VIRGINIA:

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


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


Alfredo R. Prieto,                            Petitioner,

against         Record No. 122054

Warden of the Sussex I State Prison,          Respondent.


          Upon a Petition for a Writ of Habeas Corpus

     Upon consideration of the petition for a writ of

habeas corpus filed November 30, 2012, and the respondent's

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

motion should be granted and the writ should not issue.

     Alfredo R. Prieto was convicted in the Circuit Court

of Fairfax County in 2008 of capital murder in the

commission of, or subsequent to, rape, Code § 18.2-31(5);

capital murder of more than one person as part of the same

act or transaction, Code § 18.2-31(7); rape, Code § 18.2-

61; two counts of use of a firearm in the commission of

murder, Code § 18.2-53.1; and grand larceny, Code § 18.2-

95, and was sentenced to death for each of the capital

murder convictions and twenty years' imprisonment for the

remaining convictions.   The victims of these 1988 crimes
were Rachel Raver and Warren Fulton III.   This Court

affirmed Prieto's convictions, but found the verdict forms

defective and remanded for resentencing.   Prieto v.

Commonwealth, 278 Va. 366, 418, 682 S.E.2d 910, 938 (2009).

On remand in 2010, after finding the aggravating factors of

vileness and future dangerousness, the jury fixed Prieto's

sentence for each of the capital murder convictions at

death.   The trial court sentenced Prieto in accordance with

the jury's verdicts.   This Court upheld Prieto's sentences

of death in Prieto v. Commonwealth, 283 Va. 149, 189, 721

S.E.2d 484, 508 (2012), cert. denied, ___ U.S. ___, 133

S.Ct. 244 (2012).

                          CLAIM (I)

     In a portion of claim (I), Prieto argues he was denied

the effective assistance of counsel during the guilt phase

of the 2008 trial because counsel failed to thoroughly

investigate and review the analysis of the DNA found in

Raver's vagina.   Prieto alleges the analysis showed the

presence of DNA not linked to either Prieto or Raver.

Testing conducted on three occasions in 2000 by Carol

Palmer, a forensic scientist of the Virginia Department of

Forensic Science, showed a "12" allele at the vWA locus of

the non-sperm fraction from the vaginal swabs taken from

Raver.   Neither Raver nor Prieto have a "12" allele at that


                              2
locus.   Prieto argues the presence of the "12" allele shows

another perpetrator also sexually assaulted Raver.     Prieto

contends counsel was deficient for failing to notice the

"12" allele and to argue at trial that it showed the

presence of another perpetrator.

     Prieto further argues counsel failed to have Dr. J.

Thomas McClintock, a DNA expert appointed to assist Prieto,

review this information to determine if it supported the

presence of a second perpetrator.   In support, Prieto

provides Dr. McClintock's affidavit, stating he was never

asked to look at the documentation pertaining to the non-

sperm fraction of the vaginal swab and that had he known of

the presence of the "12" allele he would have testified

that it represented a foreign allele.   Prieto contends this

evidence was the strongest evidence available in support of

the defense theory that a second perpetrator committed the

murders.   Prieto argues that had this evidence been

presented, it would have "raise[d] reasonable doubt in

jurors' minds about whether the evidence proved that Prieto

acted alone or was an immediate perpetrator of the murders"

and would have likely "required a jury to acquit Prieto of

capital murder."

     The Court holds that this portion of claim (I)

satisfies neither the "performance" nor the "prejudice"


                              3
prong of the two-part test enunciated in Strickland v.

Washington, 466 U.S. 668, 687 (1984).   The record,

including the affidavit of Carol Palmer, demonstrates that

Palmer observed the "12" allele at the vWA locus but

determined it was an artifact, which is the byproduct of

the DNA typing process resulting from the required

amplification of samples.   Palmer observed the same "12"

allele artifact in an analysis of Raver's blood sample.

The determination of the "12" allele as an artifact was

confirmed when (1) the non-sperm fraction of the vaginal

swab and Raver's blood were analyzed by a second analyst

and the results from Palmer's and the second analyst's

testing were reviewed by a third scientist, and (2) when

the samples were independently tested, re-tested, and those

results reviewed at another Division of Forensic Science

laboratory.   This data, all of which was collected prior to

the guilt phase of trial, supported Palmer's determination

that the "12" allele was an artifact, not a real allele, as

well as her conclusion that a third DNA donor was not

present.

     The affidavit of Dr. McClintock does not address the

testing done at the second laboratory or how those results

would have affected his opinion.   Moreover, this Court has

already extensively reviewed the evidence presented at


                              4
trial and determined that the evidence was overwhelming

that Prieto was the sole perpetrator of the murders.

Prieto, 278 Va. at 398-01, 682 S.E.2d at 927-29.    Thus,

petitioner has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.

     In another portion of claim (I), Prieto argues he was

denied the effective assistance of counsel during the guilt

phase of the trial because counsel failed to have the anal

swabs taken from Raver further analyzed.   Prieto cites to a

1988 certificate of analysis which notes the presence of

spermatozoa in the extracts of the anal swabs and a 1994

note from the Department of Forensic Science that indicates

both the vaginal and anal swabs contained a "male

fraction."   The anal swab was never further tested.   Prieto

contends such testing reasonably could have uncovered

additional evidence of a second perpetrator.

     The Court holds that this portion of claim (I) fails

to satisfy the "prejudice" prong of the two-part test

enunciated in Strickland.   The record, including the trial

transcript and Palmer's affidavit, demonstrates that the

anal swabs, which contained a trace amount of spermatozoa,

were tested twice.   In 1989, the swabs were tested by an


                              5
outside laboratory, LifeCodes.       This analysis showed the

presence of only Raver's DNA.       The swabs were tested again

in 1994 by another scientist at the Division of Forensic

Science, George Li.   Li's testing showed "[n]o conclusive

DNA profile was obtained from . . . the extract of the anal

swab."

     Subsequently, in 2000, Palmer inventoried the anal

swabs and determined not to test them again because only a

trace amount of spermatozoa had been present in the samples

and most of the samples had been destroyed by the previous

testing.   Prieto fails to show that any testing could have

been conducted on the amount of the anal swab sample that

remained and he fails to proffer what the results of any

testing would have shown.   Thus, Prieto has failed to

demonstrate that, but for counsel's alleged errors, the

result of the proceeding would have been different.

     In another portion of claim (I), Prieto argues he was

denied the effective assistance of counsel during the guilt

phase of the trial because counsel failed to present

evidence that the Negroid hairs recovered from combings of

Raver's pubic area were lost after the Commonwealth had

identified Prieto as the primary suspect and after the

exculpatory nature of the hairs became apparent.       Prieto

further contends counsel erred by conceding at trial that


                                6
the police did not act in bad faith when the hairs were

either lost or destroyed.   Prieto argues counsel's failure

deprived Prieto of his "due process remedy," allowed the

Commonwealth to unfairly undermine the probative value of

the hairs, and diminished the efficacy of his theory of a

second perpetrator.

      The Court holds that this portion of claim (I)

satisfies neither the "performance" nor the "prejudice"

prong of the two-part test enunciated in Strickland.

The Court addressed the issue of the missing hairs in

Prieto I.   The Court held that the Commonwealth could not

have had knowledge of any exculpatory value in the hairs at

the time they were lost because the hairs were lost before

Prieto was a suspect.   Prieto, 278 Va. at 397, 682 S.E.2d

at 926.   The last time that the hairs were seen was in

1989, when they were sealed inside an evidence envelope.

Id.   They were not discovered to be missing until 2005,

when Prieto became a suspect.       Id.   Thus, the hairs did not

have "apparent exculpatory value" when they were lost.        Id.

      Moreover, the record, including the trial transcript,

demonstrates that the jury was presented with evidence that

the hairs were discovered to be missing in 2005, after

Prieto had been identified as a possible suspect.       Finally,

Prieto presents no evidence to demonstrate that the


                                7
Commonwealth acted in bad faith.   Thus, petitioner has

failed to demonstrate that counsel's performance was

deficient or that there is a reasonable probability that,

but for counsel's alleged errors, the result of the

proceeding would have been different.

                        CLAIM (II)(A)

     In claim (II)(A), Prieto contends he was denied the

right to a jury "of the state and district" where the

crimes were committed, in violation of the Sixth Amendment,

because a juror who did not reside in Virginia was seated

at his first trial.   Prieto further alleges the seating of

this juror violated Code § 8.01-337, which provides that

individuals are "liable" to serve on a jury if they are

citizens of the United States, are over the age of

eighteen, and have been "residents of the Commonwealth one

year, and of the county, city or town in which they reside

six months next preceding their being summoned to serve."

Prieto claims he learned of the juror's alleged disability

more than four years after the trial.   Prieto contends the

seating of this juror is a structural error requiring

automatic reversal because it exceeded both the trial

court's authority and the limits of state sovereignty to

reach across state lines to seat a juror from another

state.


                              8
     In support of this claim, Prieto relies on two

affidavits from Juror 46, in which the juror avers that

shortly before Prieto's trial he moved out of the Fairfax

County townhouse that he owned, that he was renting the

townhouse to another and living in the District of

Columbia, and that he did not intend to move back to

Virginia.   Prieto concedes the juror list provided to trial

counsel by the trial court showed a Fairfax County address

for Juror 46.   Prieto further concedes Juror 46, along with

a panel of thirty-three other prospective jurors, was asked

during voir dire if he had lived in Fairfax for the past

six months and in the Commonwealth of Virginia for the past

year and that the panel responded "yes."

     The Court holds claim (II)(A) is without merit.   "A

'structural error' is a 'defect affecting the framework

within which the trial proceeds, rather than simply an

error in the trial process itself.'"   Morrisette v. Warden

of the Sussex I State Prison, 270 Va. 188, 192, 613 S.E.2d

551, 556 (2005) (citing Arizona v. Fulminante, 499 U.S.

279, 310 (1991)).   Structural errors have been found in a

very "limited class of cases," and include the denial of

counsel, the denial of an impartial trial judge, and the

systematic exclusion of members of the defendant's race

from the grand jury.   Johnson v. United States, 520 U.S.


                              9
461, 468-69 (1997).   Structural errors "necessarily render

a trial fundamentally unfair," and thus are not susceptible

to harmless error review.   Rose v. Clark, 478 U.S. 570,

577-78 (1986).   "[I]f [a] defendant had counsel and was

tried by an impartial adjudicator, there is a strong

presumption that any other errors that may have occurred

are subject to harmless-error analysis."   Id. at 579.

     The seating of Juror 46 is not a structural error as

it is not a "defect affecting the framework" of Prieto's

trial.   Thus, it is governed by the ordinary rules

controlling claims of juror disqualification.   After the

jury has been sworn, such claims may only be brought "with

leave of court" upon a showing the "disability be such as

to probably cause injustice in a criminal case to the

Commonwealth or to the accused."   Code § 8.01-352; see

Mason v. Commonwealth, 255 Va. 505, 510, 498 S.E.2d 921,

923 (1998) (affirming trial court's denial of defendant's

motion for a mistrial where the record failed to

demonstrate the challenged juror had a disability which was

"such as to probably cause injustice"); see also Kohl v.

Lehlback, 160 U.S. 293, 302 (1895) (reviewing common law

relating to juror disability and holding if a party fails

to timely bring a challenge based on a claim that a juror

is incompetent to serve for reasons such as alienage,


                              10
infancy, or nonresidency, whether "voluntarily, or through

negligence, or want of knowledge" such claim is waived;

such "defect is not fundamental as affecting the

substantial rights of the accused[,] and the verdict is not

void for want of power to render it").    Prieto has not

articulated any prejudice or injustice stemming from the

alleged lack of residency of Juror 46.

                       CLAIM (II)(B)

     In claim (II)(B), Prieto contends he was denied the

effective assistance of counsel because counsel failed to

learn Juror 46 was not a Virginia resident at the time of

Prieto's 2010 trial.

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

"performance" nor the "prejudice" prong of the two-part

test enunciated in Strickland, 466 U.S. at 687.    As Prieto

concedes, the record, including the manuscript record and

the trial transcript, demonstrates that the juror list

provided to trial counsel by the trial court showed an

address for Juror 46 in Fairfax County.    Additionally,

after specifically informing Juror 46 and thirty-three

other prospective jurors that each question required a

verbal response, the trial court questioned the jurors

regarding their citizenship and residency and the jurors

affirmed that they had each lived in Fairfax County for the


                             11
past six months and in the Commonwealth for the past year.

Under the circumstances, it was entirely reasonable for

counsel to accept that Juror 46 was a resident of Virginia

and to decline to question him further.      Moreover, Prieto

fails to allege any prejudice resulting from counsel's

failure to challenge Juror 46.      Thus, Prieto has failed to

demonstrate that counsel's performance was deficient or

that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding

would have been different.

                             CLAIM (III)

     In claim (III), Prieto alleges he was denied the right

to select and be sentenced by an impartial jury.      Prieto

contends that, at his 2010 trial, Juror 23 intentionally

withheld information during voir dire regarding sexual

assaults the juror had suffered.      In support of this claim,

Prieto relies on Juror 23's September 2012 affidavit,

stating that Juror 23 was repeatedly molested as a child.

Prieto alleges that Juror 23 withheld this information from

the questionnaire that jurors filled out prior to voir

dire, as well as during the course of voir dire

questioning, to hide his bias against Prieto.      Prieto

contends the concealment of this information deprived him

of a valid basis to remove Juror 23 for cause because he


                               12
was not afforded the opportunity to question Juror 23 about

whether the sexual assaults impacted the juror's decision-

making and ability to be impartial.

     The Court holds that claim (III) is without merit.

The record, including the questionnaire of Juror 23 and the

trial transcript, does not demonstrate that Juror 23 either

failed to honestly answer the questions asked of him, or

that he was biased against Prieto.    In the questionnaire,

Juror 23 responded "no" when asked if he had ever been the

victim of a crime, even if the crime was never reported.

However, Juror 23 subsequently answered that he had been

previously assaulted by three men in response to a question

about whether he had ever appeared in court.    During voir

dire, a panel of prospective jurors that included Juror 23

was asked if any of them or individuals close to them had

been the victim of serious criminal conduct.    Even though

another juror answered regarding the rape of a niece, Juror

23 still only addressed the previous assault in his

response.   Additionally, near the end of voir dire, Juror

23 did not respond when asked if he thought of anything new

as a result of anything that had been asked during the

course of voir dire.

     Juror 23's responses do not show that he was

intentionally withholding information or not honestly


                              13
answering the questions posed to him.    Rather, they show

that Juror 23 may not have realized from the questions

posed the need to address the sexual molestation he

suffered as a youth.    Moreover, Prieto fails to show that

Juror 23 was biased against him.    Multiple times during

voir dire, Juror 23 indicated he could remain impartial

before making a decision as to Prieto's sentence.    Thus,

Prieto has failed to demonstrate that Juror 23 failed to

answer honestly a material question during voir dire, and

he has consequently failed to show he was denied the right

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

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

                           CLAIM (IV)

     In a portion of claim (IV), Prieto contends he was

denied the effective assistance of counsel because counsel

failed to move to exclude Juror 23 for cause.    Prieto

alleges Juror 23 indicated during voir dire that he would

not vote for a life sentence unless he heard from Prieto,

either directly or indirectly, at sentencing.

     The Court holds that this portion of claim (IV)

satisfies neither the "performance" nor the "prejudice"

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

record, including the trial transcript, demonstrates that

Juror 23 expressed a desire either to hear directly from


                               14
Prieto or to be able to review any testimony Prieto may

have given during the guilt phase of the trial as a way to

help the jury determine the appropriate sentence Prieto

should receive.   However, when asked by counsel if he would

be able to put aside his expectation of Prieto testifying

and follow the court's instructions that Prieto's failure

to testify could not be held against him, Juror 23

responded on two separate occasions that he could and would

have no problem doing so.   Based on the responses of Juror

23, counsel for Prieto could reasonably conclude they had

no grounds to move to exclude Juror 23 for cause.

Furthermore, given the responses of Juror 23, Prieto cannot

establish a reasonable probability that the court would

have granted a motion to strike the juror if counsel for

Prieto had moved to strike Juror 23 for cause.   Thus,

Prieto has failed to demonstrate that counsel's performance

was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the

proceeding would have been different.

     In another portion of claim (IV), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to interview Juror 23 after the jury returned with a

sentence of death.   Prieto contends that, based on the voir

dire responses of Juror 23, counsel should have known Juror


                              15
23 would hold Prieto's failure to testify against him and

should have interviewed Juror 23 about this matter once the

sentence was handed down.   Continuing, Prieto asserts that

if counsel had done so, they would have discovered juror

misconduct that would have supported a motion for a

mistrial.

     Prieto cites to two portions of the affidavit of Juror

23 in support of this claim.   First, Juror 23 admits he

"really wanted" to hear from Prieto in some fashion at

sentencing because Juror 23 believed Prieto "owed" the jury

an explanation for his actions.     Juror 23 states his belief

that Prieto "should get up there and refute what [the

Commonwealth is] saying about you" and that had such an

explanation occurred he "could have voted for life."

Second, Juror 23 states that while the court explained what

a life sentence was, the explanation was vague and did not

change his understanding that "life in prison was 50

years."   Prieto alleges that, had counsel conducted a post-

sentencing interview, these matters would have come to

light and would have supported the granting of a mistrial

as it would have showed that Juror 23 did not follow the

court's instructions.

     The Court holds that this portion of claim (IV)

satisfies neither the "performance" nor the "prejudice"


                               16
prong of the two-part test enunciated in Strickland.         The

record, including the trial transcript, demonstrates that,

while Juror 23 expressed a desire to hear either directly

or indirectly from Prieto, he also, on two separate

occasions, informed counsel and the court that he would

follow the court's instructions and not hold Prieto’s

failure to testify against him.      The record also reflects

that the court instructed the jury that "[i]mprisonment for

life means imprisonment for life without the possibility of

parole."

     Given the responses of Juror 23 and the precedent of

this Court, which holds that a juror is presumed to follow

the instructions given by the trial court, Muhammad v.

Warden, 274 Va. 3, 18, 646 S.E.2d 182, 195 (2007) (citing

Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139

(2002)), counsel could reasonably conclude they had no

reason to interview Juror 23.    Additionally, this Court has

refused to impose such post-trial juror interviews upon

trial counsel unless counsel knew or should have known of

the alleged problem at the time of trial.      See Lenz v.

Warden, 267 Va. 318, 325-26, 593 S.E.2d 292, 296 (2004).

     Furthermore, courts in Virginia "have adhered strictly

to the general rule that the testimony of jurors should not

be received to impeach their verdict" and that the best


                                17
evidence of a juror's opinion in a case is the unanimous

verdict reached by the jury.    Caterpillar Tractor Co. v.

Hulvey, 233 Va. 77, 82, 353 S.E.2d 747, 751 (1987).    Thus,

Prieto has failed to demonstrate that counsel's performance

was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the

proceeding would have been different.

                          CLAIM (V)

     In a portion of claim (V), Prieto alleges he was

denied the effective assistance of counsel because counsel

failed to present evidence that he suffered from organic

brain damage.   Specifically, Prieto contends counsel should

have presented evidence from a neurological evaluation,

including a positron emission tomography (PET) scan, which

would have proven that he suffers from frontal lobe

dysfunction and temporal lobe damage, which renders him

"incapable of appropriate reasoning, judgment, and impulse

control."

     The Court holds that this portion of claim (V)

satisfies neither the "performance" nor the "prejudice"

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

record, including the trial transcript, demonstrates that

counsel did present evidence at Prieto's 2010 trial that

Prieto suffered from organic brain damage.   Counsel


                               18
presented testimony from Dr. James Grabarino that the

results of the type of long-term trauma Prieto experienced

as a child included poor brain development, and from

clinical and forensic psychologist Dr. Mark Cunningham, who

opined that Prieto's low IQ was an indicator of brain

damage.

     Moreover, counsel presented evidence of Prieto's PET

scan during the sentencing phase of Prieto's 2008 trial.

Although Prieto's expert, Dr. James Merikangan, testified

that the scan showed Prieto suffered from organic brain

damage, Dr. Merikangan's opinion was impeached by the

report of Dr. Michael Kistler, the doctor who conducted the

PET scan.   Dr. Kistler opined that Prieto did not have

organic brain damage and that his scan was "normal."

     Counsel, having had the opportunity to present the PET

scan evidence and to evaluate the strength of the

Commonwealth's contrary evidence and the effect of the

evidence on the jury, could reasonably have determined that

presenting the same evidence at Prieto's second sentencing

hearing would not be prudent.    Such tactical decisions are

an area of trial strategy left to the discretion of counsel

and should not be second-guessed in a habeas corpus

proceeding.   See Strickland, 466 U.S. at 689-90.   Thus,

Prieto has failed to demonstrate that counsel's performance


                                19
was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the

proceeding would have been different.

     In another portion of claim (V), Prieto contends

counsel was ineffective for failing to introduce anecdotal

evidence to support his claim of brain damage.

Specifically, Prieto contends counsel should have

introduced evidence to show that as a youth Prieto was

nervous and slow, stuttered, failed to follow instructions,

did not like to bathe, and engaged in regressive behavior,

including bed wetting, playing with toys that were not

appropriate for his age and exhibiting fear of ghost

stories, and that as an adult he was unnaturally focused.

     The Court holds that this portion of claim (V)

satisfies neither the "performance" nor the "prejudice"

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

record, including the trial transcript, demonstrates that

in addition to the expert testimony supporting Prieto's

claim that he suffered brain damage, counsel presented

anecdotal evidence at Prieto's 2010 trial that Prieto was

slower and more reserved than other children, that he

experienced nightmares as a child, and that he was scared

of the violence he and his siblings had seen on a regular

basis.   Moreover, Prieto fails to explain in what manner


                              20
his childhood regressive behavior, dislike of bathing,

stuttering and nervousness or his unnatural focus as an

adult support his claim of organic brain damage to his

frontal and temporal lobes.   Thus, Prieto has failed to

demonstrate that counsel's performance was deficient or

that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding

would have been different.

     In another portion of claim (V), Prieto contends

counsel was ineffective for failing to present evidence of

the specific effects on Prieto of the chronic trauma he

experienced and the ways in which such trauma influenced

his actions as an adult.   Prieto contends counsel should

have presented evidence showing the symptoms of Post-

Traumatic Stress Disorder (PTSD) that he suffered as a

child and as an adult.   Prieto contends that by presenting

such evidence, counsel could have connected Prieto's

symptoms to his actions in this case and that counsel's

failure to do so left the jury with no option but to

believe Prieto committed the crimes out of "malevolent

choice."

     The Court holds that this portion of claim (V)

satisfies neither the "performance" nor the "prejudice"

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


                              21
record, including the trial transcripts, demonstrates that

counsel presented evidence at both Prieto's 2008 trial and

at his 2010 trial that Prieto suffered from PTSD.     At

Prieto's 2008 trial, Dr. Pablo Stewart testified that

Prieto suffered from the disorder, which he opined

originated in El Salvador when Prieto was a child.     Dr.

Stewart described the symptoms of PTSD generally and

explained how Prieto exhibited those symptoms both as a

child and an adult.   Dr. Stewart further testified Prieto's

PTSD combined with his low IQ put "him at risk of untoward

behaviors."   Dr. Stewart conceded, however, that Prieto's

PTSD could not explain his behavior in this case.

     At Prieto's 2010 trial, counsel presented the

testimony of Dr. Cunningham.   Dr. Cunningham opined that

Prieto did suffer from PTSD caused by his childhood

exposure to "scenes of recurrent horror" during the El

Salvadorian civil war.   In addition, Dr. Cunningham

suggested that Prieto suffered from a number of other

deficits, including the results of chronic, long-term

trauma, and opined that these deficits caused Prieto to

lack self-control, inured him to violence, and prevented

him from appreciating the pain he might inflict.     Dr.

Cummingham conceded Prieto's outward appearance might not

show signs of PTSD but explained that his experience of


                               22
chronic trauma enabled him to present an outward appearance

of being calm and comfortable with the past while his

psyche remained disturbed by it.

     Counsel, having had the opportunity to present

evidence in Prieto's 2008 trial related to his PTSD, to

evaluate Prieto's appearance at trial relative to the

description of the effects of his PTSD, and to evaluate the

effect of the evidence on the jury, could reasonably have

determined that presenting the same evidence at Prieto's

2010 trial would not be effective.     Such tactical decisions

are an area of trial strategy left to the discretion of

counsel and should not be second-guessed in a habeas corpus

proceeding.   See Strickland, 466 U.S. at 689-90.    Thus,

Prieto has failed to demonstrate that counsel's performance

was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the

proceeding would have been different.

                         CLAIM (VII)

     In claim (VII), Prieto contends he is mentally

retarded and that his execution is therefore barred under

Atkins v. Virginia, 536 U.S. 304, 321 (2002).

     The Court holds that claim (VII) is barred because

this non-jurisdictional issue could have been raised during

the direct appeal process and, thus, is not cognizable in a


                              23
petition for a writ of habeas corpus.   Slayton v. Parrigan,

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

419 U.S. 1108 (1975).

                         CLAIM (VIII)

     In claim (VIII) and a portion of claim (V), Prieto

argues counsel was ineffective for failing to present

evidence at Prieto's 2010 trial that he is mentally

retarded.   Prieto contends counsel should have presented

evidence of his low performance on the Escala Wechsler de

Inteligencia Para Adultos III (EWIPA III) and of his

significant deficits in adaptive functioning.

     The Court holds that claim (VIII) and this portion of

claim (V) satisfy neither the "performance" nor the

"prejudice" prong of the two-part test enunciated in

Strickland.   The record, including the trial transcripts,

demonstrates that counsel presented evidence at Prieto's

2008 trial that Prieto is mentally retarded.    Dr. Ricardo

Weinstein testified that Prieto's full scale IQ score on

the EWIPA III was 66, that his true score was much lower,

taking into consideration the standard error of measurement

and the Flynn Effect, 1 and that Prieto had significant



     1
       Dr. Weinstein and Dr. Leigh Hagan, who also testified
regarding Prieto's IQ, describe the Flynn Effect as the
gradual increase in the general population's average IQ

                              24
deficits in his adaptive functioning, including low

academic achievement, poor social skills, and poor

practical skills.   Dr. Weinstein represented that the EWIPA

III was a Spanish translation of the Wechsler Adult

Intelligence Scale III (WAIS III), published in Mexico.

Dr. Weinstein testified that he gave Prieto the EWIPA III

instead of the WAIS III because Spanish was Prieto's

primary language.   Dr. Weinstein further testified he had

scored Prieto's test against American norms, rather than

the Mexican norms established for the EWIPA III, because

the Mexican norms were unreliable.   Dr. Weinstein conceded

the instructions for the EWIPA III required that the

American norms be used only if the test-taker's IQ seemed

to have been underestimated when measured using the Mexican

norms, and that Prieto's full scale IQ when measured using

the Mexican norms was 75.

     The Commonwealth presented evidence that Prieto was

not mentally retarded, including evidence that Prieto

achieved a full scale score on the WAIS III of 73, that the

EWIPA III that was administered to Prieto was not an

approved test, as required by Code § 19.2-264.3:1.1, that

the EWIPA III was not scored in conformity to established



scores over time, increasing at a rate of approximately .33
points per year in the United States.

                              25
practices, and that it is not acceptable professional

practice to modify an individual's score by subtracting

points to accommodate for the standard error of measurement

or the Flynn Effect.

     The Commonwealth further presented evidence that

Prieto did not suffer from deficits in his adaptive

functioning, including evidence that Prieto received

consistently good grades in elementary school; that he was

capable of handling money and opening and closing his own

bank accounts, obtaining employment, operating heavy

equipment, and obtaining drivers' licenses in two states;

that he was fluent in Spanish and English; that he was

capable of using the inmate grievance procedures; that he

was interested in and understood current political and

foreign policy issues; and that he had the ability to

cultivate useful relationships.   The Commonwealth further

presented evidence suggesting the WAIS III, rather than the

EWIPA III, was the appropriate tool for measuring Prieto's

IQ, because at the time the tests were administered, Prieto

had been in the United States for more than twenty-four

years, over half of his life, spoke fluent English and was

more fluent in English than in Spanish.

     At Prieto's 2010 trial, counsel chose not to argue

that Prieto was mentally retarded, instead focusing on his


                             26
limited intellect, the trauma he experienced as a child,

the effects of that trauma, and residual doubt of Prieto's

culpability in the minds of the jurors in an effort to

mitigate the offenses.   Counsel, having had the opportunity

to present evidence in Prieto's 2008 trial that Prieto is

mentally retarded, to weigh the evidence that he is

mentally retarded against the Commonwealth's contrary

evidence, and to evaluate the effect of the evidence on the

jury, could reasonably have determined that any attempt to

re-litigate the issue at Prieto's 2010 trial would have

been futile and determined it would be more effective to

focus on evidence in mitigation of the crimes.    Such

tactical decisions are an area of trial strategy left to

the discretion of counsel and should not be second-guessed

in a habeas corpus proceeding.     See Strickland, 466 U.S. at

689-90.   Further, under the circumstances, Prieto cannot

meet the burden to show that the jury would have found that

he is mentally retarded if the evidence was presented in

the 2010 trial.   Thus, Prieto has failed to demonstrate

that counsel's performance was deficient or that there is a

reasonable probability that, but for counsel's alleged

errors, the result of the proceeding would have been

different.

                          CLAIM (IX)


                              27
     In a portion of claim (IX), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to investigate and present evidence "that would have

cast doubt upon" his convictions in California for the rape

and first-degree murder of Y. W., a fifteen year-old girl,

two attempted murders, two additional rapes, three

kidnappings, two robberies, two attempted robberies, and

possession of a firearm by a felon.   At the 2010 trial, the

Commonwealth presented certified copies of Prieto's

California convictions as well as his sentence of death for

the first-degree murder conviction.   The Commonwealth also

presented testimony from one of the victims, Lisa Barajas,

and from the lead investigator regarding the events that

led to those convictions.   At the time of Prieto's 2010

trial, counsel was aware of a pending petition for a writ

of habeas corpus relating to the California convictions.

Prieto argues counsel should have investigated the claims

raised in that habeas petition to rebut the Commonwealth's

evidence relating to the California convictions.

     The Court holds that this portion of claim (IX)

satisfies neither the "performance" nor the "prejudice"

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

collateral attack on a prior conviction from a court of

competent jurisdiction is normally not allowed as that


                              28
conviction is given a presumption of regularity, "till the

contrary appears."   See Parke v. Raley, 506 U.S. 20, 29-30

(1992) (quoting Voorhees v. Jackson, 35 U.S. (10 Peters)

449, 472 (1836)).    The claims Prieto contends counsel

should have investigated and presented at his 2010

sentencing hearing did not call into question the

presumption of regularity that attached to the California

convictions and, as no ruling on the California petition

has occurred, the "contrary [has not] appear[ed]" to rebut

the presumption.

     Counsel was not ineffective for failing to attempt a

collateral attack on Prieto's California convictions.

Thus, Prieto has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.

     In another portion of claim (IX), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to investigate and present evidence that would have

cast doubt on his role in the California crimes and thus

would have diminished the weight of the evidence.    Prieto

argues counsel should have investigated and presented

evidence of Barajas' initial statement to the police that

she could not identify the assailants as she was


                               29
blindfolded during the incident as well as evidence of

Barajas' alleged exposure to suggestive identification

procedures.   Prieto contends that had this information been

presented at his 2010 trial it would have affected the

jury's assessment that Prieto was a future danger to

society.

     The Court holds that this portion of claim (IX)

satisfies neither the "performance" nor the "prejudice"

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

record, including Prieto's 1991 California trial

transcript, demonstrates that Barajas was questioned

extensively regarding her identification of Prieto.

Barajas admitted to initially lying about being blindfolded

and explained she did so out of fear of retaliation by her

assailants.   Barajas also explained how she identified

Prieto from a photographic line-up prior to seeing his

photograph in the newspaper and again identified Prieto in

a live line-up after his photograph was published.

Throughout the trial, Barajas was adamant in her

identification of Prieto.

     Counsel could have reasonably determined that

attempting a similar attack on Barajas' identification of

Prieto at his 2010 trial would have been unsuccessful.

Prieto has also failed to show in what way the


                              30
identification procedures were suggestive.    Moreover,

extensive cross-examination of Barajas on this point had

the potential to highlight the aggravated nature of these

crimes and Prieto's continuing failure to take

responsibility for his actions.     Counsel is not ineffective

for failing to present evidence that has the potential of

being "double-edged."    Lewis v. Warden, 274 Va. 93, 116,

645 S.E.2d 492, 505 (2007).    Such tactical decisions are an

area of trial strategy left to the discretion of counsel

and should not be second-guessed in a habeas corpus

proceeding.   See Strickland, 466 U.S. at 689-90.    Thus,

Prieto has failed to demonstrate that counsel's performance

was deficient or that there is a reasonable probability

that, but for counsel's alleged errors, the result of the

proceeding would have been different.

     In another portion of claim (IX), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to investigate and present evidence that would have

cast doubt on his role in the California crimes and thus

would have diminished the weight of the evidence.    Prieto

argues counsel should have investigated the lack of an

expert to rebut California's theory for the absence of

seminal fluid on Y. W.    Prieto contends that had this

information been presented at his 2010 trial it would have


                               31
affected the jury's assessment that Prieto was a future

danger to society.

     The Court holds that this portion of claim (IX)

satisfies neither the "performance" nor the "prejudice"

prong of the two-part test enunciated in Strickland.

Prieto has failed to proffer the name or testimony of an

expert regarding the seminal fluid.    Muhammad, 274 Va. at

19, 646 S.E.2d at 195.    Thus, Prieto has failed to

demonstrate that counsel's performance was deficient or

that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding

would have been different.

     In another portion of claim (IX), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to investigate and present evidence that would have

cast doubt on his role in the California crimes and thus

would have diminished the weight of the evidence.      Prieto

argues counsel should have investigated Prieto's trauma

disorder and his use of drugs at the time of the California

crimes.    Prieto contends that had this information been

presented at his 2010 trial it would have affected the

jury's assessment that Prieto was a future danger to

society.




                               32
     The Court holds that this portion of claim (IX)

satisfies neither the "performance" nor the "prejudice"

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

record, including the 2010 trial transcript, demonstrates

that counsel did present evidence of Prieto's trauma

disorder and drug use around the time of the California

crimes.   Counsel presented evidence that Prieto suffered

from PTSD caused by his childhood exposure to "scenes of

recurrent horror" during the El Salvadorian civil war.    In

addition, counsel presented evidence that Prieto suffered

from a number of other deficits, including the results of

chronic, long-term trauma.   Counsel further presented

evidence that Prieto began using drugs extensively in high

school, that he was using drugs in 1990, and that his drug

use was one of the factors that "created a significant

emotional disturbance in" Prieto and thus precipitated his

violent crimes.

     Prieto fails to allege what additional evidence

counsel could have presented that would have rebutted the

aggravating circumstances of his California offenses.

Thus, Prieto has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.


                              33
     In another portion of claim (IX), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to investigate and present evidence that would have

cast doubt on his role in the California crimes and thus

would have diminished the weight of the evidence.   Prieto

argues counsel should have investigated an erroneous jury

instruction that allowed the California jurors to infer

Prieto's guilt from his possession of Barajas' stolen car

keys.

     The Court holds that this portion of claim (IX)

satisfies neither the "performance" nor the "prejudice"

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

People v. Prieto, 66 P.3d 1123, 1137-38 (Cal. 2003), the

Supreme Court of California determined that the jury was

erroneously instructed that Prieto's possession of the car

keys was a circumstance they could consider in determining

his guilt without limiting the instruction to the theft

related crimes.   However, the Court found the error

harmless.   Id. at 1138.

     Prieto fails to state how presenting evidence at his

2010 trial of the erroneous jury instruction would have

mitigated the aggravating circumstances of his California

offenses.   Thus, Prieto has failed to demonstrate that

counsel's performance was deficient or that there is a


                              34
reasonable probability that, but for counsel's alleged

errors, the result of the proceeding would have been

different.

     In another portion of claim (IX), Prieto argues he was

denied the effective assistance of counsel because counsel

failed to rebut the Commonwealth's evidence regarding

Prieto's other prior convictions.

     The Court holds that this portion of claim (IX)

satisfies neither the "performance" nor the "prejudice"

prong of the two-part test enunciated in Strickland.

Prieto fails to proffer what evidence counsel should have

presented to rebut the Commonwealth's evidence as to his

other prior convictions.    Thus, Prieto has failed to

demonstrate that counsel's performance was deficient or

that there is a reasonable probability that, but for

counsel's alleged errors, the result of the proceeding

would have been different.

                              CLAIM (X)

     In claim (X), Prieto argues he was denied the

effective assistance of counsel because counsel failed to

object to evidence of his California convictions and death

sentence.    At the 2010 trial, the Commonwealth introduced

certified copies of Prieto's California convictions and

death sentence to show he was a future danger to society.


                               35
Prieto argues that, prior to the start of the hearing,

counsel should have objected to the introduction of this

evidence as Prieto was challenging his California

convictions and sentence in a petition for a writ of habeas

corpus.    In support of this claim, Prieto cites Johnson v.

Mississippi, 486 U.S. 578 (1988) (death sentence vacated as

it had been predicated, in part, on a New York conviction

which was later reversed).     Prieto opines that had counsel

objected, there is a reasonable probability that the

evidence relating to his California convictions and death

sentence would not have been presented.

     The Court holds that claim (X) satisfies neither the

"performance" nor the "prejudice" prong of the two-part

test enunciated in Strickland.       Counsel had no reason to

object to the introduction of the evidence relating to

Prieto's convictions and sentence in California as this

Court had previously upheld the introduction of such

evidence.    Prieto v. Commonwealth, 278 Va. at 413-15, 682

S.E.2d at 936.   Prieto's reliance on Johnson is misplaced

and would not have supported the objection Prieto contends

counsel should have raised.     In Johnson, the New York

conviction was reversed while Johnson's motion for post-

conviction relief from his Mississippi death sentence was

pending.    486 U.S. at 583.   The United States Supreme Court


                                36
found that Mississippi erred when it refused to consider

that fact.   Id. at 587-90.   Prieto's California convictions

and death sentence had not been overturned, thus there was

no basis for counsel to object to their introduction. 2

Thus, Prieto has failed to demonstrate that counsel's

performance was deficient or that there is a reasonable

probability that, but for counsel's alleged errors, the

result of the proceeding would have been different.

                          CLAIM (XI)

     In claim (XI), Prieto contends that the cumulative

effect of counsel's deficient performance at the 2010 trial

undermines confidence in the jurors' decision.

     The Court holds that claim (XI) is without merit.    As

addressed previously, Prieto has failed to demonstrate

prejudice as a result of counsel's alleged errors.    "Having

rejected each of petitioner's individual claims, there is

no support for the proposition that such actions when

considered collectively have deprived petitioner of his

constitutional right to effective assistance of counsel."

Lenz, 267 Va. at 340, 593 S.E.2d at 305.

                          CLAIM (VI)




     2
       As of the date of this order, Prieto's habeas
petition is still pending in the California Supreme Court.

                               37
     In claim (VI), Prieto contends counsel was ineffective

for failing to present mitigating evidence, as alleged in

claims (I), (V), (VII), and (VIII).    Prieto argues that as

a result of counsel's cumulative errors in failing to

present this evidence, counsel was unable to persuade the

jury that Prieto was not the sole perpetrator or that his

multiple deficiencies diminished his moral culpability.

The Court holds that claim (VI) is without merit.    Prieto's

argument is one of cumulative error.    "Having rejected each

of petitioner's individual claims, there is no support for

the proposition that such actions when considered

collectively have deprived petitioner of his constitutional

right to effective assistance of counsel."    Lenz, 267 Va.

at 340, 593 S.E.2d at 305.

     Upon consideration whereof, Prieto's motions for

access to files from the Virginia Department of Forensic

Science, for the appointment of a DNA expert, to hold his

Virginia habeas corpus proceedings in abeyance pending

resolution of the California habeas corpus proceedings, and

for an evidentiary hearing are denied.

     Upon consideration of the respondent's motion to

strike Prieto's rebuttal affidavits, the motion to strike

is denied.   The rebuttal affidavits are considered pursuant

to the appropriate evidentiary rules.


                              38
     Accordingly, the petition is dismissed and the

respondent shall recover from petitioner the costs expended

in his defense herein.

     This order shall be published in the Virginia Reports.


Respondent's costs:

     Attorney's fee             $50.00



                      A Copy,

                           Teste:



                                 Patricia L. Harrington, Clerk




                                39
