Full opinion text
MEMORANDUM OPINION ELLIS, District Judge. Petitioner Christopher Goins was convicted of capital murder in the Circuit Court for the City of Richmond on June 13, 1995. A month later, he was sentenced to death for this crime. His direct appeal and collateral attacks in state court having failed, Goins now petitions for a writ of habeas corpus in the federal forum. The matter is before the Court on respondent’s motion to dismiss, which, for the reasons set forth here, must be granted. I. Facts Petitioner Christopher Goins and his friend Barry Scott arrived at the Richmond, Virginia, apartment of Tamika Jones and her family on the morning of October 14, 1994. That day, six other members of Tamika Jones’ family were present in the apartment, including her parents, Daphne Jones and James Randolph, Jr., her nine-year-old sister Nicole, her four-year-old brother David, her three-year-old brother Robert, and her twenty-one-month-old sister Kenya. Goins and Scott were friends of the Jones family. At that time, Tamika was fourteen years old and seven months pregnant with Goins’ child. She had recently returned home from the hospital after receiving treatment for pregnancy-related complications. On the morning of the murders, Goins apparently became angry when Scott attempted to show Goins an ultrasound photograph of Tamika’s fetus. Tamika testified at trial that she heard Goins in the other room saying, “Why you bringing it to me? I don’t want to see it. Take it back.” Later that morning Tamika saw Goins briefly in the living room of the family apartment. While she was in her bedroom with her sister, Kenya, she heard him participating in a conversation in the kitchen and then heard rapid gunfire in the kitchen, followed by screams, crying, and the sound of a single set of footsteps in the hall. Tamika then heard more shots and saw “flashes in the hall.” Immediately thereafter, she saw Goins appear in the doorway of her bedroom and proceed to shoot her nine times. He also shot her sister, Kenya, whom Tamika had attempted to shield with her body. As soon as Tamika thought Goins had left the apartment, she called 911 for assistance and told the 911 operator that Goins had shot her. When asked by the operator if anyone was with her, Tamika responded, “Yes, he shot them too.” The police arrived soon thereafter at the Jones’ apartment, where they found that the entire family had been shot and only Tamika and Kenya had survived. Daphne had been shot four times, twice in the head, once in the left wrist, and once in the right leg. Both shots to the head were lethal. James Randolph, Jr., was shot nine times, twice in the head, three times in the left arm and chest, once in the abdomen, once in the right arm, once in the left leg, and once on the chin. Four of •these wounds were lethal. Four-year-old David died as a result of a lethal gunshot wound to the head, apparently fired at close range. Daphne, James Randolph, Jr., and David were all found in the kitchen. In a bedroom, police found the bodies of nine-year-old Nicole and three-year-old Robert. Nicole suffered two lethal gunshot wounds: .one bullet passed through her heart and a lung and the other bullet was fired into her head at close range. Robert sustained two lethal gunshot wounds to his head. Kenya sustained a wound measuring between two and three inches long through her left wrist. Tamika was shot three times in her abdomen, three times in her thighs, once in her right hand, once in her neck, and once in her left shoulder. Because multiple bullets had perforated her uterus, her right ovary, and a fallopian tube, Tamika’s uterus and one ovary were removed. Her fetus was killed by a gunshot wound to its face. In the apartment, the police found multiple .45 caliber cartridge casings, various bullets, and bullet jacket fragments. No weapon was found. A firearms identification expert testified at trial that all the recovered bullets, bullet jackets, and jacket fragments were “.45 auto caliber.” He also concluded that the bullet jackets were ejected from a firearm constructed by a manufacturer that uses polygonal rifling. Glock, Inc., he stated, is the major manufacturer using this type of rifling in the design of its firearms. A second expert in firearms identification concluded, on the basis of the cartridge casings, that all the bullets used in the shootings were fired from the same .45 caliber Glock pistol. Police searched the apartment of Monique Littlejohn, Goins’ girlfriend, on two occasions. There they found an unfired .45 caliber cartridge that one of the firearms experts testified had been in the same weapon as the cartridge casings found at the crime scene. Also found in Littlejohn’s apartment, lying on the floor next to some men’s clothing, was an instruction manual for Glock pistols. Parrish Davis, a cab driver who had known Goins for several months prior to the shootings, testified at trial that about one week before the murders, Goins told him that he was upset because Tamika had become pregnant. Davis stated that Goins told him he “wanted to do away with her and her family.” Further, Davis revealed that he and Goins had occasionally discussed .45 caliber pistols. Significantly, Davis also testified that on October 14, 1994, the day of the murders, Goins asked Davis to drive him out of town concealed in the trunk of a friend’s car, which Davis refused to do. Approximately a month after the shootings, Goins and Littlejohn were apprehended in New York. II. Procedural History At trial and during sentencing, Goins was represented by appointed counsel Robert Johnson and Susan Hansen. On June 13, 1995, a jury in the Circuit Court of the City of Richmond convicted Goins of one charge of capital murder, four charges of first degree murder, two malicious wounding charges, and seven charges of illegal use of a firearm. In a separate sentencing proceeding, the jury recommended the imposition of the death sentence for the capital murder after finding that Goins’ conduct was “outrageously or wantonly vile, horrible, or inhuman” and concluding that he represented a continuing serious threat to society. Va.Code § 19.2-264.2. For the noncapital offenses, the jury sentenced Goins to four life terms plus 78 years in prison. After considering the probation officer’s report and conducting a sentencing hearing, the trial court sentenced Goins to death in accordance with the jury’s recommendation. Still represented by Attorneys Johnson and Hansen, Goins appealed his convictions and sentences to the Supreme Court of Virginia. This appeal failed; the conviction and sentence were affirmed by published opinion on April 19, 1996. See Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114, 132 (1996). The United States Supreme Court denied Goins’ petition for a writ of certiorari on October 7, 1996. See Goins v. Virginia, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996). Represented by newly-appointed counsel, Goins then filed a 146-page petition for a writ of habeas corpus in the Supreme Court of Virginia on December 6, 1996. The Supreme Court of Virginia directed Goins to refile the petition to conform to the fifty-page limit set by state rules, and Goins complied by filing an amended petition. On May 5, 1997, without conducting an evidentiary hearing, the Supreme Court of Virginia dismissed the amended petition. See Goins v. Warden, No. 962477 (Va. May 5,1997). Thereafter, on August 14, 1997, the Circuit Court of the City of Richmond scheduled Goins’ execution for September 15, 1997. On September 5, 1997, Goins filed a motion in this Court for a stay of execution and appointment of counsel to prepare a federal habeas petition pursuant to 28 U.S.C. § 2254. This Court stayed execution and granted the motion for appointment of counsel on September 11, 1997, and on January 7, 1998, Goins moved for the appointment of experts and an investigator. The Court denied this motion, without prejudice to Goins’ renewal of the motion should circumstances warrant following the filing of the habeas petition and the government’s response. Goins then filed his 185-page petition on February 17, 1998, setting out thirty-six grounds for relief as follows: I. The appointment of unqualified counsel deprived Goins of a fair trial and sentencing; II. Goins received inadequate assistance of counsel stemming from counsel’s inadequate pretrial investigation; III. The trial court’s decision to select the venire from Gloucester County denied Goins the right to an impartial jury and fair trial; IV. The trial court failed to discharge its duty to select a fair and impartial jury; V. The trial court improperly denied Goins the opportunity to mail a questionnaire to potential jury members; VI. The trial court erred in denying additional peremptory challenges; VII. The trial court improperly limited questions during voir dire; VIII. The trial court improperly failed to remove three jurors; IX. Prospective jurors were improperly dismissed for cause; X. The trial court erred in not allowing Goins to question or educate jurors about parole during voir dire; XI. The trial court denied fatigued counsel a recess; XII. Trial counsel failed to provide Goins with effective assistance of counsel during jury voir dire; XIII. The prosecution failed to produce certain evidence in violation of Brady and the trial court’s discovery order and presented a false theory of the case; XIV. The trial court improperly admitted testimony and physical evidence that inflamed the jury and resulted in a sentence based on the influence of passion, prejudice, and other arbitrary factors; XV. Goins’ rights were violated by his absence from critical stages of his trial and his counsel’s ineffectiveness relative to this absence; XVI. Goins received ineffective assistance of counsel during trial; XVII. Goins. received ineffective assistance of counsel at sentencing; XVIII. Goins received ineffective assistance of counsel with regard to counsel’s' selection of Dr. Nelson and counsel’s interaction with and supervision of Dr. Nelson; XIX. Trial counsel failed to raise the issue of interference in the attorney client relationship by a cooperating informant; XX. Trial counsel failed to move to withdraw after the conflict between Goins and trial counsel became apparent; XXI. Both trial counsel failed to communicate adequately and share critical information with each other; XXII. Goins’ rights under the Eighth and Fourteenth Amendments were violated by the exclusion of evidence of parole eligibility; XXIII. The Due Process Clause required that the jury be presented with evidence of Goins’ ineligibility for parole release; XXIV. Christopher Goins’ death sentence was substantially based on unadju-dicated allegations of criminal misconduct in violation of his rights to due process and against cruel and unusual punishment; XXV. The inadequate consideration of mitigation evidence; XXVI. The evidence was insufficient as a matter of law to establish the aggravating factors of vileness and future dangerousness; XXVII. The evidence of guilt was insufficient as a matter of law; XXVIII. Prosecution witnesses were untruthful in their testimony; XXIX. The prosecution failed to disclose evidence of an unlawful search; XXX. Jury misconduct; XXXI. Virginia’s capital sentencing statute is unconstitutional; XXXII. The Supreme Court of Virginia provided inadequate and meaningless appellate review of the appropriateness of the death penalty; XXXIII. Failure to perform constitutionally adequate proportionality review; XXXIV. Appellate counsel provided ineffective assistance of counsel; XXXV. Imposition of the death penalty constitutes cruel and unusual punishment; and XXXVI. Trial counsel’s affidavits are illegal and improper. After filing the petition, Goins again moved for discovery and appointment of experts. Respondent opposed Goins’ motions and moved to dismiss the petition. III. Exhaustion All of Goins’ thirty-six habeas claims have been “exhausted” within the meaning of 28 U.S.C. § 2254(b), either because they were presented to the Supreme Court of Virginia on direct appeal or habeas review or because they have never been presented to the Supreme Court and cannot be presented to that court now under Virginia Code § 8.01-654(B)(2), which section generally prohibits successive habeas petitions. IV. Procedural Default Habeas claims, even though “exhausted” under § 2254(b), may not be reviewed on the merits if they have been procedurally defaulted. In this regard, there are two distinct procedural default standards, one set forth in 28 U.S.C. § 2264(a), enacted as part of the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA), and the second, the pre-AEDPA standard, set forth in Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The first step in the procedural default analysis is to determine which of these default standards applies here. The AEDPA standard is set out in 28 U.S.C. § 2264(a), but because Virginia is not an “opt-in” state pursuant to 29 U.S.C. § 2261, § 2264 is not applicable to capital habeas petitioners in Virginia. See Cardwell v. Netherlands 971 F.Supp. 997, 1013 n. 21 (E.D.Va.1997), aff'd sub nom. Cardwell v. Greene, 152 F.3d 331 (4th Cir.1998), cert. denied — U.S. —, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998). Goins’ claims are thus properly examined under Coleman, which teaches that when a federal habeas petitioner defaults a federal claim under an independent and adequate state procedural rule, federal review of the defaulted claim is generally barred, unless (i) there is cause for, and actual prejudice from, the default or (ii) .failure to review the claim would result in a fundamental miscarriage of justice. Pertinent in this regard is the fact that the Supreme Court of Virginia held that ten of Goins’ state habeas claims, raised again in his federal petition, were procedurally defaulted under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974). Slayton bars state habeas review of those claims that were available to petitioner at trial or on direct appeal and that petitioner failed to raise at that time. Nor is there any doubt, as the Fourth Circuit has consistently found, that the Slayton rule constitutes an independent and adequate state procedural rule for the purposes of federal habeas procedural default analysis. See, e.g., Fisher v. Angelone, 163 F.3d 835, 844 (4th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1290, 143 L.Ed.2d 382 (1999). Goins concedes, as he must, that he has defaulted the ten claims. Even so, he contends that his default is nevertheless excusable under both exceptions articulated in Coleman. Specifically, Goins asserts that the challenged claims must be considered or a miscarriage of justice will result, as the allegations in his petition reveal probable actual innocence of the murders or probable actual innocence of a death sentence. To be sure, when a habeas petitioner demonstrates that a constitutional error probably resulted in the conviction of one who is in fact innocent, or presents clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty, then any defaulted procedural claims challenging these constitutional errors must be considered to prevent a miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 323-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In this case, while Goins asserts conclusorily that such errors exist, he has proffered no facts in his petition from which it can be reasonably concluded (1) that there is a probability he is innocent of the murders or innocent of the death penalty and (2) that any of the ten alleged errors mistakenly led to his conviction and sentence. Thus, Goins has failed to demonstrate that enforcement of the procedural default rule will result in any miscarriage of justice in this case. Goins also asserts that he should receive merits review of the ten defaulted claims because ineffective assistance of counsel constituted cause for the default and because prejudice flowed from the default. It is true that in a federal habeas proceeding constitutionally ineffective assistance of counsel, if established, can serve as cause to excuse a procedural default, provided that the ineffective assistance of counsel claim is first presented to, and exhausted in, the state courts. See, e.g., Justus v. Murray, 897 F.2d 709, 712 (4th Cir.1990). In this sense, Goins did present and exhaust nine of the ten otherwise defaulted claims; that is, he included among his state habeas claims the failure of his trial and appellate counsel to raise the nine procedurally defaulted claims. The ineffective assistance of counsel in failing to preserve or advance the remaining nine claims is also argued in freestanding claims in the federal habeas petition. Nevertheless, for the reasons set forth infra in the discussion of the ineffective assistance claims, in each instance either the failure to raise the claims was not objectively unreasonable, or no prejudice to Goins flowed from the failure to present the claims. Finally, respondent notes that Goins has never previously raised in any state court proceeding Claim XXXIV(l)(i), which alleges that appellate counsel was ineffective for failing to argue that the Supreme Court of Virginia’s proportionality review is unconstitutional because the court gives no notice of the factors used in the review. As a result, the claim must fail here, since a Virginia inmate seeking a writ of habeas corpus in federal court procedurally defaults any claim he neglects to raise in direct or collateral state proceedings. See Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.1990). This is because Virginia law clearly states that no writ of habeas corpus shall be granted “on the basis of any allegation of facts of which petitioner had knowledge at the time of filing any previous petition.” Va.Code § 8.01-654(B)(2). And, since Goins neither alleges cause for the default, nor has he shown that this alleged error resulted in his conviction though he was actually innocent, there is no obligation here to consider the application of either exception to the procedural default rule. See, e.g., Wright v. Angelone, 151 F.3d 151, 160 (4th Cir.1998). In sum, Claims I, III, VIII, IX, XI, XIV(3), XV, XXV, XXVI, XXX, and XXX]V(l)(i) are procedurally defaulted, and Goins has failed to demonstrate either cause and prejudice for the default or a miscarriage of justice. Accordingly, these claims must be dismissed. V. Merits Review Goins seeks an evidentiary hearing on the merits of the preserved claims. Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir.1998), cert. denied, — U.S. —, 119 5.Ct. 587, 142 L.Ed.2d 491 (1998), established that a petitioner, when denied the opportunity to develop an evidentiary basis for his claims in state court, has not thereby “failed” to do so under 28 U.S.C. § 2254(e)(2) and hence is entitled to such a hearing when the petitioner alleges “additional facts that, if true, would entitle him to relief.” If a petitioner fails to forecast such evidence, denial of the request for an evidentiary hearing is proper. See Cardwell, 152 F.3d at 338. Goins, it seems clear, did not fail, under § 2254(e)(2), to develop an evidentiary basis for his claims; he was precluded from doing so by the Supreme Court of Virginia’s summary denial of a hearing for this purpose. It follows, then, that Goins may obtain a hearing here if he alleges or forecasts additional facts that, if true, would merit relief. Because Goins has failed to allege or forecast such facts, as the following discussion discloses, he is not entitled to an evidentiary hearing. Therefore, the merits of Goins’ claims will be assessed on the basis of the existing record. 1. Ineffective Assistance of Counsel The Supreme Court of Virginia rejected Goins’ state habeas ineffective assistance of counsel claims on the merits, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Section 2254(d)(1) of the AEDPA provides that an application for a writ of habeas corpus “shall not be granted” if there was a merits adjudication in the state court unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1). Goins’ ineffective assistance of counsel claims were clearly “adjudicated on the merits” by the Supreme Court of Virginia, although the court did not disclose its reasons for rejecting Goins’ claims. Under the statute, the question is thus “whether the state court decision rests upon an objectively unreasonable application of established principles to new facts,” Cardwell, 152 F.3d at 339, or specifically in this instance, whether the Supreme Court of Virginia unreasonably applied the Strickland standard. Of course, “[wjhere, as here, there is no indication of how the state court applied federal law to the facts of a case, a federal court must necessarily perform its own review of the record.” Id. In these circumstances, “the distinction between de novo review and' ‘reasonableness’ review becomes insignificant.” Id. see also Wilson v. Moore, 178 F.3d 266, 280 (4th Cir.1999). In short, this Court must independently evaluate whether (i) the attorney performance in issue alleges falls below an objective standard of reasonableness and (ii) whether there is a reasonable probability that had counsel not committed errors falling below this objective standard, that the results of Goins’ trial or sentencing would have been different. See Bell v. Evatt, 72 F.3d 421, 427 (4th Cir.1995). A. Claim II: “Goins received ineffective assistance of counsel stemming from trial counsel’s inadequate investigation. ” Goins alleges that his trial counsel failed to consult with him adequately prior to trial, meeting with him only a few times a month between their appointment on February 8, 1995, and the trial’s commencement in June 1995. He notes that after Attorneys Hansen and Johnson were appointed in February, a month passed before they filed any discovery. He further alleges that Attorney Johnson, who was primarily responsible for the guilt phase of the trial, never interviewed witnesses to assess their credibility or the strength of their information, nor did he conduct any other investigation concerning the facts of this case. Instead, according to Goins, Attorney Johnson deferred to the judgment of the Public Defender’s investigator working on the case in deciding whether to call various persons as witnesses. Goins also alleges that his attorneys failed to investigate adequately their chosen theory of defense, namely that Barry Scott committed the murders, by (i) failing to investigate whether Scott owned or possessed a firearm prior to the incident, (ii) failing to investigate the white canvas bag Scott allegedly brought to the apartment for trace evidence of a firearm, (iii) failing to examine latent prints on the drugs found on James Randolph’s body to establish Scott’s drug dealing and motive for the shooting, and (iv) failing to ascertain from government investigators whether Scott’s residence was searched for the murder weapon. In addition, Goins claims that trial counsel rendered ineffective assistance as a result of their failure to conduct an adequate investigation of methods for impeaching a prosecution witness, their failure to investigate the credentials of their chosen expert, and their failure to uncover various evidence in mitigation. On the merits, the claim fails both because in some instances Goins cannot establish that trial counsel’s performance fell below an objective standard of reasonableness and because, even assuming this were established, Goins, in all instances, fails to show that any such deficiencies prejudiced either the trial or the sentencing. This is illustrated by an examination of each of the alleged deficiencies. First, Goins asserts that trial counsel failed to interview witnesses, delegating this task to an investigator. The record refutes this assertion; while Attorney Johnson may well have delegated this task, according to trial counsel’s affidavit, Attorney Hansen participated in interviewing “most, if not all, potential witnesses.” These facts do not support a claim of deficient performance in this respect. Nor is there any persuasive showing that trial counsel’s actions prejudiced the trial or sentencing. Goins also alleges that trial counsel were deficient in their investigation of their chosen defense, namely, that Scott, not Goins, was the murderer. Specifically, Goins alleges that trial counsel (i) never investigated whether Scott possessed a firearm prior to the murders; (ii) never investigated the white canvas laundry bag that Scott brought to the Jones apartment that day for trace evidence of a firearm; (iii) did not attempt to link Scott to the drugs found on James Randolph through an examination of latent fingerprints; (iv) did not attempt to find or test clothing worn by Scott on the day of the shooting for blood or gunpowder residue; and (v) did not question police investigators about whether Scott’s residence was ever searched for the murder weapon. In their affidavit, Attorneys Johnson and Hansen state that attempts to find and test clothing worn by Scott on the day of the shootings would have been pointless since Scott turned himself into police several days after the murders, when he would have had ample time to discard or wash the clothing. They also state that it would have been pointless to question police investigators about whether Scott’s apartment was ever searched for a murder weapon, since they were aware through monitoring filings in the clerk’s office that no warrants for any such searches had been issued. Given Strickland’s strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, it cannot be said that trial counsel’s investigation of Scott was so negligent as to constitute ineffective assistance. In addition, there is no evidence that if trial counsel had undertaken the further investigation. Goins specifies, they would have discovered that Scott possessed a firearm which, at some point, he had carried in the white canvas bag. And, even had their investigation revealed such evidence, it is unlikely that this evidence would have overcome the inferences from Tamika’s testimony that she heard gunshots and a single set of footsteps immediately before Goins appeared in her doorway and shot her and her sister. See, e.g., Huffington v. Nuth, 140 F.3d 572, 582 (4th Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 444, 142 L.Ed.2d 399 (1998) (finding that failure to call rebuttal witness, even if objectively unreasonable, was not prejudicial in light of the overwhelming evidence against defendant). Goins also faults trial counsel for failing to investigate both the testimony that would be given by Parrish Davis, a witness for the prosecution, and the potential for impeaching Davis. According to trial counsel’s affidavit, which is not disputed by Goins, when Davis’s name first appeared on a prosecution witness list, the attorneys asked Goins who he was, and Goins said only that he thought he was a cab driver. Not until Davis took the stand did Goins tell counsel that Davis had picked him up in his cab the night of the murders. Trial counsel aver that Goins had never mentioned Davis before. At trial, Davis testified that Goins had told him shortly before the murders that he wanted to “do away with” Tamika and her family because she was pregnant by Goins. He further testified that Goins asked him on the evening of the murders to conceal Goins in the trunk of the ear and drive him out of town. Goins now argues that an investigation of Davis would have disclosed involvement in ongoing criminal activity, including embezzlement and participation in drug trafficking, and that this information could have been used to impeach Davis. To be sure, a defense counsel “ordinarily has a duty to investigate possible methods for impeaching prosecution witnesses.” Hoots v. Allsbrook, 785 F.2d 1214, 1221 (4th Cir.1986). In some instances, a failure to undertake this investigation may constitute ineffective assistance. See id. In failing to investigate avenues for impeaching Davis, trial counsel arguably breached their professional obligations. In this instance, however, Goins has failed to show prejudice arising from this breach. Even without undertaking the relevant investigation, trial counsel were able to locate and introduce evidence that there were no fares recorded for Davis’s cab substantiating his testimony that he had picked up Goins at the times alleged. Counsel were thus able to argue to the jury that either Davis had not picked up Goins at the times alleged or he had picked up Goins, but lied to his cab company. Through this evidence, counsel were able to cast some doubt upon Dayis’s testimony and trustworthiness. In addition, there is no reasonable probability that if counsel had been able to impeach Davis with evidence of his criminal activity, Goins would not have been convicted. Evidence of participation in drug trafficking or embezzlement would not have directly implicated Davis’s testimonial trustworthiness, as would, for instance, a perjury conviction, and while it is possible such evidence could have led the jury to discredit Davis’s testimony, “[ujnder Strickland, a mere possibility that the result might have been different does not suffice.” Id. (holding that defense’s failure to impeach prosecution witness through introduction of prior worthless check convictions not prejudicial). Instead, Goins must show a “reasonable probability” that a different result would have occurred in the absence of counsel’s error. He has failed to make this showing. Goins’ next ineffective assistance argument focuses on trial counsel’s selection of Dr. Evan Nelson as an expert mental health examiner. This selection amounted to ineffective assistance, Goins argues, given Dr. Nelson’s lack of experience in general and in capital cases specifically. This argument is frivolous, as Dr. Nelson’s vita reflects that he was fully and amply qualified to serve as a mental health expert in this matter. Finally, Goins argues that Attorneys Johnson and Hansen were ineffective because of their failure adequately to investigate mitigating evidence, including Goins’ family background, medical and psychiatric history, and social history. Goins states that on May 8, 1995, trial counsel received a report from investigators that indicated, based on interviews with Goins’ mother, stepfather, great aunt, maternal uncle, maternal aunt, and stepbrother, as well as review of Goins’ school records and the reports of the public defender investigator, that Goins had grown up in a family characterized by drug abuse and neglect. Goins now challenges his attorneys’ failure to conduct further investigation into psychiatric problems suffered by members of Goins’ family and emotional neglect experienced by Goins in childhood. In addition, Goins argues that counsel should have further investigated Goins’ own psychiatric history, and specifically faults his attorneys’ failure to seek the results of a psychological examination of Goins performed when he was seven years old. Goins’ claim fails; he does not show that his counsel were ineffective in this regard. While trial counsel’s investigation of Goins’ mother’s psychiatric history might have been more thorough, the information they obtained adequately established the effect on Goins of his mother’s chemical dependency and psychiatric difficulties. Specifically, the information trial counsel obtained revealed that she never gave Goins attention or affection, that she neglected him and failed to seek prompt medical attention for him when necessary, and that she had used cocaine and alcohol throughout his life. Any further details about the precise nature of his mother’s infirmities would seem only cumulative, demonstrating difficulties faced by her, not by Goins. Similarly, information about a childhood psychological evaluation of Goins, even assuming such records still existed, was also at best cumulative, given that Goins’ attorneys had retained the services of an expert who was able to speak to Goins’ current psychological state. As a result, there is no indication either that a failure to seek out this information should be characterized as objectively unreasonable or that such a failure was prejudicial to Goins. In summary, Goins has failed to demonstrate inadequate investigation by his attorneys under the Strickland standard. B. Claim XII: “Trial counsel failed to provide Christopher Goins with effective assistance of counsel during jury voir dire. ” a. Failure to challenge jurors for cause. Goins first argues that trial counsel should have moved to dismiss juror-Dickey for causé. When Attorney Johnson asked, “Do you believe that defendants in criminal trials should have to prove that they’re innocent?” Ms. Dickey responded affirmatively. She repeated her answer when the question was asked again, and then stated that the prosecution has “to prove without a doubt that he’s guilty and [the defense] prove[s] without a doubt that he’s innocent.” Nevertheless, when the burden of proof in a criminal trial was again explained to her, she amended her statement, saying, “No; I don’t think they have to prove — I think when they come into court, the [sic] should be innocent until proven guilty.... That’s the way I feel. You know, I don’t think when he comes into court, we should label him and say, boom; he’s guilty.” Later, when Attorney Johnson asked whether she would hold it against the defendant if the defense presented no evidence at all, she responded, “Well, I wouldn’t think that he’s guilty unless I heard the evidence against him was more than you guys could prove.” Attorney Johnson then asked whether she would expect the defense to prove that the prosecution was wrong, and Ms. Dickey responded, “I would think so.” The trial court then reprimanded Attorney Johnson for asking confusing questions, and Attorney Johnson conceded he was having some difficulty articulating the point. Ms. Dickey ultimately served as a juror in Goins’ trial. Goins argues that Ms. Dickey’s responses demonstrated a biased attitude toward Goins and a fundamental misunderstanding of the relevant burdens, revealing that she was unable to maintain impartiality and follow the instructions of the court and her oath as a juror. He contends that Attorney Johnson was ineffective for failing to move for Ms. Dickey’s dismissal for cause. Yet, the récord shows that Ms. Dickey immediately corrected her answers upon further questioning, and her later statement that she would expect the defense to prove that the prosecution wrong was given in answer to a question that both the trial judge and Attorney Johnson recognized was confusing. Since the exchange taken as a whole did not demonstrate Ms. Dickey’s bias, trial counsel’s failure to move that she be dismissed for cause was not ineffective. Cf. Bunch v. Thompson, 949 F.2d 1354, 1367 (4th Cir.1991) (“Although both potential jurors initially agreed with the statement that the death penalty should be imposed in every case of murder ... both changed their positions upon immediate requestioning. Failure to strike the potential jurors for cause did not lead to a fundamental miscarriage of justice where, as here, they stated their ability to consider fairly and impartially sentences besides death.”); Bell v. Lynaugh, 828 F.2d 1085, 1092 (5th Cir.1987) (“Although Branch testified that she would require appellant to present evidence before she would find him not guilty, she also testified that she would not hold against appellant the possibility that he might not testify and might not present any evidence. This subsequent clarification ... suggests that Branch could be a fair and impartial juror and ... justifies the trial judge’s denial of appellant’s motion to strike Branch for cause.”). The conclusion that Ms. Dickey was not biased is strengthened by the fact that the trial court apparently came to the same conclusion. Federal habeas courts apply a presumption of correctness to a trial court’s determination that a juror is qualified to serve. See Patton v. Yount, 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Here, since trial counsel made no motion to dismiss Ms. Dickey for cause, the trial court did not explicitly rule that Ms. Dickey was unbiased and impartial. Even so, the trial court’s empaneling of Ms. Dickey implicitly demonstrates that the trial court made this determination. Given that such a determination “is essentially one of credibility, and therefore largely one of demeanor,” the trial court’s resolution of this issue is entitled to “special deference.” Id. This deference applies with special force in instances where, as here, prospective jurors give ambiguous or contradictory answers during voir dire examination, as the trial judge is in the best position to determine which answers accurately reflect a juror’s understanding and belief. See id. at 1039, 104 S.Ct. 2885. While not determinative, the fact that the trial court allowed Ms. Dickey to be empaneled supports the conclusion that Attorney Johnson was not ineffective for failing to move for her dismissal. Goins further claims that Attorney Johnson was ineffective for failing to move to dismiss juror Hogge. Ms. Hogge, who revealed during voir dire that she had been the victim of a violent crime, initially stated that she did not know whether this experience would affect her judgment in the current matter. Upon further questioning, however, she stated she would be able to put this experience aside and base her decision solely on what she heard in the courtroom, without being influenced by her own experience. Later, when asked if she had heard any conversations about the case that day in the courthouse, she stated the she had heard “[t]hat [Goins] had killed people,” but affirmed that these overheard conversations would make no difference to her deliberations. In no way did Ms. Hogge’s responses demonstrate bias against Goins, and her answers in voir dire revealed her understanding that her deliberations as a juror were to be based only on the evidence before her. Thus, trial counsel’s decision not to seek her dismissal for cause was objectively reasonable. See Bunch, 949 F.2d at 1367. Finally, Goins argues that juror Anderson should have been challenged for cause because she stated that she had received information about the case from a co-worker. Yet, Goins fails to note that Ms. Anderson further stated that she had formed no opinion about the case based upon these statements, had no preconceived notions as to the guilt or innocence of the defendant, and knew of no reason, biases, or prejudices that would interfere with her ability to sit in the case, listen to the evidence, consider only the evidence that came out in the case, and give the defendant a fair trial based only on the law and the evidence. Ms. Anderson thus clearly stated that she was able to consider the facts in Goins’ case without preconceptions or prejudices and that she would base her verdict only on the law and evidence introduced at trial. Trial counsel’s failure to move for her dismissal for cause was not ineffective assistance, since the record supports the conclusion that the juror was impartial. See Adams v. Aiken, 965 F.2d 1306, 1317 (4th Cir.1992), vacated on other grounds and remanded, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994), aff'd 41 F.3d 175 (1994). b. Failure to object to the improper dismissal of prospective jurors who expressed reservations about the death penalty. Goins contends that prospective jurors Brownlee and Williams were improperly dismissed by the trial court when they did not express an immediate willingness to impose the death penalty and that trial counsel’s failure to challenge these dismissals was ineffective. In such cases, “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.” Mackall v. Angelone, 131 F.3d 442, 450 (4th Cir.1997), cert. denied — U.S. —, 118 S.Ct. 907, 139 L.Ed.2d 922 (1998) (quoting Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). A juror who would not vote for capital punishment in any case regardless of the instructions he or she receives is not impartial and must be removed for cause. See id. Here, when asked whether she could impose the death penalty in a proper case, Ms. Brownlee stated that she did not think she could. Given this, the trial court’s dismissal of Ms. Brownlee was plainly justified. Mr. Williams was also asked repeatedly whether he could impose the death penalty if the prosecution carried its burden, and each time he answered that he did not know if he could. At no time during questioning did Mr. Williams affirm that under appropriate circumstances, he would vote for imposition of capital punishment. While Mr. Williams’ responses were more equivocal than Ms. Brownlee’s, his answers in voir dire demonstrated that he was unsure that he would be able to follow the law and the court’s instructions in this case. Accordingly, his dismissal for cause was justified, and trial counsel’s failure to object to this dismissal did not constitute ineffective assistance. c. Failure to ask 'prospective jurors ivhether they woidd be willing to consider Goins’ age as a reason not to impose the death penalty. In voir dire, the prosecutor repeatedly asked prospective jurors whether the fact that Goins was twenty-one-years old at the time of trial would prevent them from imposing the death penalty. Multiple prospective jurors, including eight jurors ultimately empaneled in this case, two alternate jurors, and three jurors removed by the defense through peremptory strikes, answered that the defendant’s age would not prevent them from imposing the death penalty. Goins now argues that Attorney Johnson should have ensured through voir dire questioning that potential jurors would be willing to consider Goins’ age as a reason not to impose the death penalty, since the age of the defendant is a statutorily-prescribed mitigating factor. In effect, Goins argues that trial counsel did not conduct a voir dire adequate to qualify the jury in a capital case. This argument founders on recent circuit authority. In Yeatts v. Angelone, 166 F.3d 255, 262-66 (4th Cir.1999), cert. denied, — U.S. —, 119 S.Ct. 1517, 143 L.Ed.2d 668 (1999), as here, a habeas petitioner sought relief on the ground that trial counsel provided ineffective assistance when he failed to conduct voir dire sufficient to determine whether jurors would consider mitigating circumstances in determining the sentence of a capital defendant. The panel rejected this claim, holding that voir dire regarding jurors’ willingness and ability to impose the death penalty is sufficient to protect a capital defendant’s Sixth and Fourteenth Amendment rights when jurors are asked (i) whether they have any opinion that would prevent them from convicting anyone of an offense punishable with death; (ii) whether, if they found the defendant guilty of capital murder, they could never vote to impose the death penalty or even consider its imposition; and (iii) whether, if they found the defendant guilty of capital murder, they would be able to consider voting for a sentence less than death. See id. No further questions are constitutionally required to “death qualify” a jury, and counsel cannot be constitutionally ineffective for failing to ask further questions regarding the jurors’ opinions on possible mitigating and aggravating circumstances. See id. Under Yeatts, trial counsel’s decision not to ask jurors whether they would consider age as a mitigating factor does not amount to constitutionally ineffective assistance. d. Trial counsel failed to conduct adequate voir dire. Trial counsel moved for sequestered voir dire, and the trial court denied this motion in part and granted it in part, initially questioning jurors in groups of three, then increasing the groups to five, and finally to thirteen. Although Goins’ attorneys objected to these increases in group size, the trial court overruled the objection. Goins now claims that trial counsel’s memorandum on the sequestration issue was cursory and ineffective, yet he identifies no issue or precedent that the memorandum failed to address. His claim is frivolous. Counsel moved for sequestered voir dire and objected when jurors were questioned in larger groups. Strickland does not permit a finding that trial counsel were ineffective based on vague assertions that they should have filed a more eloquent or extensive memorandum in support of a motion. See Strickland, 466 U.S. at 686-91,104 S.Ct. 2052. In addition, Goins argues that when the trial court denied trial counsel’s request to mail a questionnaire to all prospective jurors, Attorney Johnson had a duty to redraft the questionnaire, removing cumulative and objectionable questions, and to renew the motion to use the questionnaire. Yet counsel already had renewed the motion once, and in addition presented a letter from a jury selection expert detailing the need to use a questionnaire to ensure accurate and candid answers from jurors. Attorney Johnson’s choice to abandon the questionnaire in the face of two denials by the trial court cannot be termed objectively unreasonable. Moreover, even assuming the contrary, this claim still fails because no prejudice from the failure to distribute the questionnaire has been shown. In other words, in no way did counsel’s conduct here so undermine the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just and reasonable result. See Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Similarly, Goins claims that Attorney Johnson’s failure to renew a motion for additional peremptory challenges that had already once been denied by the trial court constitutes ineffective assistance of counsel. This claim’s lack of merit is too apparent to require further discussion. Trial counsel also sought, by motion, to question potential jurors about their beliefs regarding Goins’ potential parole eligibility were he to be convicted and the effect of these beliefs on their ability to be impartial. The trial court denied this motion. Goins now claims that the motion constituted ineffective assistance of counsel because it stated, incorrectly, that Goins, if convicted, would be eligible for parole in twenty-five years, when in fact, Goins would not be eligible for parole for thirty years. This contention is patently frivolous, since even if trial counsel’s five-year miscalculation fell below an objective standard of reasonableness, no possible prejudice could have resulted from the mistake; it strains credulity to imagine that the trial court determined whether to allow the questions based on a misapprehension as to the proper parole eligibility term. In addition to parole eligibility questions, trial counsel, relying in part on the testimony of a jury selection expert, sought to ask prospective jurors a variety of other questions that were disallowed by the trial court. In this regard, Goins claims that counsel failed adequately to articulate why these questions were relevant and necessary to determine jurors’ impartiality, yet he points to no specific flaw or errors in his attorneys’ performance in this regard. Again, Goins attempts to argue that his trial counsel were constitutionally ineffective solely because their arguments did not succeed; this contention must fail. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“[I]t is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”). Lastly, Goins contends that trial counsel failed to seek a recess when their fatigue impaired their participation in the jury voir dire process. Goins neither substantiates the claim that trial counsel were impaired by fatigue, nor does he articulate how such fatigue prejudiced him. He thus fails to establish this claim. C. Claim XVI. “Goins received ineffective assistance of counsel during trial. ” a. Failure to 'present a defense. The defense theory, as articulated in Attorney Johnson’s opening statement and closing argument, was that Barry Scott, not Goins, committed the murders. In the opening statement, Attorney Johnson alerted the jury to certain questions that when applied to the evidence presented would, he suggested, raise a reasonable doubt as to whether Scott or Goins committed the murders. Goins now argues that trial counsel essentially promised to present evidence on these questions, yet ultimately failed to introduce evidence supporting this defense and failed to provide the jury with answers to the questions raised in opening statements. Specifically, Goins argues that the defense failed to subpoena Scott as a witness, failed to introduce evidence of Scott’s contradictory statements to police, failed to introduce evidence that Scott was a drug dealer, failed to introduce evidence that Scott’s bond was reduced based on an agreement with the Commonwealth after he cooperated with the authorities, and failed to bring forward evidence of Scott’s past history of violence and previous criminal convictions. Goins also .argues that the failure to call Scott as a witness left trial counsel unable to point out inconsistencies between Tamika’s and Scott’s version of events in the Jones apartment that morning {e.g., Tamika testified the gün Goins used was black, while Scott said in a police statement the gun Goins used was gray; Tamika testified that she heard Goins ask her mother for a glass of water immediately prior to the shootings, Scott mentioned no such conversation, in his statements). Goins argues that by failing to call Scott as a witness or introduce the relevant evidence, his counsel failed to present the only available defense. Trial counsel’s failure to present evidence to which counsel alludes in opening statements does not, in and of itself, constitute ineffective assistance as a matter of law. See Turner v. Williams, 35 F.3d 872 (4th Cir.1994), overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (1996) (“In pur view, assuming counsel does not know at the time of the opening statement that he will not produce the promised evidence, an informed change of strategy in the midst of trial is virtually unchallengeable.”). Even if trial counsel’s opening statement explicitly promises to present certain evidence during trial, which is not the case here, if the decision riot to present the promised evidence is motivated in any way by tactical considerations or strategy, it is highly unlikely to be held ineffective. See id.; United States v. McGill, 11 F.3d 223, 227 (1st Cir.1993); United States ex rel. Schlager v. Washington, 887 F.Supp. 1019, 1026 (N.D.Ill.1995), aff'd sub nom. Schlager v. Washington, 113 F.3d 763 (7th Cir.1997). Evidence of Scott’s presence in the apartment on the morning of the murders was introduced at trial, but Attorney Johnson did not introduce evidence of the contradictory statements given by Scott to the police, despite the fact that his opening statement suggested that such evidence would be introduced. Presumably, at the time of his opening statement, Attorney Johnson expected the prosecutor to call Scott as a prosecution witness and planned to introduce evidence of the inconsistent statements to impeach Scott on cross-examination. When the prosecution failed to call Scott as a witness, ample strategic reasons justified trial counsel’s decision not to call Scott to the stand. Most significant in this regal’d is that Scott’s testimony was very likely to be quite damaging to the defense, given that in his most recent statement to the police he said that he had seen Goins shoot Daphne Jones and James Randolph, Jr. If Scott had so testified, he would have provided the only eyewitness testimony that Goins committed the murders, since Tamika simply testified that she saw Goins shoot her and her sister Kenya, who survived. While calling Scott would have allowed counsel to introduce evidence as to Scott’s contradictory statements, his violent history, his cooperation with the police, and his drug dealing, counsel apparently concluded, quite reasonably, that the damaging testimony Scott would probably provide far outweighed any possible benefit of this evidence. The soundness of this conclusion is, if anything, strengthened by the fact that none of the inconsistencies between Scott’s version of events and Tamika’s version of events were material, and thus Scott’s story would have done little to cast doubt on Tamika’s testimony. Nor is it true that the failure to call Scott as a witness completely deprived Goins of a defense. Without calling Scott as a witness, defense counsel was nevertheless able to argue that no trial witness saw the -actual murders, that Scott was in the apartment at the time of the murders, and that drugs were found on James Randolph, Jr., and in the bloodstream of Daphne Jones, thus suggesting an alternative motive for the killings. Attorney Johnson also was able to argue that while the five who were killed suffered shots to the head at close-range, Tamika and Kenya were not shot in the head and were shot from some distance away, thus suggesting that’ different individuals might have been responsible for the two sets of shootings and potentially casting doubt on the probative value of Tamika’s identification of Goins as the person who shot her and Kenya. In summary, trial counsel’s decision not to call Scott had a sound trial strategy basis and did not preclude the argument that Scott, not Goins, was the murderer. Clearly, this is not an instance in which a failure to produce evidence could produce no conceivable benefit for the defense. Cf. Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir.1992) (holding that a failure to call alibi witnesses constituted ineffective assistance when no tactical considerations could have motivated the decision); Harris v. Reed, 894 F.2d 871, 877 (7th Cir.1990) (holding that failure to call unbiased witnesses who identified a suspect other than defendant fleeing the scene of the crime was ineffective assistance of counsel). The decision whether to call Scott as a witness necessitated the weighing of risks and returns that is an intrinsic part of defense counsel’s choice of strategy. Such weighing should not be labeled ineffective assistance merely because the choice of strategy has been unsuccessful. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Matthews v. Evatt, 105 F.3d 907, 918 (4th Cir.1997). Goins’ challenge to trial counsel’s failure to present evidence regarding Scott must fail. b.Medical testimony concerning gunshot wounds to the fetus. At trial, Dr. Kay, a medical examiner who performed autopsies on several of the victims, gave a detailed description of the gunshot wounds to Tamika’s fetus in response to the prosecutor’s questioning. In addition, Dr. Sugarman, Tamika’s treating physician, testified that the fetus was dead when removed, having suffered gunshot wounds through the head and face. Trial counsel did not object to the prosecutor’s questions or the doctors’ testimony in this regard. Goins now argues that trial counsel’s failure to object to this line of questioning amounts to constitutionally ineffective assistance because it incorrectly and prejudicially suggested that, if Goins shot Tamika, he was legally and morally responsible for a death (i.e., the death of the fetus) as a result of that shooting. Yet, Goins was charged with the malicious wounding of Tamika, and the testimony was relevant to the extent of Tamika’s injuries, going to show Goins’ intent to maim, disfigure, disable, or kill, an element of malicious wounding. See Va.Code. § 18.2-51. While the testimony was argu- - ably inflammatory, there is no reasonable probability that trial counsel’s failure to object to it led to Goins’ conviction or capital sentence given the compelling circumstantial evidence that Goins had murdered two adults and three small children immediately prior to shooting Tamika and her sister. Goins has thus failed to show prejudice on this point. c. Drug offense testimony. Goins claims that trial counsel improperly allowed the prosecutors to ask a defense witness whether he sold drugs for Goins. When the question was initially asked, trial counsel objected and the question was rephrased. Goins claims that counsel should also have objected to the rephrased question and asked for a mistrial or a cautionary instruction. Yet, on direct appeal, the Supreme Court of Virginia held that the rephrased question was proper cross-examination on the issue of bias. Goins, 251 Va. at 465, 470 S.E.2d at 129. Given this, Goins has shown no error on the part of his attorneys in this instance, much less prejudicial error. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (requiring that a defendant show that trial counsel made errors so serious that he or she was not functioning as the “counsel” required by the Sixth Amendment). d. Trial counsel failed to object to the admission of the cartridge found at Monique Littlejohn’s apartment. At trial, Detective Woody testified that he went to Monique Littlejohn’s apartment at the request of Diza Royall, Littlejohn’s mother. In this regard, he stated: At that particular time, Monique Little-john’s mother, Diza Royall, was inside Monique Littlejohn’s bedroom; and she was going through the dressers; and she was picking things up off the floor. And Mrs. Diza Royall picked up a .45 cartridge from the side of Monique Litt-lejohn’s bed in the corner there and gave it to me; and I in turn gave it to Detective Barton. Detective Woody testified that he then saw Detective Barton take the cartridge to the police property room. Detective Barton and the detective who took the bullet from the police property room to the firearms laboratory for examination also testified as to their control of the bullet. Ms. Royall did not testify. Trial counsel did not object to the admission of the cartridge. Contrary to Goins’ contention, trial counsel’s failure to object was reasonable since Officer Woody’s testimony was sufficient to establish the necessary first link in the chain of custody. Under Virginia law, the “purpose of the chain of custody rule is to establish that the evidence obtained by police was the same evidence tested.” Robertson v. Commonwealth, 12 Va.App. 854, 406 S.E.2d 417, 419 (1991). Ms. Ro-yall’s testimony was not necessary to make this showing. Thus, Goins here fails to show error of counsel, as required by Strickland, 466 U.S. at 687, 104 S.Ct. 2052. e. Trial counsel failed to request a cautionary instruction concerning the victim’s fetus. Goins argues that trial counsel’s failure to request a jury instruction prohibiting the jury from considering the death of the fetus in their deliberations was prejudicial to him. Assuming, arguendo, that this failure to request a limiting instruction fell below professional standards of assistance, given the overwhelming evidence against Goins there is no reasonable probabilit