UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAWUD MAJID MU'MIN,
Petitioner-Appellant,

v.
                                                                    No. 96-24
SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-94-769-3)

Argued: June 2, 1997

Decided: August 18, 1997

Before WILKINSON, Chief Judge, and WILKINS and
MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Chief Judge Wilkinson and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Joseph William Wright, III, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., McLean, Virginia, for Appellant. John H.
McLees, Jr., Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: M.
Melissa Glassman, MCGUIRE, WOODS, BATTLE & BOOTHE,
L.L.P., McLean, Virginia, for Appellant. James S. Gilmore, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Dawud Majid Mu'Min appeals an order of the district court dis-
missing his petition for a writ of habeas corpus, 1 which challenged his
Virginia conviction for capital murder and resulting death sentence.
See 28 U.S.C.A. § 2254 (West 1994). 2 We conclude that the district
_________________________________________________________________
1 Mu'Min named J. D. Netherland, former Warden of the Mecklenburg
Correctional Center where Mu'Min is incarcerated, as Respondent in his
petition. Subsequently, Samuel V. Pruett succeeded Netherland as War-
den at that institution. For ease of reference, we refer to Respondent as
"the Commonwealth" throughout this opinion.
2 Because Mu'Min's petition for a writ of habeas corpus was filed on
October 20, 1994, prior to the April 24, 1996 enactment of the Antiterro-
rism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No.
104-132, 110 Stat. 1214, the amendments to § 2254 effected by the
AEDPA do not apply. See Lindh v. Murphy, 117 S. Ct. 2059, 2067
(1997). We have not yet decided whether the provisions contained in
§ 107 of the AEDPA apply to Mu'Min, who filed his state habeas peti-
tion on August 7, 1992. See Bennett v. Angelone , 92 F.3d 1336, 1342
(4th Cir.) (noting that it is undecided whether the procedures established
by the Commonwealth for the appointment, compensation, and payment
of reasonable litigation expenses of competent counsel satisfy statutory
opt-in requirements of § 107, which would render those provisions appli-
cable to indigent Virginia prisoners seeking federal habeas relief from
capital sentences if an initial state habeas petition was filed after July 1,
1992), cert. denied, 117 S. Ct. 503 (1996). However, we need not
address this issue because we conclude that habeas relief is inappropriate
under the more lenient standards in effect prior to the recent amend-
ments. See O'Dell v. Netherland, 95 F.3d 1214, 1255 n.36 (4th Cir.
1996) (en banc), aff'd, 117 S. Ct. 1969 (1997).

                    2
court correctly held that the refusal of the Supreme Court of Virginia,
under the rule set forth in Slayton v. Parrigan , 205 S.E.2d 680, 682
(Va. 1974), to consider the merits of the three issues Mu'Min seeks
to present to this court constitutes an adequate and independent state-
law basis for their denial. Consequently, federal habeas review of
these issues is unavailable to Mu'Min unless he is able to demonstrate
cause and prejudice or a miscarriage of justice. We further determine
that Mu'Min has failed to make the showing necessary to excuse his
default with respect to his claims that the state trial court erred in
denying his motion for a change of venue and in admitting into evi-
dence an order memorializing Mu'Min's 1973 conviction for first-
degree murder. We also hold that regardless of whether Mu'Min can
establish an excuse for the default of the claim that his constitutional
rights were violated when the trial court refused to provide the jury
with information regarding Mu'Min's parole eligibility, he is not enti-
tled to the relief he seeks. Accordingly, we affirm.

I.

The underlying facts are fully set forth in the opinion of the
Supreme Court of Virginia on direct appeal of Mu'Min's conviction
and sentence. See Mu'Min v. Commonwealth, 389 S.E.2d 886, 889-90
(Va. 1990). Accordingly, we summarize them only briefly.

In September 1988, Mu'Min was an inmate of Haymarket Correc-
tional Unit 26 in Prince William County, Virginia, having been con-
victed of first-degree murder in 1973 and sentenced to 48 years
imprisonment. On September 22, Mu'Min and other inmates were
assigned to work detail with the Virginia Department of Transporta-
tion (VDOT). During the morning, Mu'Min fashioned a weapon by
sharpening a short piece of metal on a bench grinder and attaching a
wooden handle to it. Mu'Min then walked away from VDOT head-
quarters and proceeded to a carpet store approximately one mile
away. He argued with the proprietor, Gladys Nopwasky, and a strug-
gle ensued during which Nopwasky was partially disrobed. Mu'Min
beat Nopwasky severely and stabbed her multiple times with the
weapon he had made, severing her jugular vein and pulmonary artery.
He then removed some coins from Nopwasky's desk and returned to
VDOT headquarters, discarding his weapon and bloody shirt along

                    3
the way. Although a customer discovered Nopwasky and summoned
paramedics to the scene, efforts to revive her failed.

Mu'Min subsequently was charged with and convicted of one
count of capital murder. Prior to the guilt phase of his trial, Mu'Min
moved for a change of venue on the basis that pretrial publicity had
rendered it impossible for him to receive a fair trial in Prince William
County. The trial judge deferred action on the motion, with the agree-
ment of defense counsel, pending an attempt to impanel an impartial
jury. After succeeding in doing so, the trial court denied the motion.
The court also denied Mu'Min's motion in limine to exclude or redact
an order memorializing his 1973 conviction for first-degree murder,
which the Commonwealth proposed to introduce to establish that
Mu'Min had been incarcerated when he murdered Nopwasky.

During its sentencing-phase deliberations, the jury sent a note to
the trial court asking, "[W]hat exactly is life imprisonment?" J.A. 634.
The court responded, "I am sorry; I cannot answer that question. Nei-
ther should you be concerned about it." J.A. 635. Despite an invitation
by the court for comments, Mu'Min's counsel did not object. The jury
then imposed a sentence of death, finding that Mu'Min posed "a con-
tinuing serious threat to society" and that the murder of Nopwasky
"was outrageously or wantonly vile, horrible, or inhuman." Va. Code
Ann. § 19.2-264.2 (Michie 1995).

Mu'Min raised numerous arguments on direct appeal, including
challenges to the admission of the 1973 order of conviction--on the
basis that the prejudicial impact of this evidence outweighed its pro-
bative value--and to various aspects of the procedure employed in
impaneling the jury. However, Mu'Min did not appeal the denial of
his motion for a change of venue, the admission of the 1973 order of
conviction on constitutional grounds, or the manner in which the trial
court responded to the question by the jury regarding the meaning of
"life imprisonment." The Supreme Court of Virginia upheld
Mu'Min's conviction and sentence. See Mu'Min, 389 S.E.2d at 898.
Thereafter, the United States Supreme Court granted certiorari to con-
sider whether the trial court had erred in refusing to allow Mu'Min
to question potential jurors regarding the content of pretrial publicity
to which they had been exposed and concluded that it had not. See
Mu'Min v. Virginia, 500 U.S. 415, 431-32 (1991).

                    4
Thereafter, Mu'Min sought postconviction relief in state court. A
state habeas court conducted a hearing after which it denied relief,
ruling that Mu'Min's claims--with the exception of his claims of
ineffective assistance of counsel--either had been presented on direct
appeal (and thus were not cognizable in a state habeas proceeding) or
were procedurally defaulted due to his failure to raise them on direct
appeal. The court further found that Mu'Min's claims of ineffective
assistance of counsel were without merit. The Supreme Court of Vir-
ginia denied review, and the United States Supreme Court denied
Mu'Min's petition for a writ of certiorari. See Mu'Min v. Murray, 511
U.S. 1026 (1994).

In October 1994, Mu'Min filed a petition for a writ of habeas cor-
pus in the district court in which he argued, inter alia, that the Sixth
and Fourteenth Amendment guarantees of a fair trial and due process
were violated by the denial of his motion for a change of venue, the
admission of the 1973 order of conviction, and the refusal of the trial
court to inform the jury of his parole prospects. The magistrate judge
to whom the petition was referred recommended dismissal on the
basis that all of the claims raised by Mu'Min were either procedurally
defaulted or lacked merit. Specifically, the magistrate judge deter-
mined that Mu'Min's challenges to the denial of the change of venue
motion, the admission of the 1973 order of conviction, and the refusal
to inform the jury of his parole prospects were procedurally defaulted
because the Supreme Court of Virginia had refused to consider the
issues on their merits citing the procedural default rule set forth in
Slayton v. Parrigan, 205 S.E.2d 680, 682 (Va. 1974) (holding that
issues not properly raised at trial or on direct appeal will not be con-
sidered in habeas). Further, the magistrate judge ruled that Mu'Min
had failed to excuse his state procedural default, and thus federal
habeas review of these claims was foreclosed. After conducting a de
novo review, the district court agreed with these conclusions and
accordingly dismissed the petition.

II.

Mu'Min presents two arguments as to why his claims are not pro-
cedurally defaulted. First, he asserts that the procedural default rule
set forth in Slayton does not preclude federal consideration of his
claims because it is not independent of federal law. Second, he main-

                    5
tains that even if the Slayton rule constitutes an adequate and indepen-
dent state-law basis for decision, his claims are not defaulted because
they were implicitly considered and rejected by the Supreme Court of
Virginia during the course of its mandatory review of his death sen-
tence. We find neither of these contentions persuasive.

Absent cause and prejudice or a miscarriage of justice, a federal
court sitting in habeas may not review a constitutional claim when a
state court has declined to consider its merits on the basis of an ade-
quate and independent state procedural rule. See Harris v. Reed, 489
U.S. 255, 262 (1989). Such a rule is adequate if it is regularly or con-
sistently applied by the state court, see Johnson v. Mississippi, 486
U.S. 578, 587 (1988), and is independent if it does not "depend[ ] on
a federal constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75
(1985).

Mu'Min argues that the Virginia procedural default rule set forth
in Slayton is not independent of federal law because it bars the asser-
tion in state collateral review proceedings only of nonjurisdictional
defects that could have been raised at trial or on direct appeal. See
Slayton, 205 S.E.2d at 682. Mu'Min contends that since compliance
with the mandates of the United States Constitution is a jurisdictional
prerequisite to a valid conviction, the application of the Slayton pro-
cedural default rule by the Supreme Court of Virginia necessarily
rested on an antecedent ruling of federal constitutional law, namely,
that his conviction was not obtained in violation of the Constitution.
See Ake, 470 U.S. at 74-75 (holding that an Oklahoma procedural
default rule was not independent of federal law because application
of the rule depended on a determination that no constitutional error
had occurred during trial); Beam v. Paskett, 3 F.3d 1301, 1306-07
(9th Cir. 1993) (concluding that failure to present claim on direct
appeal would not preclude consideration of it on habeas because state
supreme court implicitly considered and rejected it during the course
of its mandatory review of the death sentence, meaning that any
default would not be independent of federal law). Based on this rea-
soning, Mu'Min would have us conclude that the determination of the
Supreme Court of Virginia that his claims were procedurally
defaulted under Slayton does not bar our consideration of them.

We have held on numerous occasions that the procedural default
rule set forth in Slayton constitutes an adequate and independent state-

                    6
law ground for decision. See, e.g., Bennett v. Angelone, 92 F.3d 1336,
1343 (4th Cir.), cert. denied, 117 S. Ct. 503 (1996); Turner v.
Williams, 35 F.3d 872, 890 (4th Cir. 1994), overruled in part on other
grounds by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en
banc), aff'd, 117 S. Ct. 1969 (1997). Further, Mu'Min's analysis over-
looks the critical point that Virginia courts regularly apply the Slayton
default rule to federal constitutional claims that could have been, but
were not, raised on direct appeal, demonstrating that Virginia does not
construe its procedural default rule as Mu'Min asserts. See, e.g.,
Mueller v. Murray, 478 S.E.2d 542, 549 (Va. 1996) (holding Eighth
Amendment claim defaulted under the rule set forth in Slayton);
Peterson v. Bass, 343 S.E.2d 475, 478 (Va. Ct. App. 1986) (ruling
challenge pursuant to the Double Jeopardy Clause of the Fifth
Amendment defaulted under the rule set forth in Slayton). Accord-
ingly, we reject Mu'Min's argument that the procedural default rule
set forth in Slayton does not bar consideration of his claims because
it is not independent of federal law.

Mu'Min next contends that even if the procedural default rule set
forth in Slayton bars consideration of claims not properly presented
on direct review, his claims are not defaulted because the Supreme
Court of Virginia implicitly considered and rejected them during the
course of its mandatory review of his death sentence. Cf. Beam, 3
F.3d at 1306-07 (holding that habeas petitioner should not be required
to show cause and prejudice to excuse default because the state
supreme court implicitly rejected his claims during the course of its
mandatory review of his death sentence). Pointing out that Virginia
law requires review of a death sentence to determine"[w]hether [it]
was imposed under the influence of passion, prejudice or any other
arbitrary factor," Va. Code Ann. § 17-110.1(C)(1) (Michie 1996),
Mu'Min claims that in performing its statutory duty the Supreme
Court of Virginia necessarily determined that his conviction and sen-
tence were free of fundamental constitutional error because such
errors would constitute arbitrary factors requiring the invalidation of
his death sentence. Mu'Min concludes that because the Supreme
Court of Virginia considered the merits of his constitutional claims,
we may do likewise.

We disagree. First, Mu'Min's reading of the statute is contradicted
by the rulings of the Supreme Court of Virginia in this very case. In

                    7
refusing Mu'Min's petition for review of the denial of his state habeas
petition, the Supreme Court of Virginia indicated its agreement with
the determination of the habeas court that Mu'Min's failure to raise
his claims on direct appeal resulted in their procedural default under
the rule set forth in Slayton. Quite obviously, if Mu'Min were correct
that in conducting its mandatory review of the death sentence the
Supreme Court of Virginia had considered and rejected on their mer-
its all possible constitutional challenges to his conviction and sen-
tence, then in passing on his petition for review from the denial of his
state habeas petition the Supreme Court of Virginia would not have
applied the procedural default rule set forth in Slayton, but rather
would have relied on the procedural bar rule set forth in Hawks v.
Cox, 175 S.E.2d 271, 274 (Va. 1970) (precluding consideration in
state habeas proceedings of claims considered on their merits during
direct review). The fact that the Supreme Court of Virginia applied
the rule in Slayton mandates the conclusion that the court did not
implicitly consider the merits of Mu'Min's constitutional claims dur-
ing the course of its mandatory review.

Moreover, in conducting its mandatory review of the death sen-
tence pursuant to § 17-110.1(C)(1), the Supreme Court of Virginia
ascertains only whether the imposition of the death penalty was influ-
enced by improper considerations; the provision simply does not
require the court to examine the record for constitutional errors not
specified on appeal. See, e.g., Beck v. Commonwealth, 484 S.E.2d
898, 907 (Va. 1997) (holding that careful consideration of aggravat-
ing and mitigating factors by the finder of fact contradicted defen-
dant's argument that the sentence of death was imposed as a result of
arbitrary factors); Wilson v. Commonwealth, 452 S.E.2d 669, 675-76
(Va.) (reviewing record to determine whether the jury "was influ-
enced by passion, prejudice, or any other arbitrary factor" in imposing
the death penalty), cert. denied, 116 S. Ct. 127 (1995); cf. Kornahrens
v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir. 1995) (holding that South
Carolina's practice of in favorem vitae review did not preserve other-
wise defaulted claims), cert. denied, 116 S. Ct. 1575 (1996). See gen-
erally Bennett, 92 F.3d at 1345 n.6 (noting that"the spirit of
Kornahrens is counter" to the notion that the Virginia mandatory
review procedure preserves claims not explicitly raised); Nave v.
Delo, 62 F.3d 1024, 1039 (8th Cir. 1995) (concluding that identical
language of Missouri mandatory review provision does not preserve

                    8
defaulted constitutional claims), cert. denied , 116 S. Ct. 1837 (1996).
Accordingly, the district court did not err in concluding that
Mu'Min's claims were procedurally defaulted.3

III.

Mu'Min next argues that even if all of his claims are procedurally
defaulted, we nevertheless may consider them on their merits because
he has shown cause and prejudice to excuse his default. See Gray v.
Netherland, 116 S. Ct. 2074, 2080 (1996).4 Specifically, he maintains
that his trial counsel was constitutionally ineffective for failing to pur-
sue on direct appeal the claims he now wishes to press. See Murray
v. Carrier, 477 U.S. 478, 488 (1986) (holding that constitutionally
ineffective assistance of counsel may provide cause for a procedural
default).

Mu'Min is constitutionally entitled to the effective assistance of
counsel on direct appeal. See Evitts v. Lucey , 469 U.S. 387, 396
(1985). Accordingly, he may establish cause to excuse his procedural
default by satisfying the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). See Coleman v. Thompson, 501
U.S. 722, 752 (1991). Under Strickland, a defendant is deprived of the
assistance of counsel guaranteed by the Constitution when counsel's
performance falls "below an objective standard of reasonableness"
and "there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 688, 694.
_________________________________________________________________
3 With respect to his claim that the trial court improperly admitted into
evidence the 1973 order of conviction, Mu'Min makes the additional
argument that this claim is not defaulted because he presented the sub-
stance of it to the Supreme Court of Virginia on direct appeal, albeit as
an evidentiary challenge rather than the due process claim he now pur-
sues. However, it is well settled that "a habeas petitioner [who] wishes
to claim that an evidentiary ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment ... must say so,
not only in federal court, but in state court." Duncan v. Henry, 513 U.S.
364, 366 (1995) (per curiam).
4 Mu'Min does not attempt to excuse his default on the basis of his
actual factual innocence. See Schlup v. Delo, 513 U.S. 298, 314-17
(1995).

                     9
We begin our analysis of the alleged ineffectiveness of Mu'Min's
counsel on direct appeal by noting that Mu'Min neglected to raise as
a separate claim in the state habeas proceeding the ineffectiveness of
appellate counsel for failing to appeal the admission of the 1973 order
of conviction for first-degree murder as a violation of due process.
Generally, "a claim of ineffective assistance[must] be presented to
the state courts as an independent claim before it may be used to
establish cause for a procedural default." Murray, 477 U.S. at 489; see
Pruett v. Thompson, 996 F.2d 1560, 1570 (4th Cir. 1993). This is so
because allowing a petitioner to raise a claim of ineffective assistance
of counsel for the first time on federal habeas review in order to show
cause for a procedural default would place the federal habeas court
"in the anomalous position of adjudicating an unexhausted constitu-
tional claim for which state court review might still be available" in
contravention of "[t]he principle of comity that underlies the exhaus-
tion doctrine." Murray, 477 U.S. at 489. Accordingly, Mu'Min's fail-
ure to argue in his state habeas petition that his appellate counsel was
ineffective for not pursuing on appeal the claim that the trial court
violated Mu'Min's due process rights by admitting the 1973 order of
conviction precludes him from establishing cause on this basis. See
Pruett, 996 F.2d at 1570.

Because Mu'Min properly asserted in state habeas proceedings the
ineffectiveness of appellate counsel for failing to raise his other
claims, we turn to consider whether these failures satisfy the
Strickland cause and prejudice standard. Mu'Min first claims that his
counsel was constitutionally ineffective for failing to appeal the deci-
sion of the trial court denying his motion for a change of venue based
upon pretrial publicity. However, even if counsel was ineffective for
failing to pursue an appeal on this issue, Mu'Min cannot show that
he suffered prejudice. A change of venue is required as a matter of
constitutional law only when the jury pool is tainted "by so huge a
wave of public passion" that the impaneling of an impartial jury is
impossible. Irvin v. Dowd, 366 U.S. 717, 728 (1961); see Mu'Min,
500 U.S. at 427-28. Here, as the Supreme Court noted in its consider-
ation of Mu'Min's direct appeal, the pretrial publicity did not even
approach this threshold. See Mu'Min, 500 U.S. at 429-30. At a mini-
mum, then, Mu'Min cannot show prejudice because he cannot estab-
lish that an appeal of the denial of the motion for a change of venue

                    10
would have been successful. See Boliek v. Bowersox, 96 F.3d 1070,
1075 (8th Cir. 1996), cert. denied, 117 S. Ct. 2439 (1997).

Mu'Min also contends that appellate counsel was ineffective for
failing to raise the refusal of the trial court to define "life imprison-
ment" upon a request by the jury on the basis that Mu'Min was con-
stitutionally entitled to have such information provided to the jury.
Mu'Min relies on Simmons v. South Carolina, 512 U.S. 154 (1994),
in which the Supreme Court held that when "the State puts the defen-
dant's future dangerousness in issue, and the only available alterna-
tive sentence to death is life imprisonment without possibility of
parole, due process entitles the defendant to inform the capital sen-
tencing jury--by either argument or instruction--that he is parole
ineligible." Id. at 178 (O'Connor, J., concurring in the judgment); see
Townes v. Murray, 68 F.3d 840, 849-50 (4th Cir. 1995) (recognizing
Justice O'Connor's statement as setting forth the holding of the
Court), cert. denied, 116 S. Ct. 831 (1996). Mu'Min asserts that the
Simmons rule encompasses situations like the one before us, in which
the defendant does not seek to argue that he is parole ineligible, but
the jury of its own volition requests information regarding the defen-
dant's parole prospects. We recently rejected precisely this argument
under indistinguishable factual circumstances. See Townes, 68 F.3d at
847-50. Moreover, because Simmons constitutes a "new rule" under
Teague v. Lane, 489 U.S. 288 (1989), it is not available to Mu'Min,
whose conviction became final before Simmons was decided. See
O'Dell v. Netherland, 95 F.3d 1214, 1218 (4th Cir. 1996) (en banc),
aff'd, 117 S. Ct. 1969 (1997). And, any extension of Simmons along
the lines sought by Mu'Min would also be a new rule. See Townes,
68 F.3d at 851-52. Furthermore, neither of the exceptions to the
Teague doctrine--"for rules that `place certain kinds of primary, pri-
vate individual conduct beyond the power of the criminal law-making
authority to proscribe'" or for watershed rules of criminal procedure
--applies to the rule Mu'Min seeks. Id. at 852 (quoting Teague, 489
U.S. at 307 (plurality opinion)). Accordingly, even if Mu'Min demon-
strated cause and prejudice to excuse his default, he is not entitled to
relief. See id. at 853.

IV.

We conclude that all of Mu'Min's claims are procedurally
defaulted under Virginia law. Additionally, we determine that

                    11
Mu'Min has failed to show cause and prejudice or a miscarriage of
justice to excuse his default of the claims that he was constitutionally
entitled to a change of venue and that the admission of the 1973 order
of conviction violated his right to due process. And, we hold that
Mu'Min is not entitled to the benefit of a rule declaring that due pro-
cess requires that a jury be informed of a capital defendant's parole
prospects if it requests such information. Accordingly, we affirm the
order of the district court dismissing the petition for a writ of habeas
corpus.

AFFIRMED

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