Full opinion text
MEMORANDUM OPINION ELLIS, District Judge. Petitioner Dennis Mitchell Orbe was convicted of capital murder in the Circuit Court for York County on August 13,1998, and thereafter sentenced to death in accordance with the jury verdict on October 27, 1998. After unsuccessfully challenging the imposition of the death penalty both on direct appeal and in state collateral proceedings, Orbe now petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is before the Court on respondent’s motion to dismiss the petition, which, for the reasons stated below, must be granted. I. Facts Dennis Mitchell Orbe was convicted of capital murder for shooting a convenience store clerk at a gas station in York County, Virginia, in the early morning of January 24, 1998. The incident was recorded on videotape by the store’s security camera system, and was eventually shown to the trial jury. At 3:38 a.m. on January 24, Orbe entered the store. He had been in the store twice on the previous day without buying anything. On this occasion, Orbe walked up to the check-out counter and pointed a revolver at the chest of the convenience store clerk, Richard Burnett. When Burnett opened the cash register drawer, Orbe shot him in the chest. As Burnett clutched his chest and struggled to remain standing, Orbe walked around the counter and removed some money from the cash register drawer. He then fled the store, taking with him the $90.65 he had taken from the cash register drawer. Shortly thereafter, a customer discovered Burnett’s body and called for emergency assistance. A police investigator arrived to find Burnett’s lifeless body on the floor behind the cash register. The videotape from the security camera was recovered, and still images from the tape were disseminated to law enforcement and the media. The sheriffs office received several telephone calls identifying Orbe as the person in the pictures. Yet, Orbe was not apprehended until the conclusion of a high speed chase through the streets of Richmond on January 31, 1998. During this chase Orbe drove across a median, traveled down the wrong side of a street, and accelerated through a roadblock. He was eventually captured on foot after he jumped out of his vehicle and ran down an alley. In the search pursuant to Orbe’s arrest, a partially loaded .357 magnum revolver was found tucked in the waistband of his pants. After examining the revolver and the bullet that had been removed from Burnett’s chest, a forensic scientist at the Virginia Department of Criminal Justice Services concluded that the bullet had been fired from the revolver found on Orbe. The serial number of the gun matched that of a gun belonging to Orbe’s stepfather Willis Branch, which had been kept in the home Branch shared with Orbe. Branch had discovered that the gun was missing in the first or second week of January 1998. The incident at the convenience store was part of a string of criminal acts Orbe committed over the course of ten days. The facts concerning these incidents were presented to the jury during the sentencing phase of the trial to prove Orbe’s future dangerousness. This evidence reflected that Orbe began his crime spree on January 21, 1998, when Lois Jones and Mark Scougal returned home to find Orbe in their bedroom. Orbe pointed the revolver at Scougal and ordered Scougal to drive him away because he was hiding from the police. While Orbe was forcing Scougal out to the car, Jones retrieved a firearm from her gun cabinet. Testimony was conflicting as to whether Jones fired a warning shot. In any event, Orbe clearly fired his revolver twice, hitting Jones in the leg on the second shot. After Scougal refused to give him the car keys, Orbe fled from the scene. On the same day, Orbe approached two elderly men, Charles Powell and William Bottoms, who were sitting in the - front yard of Bottoms’s house in Richmond. Orbe showed the men his gun and ordered them to walk to the rear of the house: Telling the men he had “nothing to lose,” Orbe ordered both men to surrender their wallets and car keys. With these in hand, Orbe -left in Powell’s car. The shooting of Burnett occurred two and one half days later. Thereafter, on January 30, 1998, Orbe was discovered inside a private residence in New Kent County when Karen Glenn,’ Patricia Tuck and another woman arrived to perform scheduled cleaning services. Orbe brandished his gun and yelled “Bitches, get down.” He hit Tuck between the shoulder blades with his gun. He then ordered the three women to crawl on their stomachs to a bedroom and into a closet. He nailed a piece of plywood across the closet door, sealing the women in the closet until the homeowner returned four and one half hours later.- Orbe told the women “I’m Dennis Orbe, I’m" wanted for murder, and it doesn’t matter what I do.” He took money, checks and other' valuables from the women, including the keys to Glenn’s car, which he stole. During the sentencing phase of the trial, the jury also heard evidence in mitigation of the offense. Orbe’s mother and stepfather testified about his troubled childhood and his problems with alcohol abuse. A friend described a change in Orbe’s behavior shortly before the January 1998 incidents. The administrator of the regional jail where Orbe had been incarcerated testified that he had received only one minor complaint about Orbe’s behavior during confinement. Orbe also presented testimony from Dr. Thomas Pasquale, a clinical psychologist who had evaluated Orbe for the purpose of assessing his future dangerousness. Dr. Pasquale testified (i) that Orbe had exhibited suicidal tendencies for at least a year prior to the January 1998 incidents, (ii) that he was depressed, in part over his perceived failure as a father and husband, (iii) that he drank heavily, and (iv) that he had an impulse control dysfunction. Dr. Pasquale also noted that Orbe’s father had abandoned him at an early age, and that Orbe, who had recently located his father, may have been attempting to steal money for the purpose of visiting his father. In sum, Dr. Pasquale testified that Orbe was not a future danger in a prison setting, unless he had access to alcohol or was placed under duress while incarcerated, but that a “very dangerous, very risky” situation would result if he escaped. II. Procedural History Orbe was arrested on January 31, 1998, and indicted in York County for (i) the capital murder of Richard Burnett, (ii) robbery, and (iii) two firearms offenses. The Circuit Court for York County appointed Andrew Protogyrou as lead counsel and Damian Horne as co-counsel. Following a three day trial, August 10-13, 1998, the jury found Orbe guilty of all charges and on October 27, 1998, he was sentenced to death plus sixty years in accordance with the jury verdict. Still represented by Messrs. Protogyrou and Horne, Orbe appealed his convictions and death sentence on five grounds. The Supreme Court of Virginia affirmed the convictions and the sentence on September 17,1999. See Orbe v. Commonwealth, 258 Va. 390, 519 S.E.2d 808 (1999). Thereafter, with new counsel, Orbe sought a writ of certiorari in the Supreme Court of the United States, which was denied on May 15, 2000. See Orbe v. Virginia, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). On July 14, 2000, Orbe filed an original petition for a writ of habeas corpus in the Supreme Court of Virginia. This petition was 113 pages long, exceeding by a substantial margin the 50 page limit on original habeas petitions in capital cases. See Rule 5:7A(g), Va. Sup.Ct. R. Orbe’s petition included a motion for leave to exceed the limit. The Supreme Court of Virginia denied the motion, ordering Orbe to file a petition in compliance with the Rule’s page limitations by August 28, 2000. See Orbe v. Warden, No. 001708 (Va. July 27, 2000). Orbe did so, along with a motion to amend the petition to include three new claims. Orbe then filed a second motion to amend on June 20, 2001, adding one more claim and again requesting permission to exceed the page limit. The Supreme Court of Virginia denied the motions to amend and dismissed the petition on September 10, 2001. See Orbe v. Warden, No. 001708 (Va. September 10, 2001). Orbe’s petition for rehearing was denied on November 2, 2001. See Orbe v. Warden, No. 001708 (Va. November 2, 2001). The Circuit Court of York County scheduled Orbe’s execution for December 13, 2001. On December 6, 2001 the execution was stayed by an Order of this Court. See Orbe v. True, Civil Action No. 01-1845-A (E.D.Va. December 6, 2001) (Order). Also on December 6, Orbe filed a writ of certiorari to review the habeas decision of the Supreme Court of Virginia, which was denied on February 29, 2002. See Orbe v. Taylor, 534 U.S. 1139, 122 S.Ct. 1089, 151 L.Ed.2d 988 (2002). Thereafter, pursuant to the prescribed schedule, Orbe filed a 286-page petition for -a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 10, 2002. The petition sets out the following grounds for relief: I. Racial discrimination: A. The prosecutor’s decisionmaking was tainted by improper considerations of race. B. Defense counsel failed to protect Orbe from the prosecutor’s improper considerations of race. II. Improper exclusion of venireman Conner: A. The trial court improperly excluded Conner. B. Defense counsel failed to challenge the exclusion at trial or on appeal. III. Lesser included offense: A. Orbe was deprived of his right to a first degree murder instruction. B. Defense' counsel failed to present properly the lesser included offense ■ issue at trial and on appeal. . 1. Failed to ensure that the trial court- understood the state law on ■ first degree murder. 2. Failed to clarify the evidence regarding the hammer block on the gun. 3. Failed to adduce evidence regarding modifications making the gun easier to fire. 4. Failed to cite the Constitution and federal precedent on appeal. • IV. Conflict of interest: A. The defense expert also acted as the prosecution’s expert. B. Defense counsel failed to protect Orbe’s confidences and secrets. 1. Failed to limit Dr. Pasquale’s communications with the prosecutor. 2. Failed to debrief Dr. Pasquale adequately. 3. Failed to inform and consult with Orbe. V. Orbe was not provided proper expert assistance: A. The appointed expert did not provide appropriate assistance. B. Defense counsel failed to ensure that Orbe had proper expert assistance. 1. Failed to rely.on Ake with respect to the appointment of an ''expert, 2.. Failed to ensure that Orbe had the assistance of an independent expert. 3. Failed to investigate and provide the expert accurate information about Orbe’s supposed abuse of his former wife. 4. Failed to ensure that the expert had all necessary and relevant information from witnesses and documents. .5. Failed to request assistance of a psychiatrist or neuropharmacologist. VI. Ineffective assistance of counsel: A., Defense counsel encouraged prospective jurors to disregard mercy in their sentencing decision. B. Defense counsel rendered ineffective assistance during the sentencing phase. 1. Failed to investigate sexual, physical and emotional abuse'. 2. Failed to present evidence that Orbe may suffer from bipolar disorder. 3. Failed to obtain pertinent mental health records. 4. Failed to obtain and present evidence from family and friends. C. Defense counsel failed to brief or argue assignment of error 16 on appeal (the antisympathy instruction). VII. Appointment of Horne: A. Horne did not meet the Public Defender Commission’s qualifications. B. Defense counsel failed to object to, inform Orbe of, or handle properly Horne’s lack of qualifications. VIII. Juror misconduct: A. Jurors were exposed to improper extraneous influences. B. Defense counsel failed to investigate and disclose juror misconduct. IX. The death penalty in Virginia is unconstitutional. X. Defective verdict form: A. Juror instructions and verdict forms were inconsistent and confusing. B. Defense counsel failed to ensure that the forms corresponded to the instructions and the sentencing 'statutes and failed to argue properly the issue at trial and on appeal. XI. Denial of federal constitutional protection in state habeas corpus proceedings. Also pending before the Court is Orbe’s renewed motion for funds for the appointment of a psychiatrist under 21 U.S.C. § 848(q)(9). ' ' III. Procedurally defaulted claims A. One set of claims presented by Orbe in his federal habeas petition was procedurally defaulted during the state court proceedings. The Supreme Court of Virginia, in ruling on Orbe’s state habeas petition, found that claims 1(A), 11(A), 111(A), IV(A), and V(A) were procedurally defaulted under the rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), because they could have been raised at trial or on direct appeal, but were not. The Supreme Court of Virginia’s application of the Slayton procedural default rule bars consideration of these claims on federal habeas review, absent cause and actual prejudice or a miscarriage of justice. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Burket v. Angelone, 208 F.3d 172, 188-89 (4th Cir.2000). For these five claims, Orbe asserts that ineffective assistance of counsel constitutes cause for the state procedural default. It is well established that attorney errors can serve as cause to excuse a default, but that the attorney’s performance in this respect must be so poor as to constitute constitutionally ineffective assistance of counsel under the Sixth Amendment. See Coleman v. Thompson, 501 U.S. 722, 754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Burket, 208 F.3d at 184. The standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), remains the test for determining whether ineffective assistance of counsel rises to the level of a constitutional violation. See Terry Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389. (2000). Arguing that his counsel failed to meet this standard, and that he suffered actual prejudice as a result, Orbe requests consideration of the merits of these procedurally defaulted claims. Orbe also asserts independent ineffective assistance of counsel claims based on the same fact situations. In claims 1(B), 11(B), III(B), IV(B), and V(B) Orbe argues that his counsel’s failures themselves are independent bases for relief. These claims are discussed individually below. Thus the same failures and omissions of defense counsel are used in two distinct ways by Orbe: First, he relies on them as cause to excuse the default of the underlying substantive claims, as in claim 1(A), and second, he asserts that they are independent grounds for relief in their own right, as in claim 1(B). At the outset, Orbe contends that different standards of review are applicable to the consideration of ineffective assistance of counsel depending on whether the ineffective assistance is offered as cause for default, as in claim 1(A), or as an independent basis for relief, as in claim 1(B). When ineffective assistance claims are offered as independent bases for relief and were adjudicated on the merits in state court proceedings, a federal court must apply the deferential review standard established by the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), as codified at 28 U.S.C. § 2254(d). See Terry Williams, 529 U.S. at 402-03, 411, 120 S.Ct. 1495; Hunt v. Lee, 291 F.3d 284, 289-90 (4th Cir.2002). Yet, seeking to avoid this deferential review standard, Orbe argues that the cause-for-default ineffective assistance determination is reviewable by a federal court de novo. This contention, although ultimately without merit, bears some investigation. Orbe correctly acknowledges that he must have' exhausted his independent ineffective assistance of counsel claims in order to raise cause-for-default ineffective assistance claims on federal habeas. See Edwards v. Carpenter, 529 U.S. 446, 451-452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Orbe also correctly acknowledges that, in order to show adequate cause for the default, he must show that counsel’s performance was so inadequate as to constitute a violation of the Sixth Amendment under Strickland. See id. at 451, 120 S.Ct. 1587. Yet, Orbe asserts that he need not additionally show, under § 2254(d), that the state adjudication of the ineffective assistance claim was “contrary to, or involved an unreasonable application of, clearly established Federal law” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(1) & (2). Instead, according to Orbe, a federal court considering a cause-for-default claim should not give deference to the state’s adjudication of an independent ineffective assistance claim, but must decide de novo whether the ineffective performance of counsel was constitutionally deficient under Strickland, thereby establishing cause for the procedural default. In support of this contention, Orbe asserts that “[clause and prejudice is purely a matter of federal procedural law; it is not a question the state court could (or did) decide.” In further support, Orbe cites pre-AEDPA precedent which makes clear that the “cause and prejudice” standard for overcoming procedural default is a federal question. See Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (“[T]he question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.”); Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (describing “the question of cause” as “a question of federal law”). Orbe’s arguments are unpersuasive. Merely showing that cause for default is a federal question is insufficient to avoid § 2254(d)’s deferential review standard. All claims which may be considered on federal habeas review raise a federal question. See § 2254(a) (The federal court “shall entertain an application for a writ of habeas corpus ... only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.”). Therefore, the scope of § 2254(d)’s deferential review standard cannot turn on whether or not a federal question is present. Nor can Orbe evade the deferential standard of § 2254(d) by arguing that the cause-for-default question is outside the scope of § 2254(d) because it is a federal procedural question. The statute requires deference with respect to “any claim” earlier adjudicated on the merits in state court, regardless of the procedural posture of the claim on federal habeas review. Thus, § 2254(d) requires deference to an earlier state adjudication of a claim on the merits without regard to the posture of that claim on federal review. Put differently, § 2254(d)’s plain language requires a federal court on habeas review to apply that provision’s deferential review standard to a state merits adjudication of an ineffective assistance claim whether that claim is asserted as cause for default or as an independent, substantive claim for relief. Moreover, the case law regarding exhaustion of claims clearly refutes Orbe’s contention that cause-for-default ineffective assistance claims must be considered independently of substantive ineffective assistance claims adjudicated by the state. The very paragraph in Carrier on which Orbe relies to argue that the cause-for-default determination is an independent federal question makes clear that, as far as exhaustion of claims is concerned, no distinction is made between the two types of ineffective assistance claims. Specifically, Carrier makes clear that federal courts may decide the cause-for-default question without regard to exhaustion of a claim in state proceedings only if the federal court can adjudicate the question “without deciding an independent and unexhausted constitutional claim on the merits.” Carrier, 477 U.S. at 489, 106 S.Ct. 2639. In other words, the “principle of comity that underlies the exhaustion doctrine” applies “whether an ineffective assistance claim is asserted as cause for a procedural default or denominated as an independent ground for habeas relief.” Id. And, more recently, Edwards reaffirmed that 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.” See Edwards, 529 U.S. at 452, 120 S.Ct. 1587. ' The same comity principle underlies the deference to state adjudication required by § 2254(d). See Terry Williams, 529 U.S. at 386, 404, 120 S.Ct. 1495. Therefore, it is logical that the same degree of deference must be accorded to prior state adjudications of ineffective assistance claims, regardless of the procedural posture of the ineffective assistance claims on federal habeas. Finally, Orbe contends, unpersuasively, that cause-for-default ineffective assistance claims must be determined by a standard different from § 2254(d) to preserve the “robust function of cause and prejudice.” In support of this contention, Orbe points out that if identical standards were to apply to both types of ineffective assistance claims, then a petitioner able to use ineffective assistance to show cause for default would always also have an avenue for relief through a straightforward ineffective assistance claim. According to Orbe, this leaves ineffective assistance as cause for default with no independent role or function. While this is true in certain circumstances, it does not coinpel the conclusion that a different standard of review ought to apply to the two different types of ineffective assistance claims. To the contrary, the identical Strickland standard has long been applied to both types of claims. See Edwards, 529 U.S. at 451, 120 S.Ct. 1587 (“[Ijneffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim.”); see also Carrier, 477 U.S. at 488, 106 S.Ct. 2639. Section 2254(d) changed the standard for federal habeas review of state court merits determinations of ineffective assistance claims under Strickland, but the statute did not alter the sensible, existing rule that a consistent standard applies to ineffective assistance claims whether asserted as cause for default or as an independent substantive claim for habeas relief. The purpose of § 2254(d) was to change the standard of review on federal habeas for all claims adjudicated on the merits in state court, not, as Orbe would have it, to make cause-for-default ineffective assistance claims more “robust.” Section 2254(d)’s deferential review standard was intended by Congress to “curb delays, to prevent ‘retrials’ on federal habeas, and to give effect to state convictions to the extent possible under law,” Terry Williams, 529 U.S. at 386, 404, 120 S.Ct. 1495. Orbe offers no persuasive reason to conclude that this standard should not apply to federal habeas review of state court rulings on ineffective assistance of counsel claims whether the claims are asserted as cause to excuse default or as a substantive basis for relief. In the end, then, Orbe’s ineffective assistance claims asserted as cause to excuse default were decided on the merits by the Supreme Court of Virginia, and thus must be reviewed deferentially pursuant to § 2254(d). And, as discussed infra, Orbe has failed in each instance to show, as required by § 2254(d), that the Supreme Court of Virginia’s application of the Strickland test to his ineffective assistance claims was either “contrary to, or an unreasonable application of’ federal law, or that it was “based on an unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(1) & (2). Therefore, Orbe cannot rely on these claims to excuse the default, and it follows that claims 1(A), 11(A), 111(A), IV(A) and V(A) are not cognizable on federal habeas, having been previously denied on an adequate, independent state procedural ground. B. A second set of claims offered by Orbe in his federal habeas petition, claims VII, VIII, IX, and X, are properly found to be procedurally defaulted because they were not “presented to the Supreme Court of Virginia on direct appeal nor in state habeas corpus proceedings.” Gray v. Netherlands 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). For his part, Orbe contends that these claims were presented to the Virginia court because they were included initially in an over-length state habeas petition and then in motions to amend the shortened petition. Because the Supreme Court of Virginia did not address these claims on the merits, if “properly presented” these claims would be eligible for de novo review on the merits in federal habeas proceedings. See Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir.1999). Yet, the procedural history of these claims and the relevant federal precedent make clear that these claims were not “properly presented” to the state court. Orbe initially filed a 113-page state ha-beas petition. State habeas petitions in death penalty cases in Virginia are limited to 50 pages, unless permission for a longer petition is granted by a justice of the court. See Rule 5:7A(g), Va. Sup.Ct. R. The Supreme Court of Virginia denied Orbe’s accompanying motion for permission to file a longer petition, and directed him to file a 50-page petition. Orbe filed a shorter petition as directed. On the same day, Orbe filed a motion to amend his petition “by leave of court” under Rule 1:8, Va. Sup.Ct. R., and also requested permission to exceed the 50-page limit. Orbe thereby sought to reintroduce claim VII, which had been omitted from the shortened petition, and two new claims, claims VIII and IX. A second motion for amendment added a proposed claim X. Orbe’s motions to amend were opposed by the Warden, who contended that granting the request for leave to amend under Rule 1:8 would simply circumvent the Rule 5:7A(g) page limit. The Supreme Court of Virginia denied Orbe’s motions to amend without comment, and did not address the merits of any of the claims proffered by Orbe in his motions to amend. See Orbe v. Warden, No. 001708 (Va. September 10, 2001). In order to exhaust state remedies, as required by § 2254(b)(1)(A) & (e), it is well established that petitioners “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process,” but they need not “invoke extraordinary measures” which are “alternatives to the standard review process.” See O’Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). One complete round of the established appellate review process is not only sufficient for exhaustion, it is necessary. Thus, “we ask not only whether [petitioner] has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts.” Id. at 849, 119 S.Ct. 1728. In other words, “where the claim has been presented for the first and only time in a procedural context in which its merits will not be considered unless ‘there are special and important reasons therefore’ ” the requirement of “fair presentation” is not met. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). In sum, the fact that a state court has been physically presented with the claims in a pleading or motion does not necessarily mean that those claims were properly presented; the petitioner must avail himself of the “established appellate review process,” and not rely solely on “extraordinary” procedures that require “special and important reasons” before the state court will reach the merits of the claims. See O’Sullivan, 526 U.S. at 844, 119 S.Ct. 1728; Castille, 489 U.S. at 351, 109 S.Ct. 1056. Two cases help to illustrate the application of these principles. The Supreme Court in Castille held that filing a new claim in a post-conviction petition for allo-catur with the Pennsylvania Supreme Court was not a “fair presentation” of that claim to the state court. Castille, 489 U.S. at 351, 109 S.Ct. 1056. By contrast, the Fourth Circuit has held that a new claim presented in a motion to reopen a Maryland post-conviction proceeding was properly presented, even though the Maryland court had discretion to deny the motion, because “Maryland law plainly established a right to raise new claims in a motion to reopen a previous PCR [post-conviction relief] proceeding.” See Baker v. Corcoran, 220 F.3d 276, 291 (4th Cir.2000). The difference between these cases is whether the avenue through which the claim is presented is part of the “established appellate review process.” See O’Sullivan, 526 U.S. at 844, 119 S.Ct. 1728. The post-conviction petition for allocatur is not an “established appellate review process” in Pennsylvania, whereas a motion to reopen a previous PCR proceeding is such a process in Maryland. See Baker, 220 F.3d at 291. Orbe contends that his motion for leave to amend and leave to exceed the page limit was not an extraordinary measure in the manner of the petition for allocatur in Castille, but rather an unexceptional mechanism for the presentation of new claims, similar to the motion to reopen the PCR proceeding in Baker. He argues that motions to amend under Rule 1:8 are routine, and “shall be liberally granted in furtherance of the ends of justice,” Rule 1:8, Va. Sup.Ct. R. Moreover, he argues that the 50-page limit established by Rule 5:7A(g) is discretionary, and serves administrative convenience only, because it can be waived by a single justice. See Rule 5:7A(g), Va. Sup.Ct. R. (“Except by permission of a justice of this Court..He asserts that “nothing in Virginia law prohibited the state court” from granting his motion to amend his petition and exceed the page limit. Therefore, he contends that the claims offered to the state court in his motions to amend were fairly presented to that court. Orbe’s argument misstates the standard established by O’Sullivan, Baker, and Cas-tille. In determining whether a claim was “fairly presented,” it is not enough to establish that the state court was not legally barred from considering the merits of the claim; instead, the relevant inquiry focuses on whether the claim was presented according to the “statutorily prescribed mechanism for doing so,” Baker, 220 F.3d at 291, that is, the “established appellate review process,” O’Sullivan, 526 U.S. at 844, 119 S.Ct. 1728, or whether the petitioner relied on “extraordinary remedies,” id., that is, a “procedural context” in which the merits of the claim will not be considered absent “special and important reasons,” Castille, 489 U.S. at 351, 109 S.Ct. 1056. Two considerations compel the conclusion that Orbe’s claims, which were presented in violation of Rule 5:7A(g)’s page limit, were not fairly presented. First, although motions to amend under Rule 1:8 may be routine, ordinary, and liberally granted, motions to exceed the page limit imposed by Rule 5:7A(g) are precisely the kind of extraordinary measure which does not constitute “fair presentation.” Indeed, the page limit appears to be a routinely-enforced rule, not a mere discretionary guideline. Consistent with this, Orbe offers only one Virginia state habeas case in which permission to exceed the page limit was granted. See Bramblett v. Warden, No. 992912 (Va. February 10, 2000). This single example hardly suggests that permission to exceed the page limit is routine and ordinary. Even more telling is the fact that a violation of similar Virginia Rules establishing page limits for petitions for direct appeal and opening briefs results in procedural default, even though these Rules can also be waived by the discretion of a single justice. See Mueller v. Angelone, 181 F.3d 557, 581-82 (4th Cir.1999) (discussing Rule 5:17(c)’s 35-page limit for petitions for direct appeal); Weeks, 176 F.3d at 270-71 (discussing Rule 5:26(a)’s 50-page limit for opening briefs on direct appeal). Orbe offers no persuasive grounds for distinguishing between the page limits imposed on briefs on direct appeal and those imposed on state habeas petitions. Indeed, it would be incongruous to hold that, while violation of the former results in procedural default at the state court level, violation of the latter nonetheless constitutes fair presentation of the claims to the state court, thus barring a finding of procedural default by the federal habeas court. In other words, since comity requires giving proper weight to state procedural rules, just as failure to obey page limit rules on direct appeal results in procedural default at the state level, so too must the failure to present claims within the prescribed page limit during state ha-beas proceedings likewise preclude federal review of those claims on the merits. Second, both the majority and the dissent in O’Sullivan recognize that federal exhaustion and procedural default rules must not allow a petitioner to circumvent a state opportunity to review federal claims by presenting claims at the state level in a manner which violates a state procedural rule. See O’Sullivan, 526 U.S. at 848, 119 S.Ct. 1728; id. at 853-54, 119 S.Ct. 1728 (Stevens, J., dissenting). The comity interests underlying these rules would be ill-served if, for example, prisoners could satisfy federal habeas exhaustion requirements simply by letting the time run on their state remedies and then presenting their claims in federal court, thereby providing the state courts no opportunity to address these claims. Id. at 853-54, 119 S.Ct. 1728. In this case, Orbe never presented claims VII, VIII, IX and X to the state court in compliance with Rule 5:7A(g)’s page limit. Thus, barring an extraordinary decision to disregard its page limit rule, the state court had no opportunity to reach them. If these actions constitute fair presentation, state page limit rules could be strategically manipulated by petitioners in order to preclude state courts from ruling on selected claims, while nonetheless preserving them for federal habeas review. Comity therefore re^ quires barring these four claims from federal habeas merits review. Finally, Orbe argues that the 50-page limit physically prevented him from bringing all of his viable constitutional claims before the state court because it was impossible to “cram” them into the petition and still argue them with the required thoroughness. He argues that because of this impediment to bringing his claims, “circumstances exist that render [the state corrective] process ineffective to protect the rights of the applicant,” making proper presentment to the state courts unnecessary. See 28 U.S.C. § 2254(b)(l)(B)(ii). Yet, the Fourth Circuit in Weeks flatly rejected the argument that page limits physically prevent petitioners from raising claims, noting that “[t]he fifty-page limit [for briefs on direct appeal] merely limited the manner in which [petitioner] could present his arguments; it did not wholly prevent him from presenting them.” Weeks, 176 F.3d at 271.. According to the unanimous panel decision in Weeks, “[w]hile the page limitation may have led [petitioner’s] counsel to make certain strategic choices as to which arguments to include and which to omit, the page limitation is reasonable.” Id. at 272. Again, Orbe offers no ground to distinguish between page limits for briefs on direct appeal, and those imposed on state habeas petitions. The page limit established for Virginia state habeas proceedings does not render the state process “ineffective to protect the rights of the applicant.” See 28 U.S.C. § 2254(b)(l)(B)(ii). Orbe is therefore still bound by the federal habeas exhaustion rule codified at § 2254(b)(1)(A). In 'sum, although claims VII, VIII, IX and X were included in Orbe’s motiohs to amend his state habeas petition, these claims were never presented to the Supreme Court of Virginia in compliance with the page limit established by Rule 5:7A(g), Va. Sup.Ct. R. Barring “special and important reasons” to grant Orbe leave to amend his petition and circumvent the page limit rule, the Supreme Court of Virginia could not, and did not, reach the merits of these claims. Therefore, according to Castille, these claims were not fairly presented to the state court. See Castille, 489 U.S. at 351, 109 S.Ct. 1056. It follows, then, under the rule in Gray, that these claims are procedurally defaulted because they were not presented to the state court on direct appeal or on habeas review. See Gray, 518 NS. at 162, 116 S.Ct. 2074. IV. Merits Review A. Claim 1(B): Defense Counsel Unreasonably Failed to Address the Prosecutor’s Racial Discrimination Orbe claims that his original trial counsel unreasonably failed to protect Orbe from the prosecutor’s improper consideration of race. In this regard, Orbe contends that the prosecutor did, in fact, consider race as part of her decisions (i) to charge- Orbe with capital murder and (ii) to refuse his plea offer. He further contends that his counsel was or should have been aware of the prosecutor’s improper consideration of race, and therefore provided ineffective assistance by not confronting the prosecutor, moving for her recusal, moving to quash the indictment, or consulting Orbe about the prosecutor’s consideration of race. The Supreme Court of Virginia addressed the merits of this claim on state habeas review, finding that the claim failed “for lack of proof that there was racial discrimination in the prosecution of the case.” See Orbe v. Warden, No. 001708 at 2 (Va. September 10, 2001). Thus, relief may be granted on the basis of this claim only if the Supreme Court of Virginia’s ruling was “contrary to, or an unreasonable application of, clearly established Federal law.” See 28 U.S.C. § 2254(d). To show ineffective assistance of counsel sufficient to create a violation of the Sixth Amendment, Orbe must show that his counsel (i) failed to offer “reasonably effective assistance,” and (ii) that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland analysis “of necessity requires a case-by-case examination of the evidence.” See Terry Williams, 529 U.S. at 391, 120 S.Ct. 1495. When ineffective assistance claims are based on the failure to raise, develop, or properly present an underlying claim, an examination of the merits of the underlying claim will frequently be dispositive of the ineffective assistance claim. If the underlying claim is meritless, counsel’s failure to pursue it can be neither unreasonable nor prejudicial, and no further inquiry is necessary. See, e.g., Wright v. Angelone, 151 F.3d 151, 161 (4th Cir.1998) (summarily rejecting ineffective assistance claim based on the failure to challenge the jurisdiction of the circuit court because the jurisdictional claim was meritless). Therefore, analysis properly begins with a consideration of the merits of the race discrimination claim despite its defaulted status. The relevant facts concerning, the race discrimination claim are as follows: Six months prior to Orbe’s trial, a York County jury verdict resulted in Daryl Atkins receiving a death sentence for capital murder. Prior to Orbe’s trial, his counsel approached the prosecutor to discuss plea negotiations. According to trial counsel’s affidavit, the prosecutor refused to consider any agreement, and told him that “she could not agree to give a white man (Mr. Orbe) a life sentence when she had just asked for and obtained a death sentence for a black man (Daryl Atkins).” The prosecutor avers in her affidavit that she rejected the plea offer on the merits, because she considered Orbe’s case “clearly a capital murder.” She noted that the crime was “brutal” and the evidence of his guilt was “overwhelming.” She also noted that the murder was part of a “crime spree, including robbery, another shooting, abductions and a high-speed chase with the police in Richmond.” Finally, she states that she did not “see any distinction to be drawn between [Orbe’s and Atkins’s] cases in terms of the seriousness of 'the offenses or the evidence of the future dangerousness of the defendants.” She acknowledges making a statement regarding the need to be consistent between the two defendants regarding capital murder charges. Specifically, the prosecutor avers that “only as an afterthought, I remarked that I could imagine that if there was [sic] such a plea agreement in Orbe’s case, someone might allege that he received special treatment only because he was white.” On these facts, Orbe argues that the prosecutor impermissibly allowed race to play a part in her decisions regarding charging and plea negotiations, in violation of Orbe’s equal protection rights. The legal principles that govern this claim are well-established. Decisions to prosecute “may not be based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). Likewise, race and religion “may play no part in [a prosecutor’s] charging decision.” Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). However, the cases discussing selective prosecution claims make clear that prosecutors are given broad discretion in making prosecutorial decisions, and that courts should be “hesitant” to examine the decision to prosecute. Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). It is equally clear that “[i]n order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary.” Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 (citation omitted). Orbe has presented no such clear evidence of racial discrimination. As an initial matter, the prosecutor’s statement simply cannot bear the weight Orbe places upon it. According to the prosecutor’s affidavit, the statement came as an afterthought, after she had already rejected the life sentence plea on the merits because she viewed the incident as “clearly a capital murder.” Thus, this record does not contain the requisite “clear evidence” that impermissible race considerations infected the prosecutor’s decisions. At best, the record reflects that the prosecutor’s charging decisions and plea decisions were properly made on the merits and that she was conscious of race, but only to the extent that she had resolved not to let race affect her charging decisions. Nor has Orbe demonstrated that the proffered legitimate reasons for the prosecutor’s refusal to negotiate a plea were pretextual. Nothing in the record contradicts the prosecutor’s assertion that her decision to treat the cases similarly was a result of her conclusion that they were both clearly capital murder cases and that justice required that like cases should be treated alike. At most, Orbe suggests that Atkins’s crime may have been more serious than Orbe’s, and that Atkins had greater potential future dangerousness than Orbe. Yet, this comparison does not, by itself, prove that the prosecutor wrongly refused a plea to a life sentence in Orbe’s case. Even assuming, arguendo, that Orbe’s crime was less serious than the Atkins crime, this does not contradict the prosecutor’s judgment that both crimes warranted a death sentence. Nor does it show that the prosecutor acted unreasonably in treating the cases alike. Orbe also argues that his case was particularly appropriate for a plea, because he lacked prior convictions and because a jury could reasonably conclude that the shooting was accidental. Yet, the record factually refutes this argument; Orbe’s extensive and violent crime spree at the time of the murder negates the absence of prior convictions, and, as discussed infra at pp. 771-72, the evidence of accidental firing is nonexistent. Orbe further argues that a plea leading to a life sentence would have provided closure and punishment while sparing the state the costs of death penalty litigation and appeal. Of course, the same could be said about any death penalty case. In sum, there is simply no persuasive showing that Orbe’s case was especially appropriate for a plea to less than capital murder, and therefore there is no showing that the prosecutor’s explanations for her decisions were pretextual. Orbe has alleged an odd sort of reverse discrimination: He does not contend that he was treated differently from Atkins on account of their different races, but that he was treated the same as Atkins, when he should not have been, because their races differed. He accuses the prosecutor not of discriminatory motives herself, but rather of improperly considering race out of fear that she would be viewed as racially discriminatory. Although such defensive reverse discrimination is not implausible and, if established, would constitute an impermissibly race-motivated prosecutorial decision, Orbe has not produced any persuasive evidence that this prosecutor im-permissibly used race as a factor in charging and plea negotiation decisions. Simply put, Orbe has not provided the “clear evidence” of prosecutorial bias required by Armstrong to overcome the presumption that the prosecutor did not violate Orbe’s right to equal protection of the laws. 517 U.S. at 465, 116 S.Ct. 1480. Because Orbe’s underlying race discrimination claim is without merit, he cannot show that his counsel’s failure to pursue such a claim was unreasonable or prejudicial under Strickland. Therefore, the Supreme Court of Virginia’s determination that this claim failed for lack of evidence of race discrimination was not contrary to, nor an unreasonable' application of, federal law under § 2254(d), and Orbe’s claim on this ground must therefore be dismissed. B. Claim 11(B): Counsel Unreasonably Failed to Object to Venireman Conner’s Improper Exclusion Orbe claims ineffective assistance of counsel based on his counsel’s failure to object, either at trial or on appeal, to the trial judge’s allegedly improper exclusion of potential juror Velma Conner. The Supreme Court of Virginia considered this claim on state habeas review and found that Orbe had failed to show ineffective assistance under Strickland. See Orbe v. Warden, No. 001708 at 2-3 (Va. September 10, 2001); Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Thus, review of this claim must be conducted under the deferential standard of § 2254(d), and relief may not be granted unless this determination by the Supreme Court of Virginia was contrary to or an unreasonable application of federal law. The trial judge discretionarily excused Velma Conner after apparently concluding that Conner’s own doubts about her ability to serve as a juror in a capital case would significantly impair her ability to serve as an effective and impartial juror in the case. The pertinent voir dire colloquy reflects that when asked “[D]o you have an opinion that would prevent you from convicting someone of an offense that is punishable by death,” Conner responded “it is a problem for me.” She also agreed that she would “feel better” if she were relieved of the duty of having to sit in judgment on a death penalty case. On the other hand, Conner did not state that she “could not impose” the death penalty, only that “the evidence would have to be very strong.” On the basis of these answers, the trial judge excluded this juror. Analysis of the merits of a potential juror’s exclusion must begin with the recognition that the Sixth and Fourteenth Amendments “guarantee[ ] a defendant on trial for his life the right to an impartial jury.” Yeatts v. Angelone, 166 F.3d 255, 265 (4th Cir.1999) (citing Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). Therefore, when a juror’s views on the death penalty are absolute, in one direction or another, exclusion is required. Any juror who would “in no case vote for capital punishment, regardless of his or her instructions” and any juror who would “automatically vote for the death penalty in every case” must be removed. Id. Beyond these automatic decisionmakers for whom exclusion is required, trial judges may exclude jurors whose personal opinions would conflict with their duties as a death penalty juror. In this regard, “the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Id. (citing Morgan). At the other end of the scale, a trial judge may not exclude a prospective juror “simply because he expresses some reservations about imposing the death penalty in any case.” United States v. Tipton, 90 F.3d 861, 879-80 (4th Cir.1996) (citing Witherspoon v. Illinois, 391 U.S. 510, 520-23, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). Exclusion of jurors who simply express qualms or hesitation results in a jury which is not impartial, but rather one “uncommonly willing to condemn a man to die.” Witherspoon, 391 U.S. at 521, 88 S.Ct. 1770. The determination as to whether a potential juror’s reservations would “substantially impair the performance of his duties” or whether they are mere qualms is a matter of discretion for the trial judge and is reviewed with deference. Tipton, 90 F.3d at 880. Conner candidly admitted that the death penalty “is a problem for me.” This problem apparently was not absolute; she indicated that she “could impose the death penalty” if the evidence was “very strong.” Thus, whether Conner’s exclusion was proper is determined by applying the “substantially impair” standard found in Morgan and Yeatts. In this respect, Orbe contends that Conner’s reservations concerning the death penalty were the sort of mere qualms that do not properly justify the exclusion of a juror. In support, he points out (i) that Conner does not elaborate on the nature of her “problem” with the death penalty, which apparently arose after the subpoena, (ii) that her requirement that the evidence be “very strong” does not conflict with the proper “beyond a reasonable doubt” standard, and (iii) that many citizens, feeling the heavy burden of service on a death penalty jury, would “feel better” if they were excused. Thus, Orbe argues Conner was improperly ex-eluded and Orbe’s counsel unreasonably failed to raise the issue at trial or on direct appeal. This argument, while not without some force, is ultimately unconvincing. Conner plainly had a “problem” with the death penalty and did not wish to serve as a juror in the case. Although the nature of her “problem” was not probed, it is fair to say there was more than a little ambiguity about her willingness or ability to impose the death penalty in an appropriate ease. In these circumstances, determinations of the trial judge, “who had the benefit of first-hand exposure to voir dire” are reviewed “with discretion,” and where responses reveal “some ambiguity about the willingness or ability to impose the death penalty, we presume the correctness of the trial court’s decision.” Truesdale v. Moore, 142 F.3d 749, 757 (4th Cir.1998). Particularly instructive here is Tipton, where the Fourth Circuit found a potential juror’s inconclusive and vaguely expressed opposition to the death penalty sufficient to justify exclusion. See Tipton, 90 F.3d at 879-81. In that case, the potential juror stated that she was “not sure at this time if [she] could give the death penalty,” and when asked whether her personal opinion would “substantially impair [her] service as a juror,” she responded “I hope not,” and “It might.” Id. at 880. Later, however, she indicated that she could “imagine cases where she could contemplate imposing the death penalty,” and when asked if her personal opinion would get in the way in those cases she responded “No.” Id. Similar to the potential juror in Tipton, Conner gave ambiguous and arguably contradictory indications of her ability to impose the death penalty. What is clear is that she had a problem with the death penalty and did not wish to sit on the case. Conner’s statement that she could only impose the death penalty given “very strong” evidence gives rise to a valid concern that, in light of her problem with the death penalty, she would have difficulty following the trial court’s instructions in the case. In these circumstances, deference is appropriately accorded to the trial judge’s determination regarding the true depth of Conner’s reservations and feelings and whether these would “substantially impair” her ability to fulfill her duties as a juror in the case. See Morgan, 504 U.S. at 728, 112 S.Ct. 2222. It follows that Orbe cannot succeed on the merits of his underlying juror exclusion claim. Based on its review of the merits of Conner’s exclusion,- the Supreme Court of Virginia determined that it was not unreasonable, under Strickland’s first prong, for Orbe’s trial counsel to fail to object to Conner’s exclusion. See Orbe v. Warden, No. 001708 at 3 (Va. September 10, 2001). Furthermore, given the deference extended to the trial judge’s decision on exclusion, the Virginia Supreme Court determined that Orbe had not shown that counsel’s failure to raise the issue on appeal resulted in prejudice, as required by Strickland’s second prong. See id. Given the teachings of Morgan, Yeatts, and Tipton, there is no basis to conclude that the Supreme Court of Virginia’s determination in this respect was “contrary to” or “an unreasonable application of’ clearly established federal law. 28 U.S.C. § 2254(d). Therefore, Orbe’s juror exclusion ineffective assistance claim must be dismissed. C. Claim 111(B): Counsel Unreasonably Failed to Ensure Proper Presentation of the Lesser Included Offense Orbe contends that his Sixth Amendment right to counsel was violated by his counsel’s failure to present properly the issue of a lesser included offense instruction on first degree murder. This failure included counsel’s failure to correct the trial court’s alleged misunderstanding of the law on the issue (claim 111(B)(1)); counsel’s failure to clarify the evidence regarding how easily the gun could have been accidentally fired (claims 111(B)(2) & (3)); and counsel’s failure to call attention to the Constitution and to pertinent Supreme Court decisions in the argument on direct appeal (claim 111(B)(4)). Finding that no evidence supports Orbe’s theory that the firing of the gun was accidental, the Supreme Court of Virginia ruled that claims 111(B)(1), (2), and (3) failed under Strickland’s prejudice prong and claim 111(B)(4) failed under Strickland’s performance prong. See Orbe v. Warden, No. 001708 at 4-6 (Va. September 10, 2001); Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In light of this merits adjudication by the state court, these claims must be reviewed under § 2254(d)’s deferential standard. It is true that a defendant’s constitutional rights are violated if the jury is not permitted to consider a lesser included offense when “the evidence would have supported such a verdict.” Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (citing Beck v. Alabama, 447 U.S. 625, 629-630, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)); see also Komahrens v. Evatt, 66 F.3d 1350, 1354 (4th Cir.1995). Yet, it is equally true that a defendant is not entitled to a lesser included offense instruction if “there is no support for such instructions in the evidence.” Komahrens, 66 F.3d at 1354; see also Hopper, 456 U.S. at 611, 102 S.Ct. 2049 (holding that due process requires a lesser included offense instruction “only when the evidence warrants such an instruction”). Thus, the merits of the lesser included offense claim turn on whether the evidence in Orbe’s case supports a verdict of first degree murder, the lesser offense. The Virginia Code defines capital murder, in part, as “[t]he willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery.” Va.Code § 18.2-31(4). First degree murder, in turn, is defined in relevant part as “[mjurder, other than capital murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, ... robbery, ... except as provided in § 18.2-31 [capital murder].” Va.Code § 18.2-32. In other words, a defendant who kills “during the course of a robbery, but [does] not kill with willfulness, deliberation, and premeditation” is guilty only'of first degree murder, not capital murder. Briley v. Bass, 584 F.Supp. 807, 839 (E.D.Va.1984). Thus, to be entitled to a first degree murder instruction on the facts of this case, Orbe must provide some evidence that the killing, which occurred in the commission of a robbery, was not done by Orbe “with willfulness, deliberation, and premeditation.” Id. Under Virginia law, “the evidence relied on to support a proffered instruction must amount to ‘more than a scintilla.’ ” See Rosen v. Greifenberger, 257 Va. 373, 380, 513 S.E.2d 861, 865 (1999) (citing Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978) (refusing to grant instruction on voluntary intoxication in a murder case, where evidence showed that defendant had been drinking, but no evidence suggested he was intoxicated)). Neither the evidence Orbe offered at trial nor the evidence he could have offered amounts to “more than a scintilla.” Rosen, 513 S.E.2d at 865. In his habeas petition, Orbe claims that he shot Burnett “unintentionally, as a result of fear or confusion.” Orbe does not claim that some outside or intervening force caused him to shoot the gun accidentally, but rather that he pulled the trigger but did not really mean to shoot. Even though no such arguments were made at trial, Orbe asserts that “Orbe’s consistent theory at trial was that he was nervous, his hand shook or clenched involuntarily, and his stepfather’s gun discharged only because of its light trigger pull and the short distance the trigger had to traverse to reach the most rearward position.” Orbe provides no evidence to support this involuntary shooting theory. He claims that the jury could have inferred a lack of willfulness, deliberation, and premeditation based on the following evidence: (i) the videotape, which recorded only one frame per second and did not show the actual shooting, (ii) the fact that the gun had been modified and required only a light trigger pull in order to fire, (iii) the fact that Orbe did not use his gun when trying to evade capture, even though he had an opportunity to do so, and (iv) the fact that he fired only one shot. None of this evidence advances Orbe’s theory. First, although the videotape does not capture the instant when the shooting occurred, it does not support the “unintentional shooting” theory. After Burnett was shot, Orbe simply walked around the counter, took the money, and left the store, showing neither concern for Burnett nor surprise that the gun had fired. Second, although the firearms expert testified at trial that the gun had a light action when the hammer was cocked, he also testified that the trigger still would have to be pulled back and held for the gun to fire. Moreover, had Orbe actually presented this unintentional firing argument during the guilt phase of the trial, the prosecution could have easily shown that he was, in fact, quite familiar with the fight action of the gun. After all, Orbe had fired the gun at Lois Jones twice two days before shooting Burnett. Thi