Full opinion text
MEMORANDUM OPINION T.S. ELLIS, III, District Judge. Petitioner Paul Warner Powell’s petition for habeas corpus relief encompasses two capital murder trials on two different indictments. Powell was first convicted of capital murder in the Circuit Court for Prince William County in 2000, and was thereafter sentenced to death. The Supreme Court of Virginia vacated the conviction and remanded, limiting retrial on the specific charged offense to non-capital murder. Apparently flush with his success, Powell rashly wrote a letter to the Prince William County Commonwealth’s Attorney, mocking the prosecution and describing additional facts about the crimes that were unknown to the Commonwealth during the first trial. Based on these new facts, the Commonwealth’s Attorney elected to nolle prosequi the remanded charges and to seek instead a new indictment against Powell. Accordingly, Powell was tried on this new indictment and was again convicted and sentenced to death. This time, his direct appeal to the Supreme Court of Virginia failed. After unsuccessfully challenging the second conviction and sentence in collateral state proceedings, Powell filed a petition in this district seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Commonwealth responded by filing a motion to dismiss, which is now at issue, as it has been fully briefed and argued. For the reasons set forth here, the Commonwealth’s motion to dismiss must be granted. I. In his first trial, Powell was tried on the following charges: (i) the capital murder of Stacey Lynn Reed (“Stacey”) in the commission of robbery and/or attempted robbery, in violation of Va.Code § 18.2-31(4); (ii) the capital murder of Stacey in the commission of, or subsequent to, the rape and/or attempted rape of Stacey’s sister, Kristie Erin Reed (“Kristie”), in violation of Va.Code. § 18.2-31(5); (iii) the abduction, rape, and attempted capital murder of Kristie, in violation of Va.Code §§ 18.2-48, -61, -31(5), -26; (iv) grand larceny, in violation of Va.Code § 18.2-95; (v) robbery and attempted robbery, in violation of Va.Code § 18.2-58; and (vi) three counts of the use of a firearm, in violation of Va.Code § 18.2-53.1. The jury convicted Powell of (i) the capital murder of Stacey subsequent to or in the commission of the rape of Kristie, (ii) the abduction, rape, and attempted capital murder of Kristie, and (in) grand larceny, but acquitted him of the three remaining charges. See Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344, 355 (2001); see also Powell v. Commonwealth, 267 Va. 107, 590 S.E.2d 537, 543 (2004). On direct appeal, the Supreme Court of Virginia described the facts relating to Powell’s convictions, in this first trial, as follows: Powell was acquainted with Stacey Lynn Reed (Stacey) for two and á half years prior to the commission of the crimes in question. Kristie Erin Reed (Kristie), Stacey’s younger sister, described her sister and Powell as “[fjriends.” Powell, who was 20 years old at the time of the murder, had wanted to date Stacey, who was 16 years old, but recognized that she was underage and he “could go to jail for that.” Powell, a self-avowed “racist and white supremacist,” was aware that Stacey, who was white, was dating Sean Wilkerson, who is black. Wilkerson had recently moved to another locality, but he and Stacey remained in contact. Stacey was a member of her high school’s Junior Reserve Officer’s Training Corps and planned to attend a military ball with Wilkerson. Just before noon on January 29, 1999, Stacey arrived home from school early, having completed her examinations that were being given that day. Powell was waiting for her at her home when she arrived. When Powell learned that Robert Culver, a friend of the girls’ mother, would be home shortly for lunch, Powell left and returned at about 12:45 p.m., after Culver had left. When Powell returned, he was armed with a “survival” knife, a “butterfly” knife, a box cutter, and a 9-millimeter pistol. Stacey was talking to Wilkerson on the telephone. After Stacey ended the telephone conversation, Powell confronted her about her relationship with Wilkerson. He demanded that Stacey end her relationship with Wilkerson. According to Powell, he and Stacey argued, and the argument grew into a struggle. Powell drew the survival knife from his belt and Stacey “got stuck.” Powell denied stabbing Stacey deliberately. The struggle continued briefly until Stacey collapsed on the floor in her sister’s bedroom. Although Powell did not know whether Stacey was still alive, he made no effort to determine her condition or call for medical assistance. Powell “wandered around the house, got some iced tea, had a cigarette.” Kristie arrived home from school shortly after 3 p.m. and was met at the door of the home by Powell. Powell told her that Stacey was in her room, but moments later Kristie discovered her sister’s body in Kristie’s bedroom. She dropped her schoolbooks and began to cry. Powell ordered Kristie to go to the basement. Kristie, who knew that Powell was usually armed, complied because she “didn’t want to die.” In the basement, Powell ordered Kristie to remove her clothes and to lie on the floor. Powell then raped Kristie, and she “begg[ed] him not to kill her.” Powell later admitted that he knew that Kristie, who was 14 years old at the time of the rape, had been a virgin. While Powell and Kristie were in the basement, Mark Lewis, a friend of Kristie, came to the house and knocked on the door. When Powell heard the knock, he tied Kristie’s legs together and tied her hands behind her back with shoelaces he cut from her athletic shoes. Powell then dressed and went upstairs. While Powell was upstairs, Kristie managed to loosen the bonds on her hands and attempted to “scoot across the floor to hide” under the basement steps. Hearing Powell coming back to the basement, she returned to the position on the floor where he had left her. Powell then strangled Kristie with a shoelace and she lost consciousness. While she was unconscious, Powell stabbed Kristie in the abdomen and slit her wrists and throat. Powell returned upstairs, searching for “anything worth taking.” He fixed another glass of iced tea, which he took with him when he left the home a short time later. Powell went to a friend’s house and then drove with the friend to the District of Columbia to buy crack cocaine. Kristie regained consciousness sometime after Powell had left her home. About 4:10 p.m., she heard Culver return home, and she called out his name. Culver discovered Kristie in the basement, called the 911 emergency response telephone number, and began rendering first aid to her. He later discovered Stacey’s body upstairs. Shortly thereafter, paramedics arrived. In response to a question from one of them, Kristie identified Powell as her attacker. Powell was arrested later that day at the home of his friend’s girlfriend, where he and the friend had gone after buying drugs. Kristie was transported by helicopter to Inova Fairfax Hospital where she received treatment for her injuries. It was ultimately determined that the wounds to her throat and abdomen each came within one centimeter of severing a major artery which likely would have caused her death. An autopsy revealed that Stacey had died from a knife wound to the heart. The medical examiner testified that there was a single entrance wound and two exit wounds indicating that the knife had been withdrawn, at least partially, and then reinserted into the heart. One wound path pierced the left ventricle and the other went through both the left and right ventricles, exiting the heart at the back of the right ventricle. Stacey’s body also exhibited a number of bruises on the head, chest, abdomen, back, arms, and legs, abrasions on the face, a stab wound to the back, and a cut and scrapes on the left forearm. The autopsy further revealed that Stacey had been struck on the head -with sufficient force to cause bleeding inside her scalp and in the membranes surrounding her brain prior to death. These injuries were not consistent with Stacey merely having fallen during a struggle. The DNA profile obtained from the blood found on Powell’s survival knife was consistent with the DNA profile of Stacey’s blood. The DNA profile obtained from sperm fractions from swabs taken from Kristie’s vagina and perianal area was the same profile as that obtained from Powell’s drawn blood sample. While in jail, Powell wrote letters to friends in which he admitted having committed the murder, rape, and attempted murder because of Stacey’s relationship with a black man. He further claimed that he had planned to kill Stacey’s family and steal the family’s truck. Powell also wrote to a female friend and asked her to “get one of [her] guy friends ... to go to a pay phone and call Kristie and tell her [that] she better tell the cops she lied to them and tell her [that] she better not testify against me or she’s gonna die.” Powell told another inmate that he had become angry with Stacey when she refused to have sex with him after talking to Wilkerson. Powell told the inmate that he stabbed Stacey twice and that when he attempted to cut Kristie’s throat, his knife was too dull, “[s]o he started stepping on her throat trying to stomp her throat.” To another inmate, Powell described Stacey’s killing as a “human sacrifice” and expressed satisfaction in having raped a virgin. Powell, 552 S.E.2d at 347-48. Following this recitation of the facts, the Supreme Court of Virginia proceeded to affirm Powell’s convictions for the abduction, rape, and attempted capital murder of Kristie, and for grand larceny. Powell, 552 S.E.2d at 356. The court then went on to reverse Powell’s conviction for the capital murder of Stacey in the commission of, or subsequent to, the rape or attempted rape of Kristie, finding, inter alia, that the original indictment had been improperly amended to include a charge of capital murder of Stacey “during the commission of or subsequent to rape and/or attempted rape.” Id. at 357. The court also found the evidence insufficient to support a conviction for the capital murder of Stacey during the commission of, or subsequent to, the rape of Kristie, because all of the evidence adduced at trial showed that Kristie was raped after Stacey’s murder. Id. at 363. Accordingly, the Supreme Court of Virginia remanded the case with instructions that Powell could not be convicted of more than first degree murder on retrial. While awaiting retrial, Powell, believing he could no longer be tried for capital murder, brashly wrote a letter to the Commonwealth’s Attorney who had prosecuted him, taunting the Commonwealth’s Attorney and admitting not only to the murder of Stacey, but also revealing that he had attempted to rape Stacey before killing her. This latter admission was new, not previously known to the Commonwealth’s Attorney. Armed with this and the other admissions in the letter, the Commonwealth’s Attorney nolle prossed the indictment in the remanded case and obtained a new indictment against Powell, charging him this time with the capital murder of Stacey “during the commission of or subsequent to the attempted rape of Stacey Lynn Reed.” See Powell, 590 S.E.2d at 544. Predictably, a centerpiece of the Commonwealth’s evidence in this second trial was Powell’s letter to the Commonwealth’s Attorney. The Supreme Court of Virginia’s description of this evidence is helpful. Powell stated in the letter that, because he believed he could not be retried for capital murder, “I figured I would tell you the rest of what happened on Jan. 29,1999, to show you how stupid all y’all ... are.” Admitting that he “planned to kill the whole family” on that day, Powell further stated that “I had other plans for [Stacey] before she died.” Powell described how he had attempted to initiate consensual sexual intercourse with Stacey, which he had previously admitted. Powell then revealed that when Stacey resisted his advances, he pushed her onto her bed and, while sitting on top of her, told Stacey “that we could do it the easy way or the hard way.” Powell then described how Stacey had “started fighting with me and clawed me [sic] face.” Powell stated that he “slammed her to the floor ... sat on top of her and pinned her hands down again.” Powell claimed that Stacey relented “and I told her if she tried fighting with me again I would kill her.” Continuing, Powell stated that, at his direction, Stacey began to disrobe, but stopped when the telephone rang. Stacey put her clothes back on so that she could answer the telephone. Powell refused to allow Stacey to answer the telephone and ordered her to resume disrobing. When she refused, Powell “pushed her back and pulled out [his] knife.” When Stacey attempted to leave the bedroom, Powell stabbed her. Stacey fell back and Powell removed the knife. Stacey then stumbled to another bedroom and collapsed. Powell “saw that she was still breathing” and “started stomping on her throat” until he “didn’t see her breathing anymore.” Id. at 544. Based on this and other evidence presented at the second trial, the jury convicted Powell of the capital murder of Stacey in the commission of, or subsequent to, the attempted rape of Stacey and then unanimously sentenced him to death, finding both vileness and future dangerousness as aggravating factors. Id. at 548-49. Powell again appealed his conviction to the Supreme Court of Virginia, claiming, inter alia, (i) that the trial court should have dismissed the second indictment based on the following grounds: (a) the reversal of the first conviction, (b) the “law of the case” doctrine, and (c) the Double Jeopardy Clause; (ii) that testimony about Powell’s attack on Kristie should have been excluded during the guilt determination phase as irrelevant and prejudicial; (iii) that Powell’s statements to police violated his Sixth Amendment rights and should have been excluded; and (iv) that the trial court erred in limiting Powell’s voir dire and failing to strike the venire panel after Powell’s attorney informed them that Powell had been previously convicted of capital murder. The Supreme Court of Virginia rejected all of these challenges and affirmed Powell’s conviction. Id. at 563. The U.S. Supreme Court denied certiorari. Powell v. Virginia, 543 U.S. 892, 125 S.Ct. 86, 160 L.Ed.2d 157 (2004). Powell then challenged his conviction in collateral state proceedings, raising numerous claims, many of which reiterated claims already rejected by the Supreme Court of Virginia on direct appeal. See Powell v. Warden of Sussex I State Prison, No. 042716, 2005 WL 2980756, at *2 (Va. Nov.8, 2005). Additionally, however, Powell also set forth several new claims. In relevant part, the new claims included: (i) challenges to the use of vileness and future dangerousness as aggravating factors during the sentencing phase, (ii) objections to the admission of a report containing false information about Powell’s criminal history during the sentencing phase; (iii) a contention that Powell’s statements to police after writing his letter to the Commonwealth’s Attorney confessing to the attempted rape of Stacey were involuntary; (iv) a claim that Powell was administered an unusual combination of medications and was forced to wear a stun belt during his trial, both of which impaired his right to participate meaningfully in his trial; (v) a claim that trial counsel provided him ineffective assistance by failing to investigate and present a compelling mitigating case and failing to rebut the Commonwealth’s aggravating evidence; and (vi) a contention that Virginia’s post-conviction procedures are constitutionally inadequate. Id. at *2-*24. The Supreme Court of Virginia denied relief on all grounds, but later granted rehearing on the question whether counsel was ineffective in the sentencing phase for failing to object to the introduction of the report containing false evidence of Powell’s criminal history. Ultimately, the court, by a 4 to 3 vote, rejected this claim and denied Powell’s petition for a new sentencing hearing. Powell v. Warden of Sussex I State Prison, 272 Va. 217, 634 S.E.2d 289 (2006). Powell then filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254, in which he asserts nine main claims for relief: 1. that Powell’s second capital murder trial violated the Double Jeopardy Clause; 2. that the trial court erred by limiting the scope of voir dire and by denying Powell’s motion to strike the first venire panel for cause; 3. that the trial court erred by refusing to exclude or limit evidence of Powell’s crimes against Kristie during the guilt phase of the trial; 4. that the Commonwealth violated Powell’s constitutional rights by interrogating him and introducing his statements against him at trial; 5. that trial counsel rendered ineffective assistance by failing to investigate all reasonably available mitigating evidence; 6. that the security conditions imposed on Powell during trial unconstitutionally impeded his ability to participate meaningfully in his trial; 7. that the Commonwealth impermissi-bly introduced false evidence of Powell’s criminal history; 8. that the jury unconstitutionally considered Virginia’s vileness and future dangerousness aggravating factors in the sentencing phase; and 9. that Virginia’s post-conviction review process is constitutionally infirm. All of Powell’s nine claims for relief have been exhausted as required by § 2254(b)(1), either because Powell actually raised each of them below, or because state avenues for relief are now closed to him. See Va.Code § 8.01-654.1. II. The federal habeas statute, bearing the eye-catching name the Antiterrorism and Effective Death Penalty Act (AEDPA), sharply limits federal review of a petition for habeas corpus relief from a state conviction and sentence. It does so by dictating “a highly deferential standard for evaluating state-court rulings.” Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (internal quotation marks and citations omitted). Specifically, this deferential standard allows federal ha-beas relief only where one or both of the following conditions are met. First, federal habeas relief is proper if the state court’s adjudication on the merits “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.” 28 U.S.C. § 2254(d)(1). It is now established that a state court decision is “contrary to” clearly established Supreme Court precedent if “the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or on facts “indistinguishable” from a Supreme Court decision, reaches a result different from the Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Lenz v. Washington, 444 F.3d 295, 299-300 (4th Cir.2006); Lovitt v. True, 403 F.3d 171, 178 (4th Cir.2005). Also now settled is that a state court’s decision involves an “unreasonable application” of federal law when that court identifies the proper governing federal rule from Supreme Court precedent, but then “unreasonably applies” that rule to a petitioner’s case. Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); see also Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir.2002). The second circumstance warranting federal habeas relief occurs where the state court’s merits decision “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)(2). And importantly, “a determination of a factual issue made by a State court shall be presumed to be correct” unless the habeas petitioner proves otherwise “by clear and convincing evidence.” Id. § 2254(e)(1). This standard is plainly “demanding,” but it is “not insatiable,” as “[d]eference does not by definition preclude relief.” Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citing Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). These established principles are the lens through which Powell’s § 2254 claims must be reviewed. III. Powell’s central habeas claim is that the second trial violated his rights under the Double Jeopardy Clause. He advances two principal arguments in support of this claim. First, he argues that the Double Jeopardy Clause was violated because the Commonwealth tried him twice under the same statute for the capital murder of Stacey and simply changed the identity of the victim of the rape or attempted rape in his second trial. Alternatively, he argues that even if it was permissible to charge him with two separate counts of the capital murder of Stacey — one based on the attempted rape of Stacey and one based on the rape of Kristie — the Commonwealth actually tried him in both trials for the capital murder of Stacey during the commission of, or subsequent to, his rape or attempted rape of Stacey. The Supreme Court of Virginia rejected both arguments on direct appeal, for reasons that bear recounting, as these reasons must be the focus of the AEDPA review here. The Supreme Court of Virginia disposed of Powell’s first double jeopardy argument by ruling, in accord with its established precedent, that the General Assembly of Virginia plainly intended that a defendant may be prosecuted for multiple violations of the Virginia capital murder statute, where, as here, there is a single murder victim but different gradation crime victims. See Powell, 590 S.E.2d at 553 (citing Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293, 301 (Va.1999)). Thus, the Supreme Court of Virginia found that the capital murder of Stacey subsequent to Powell’s attempted rape of Stacey was a distinct and separate crime from the capital murder of Stacey during the commission of, or subsequent to, Powell’s rape of Kristie. The Supreme Court of Virginia then rejected Powell’s second double jeopardy argument, relying on settled state precedent to rule that Stacey’s attempted rape was not at issue in the first trial because the Commonwealth’s bill of particulars limited that trial solely to the capital murder of Stacey subsequent to, or in the commission of, the rape of Kristie. See Powell, 590 S.E.2d at 552. The question presented, then, is whether the Supreme Court of Virginia’s rejection of Powell’s double jeopardy claim passes muster under AEDPA. Analysis of Powell’s first double jeopardy argument properly begins with identifying Sanabria v. United States, 437 U.S. 54, 70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) as the controlling “clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). There, the Supreme Court held that where a defendant is charged with several violations of the same criminal statute, the double jeopardy inquiry is whether the legislature responsible for passage of the statute intended the charged violations to be “allowable unit[s] of prosecution” separately chargeable under the statute. Sanabria, 437 U.S. at 70, 98 S.Ct. 2170. In other words, Sanabria stands for the proposition that where multiple violations of the sainé statute ' are charged, the question whether the violations are separate crimes for double jeopardy purposes requires ascertaining whether the legislature intended the violations to be separate crimes under the statute. Id. Applied here, Sanabria teaches that the pertinent double jeopardy question is whether the General Assembly of Virginia, in enacting Va.Code § 18.2-31(5), intended that murders with different gradation crime victims constitute separate and distinct crimes so that Powell’s murder of Stacey subsequent to Powell’s attempted rape of Stacey constituted a separate and distinct crime for double jeopardy purposes from Powell’s murder of Stacey subsequent to Powell’s rape of Kristie. The Supreme Court of Virginia, without citing Sanabria, but engaging in the precise analysis required by that case, clearly answered this question in the affirmative: Consistent with the General Assembly’s intent, Powell’s two trials for capital murder were for separate and distinct crimes because different gradation crime victims were involved in each trial. It follows, therefore, that Powell’s first argument fails, as it clearly appears that the Supreme Court of Virginia followed the appropriate Supreme Court precedent. Nor is there any doubt that the Supreme Court of Virginia reasonably applied Sanabria. The Supreme Court of Virginia’s legislative intent analysis was clear and explicit, covering both the language of Va.Code § 18.2-31(5) and the Supreme Court of Virginia’s precedent construing this statute. Thus, the Supreme Court of Virginia noted that a defendant may be charged separately with both capital murder in the commission of robbery, Va.Code § 18.2-31(4), and with capital murder in the commission of rape, Va. Code § 18.2-31(5). Powell, 590 S.E.2d at 553 (citing Payne, 509 S.E.2d at 301). Next, the Supreme Court of Virginia noted that under its precedent, a defendant can be convicted of two charges of capital murder based on both attempted rape and object sexual penetration of the same victim, both defined as crimes under Va.Code § 18.2-31(5). Id. Given this, the Supreme Court of Virginia concluded that the Virginia General Assembly intended for a defendant to be chargeable with two counts of capital murder of the same victim under § 18.2-31(5) where, as here, there are different victims of “rape or attempted rape.” Powell, 590 S.E.2d at 554. The Supreme Court of Virginia agreed with Powell that an indictment charging a single violation of § 18.2-31(5) without naming the victim of the rape or attempted rape would preclude future charges of capital murder of the same victim under that provision. The Supreme Court of Virginia then held that where the Commonwealth specifies the victim of the gradation offense, either in the indictment or in a bill of particulars submitted before jeopardy attaches, the crime becomes a “separate crime” for double jeopardy purposes. Id. Thus, by carefully analyzing its precedent regarding the General Assembly’s intended scope of the capital murder statute, the Supreme Court of Virginia applied the correct U.S. Supreme Court precedent. And importantly, there can be no second-guessing of the Supreme Court of Virginia’s conclusion, as it is settled that “a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Hence, under Virginia law, Powell was properly charged and tried on two separate counts of the capital murder of Stacey, one subsequent to his attempted rape of Stacey and one during the commission _ of, or subsequent to, his rape of Kristie. Yet, this does not end the double jeopardy analysis, for Powell also argues that even if the General Assembly of Virginia intended the two crimes to be distinct, he was actually charged in both trials with the same crime, namely the capital murder of Stacey in the commission of, or subsequent to, his attempted rape of Stacey. The Supreme Court of Virginia rejected this argument on direct appeal, finding that although the first indictment did not allege a specific victim of rape or attempted rape, the bill of particulars served to narrow the offense and that Powell was therefore tried in the first trial only for the capital murder of Stacey during the commission of, or subsequent to, the rape of Kristie. See Powell, 590 S.E.2d at 552. In reaching this result, the Supreme Court of Virginia followed its well-established precedents holding that “the bill of particulars and the indictment must be read together” as specifying the crime charged. Livingston v. Commonwealth, 184 Va. 830, 36 S.E.2d 561, 565 (1946); see also Wade v. Commonwealth, 9 Va.App. 359, 388 S.E.2d 277, 279 (Va.Ct.App.1990). Put differently, a bill of particulars in Virginia narrows an indictment such that once the Commonwealth has provided the defendant with a bill of particulars, it may not prove its case with facts outside the scope of the bill of particulars. - See Powell, 590 S.E.2d at 552; Webster v. Commonwealth, 141 Va. 589, 127 S.E. 377, 378-79 (1925). Based on these established principles of Virginia law, the Supreme Court of Virginia found that the bill of particulars, provided by the Commonwealth at Powell’s request in the first trial, precluded the prosecution, as a matter of law, from securing a capital conviction in that trial based on the attempted rape of Stacey. Citing this established law, the Supreme Court of Virginia ruled that Powell’s second trial was not a double jeopardy violation because the indictment in the second trial charged a crime not charged in the first trial, namely the murder of Stacey subsequent to, or in the commission of, the attempt to rape Stacey. Nor is it open to Powell to second-guess the role of a bill of particulars under Virginia law. See Bradshaw, 546 U.S. at 76, 126 S.Ct. 602. Nonetheless, he argues that the Supreme Court of Virginia’s determination of this issue was “an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). Specifically, he claims the bill of particulars did not limit the jury because (i) the prosecutor argued during trial that Powell “wanted something more” from Stacey, (ii) other witnesses suggested that Stacey refused to have sex with Powell, and (iii) the jury was not told about the limitation in the bill of particulars. None of these arguments alter the fact that, as a matter of Virginia law, the bill of.particulars limited the Commonwealth to proving the rape of Kristie as the gradation offense of the capital murder charge. Thus, under settled Virginia law principles, Powell was not tried twice for the same crime; instead, he was tried twice, but each time for a different crime. Seeking to avoid this result, Powell argues incorrectly that the Supreme Court’s test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), applies. Blockburger is inappo-site; it applies in situations where a defendant is charged with two crimes under two different criminal statutes based on the same conduct, whereas Powell was charged with two distinct crimes under the same statute. In Blockburger, the Supreme Court held that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (emphasis added). This test does not apply, however, where, as here, a defendant is charged with two separate violations of the same statutory provision. The soundness of this point is well-illustrated by a simple hypothetical in which a defendant is charged under the same statute with the murders of Victim A and Victim B. Under Blockburger, which looks only to the statutory elements of the indictments, these would be the same crimes in the abstract. Yet, it is clear that a defendant could be charged for the murder of both victims. See Sanabria, 437 U.S. at 70 n. 24, 98 S.Ct. 2170 (holding that the protection of the Double Jeopardy Clause does not preclude a defendant from being charged under a “statute[ ] defining as the criminal offense a discrete act, after a prior conviction or acquittal of a distinguishable discrete act that is a separate violation of the statute”). In sum, in each of his two trials Powell was charged with a separate and distinct crime under Virginia law. One crime required the proof of the murder of Stacey subsequent to, or in the commission of, the rape of Kristie, while the other required proof of the murder of Stacey subsequent to, or in the commission of, the attempted rape of Stacey. Powell has offered no reason to dispute the Supreme Court of Virginia’s interpretation of legislative intent in this regard. Thus, the Supreme Court of Virginia’s disposition of this issue was not contrary" to, nor an unreasonable application of, U.S. Supreme Court precedent. IV. Powell’s next claim is that his Fifth Amendment due process right to a fair trial was violated during voir dire. The Supreme Court of Virginia rejected this argument on direct appeal. To understand this claim and the Supreme Court of Virginia’s reasons for rejecting it, some factual context is necessary. As already noted, the second indictment against Powell was based in part on the letter he sent to the Commonwealth’s Attorney following the successful appeal of his first conviction. Powell began this letter by stating that he had “already been indicted on first degree murder and the Va. Supreme Court said that I can’t be charged with capital murder again.” J.A. at 1076. Expecting the letter to be introduced in Powell’s second trial, and wishing to minimize its impact, Powell’s counsel made a tactical decision to bring Powell’s first conviction and successful appeal to the jury’s attention at the outset of the trial. Consistent with this tactical decision, Powell’s counsel decided to refer to the prior trial in the course of the voir dire. During voir dire, the venire was questioned in panels of five. The judge asked the first panel of five, inter alia, (i) whether they had prior knowledge of Powell or the current charges against him, (ii) whether they had biases for or against the death penalty, and (iii) whether there was any reason they could not serve as fair and impartial jurors in the case. After questioning by the judge, the Commonwealth’s Attorney and the defense counsel were permitted to question the panels further. "When Powell’s counsel questioned the first panel, he told them that the evidence would show Powell “has already been tried and convicted of capital murder at one point, and he’s serving three life sentences for other crimes.” J.A. at 419. Then, when Powell’s counsel began describing to the panel that “the Supreme Court of Virginia overturned the — ,” the Commonwealth’s Attorney immediately interrupted and objected on the ground that this might taint the jury under Barker v. Commonwealth, 230 Va. 370, 337 S.E.2d 729 (1985), which held that a person who has prior knowledge of an accused’s previous conviction for the same offense cannot serve as a juror during retrial for that offense. Powell, 590 S.E.2d at 547. Powell’s counsel responded that the defense believed evidence of Powell’s prior conviction and successful appeal would arise during trial through the introduction of Powell’s letters to the Commonwealth’s Attorney, and they therefore had made a tactical decision to disclose the prior trial to potential jurors during voir dire, and to ask whether they could remain impartial in view of the prior conviction. The trial court sustained the Commonwealth’s objection and precluded Powell’s counsel from pursuing that line of questioning, but refused to dismiss the panel of potential jurors, relying instead on an instruction to the panel to disregard Powell’s counsel’s comment. Id. On direct appeal, Powell argued that his right to a fair trial was violated by the trial court’s refusal to allow this line of questioning, arguing that this questioning fell within the ambit of Va.Code § 8.01-358, which states that either party has the right to question a prospective juror about “whether he is related to either party, or has any interests in the cause, or has expressed or formed any opinion or is sensible of any bias or prejudice therein.” The Supreme Court of Virginia rejected Powell’s claim, finding that Powell’s question did not fall under Va.Code § 8.01-358 because rather than testing for bias, it simply “served to test the jurors’ potential response to the evidence that he expected the Commonwealth to present.” Powell, 590 S.E.2d at 559. The Supreme Court of Virginia further noted that the trial court has the sole discretion to allow voir dire on any matters outside the scope of Va.Code § 8.01-358. Id. To begin with, Powell may not complain here that the Supreme Court of Virginia erred in its interpretation of Va.Code § 8.01-358, as it is settled that “a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw, 546 U.S. at 76, 126 S.Ct. 602. Nor is there any merit in Powell’s claim that the Supreme Court of Virginia’s decision violates due process. While Supreme Court precedent makes clear that a mandatory state law in some instances can create liberty interests protected under the Due Process Clause of the Fourteenth Amendment, Powell has failed to show he was denied a mandatory right under Virginia law, and indeed the Supreme Court of Virginia concluded to the contrary. Powell further argues that once the trial court refused to allow questioning about the effect of the prior trial, it further violated his right to a fair and impartial jury by refusing to strike the panel of potential jurors who were told about Powell’s previous conviction. This claim is meritless. First, Powell cites no controlling U.S. Supreme Court precedent in support of his claim, but instead bases his claim solely on Barker, a Virginia case holding that “when a venireman knows of an accused’s previous conviction of the same offense for which he is being retried, the venireman cannot qualify as a juror in the new trial.” 337 S.E.2d at 733. Even assuming Powell’s argument is correct, a state court’s alleged misapplication of state law is not a ground for habeas relief under § 2254. See Thomas, 192 F.3d at 449 n. 1. Moreover, Barker and the federal cases cited by Powell in support of his claim are inapposite, as Powell was not being retried for the same offense in his second trial for which he was convicted in his first trial. See Part III, supra. Rather, as already clearly established, Powell’s second trial was for a second crime, separate and distinct from the crime for which he was tried in his first trial. Finally, it is important to note a further state law ground on which this claim founders. The Supreme Court of Virginia correctly found that Powell invited any error that may have been committed by the trial court in this regard. See Powell, 590 S.E.2d at 559-60. It was Powell who chose to disclose to the potential jurors that he had been previously convicted of capital murder. Hence, under the doctrine of “invited error,” Powell may not contend that potential jurors were tainted by their knowledge of his prior conviction when he is the one who disclosed the prior conviction to them. See Saunders v. Commonwealth, 211 Va. 399, 177 S.E.2d 637, 638 (1970) (holding that a court will not “notice error which has been invited by the party seeking to take advantage thereof on appeal”); see also United States v. Collins, 372 F.3d 629, 635 (4th Cir.2004) (noting that “a defendant in a criminal case cannot complain of error which he himself has invited”); United States v. Thomas, 77 Fed.Appx. 673, 675 (4th Cir.2003) (finding that a defendant who submitted voir dire questions to the court could not appeal his conviction on the ground that the court’s use of that line of questioning was improper). Accordingly, for all these reasons, Powell’s claim for habeas relief arising from the voir dire process fails. Y. In his next claim for relief, Powell alleges that the trial court erred in admitting evidence about Powell’s rape and attempted murder of Kristie during the guilt determination phase of the trial. Powell points out, for example, that the Commonwealth presented extensive graphic testimony from Robert Culver, describing Kristie’s appearance when he found her naked and bleeding after Powell raped and attempted to kill her. In addition, the detective who responded to the scene, Kristie’s doctor, and Kristie all testified about Powell’s attack on Kristie. Powell claims the evidence of these crimes was irrelevant to the crime charged in the second trial because these crimes took place after the attempted rape and murder of Stacey. ' Even if this evidence were relevant, Powell contends it should have been excluded as unfairly prejudicial. The Supreme Court of Virginia found no error in the admission of this evidence, concluding instead that the evidence was admissible as “a common criminal scheme” under Virginia evidence laws. Id. at 557; see also Tomlinson v. Commonwealth, 8 Va.App. 218, 380 S.E.2d 26, 30 (Va.1989) (holding that evidence of other crimes, though generally inadmissible to show character, is admissible to show, for instance, proof of motive or plan). Additionally, the Supreme Court of Virginia acknowledged that the evidence of Powell’s crimes against Kristie was powerful, but noted that “the mere fact that, such evidence is powerful because it accurately depicts the gravity and atrociousness of the crime or the callous nature of the defendant does not thereby render it inadmissible.” Powell, 590 S.E.2d at 558. In other words, the Supreme Court of Virginia acknowledged that this evidence was damaging to Powell’s defense, but concluded nonetheless that it was admissible under Virginia law as part of a “common criminal scheme.” Id. at 557. Moreover, because there was evidence that “Powell went to the Reed home with the intention of raping and killing both Stacey and Kristie,” the Supreme Court of Virginia found that evidence of the crimes against Kristie was “directly probative of [Powell’s] motive and intent” in the crimes against Stacey. Id. at 558. Simply put, the Supreme Court of Virginia found that evidence of Powell’s rape and attempted murder of Kristie, which took place immediately after the attempted rape and murder of Stacey, was relevant to show his intent with respect to Stacey. Id. The Supreme Court of Virginia also noted that Powell later explained that he intended to kill the entire family when he went to the Reed house, and that he had to kill Kristie in part because she was a witness to his crimes against Stacey. Id. A decision to admit evidence under state law is not reviewable by a federal habeas court “unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.” Burket v. Angelone, 208 F.3d 172, 186 (4th Cir.2000). The key inquiry is whether the error “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Measured against this standard, Powell’s claim fails. The admission of evidence of his crimes against Kristie had a legitimate purpose under state law and the fact that the evidence was potentially harmful to Powell does not render it unconstitutionally prejudicial. As the Supreme Court of Virginia reasonably found, such evidence was probative of Powell’s motive and intent in killing Stacey, and the two events were part of the same criminal plan. This Supreme Court of Virginia finding does not contravene, or involve an unreasonable application of, federal law, nor is it based on an unreasonable determination of facts. VI. Powell’s next claim stems from statements he made to police following his successful appeal from his first conviction. This appeal resulted in the vacation of his conviction for capital murder, as charged in the first indictment, and a remand limiting a retrial on the first indictment to no greater than first degree murder. Believing he could no longer be tried for capital murder, Powell wrote a letter to the Commonwealth’s Attorney confessing to his crimes and admitting additional facts. Thereafter, police questioned Powell about this letter while he was awaiting retrial on the charges in the first indictment. During this questioning, Powell authenticated his letter and made incriminating statements that were used against him in his second trial. Powell, 590 S.E.2d at 558. Powell claims the questioning violated his Sixth and Fourteenth Amendment right to counsel because it occurred while he was awaiting retrial for the murder of Stacey, a charge on which he was represented by counsel. In rejecting this claim on direct appeal, the Supreme Court of Virginia correctly noted that the Sixth Amendment right to counsel is offense-specific. See Powell, 590 S.E.2d at 558; see also McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). It then noted that, based on its double jeopardy ruling, the crime about which Powell was questioned, namely the murder of Stacey subsequent to, or in the commission of, the attempted rape of Stacey, was “a separate offense from those for which he had been previously convicted.” Powell, 590 S.E.2d at 558. Because the challenged interrogation concerned a new crime for which Powell had not been previously charged, the Supreme Court of Virginia held that Powell’s Sixth Amendment right to counsel had not yet attached to that new crime. Id. This finding is neither contrary to, nor or an unreasonable application of, clearly established Supreme Court precedent. It is well-established that a defendant’s Sixth Amendment right to counsel is offense-specific. McNeil, 501 U.S. at 175, 111 S.Ct. 2204. It is also clear that, according to the Supreme Court of Virginia’s reasonable application of U.S. Supreme Court double jeopardy precedent, the crime charged in Powell’s second trial was an offense separately chargeable from the crimes charged in his first trial. Thus, under Virginia law, the two capital crimes were separate offenses, and Powell’s Sixth Amendment right had attached only to the capital crime charged in the first trial. Therefore, Powell’s Sixth Amendment rights were not violated when he was interrogated about the new crime. Nor can Powell escape this conclusion by arguing, as he does, that he was effectively charged with first degree murder when the Supreme Court of Virginia vacated his capital murder conviction and remanded with the instruction that Powell could be charged with no greater than first degree murder. See Powell, 590 S.E.2d at 545. Powell is correct that, had he been charged with first degree murder, his Sixth Amendment right to counsel would have attached both to that charge and to the charge of capital murder, as first degree murder is a lesser-included offense of capital murder. See Hudson v. Commonwealth, 267 Va. 36, 591 S.E.2d 679, 680 (2004). Yet, Powell was never charged with first degree murder. Although the Supreme Court of Virginia held that Powell could be charged with no more than first degree murder on remand, it did not, nor could it have, formally charged Powell with first degree murder. Thus, in the first indictment, as modified by the bill of particulars, Powell had only been charged with the capital murder of Stacey subsequent to, or in the commission of, the rape of Kristie. His Sixth Amendment right to counsel had therefore attached only to that crime (and to lesser included offenses), but had not attached to the separate and distinct crime of the capital murder of Stacey subsequent to, or in the commission of, the attempted rape of Stacey. Hence, Powell’s claim that the post-remand questioning violated his right to counsel must fail. VII. Next, Powell claims that trial counsel provided ineffective assistance during the sentencing phase of his trial by failing to investigate all reasonably available mitigating evidence. More specifically, he argues that a more thorough investigation would have uncovered evidence: (i) to rebut the Commonwealth’s claim that Powell was racist and tortured animals; (ii) to rebut the Commonwealth’s claim that Powell had no remorse for his crime against Stacey; (iii) to rebut the Commonwealth’s claim that Powell had an above-average intelligence; (iv) to support a compelling mitigating case; and (v) to rebut the Commonwealth’s use of Powell’s letters to the Commonwealth’s Attorney and Stacey’s mother. The Supreme Court of Virginia rejected Powell’s ineffectiveness claim, applying the U.S. Supreme Court’s well-known test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is well-settled that an individual claiming ineffective assistance of counsel must show, first, that counsel’s performance was deficient, in that it “fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. 2052. The Supreme Court has noted that this is a deferential standard. Once counsel makes a reasonable investigation of law and facts in a particular case, his strategic decisions are “virtually unchallengeable.” Id. at 690, 104 S.Ct. 2052. There is, of course, a distinction between a tactical or reasonable professional judgment to limit an investigation and a failure to do so as a result of inattention or indolence. The former is appropriately assessed under the deferential standard, while the latter constitutes ineffective assistance of counsel provided the requisite prejudice resulted. Id. at 691, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 526, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (distinguishing between failure to investigate stemming from “inattention” and a decision not to investigate based on “reasoned strategic judgment”). Thus, when the claim is that counsel failed to present a sufficient mitigating case during sentencing, the inquiry “is not whether counsel should have presented a mitigation case” but “whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable.” See Wiggins, 539 U.S. at 523, 123 S.Ct. 2527 (emphasis in original). Under the second prong of Strickland, a court finding a deficient performance by counsel may not set aside a conviction unless the defendant can demonstrate prejudice. This requires a defendant to show by “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. If the deficient performance occurred during sentencing that resulted in the imposition of the death penalty, a petitioner must show that “absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695. Because the Supreme Court of Virginia applied Strickland in rejecting Powell’s ineffectiveness claim, its decision was not “contrary to” clearly established federal law. Thus, review here is limited to whether the Supreme Court of Virginia applied Strickland unreasonably or made an unreasonable determination of the facts in light of the evidence presented. See § 2254(d)(1) & (2); see also Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (holding that, to prevail under § 2254, a petitioner “must show that the [state court] applied Strickland to the facts of his case in an objectively unreasonable manner”). A. Powell first alleges that a more thorough investigation would have disclosed evidence to rebut the Commonwealth’s evidence that Powell was racist and tortured animals. In this regard, it is worth recounting that Powell himself was the source of this evidence, as Powell admitted to police that he was racist and tortured animals. See Powell, 2005 WL 2980756, at *18. More specifically, Powell told police that he disapproved of Stacey’s interracial relationship, and a paper found in his cell was covered with racial and ethnic slurs. He also told detectives that he “blew up [cats] with firecrackers” and would beat and kick them until they died. J.A. at 891. Indeed, affidavits supplied by Powell himself in support of his claim for state habeas relief supported the idea that he regularly made racist comments and told stories about torturing animals. Powell, 2005 WL 2980756, at * 18. Despite this evidence, Powell now claims that he only made racist comments for their “shock value” and “wore racism like fashionable clothing” to impress certain groups of people. See Pet. at 62-63. To support his claim, Powell points to affidavits stating that Powell had lived, without incident, in a halfway house in which seventy-five percent of the occupants were black. He submitted an affidavit from his cousin, who stated that Powell was not aggressive toward her when she dated a black man. Powell claims a more thorough investigation by counsel also would have shown that Powell was observed sharing a cigarette with a black man in front of his apartment and had lived with another black man for a short period of time. Finally, Powell claims that a reasonable investigation would have uncovered evidence to rebut the Commonwealth’s assertion that he tortured animals. He points to affidavits from friends and family members who stated that Powell was always kind to their pets. Some of his friends stated that they did not believe Powell’s stories about torturing animals. In applying Strickland, the Supreme Court of Virginia found neither deficient performance nor the requisite prejudice. Powell, 2005 WL 2980756, at * 18. In light of Powell’s own numerous statements to the contrary, the Supreme Court of Virginia correctly held that Powell’s trial counsel’s performance was not deficient in choosing not to investigate whether Powell meant what he said about these aspects of his character. See id. This analysis was not an unreasonable application of Strickland, which does not require trial counsel to investigate every possible aspect of his or her client’s personality and background. See Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (noting that “the duty to investigate does not force defense lawyers to scour the globe on the off-chance something will turn up”). Indeed, if, after speaking with the client, counsel determines that a particular type of “evidence would be of little help,” he is not deficient in failing to investigate further. Strickland, 466 U.S. at 699, 104 S.Ct. 2052. Because Powell’s trial counsel had numerous statements from Powell himself bragging about his racist beliefs and animal torture, it was not unreasonable for the Supreme Court of Virginia to conclude that counsel was not deficient for failing to investigate these characteristics further. Nor can Powell demonstrate prejudice from the failure to introduce this evidence. Even if Powell’s proffered evidence had been introduced, the jury would have had to weigh it against Powell’s own racist comments and stories of animal torture. In short, the mitigating evidence of Powell’s tolerance of others and kindness to animals would have had to outweigh Powell’s own statements to the contrary. Thus, to affect the outcome of Powell’s sentence, Powell essentially would have had to convince a jury that he lied about being a racist and torturing animals. Because Powell’s proffered evidence simply does not outweigh the overwhelming aggravating evidence presented, Powell has not shown that he was prejudiced by counsel’s performance. See Wiggins, 539 U.S. at 534-35, 123 S.Ct. 2527 (finding that, when assessing prejudice under Strickland, a court should “reweigh the evidence in aggravation against the totality of the mitigating evidence”). B. Powell next claims counsel was ineffective in failing to discover evidence to rebut the Commonwealth’s claim that Powell lacked remorse for his crime. Powell points to affidavits of his probation officer, a nurse at his prison facility, and a police officer, all of whom said that Powell had expressed remorse to them. Powell also claims that counsel should have introduced during sentencing the fact that Powell cried when the tape of the 911 call about Kristie was played during his first trial. The Supreme Court of Virginia found no deficient performance nor prejudice under Strickland. Powell, 2005 WL 2980756, at *19. Instead, the Supreme Court of Virginia found “that there was overwhelming evidence that petitioner lacked remorse.” Id. For instance, in his letter to the Commonwealth’s Attorney after his successful appeal, Powell bragged about his crime and admitted that after killing Stacey, he had smoked a cigarette and enjoyed a glass of iced tea. At no point in the letter did Powell express remorse. Id. Powell also stated that he wanted Stacey’s parents to “relive it all over again because if I have to suffer for the next 50 or 60 years or however long then they can suffer the torment of reliving what happened.” Id. In the letter to Stacey’s mother in which Powell enclosed a nude photograph resembling Stacey, he expressed no remorse for his crime. Id. In the face of such overwhelming evidence to the contrary, the Supreme Court of Virginia found that it was not deficient performance for counsel to fail to investigate whether Powell was remorseful. Id. Furthermore, the Supreme Court of Virginia found that Powell failed to show that if evidence of his remorse had been presented, “the result of the proceeding would have been different.” Id. While the decision not to introduce evidence of Powell’s remorse is questionable, there is no showing that counsel’s performance was objectively unreasonable. As with the evidence about Powell’s racist beliefs and animal torture, the evidence of Powell’s lack of remorse for his crime was overwhelming. Indeed, Powell’s second trial came about solely because of the letter he wrote, bragging about his crimes against Stacey and taunting the Commonwealth’s Attorney. In the face of such evidence, it is not objectively unreasonable for trial counsel to have decided not to “scour the globe” for evidence of Powell’s remorse. See Rompilla, 545 U.S. at 383, 125 S.Ct. 2456. Yet, even assuming counsel’s performance in this regard was deficient, Powell has not demonstrated that the evidence he mentions would have affected the outcome of his sentence. Rather, where there are “overwhelming aggravating factors,” a court may find that omitted evidence would have had no reasonable probability of affecting the sentence. See Strickland, 466 U.S. at 699, 104 S.Ct. 2052. Because the evidence overwhelmingly showed that Powell had no remorse for his crimes, he has not shown that but for counsel’s failure to present the evidence of remorse he now adduces, the jury would not have sentenced him to death. C. Powell next claims that trial counsel was ineffective in failing to present evidence to rebut the Commonwealth’s claim that Powell was of above-average intelligence. The Commonwealth’s Attorney noted at sentencing that Powell was “no dummy. He’s got an above average — at least average intelligence.” J.A. at 1031. Powell’s experts at trial and the evidence he now offers suggest that he was “average or below,” or “within the average range of intelligence,” and was “capable of functioning in the average range despite low average range IQ scores.” Powell, 2005 WL 2980756, at *19. Because the evidence Powell supported, rather than refuted, that Powell falls within the average range of intelligence, the Supreme Court of Virginia found no deficient performance by counsel. This was not an unreasonable application of Strickland. None of the evidence on which Powell relied during his state habeas proceedings, nor any of the evidence he now cites, supports Powell’s claim that he is of below-average intelligence. At most, the record evidence is that Powell falls on the low side of the average range of intelligence. Indeed, Powell’s own counsel presented expert testimony that Powell fell within an average range of intelligence