, or drive automobiles were inapplicable to
the issue before the Court. Stanford at 374-75. According to Justice
Scalia, capital punishment differs from the above generalized prohibi-
_________________________________________________________________

17 Only four justices joined in this portion of the opinion.

                     24
tions, in that individualized consideration is a constitutional require-
ment. Id.

Notwithstanding Roach's assertions to the contrary, the Supreme
Court simply did not hold that juvenile transfer statutes which do not
provide for individualized consideration of the minor's maturity and
moral responsibility violate the Constitution. Rather, Justice Scalia
concluded that the transfer statutes in question 18 required the state
courts to make determinations that ensured individualized consider-
ation of the maturity and moral responsibility of sixteen- and
seventeen-year-old offenders occurred before those minors were
required to stand trial as adults. Id. at 375. The Supreme Court did not
hold that all juvenile transfer statutes must provide an identical level
of individualized consideration to minor defendants accused of capital
crimes to be constitutional. Additionally, the Supreme Court did not
proscribe a State from providing individual consideration in another
manner.

In the present case, the Supreme Court of Virginia held that Virgin-
ia's capital sentencing scheme19 satisfied the constitutional require-
ment of individual consideration. Roach v. Commonwealth, 468
S.E.2d at 105.20 Because the Supreme Court did not rule that individ-
_________________________________________________________________
18 See Ky. Rev. Stat. Ann.§ 208.170 (Michie 1982), repealed effective
July 15, 1984; and Mo. Rev. State. § 211.071(6) (1986).
19 See Va. Code Ann. § 19.2-264.4(B) (Michie 1998), which provides
that the defendant's age at the time of the offense may be considered as
a mitigating factor by the sentencing jury.
20 Judge Wilson, in his Memorandum Opinion in the district court,
agreed, stating:

          Justice Scalia did not state that juvenile transfer statutes which
          do not provide for individualized consideration violate the Con-
          stitution. A reasonable jurist could conclude, therefore, that the
          Constitution does not require a judicial determination of a juve-
          nile offender's moral culpability and maturity before the state
          may try the juvenile as an adult for a capital crime. . . . The
          court concludes that Roach has not demonstrated that the
          Supreme Court of Virginia's adjudication of this claim conflicted
          with clearly established federal law as decided by the United
          States Supreme Court.

Roach v. Angelone, No. 97-0693-R, at 8-9 (W.D. Va. July 29, 1998)
(footnotes omitted).

                     25
ual consideration of the defendant's maturity and moral responsibility
was required at the juvenile transfer stage, a reasonable jurist could
conclude that Virginia's procedure satisfies the Constitution. Accord-
ingly, Roach cannot meet his burden of proof here. He has not dem-
onstrated that the Supreme Court of Virginia's adjudication of this
claim is contrary to or an unreasonable application of clearly estab-
lished federal law as decided by the Supreme Court of the United
States and, therefore, he does not qualify for federal habeas relief on
this claim.

III.

Roach -- who is clearly guilty of committing an egregious offense
against Mrs. Hughes and the peace and dignity of the Commonwealth
of Virginia -- has been accorded a full array of post-conviction reme-
dies. He has, in candor, been provided with all the process due under
our system of justice, by way of both direct appeal and collateral pro-
ceedings challenging his conviction and sentence. Pursuant to the
foregoing, we must conclude that Roach has failed to make a substan-
tial showing of the denial of a constitutional right and that there is no
valid basis for habeas corpus relief. Roach's petition for a certificate
of appealability is therefore denied and his appeal of the decision of
the district court is dismissed.

CERTIFICATE OF APPEALABILITY
DENIED AND APPEAL DISMISSED

                     26
