Full opinion text
OPINION WARRINER, District Judge. Before the Court is a petition for a writ of habeas corpus of Linwood E. Briley. The petition was amended on 16 September 1983, and respondent filed a motion to dismiss on 26 September 1983. Petitioner filed a rebuttal on 11 October 1983 and on 18 October 1983, respondent filed a supplemental reply. On 29 November 1983, this Court entered an order directing the Commonwealth to provide petitioner with a transcript of the proceeding of 31 August 1983. On 30 December 1983, the Court directed the parties to submit briefs on the issue of whether petitioner’s claim (3) was exhausted and to stipulate the evidence which was before the trial court at the time it denied the motion for a change of venue and present such evidence for this Court’s consideration. On 4 January 1984, the Court ordered the parties to submit supplemental briefs on the possible application of Carrier v. Hutto, 724 F.2d 396 (4th Cir.1983), to this case. The parties complied in a timely manner with the Court’s orders of 30 December 1983 and 4 January 1984. On 23 January 1984, petitioner filed a supplemental memorandum in light of the transcript provided in the order of 29 November 1983. Respondent filed a reply on 3 February 1984. The motion to dismiss is now ripe for adjudication. The Court has jurisdiction under 28 U.S.C. § 2254. Petitioner was convicted under Va.Code § 18.2-31(d) of capital murder for the willful, deliberate and premeditated killing of John Harvey Gallaher in the commission of robbery while armed with a deadly weapon. His punishment was fixed at death. As the evidence adduced at trial showed, petitioner, his two brothers, and a friend, Duncan Meekins, decided to look for somebody to “mug” in the late evening of 14 September 1979. Carrying a sawed-off shotgun and a high-caliber rifle, the group parked near the Log Cabin, a southside Richmond restaurant and bar, and hid in the bushes behind the restaurant. They lay in wait for a chance at an easy victim, i.e., a drunk. The victim, Richmond disc jockey John Harvey Gallaher, shortly left the Log Cabin by a rear door and walked over toward the bushes where the waiting gunmen were hiding. Petitioner, brandishing the rifle, accosted Gallaher, ordered him to lie down on the ground, and took his wallet and keys. Petitioner instructed Meekins to find Gallaher’s car in the parking lot and return with it. This done, petitioner and Meekins forced the victim to lie face down in the rear of the car and the three drove away. Anthony and James Briley returned to the car in which the group had arrived at the Log Cabin. They rejoined petitioner and Meekins some time later. Meekins and petitioner drove the victim to Mayo Island in the James River and parked on the grounds of a paper company there. They forced Gallaher from the car and, as Gallaher began to stand up, petitioner shot him with the rifle. About 15 to 20 minutes had elapsed since the assailants first accosted the deceased. After killing Gallaher, the group took his car, left the murder scene, and drove around the city in Gallaher’s car until the gas tank was nearly empty. They then stripped the car of readily removable parts and abandoned it. I. Exhaustion Absent a valid excuse, a prisoner must first exhaust his claims in State courts. 28 U.S.C. § 2254(b). The exhaustion requirement ensures that State courts have the first opportunity to review federal constitutional challenges to State convictions, thus preserving the role of State courts in protecting federally guaranteed rights. Preiser v. Rodriguez, 411 U.S. 475, 489-92, 93 S.Ct. 1827, 1836-37, 36 L.Ed.2d 439 (1973). Where exhausted and non-exhausted claims are presented in the same petition, the petition should be dismissed in its entirety to permit petitioner to exhaust the unexhausted claims and to present all claims together when they have been exhausted. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). A claim has been exhausted when a habeas petitioner has “ ‘fairly presented’ to the State courts the ‘substance’ of his federal habeas corpus claim.” Anderson v. Harless, 459 U.S. 4, 16, 103 S.Ct. 276, 277, 74 L.Ed.2d 3, 7 (1982), quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 512, 513, 30 L.Ed.2d 438 (1971). A claim is not exhausted unless the specific federal constitutional argument was presented to the State courts. Id. 459 U.S. at 17-18, 103 S.Ct. at 277-78, 74 L.Ed.2d at 7-8. In the typical case, the exhaustion requirement plays the important and effective role of reinforcing our federalist structure of government. Federal courts will not grant a writ of habeas corpus to one convicted by a State until the State, as an independent sovereign, has had the opportunity to consider the claim that the conviction is infected with fundamental error. State courts, as well as federal courts, have the responsibility of recognizing and enforcing the individual rights the Constitution confers upon criminal defendants. The exhaustion doctrine works efficiently in the typical case where the punishment is incarceration. It is in the best interest of the prisoner, who believes his punishment to be invalidly inflicted, to first present all of his claims to the State courts. Unless he does, the ultimate disposition of his claim will be delayed, and the unjust punishment extended, when the federal court dismisses the action with instructions to return to the State courts to exhaust. The capital murder case is different. When the punishment is death, delaying final disposition of collateral attacks upon the conviction delays enforcement of the sentence. Thus, it is in the best interest of the capital defendant to manipulate the legal processes available to him for as long as possible. In this context, the exhaustion doctrine is inefficient. It provides capital prisoners with yet another tool with which to delay and hinder the efficient resolution of collateral attacks upon their conviction. Indeed, for the past two to three decades we have witnessed an almost infinite number of collateral attacks in capital cases which have virtually judicially repealed the death sentence. In this case, for instance, petitioner presented a claim of denial of material to which he was allegedly entitled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to the State courts. In this petition, he raises the Brady claim again, but adds to it new facts. Petitioner now argues that there exist transcripts of tape recordings and letters containing threats to the family of the star prosecution witness, Duncan Meekins, which should have been given to the defense under Brady. Petitioner alleges that he was previously unaware of this material. Under Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), and Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), that claim has not been exhausted. In Picard the Supreme Court noted that the “substance” of a claim must have been fairly presented to the State courts. Id. at 275-76, 92 S.Ct. at 512. In Anderson, all the facts relied on in the federal habeas had been presented to the State Court, but the legal argument made in federal court had not been made in the State habeas proceeding. The Supreme Court held that “[sjince it appears that respondent is still free to present his ... claim to ... [the State courts] ... we conclude that he has not exhausted his available State-court remedies as required by 28 U.S.C. § 2254.” Id. 459 U.S. at 18, 103 S.Ct. at 278, 74 L.Ed.2d at 8. The instant petition presents the converse situation. He admits the Brady argument was made in State court, but he says the facts here presented were not there presented. By analogy to Anderson, petitioner might still present this new factual claim to the Virginia courts. This Court is faced with the possibility of having to dismiss this petition, thus playing into petitioners hand by delaying the imposition of his punishment, or decide that the exhaustion requirement is unproductive in this context and refuse to apply it. Fortunately, the Court is spared this choice as the respondents have waived exhaustion of the claim. See Memorandum of Law filed 16 January 1984 at 7. Respondent may waive exhaustion of a claim on behalf of the State. Sweezy v. Garrison, 694 F.2d 331 (4th Cir. 1982), cert. denied, — U.S.—, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983). To be effective, waiver must be unconditional. Harding v. North Carolina, 683 F.2d 850, 852 (4th Cir.1982). In Stamper v. Baskerville, 724 F.2d 1106 (4th Cir.1984), this Court was reversed for accepting the waiver while the case was before this Court on remand from the Fourth Circuit. On appeal a second time the Fourth Circuit found this Court powerless to accept the waiver because in so doing it failed to comply with the mandate to dismiss to permit exhaustion. Id. at 1107. The Court of Appeals also noted that it was “troubled by the nature of the. waiver asserted by the State.” Id. at 1108. The Court feared that the State waived exhaustion only after it “was confident that it would prevail on all claims asserted by the defendant — that is, after the district court’s first ruling on the habeas petition.” Id. Neither of the problems the Fourth Circuit perceived in this Court’s acceptance of waiver in Stamper exists in this case. This Court does not presently have before it a mandate from the appellate court. Nor had the Court made any decision regarding the merits of this claim, much less indicated such to the parties, when the State waived exhaustion. As the Court is confident that all other claims have been exhausted, and as the State has unconditionally waived exhaustion as to claim (3), the Court may now consider the petition. II. Wainwright Federal habeas corpus review of a State conviction may be barred by a petitioner’s failure at trial or on direct appeal to provide State courts with an opportunity to consider and resolve the matter. Errors at trial not objected to, in contravention of State contemporaneous objection rules, are not cognizable in federal habeas corpus proceedings. Wainwright v. Sykes, 433 U.S. 72, 87-90, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977). Substantive review may also be barred by failure to pursue errors on appeal. Cole v. Stevenson, 620 F.2d 1055, 1060-61 (4th Cir.1980), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). Virginia law states that, except for good cause shown or to enable the Supreme Court to do justice, any objection not contemporaneously made when error is committed may not be asserted on appeal. Rule 5:21, Rules of Supreme Court. See Satterfield v. Zahradnick, 572 F.2d 443, 446 (4th Cir.1978), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978). Thus, if petitioner in this case failed contemporaneously to object to errors as they arose in State courts, or to pursue objections which were made, relief under 28 U.S.C. § 2254 is barred in the absence of legitimate cause and definite prejudice. Wainwright, supra. In the motion to dismiss, respondent argues that a number of petitioner’s claims should be barred by Wainwright. Petitioner argues in response that Wainwright does not apply to this case. Petitioner asserts that Wainwright does not apply to capital cases because Federal courts recognize that the penalty of death is qualitatively different from any other penalty. Even if one recognizes that the United States Supreme Court considers death to be different, see Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), it is not true that Wainwright applies only in non-capital cases. Failure to utilize State procedures has barred substantive review of capital cases on federal habeas corpus in this and other federal courts. Stamper v. Baskerville, 531 F.Supp. 1122, 1128 (E.D.Va.1982), remanded on other grounds (4th Cir. October 4, 1982); Gray v. Lucas, 677 F.2d 1086, 1109 (5th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 1886, 76 L.Ed.2d 815, reh. denied, — U.S. —, 103 S.Ct. 3099, 77 L.Ed.2d 1357 (1983); Ford v. Strickland, 696 F.2d 804, 816-17 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Application of Wainwright is consistent with the rationale of the Supreme Court as well. In Wainwright, the Court said: The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in State court as a decisive and portentous event____ Society’s resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification. Id. 433 U.S. at 90, 97 S.Ct. at 2508. Particularly in capital trials, it is important that the proceedings be, within the limits of reason, free of error. Without the contemporaneous-objection rule, defense counsel in capital trials will inevitably be tempted to “sandbag”, or refrain from objecting, in the hope that punishment can be deferred. See, Id. at 89, 97 S.Ct. at 2507-08. Petitioner also argues that Wainwright applies only in cases involving ineffective assistance of counsel. Not only has this Court applied Wainwright under circumstances similar to those of the case at bar, but so have other federal courts. See Stamper, supra, at 1128; Gray v. Lucas, supra, at 1109 (failure to request instruction); Ford v. Strickland, supra, at 816-17 (failure to appeal on issue of confession). Petitioner argues that there is no procedural default rule in Virginia in cases involving ineffective assistance of counsel. In support of this contention, petitioner relies on Crowell v. Zahradnick, 571 F.2d 1257 (4th Cir.1977), cert. denied, 439 U.S. 956, 99 S.Ct. 357, 58 L.Ed.2d 348 (1978). In discussing Virginia’s contemporaneous objection rule, the Court in Crowell said that State habeas relief might be available to petitioner if he could “show that the failure to make the objections to the admission of the inculpatory statements was the result of inadequate assistance of counsel.” Id. at 1259, n. 2. Petitioner’s reliance upon Crowell is misplaced. Crowell indicates only that a writ of habeas corpus might be available if, as an independent ground for relief, counsel’s error was so grievous as to amount to ineffective assistance of counsel under the Sixth Amendment. Id. Petitioner also argues that there is no contemporaneous objection rule in Virginia capital cases because Section 17-110.-1, Code of Virginia, requires that the Virginia Supreme Court review every case in which a sentence of death has been entered. Mandatory review in the Virginia Supreme Court is limited to certain issues, however. The Court is required to review only “1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and 2. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” The contemporaneous objection rule applies to other issues, and, in fact, the Virginia Supreme Court has applied its contemporaneous objection rule in capital cases. See Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d 520, 525 (1983), cert. denied, — U.S. —, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983). Petitioner argues that Wainwright should not bar review on the merits in this case because the State habeas court considered all of the claims on the merits. Where a State court considers the merits of a claim which might have been barred by procedural rules, Wainwright does not apply. Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Williams v. Zahradnick, 632 F.2d 353, 359 (4th Cir.1980). In this case, as in Tweety v. Mitchell, 682 F.2d 461, 464 (4th Cir.1982), cert. denied, 460 U.S. 1013, 103 S.Ct. 1255, 75 L.Ed.2d 483 (1983), the Virginia Supreme Court failed to state the basis for its decision. In denying Briley’s petition for appeal, the Court stated only that it found “no reversible error” in the judgment of the lower court which denied his habeas petition. Briley v. Mitchell, No. 820509, (Va. 5 October 1982). Nor is the decision of the lower court clear. In its final order, the court stated that the petition was dismissed “for the reasons that there was not any evidence that the attorneys for the petitioner were incompetent in their defense and that the trial judge was in any way prejudiced against the defendant, and that the attack on both trial counsel and the trial court was frivolous and without merit; and for further reasons stated in the Court’s Findings of Fact and Conclusions of Law set forth in the record.” Briley v. Mitchell, No. F 81-1519, (Circuit Court of the City of Richmond, Division I, 18 December 1981). In the record the Order of 15 December 1981 shows that the Court denied some of the claims because of “the failure of petitioner’s counsel to raise this claim at trial or on appeal.” The trial court deferred a decision on other claims which the Commonwealth claimed were procedurally barred until oral argument. In argument before the State trial court, the Commonwealth asked the trial court to clarify its rulings on the issues on which the trial court had deferred decision and to state that they were barred by Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975), which sets forth Virginia’s procedural default rule. In response to this request, the trial court stated that the only claim not ruled upon was ineffective assistance of counsel, and that rulings on the other issues were “clear in my mind.” Habeas Transcript at 7. Given this exchange, this Court is of the opinion that the trial court denied the claims because they were procedurally barred, and the Virginia Supreme Court affirmed this ruling. In arriving at this opinion, the Court is counseled by the Fourth Circuit's opinion in Tweety. In Tweety the Court noted: [We] are not prepared to presume that the Court dismissed Tweety’s petition on the merits simply because the court failed to state the grounds for its decision, [footnote omitted] and we agree with the district court that the Virginia Supreme Court probably dismissed Tweety’s state habeas petition for failure to make a contemporaneous objection. Id. at 464. In this case, where the State court clearly applied the procedural default rule as to some claims and had before it argument as to the appropriate application of the rule to other claims, this Court is likewise not prepared to presume that the trial court considered the claims on the merits. Similarly, I assume the Supreme Court of Virginia upheld the rulings on the same procedural ground. Finally, petitioner argues that Wainwright should not bar review of any of his claims because he will establish “cause” by showing that his trial counsel were ineffective in some instances. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Supreme Court gave some definition to what constitutes “cause” and “prejudice”. The Court discussed two matters which it found did not constitute cause under Wainwright. First, perceived futility in raising a timely objection will not alone constitute cause. Id. at 130, 102 S.Ct. at 1572. Second, failure to anticipate a change in the law will not constitute cause “[w]here the basis of a constitutional claim is available.” Id. at 134, 102 S.Ct. at 1574. Accord, Cole v. Stevenson, supra, at 1060-61. The prejudice which must be shown is not the “possibility” of prejudice, but that trial error worked to “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). The burden is on the petitioner to demonstrate cause and prejudice. Wainwright 433 U.S. at 89-91, 97 S.Ct. at 2507-08. Petitioner may establish cause by showing attorney error which evinces ignorance or oversight. Carrier v. Hutto, 724 F.2d 396, (4th Cir.1983). A deliberate, strategic choice by counsel to refrain from objecting to a trial error or to forego preserving it on appeal does not constitute cause, unless the choice is so egregious as to amount to ineffective assistance of counsel. Id. The question is one of counsel’s motivation, and the petitioner “has the burden of showing to the district court that the failure to object or to appeal his claim was the product of his attorney’s ignorance or oversight, not a deliberate tactic.” Id. at 401. With this review of Wainwright as it affects this case, we turn to the specific claims asserted by petitioner. Petitioner alleges two instances in which the fairness of petitioner’s trial was adversely affected by the trial court’s management of the selection of the jury (Claims (4) and (5)). Petitioner alleges that the trial court struck for cause all veniremen who expressed opposition to the death penalty and limited questioning by defense counsel of those veniremen who did not express opposition to the death penalty. Respondent contends that both of these allegations are barred because petitioner did not raise these issues on appeal. Wainwright v. Sykes, supra; Engle v. Isaac, supra; Cole v. Stevenson, supra. The record supports respondent’s contention. To the extent that petitioner is alleging ineffectiveness of counsel as “cause” for these omissions, Second Response to Motion to Dismiss at 6, he fails to meet the standard set by Carrier. Petitioner’s trial attorney testified at the State habeas proceedings that because he believed the jurors were struck properly and the voir dire was fair, he decided not to appeal on these grounds. Habeas at 270-272. Counsel may, indeed must, make a professional judgment about what issues to raise on appeal. Jones v. Barnes, — U.S. —, -— 103 S.Ct. 3308, 3313-14, 77 L.Ed.2d 987, 995 (1983). Counsel’s performance in making these judgments was within the range of competence expected of criminal lawyers because the claims were without merit. Marzullo v. Maryland, 561 F.2d 540, 542-53 (4th Cir.), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978). Each venireman struck for opposition to the death penalty stated that he or she could not vote for the death penalty under any circumstances. See Transcript at 84, 98, 115-116, 131, 145-46, 149, 169, 212, 217-19; 222, 267, 283, 291, 325. Thus, the objection raised in Claim (4) was without merit under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1969), and Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). Claim (5) is likewise without merit. Petitioner points to no authority, and the Court is unaware of any, which states that a defendant has the right to ask whether a potential juror would be merciful in sentencing. A juror’s duty is to decide the case on the law and the evidence presented, and each venireman not stricken for cause demonstrated a willingness to do so. See Transcript at 49, 61, 105, 122, 134, 152, 157, 163, 176, 178-79, 205, 239-40, 242, 252, 257-58, 279-80, 290, 302, 323, 334. As petitioner has failed to show cause, the Court need not consider whether he suffered actual prejudice, Engle v. Issac, 456 U.S. at 134, n. 43, 102 S.Ct. at 1575, n. 43, and substantive review of these issues is barred. Petitioner next charges that the jury was improperly instructed on the criterion of “aggravated battery” in the sentencing phase of the trial in light of the fact that there was insufficient evidence to support the giving of that instruction (Claim (10)) under Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), reh. denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296 (1982). Respondent cites Wainwright as a bar to this claim on the grounds that this allegation was not raised on appeal. The record supports this assertion. Petitioner asserts in a conclusory fashion that defense counsel’s failure to object to submitting this criteria to the jury was not strategic and that it thus constituted ineffective assistance of counsel. Second Reply to Motion to Dismiss at 6. However, petitioner’s trial counsel stated that he read Godfrey “the minute [it] ... came out” and determined that the issue, as to Briley, would not be helpful. Habeas at 254. The Court would note that Godfrey was cited by counsel for defendant for another proposition in the Petition for Rehearing. Counsel’s judgment was within the range of competence expected of criminal lawyers as the claim is without merit. As is discussed further herein, see Section VII, there was evidence of mental and physical torture. The victim was subjected to the agony of anticipating his death for over a quarter of an hour and was assaulted by his killers during the course of the kidnapping, robbery, and murder. Transcript at 468-71, 478-79. Marzullo, supra. Petitioner charges that the jury was improperly instructed that they did not have to be unanimous as to which criterion (either “aggravated battery” or “dangerousness”), if either, they found to justify imposition of death. Transcript at 830. (Claim ll)). Respondent asserts that review of this allegation is barred by Wainwright. The record supports this allegation. Petitioner argues that counsel was negligent in not objecting at trial. The question of cause as defined by Carrier raises the question of the attorney’s motivation in failing to object. As the parties have not cited and the Court has been unable to locate any reference to counsel’s motivation on this point, the Court will assume that the failure to object to the instruction was the product of “ignorance or oversight,” Carrier v. Hutto, 724 F.2d 396 at 403 (4th Cir.1983), and thus constitutes cause. Before reaching the merits of petitioner’s claim that the jury was improperly instructed that it did not have to unanimously find an aggravating circumstance, however, petitioner must show that prejudice resulted which infected the “entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). However, the Virginia Supreme Court has held that in imposing the death penalty following a capital murder conviction, the jury’s verdict is not required to be unanimous as to the aggravating factors relied upon. Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). Nor does the United States Constitution require that the jury be unanimous. The Supreme Court has only held that the capital sentencing proceeding is to meet some of the requirements of a criminal trial, such as the right to counsel. Bullington v. Missouri, 451 U.S. 430, 446, 101 S.Ct. 1852, 1862, 68 L.Ed.2d 270 (1981). It has not held jury unanimity on the sub-determination of aggravation is a constitutional requirement. Further, the Court notes that the jury unanimously found both aggravating circumstances. Transcript at 859. As petitioner has failed to show prejudice, further review of this claim is barred. Petitioner alleges that trial defense counsel were prohibited from talking to Duncan Meekins (Claim 2(a)), the key prosecution witness, and from obtaining Meekins’ juvenile record before trial (Claim (2)(b)) in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Respondent asserts that petitioner failed to raise these issues on appeal before the Virginia Supreme Court, and is thus precluded from obtaining review of them in federal Court under Wainwright. The record reflects that petitioner did not raise these issues on appeal. Petitioner urges that this failure establishes cause and that it is indicative of the ineffectiveness of counsel. Respondent argues that the issues were insignificant, and therefore not pursued on appeal, because Meekins’ credibility was adequately attacked regarding his receipt of a plea agreement and his inconsistent statements. Transcript at 530-31, 535-36. Given the sufficiency of the attack on Meekins’ credibility at trial, and the admonition of the Supreme Court that counsel need not raise every “colorable” claim on appeal, Jones v. Barnes, — U.S.—,—, 103 S.Ct. 3308, 3314, 77 L.Ed.2d 987, 995 (1983), the Court is confident that counsels’ failure to appeal on these issues does not constitute ineffective assistance of counsel. Whether the failure to appeal constitutes “cause” under Wainwright is yet another issue. As no reference is made to counsels’ strategic motivation, or the lack thereof, in the transcript of' the State habeas proceeding, the Court will assume without deciding that cause has been shown, and move on to the issue of prejudice under Wainwright. As to Claim (2)(a), that counsel were denied an interview with Meekins, the Court notes that the trial court granted counsel an interview with Meekins so long as Meekins, through his attorney, consented. Motions Transcript at 63. The interview did not take place because consent was not forthcoming. Habeas at 144, 288-89. A witness may refuse to be interviewed. United States v. Walton, 602 F.2d 1176, 1179-80 (4th Cir.1979). The Commonwealth could not force Meekins to talk with defense counsel. Thus, no prejudice exists. As to Claim (2)(b), the denial of access to Meekins’ juvenile record, the Court first acknowledges as true petitioner’s contention that he has not yet been provided with a copy of Meekins’ record, and has thus been unable to demonstrate prejudice. See Memorandum for Petitioner In Reply to Respondents’ Reply Brief in Response to the Court’s Order of 4 January 1984 at 3. However, the Court has examined Meekins’ juvenile record, which was furnished in camera by the respondent, and finds it, relative to this case, to be brief and insignificant. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), did not establish an absolute rule that defendants upon request be given the juvenile records of witnesses for the purpose of cross-examination. In Davis, the defendant did not attempt generally to discredit the witness by showing him to be a delinquent. Id. at 311, 94 S.Ct. at 1108. Rather the defendant had a specific objective in mind. He desired to establish on cross the bias of the witness by showing that he was on probation as a juvenile at the time of testifying, and therefore was in a position receptive to police coercion. Id. The Court found that, under those facts, the right of confrontation was “paramount to the State’s policy of protecting a juvenile offender.” Id. at 319, 94 S.Ct. at 1112. In this case the defendant made a general request for the juvenile record of Duncan Meekins. The trial court examined the record and Davis to see if the defendant’s rights would be impaired. See Motions Transcript at 62-63. The record discloses that though Meekins had a sentence pending for a juvenile offense at the time of the Briley trial, the coercive effect, if any, of the pending sentence, or its ability to be used as a lever, were naught in view of Meekins’ involvement in the multiple murders. One who is faced with the death sentence cannot be concerned about possible punishment for a juvenile offense. Indeed, the matter was so insignificant, relatively, that it was not even a part of Meekins’ plea bargain. The judge correctly decided that the record should not be disclosed. Even from the perspective of an exhaustive habeas corpus review, I con-elude that no incremental increase in the doubt of Meekins’ veracity would have accrued upon the disclosure and cross-examination of Meekins’ juvenile record, and that no prejudice exists as to this claim. III. Jurors Petitioner alleges that the trial court failed to strike for cause Barbara Smith and William Slaughter, jurors who had formed opinions about the case (Claim (6)). The record shows that the substance of the opinion Ms. Smith testified to having formed was “I would just like to see justice done, that’s all.” Transcript at 53. She specifically denied that she had formed an opinion about petitioner’s guilt and testified that she would be able to lay aside any preconceived notion she might have and decide the case on the evidence. Transcript at 50, 53. In answer to what opinion he might have formed, Mr. Slaughter said: Well, I have been in the middle. I have this broad spectrum and in the middle it’s sort of neutral. To me neutral means — a neutral opinion, by definition, there is an opinion, yes, and there is an opinion, no. And in between, there is a wide band of neutrality. And it all depends — I mean, when you are in the middle, you are in the middle. Transcript at 66. Mr. Slaughter also testified that he would be able to lay aside any preconceived opinion that he may have had, and decide the case on the evidence presented. Transcript at 62-63. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court said that if a juror held a preconceived notion as to the guilt or innocence of the accused, due process would nevertheless be satisfied “if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in Court.” Id. at 723, 81 S.Ct. at 1643. Neither Ms. Smith or Mr. Slaughter testified to having any preconceived notion as to petitioner’s guilt or innocence, and in any event, both testified that they would render a verdict based solely upon the evidence presented in Court. Accordingly, petitioner’s claim is without merit. IV. Change of Venue Petitioner has charged that his conviction and sentence lack fundamental fairness because the trial court refused a motion for a change of venue or venire despite what was alleged to be considerable, seriously prejudicial, pre-trial publicity. Amended Petition for Writ of Habeas Corpus at 12. Pursuant to 28 U.S.C. § 2254(d), the federal habeas court must accord a presumption of correctness to the factual findings of the State courts, unless one of the eight exceptions enumerated justifies a federal court’s disregard of that presumption. Section 2254(d)(8) provides that one such exception occurs when the federal court “on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.” In Briley v. Commonwealth of Virginia, 221 Va. 532, 537-38, 273 S.E.2d 48, 52 (1980), the Virginia Supreme Court cited as weaknesses in petitioner’s argument that: [Petitioner] does not claim that any of the publicity about which he complains was either inaccurate or intemporate. [Citation omitted] Neither had he demonstrated “such a widespread feeling of prejudice on the part of the citizenry as [would have been] reasonably certain to prevent a fair and impartial trial” [Citation omitted]. Nor has he directed us to specific portions of the record “which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected.” Dobbert v. Florida, 432 U.S. 282 [97 S.Ct. 2290, 53 L.Ed.2d 344] ... (1977). The defendant’s complaint concerning pretrial publicity is no more than a claim that the sheer volume of the media coverage of his and his brothers’ many crimes required a change in the location of his trial. Such a claim, standing alone, does not suffice to require a change of venue. Dobbert v. Florida, supra, 432 U.S. at 303 [97 S.Ct. at 2303],... The narrow question before this Court is whether the Supreme Court of Virginia’s determination that pre-trial publicity did not prejudice petitioner by denying him an impartial jury is supported by the record. In Harris v. Pulley, 692 F.2d 1189, 1199—1200 (9th Cir.1982), remanded on other grounds, — U.S. -, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the Court of Appeals was presented with a claim that prejudicial pretrial publicity had denied petitioner an impartial jury and considered the question of what part of the record a federal habeas court must review in order to determine whether - the record fairly supports the State court’s factual determination. The Ninth Circuit stated: Where prejudicial pretrial publicity is alleged, the relevant parts of the State court record, include, at a minimum, copies of the newspaper articles and, if available, any transcripts of television and radio broadcasts. Because a federal court sitting in habeas has a duty “to independently evaluate the voir dire testimony of the empaneled jurors” Irvin v. Dowd, 366 U.S. 717, 723 [81 S.Ct. 1639, 1643, 6 L.Ed.2d 751] ... (1961), the entire transcript of the voir dire testimony should also be examined. It is only after examination of such relevant parts of the record that the district court can determine that the state court findings are supported by the record. Before the Court at present is the evidence of pre-trial publicity stipulated to have been before the trial judge: a scrapbook of newspaper articles presented by petitioner in support of his motion for a change of venue or venire; transcripts of local television stations WTVR, WWBT, and Channel 8 [WXEX] covering the Briley trials; and eight affidavits by citizens in the community attesting to their belief that petitioner would be unable to have a fair trial in the community. Motions Transcript at 67-68. Also before the Court is petitioner’s argument on behalf of his motion for a change of venue as well as the transcript of the complete voir dire of the venire. For the reasons set forth below, we agree with the Supreme Court of Virginia that while publicity preceding petitioner’s trial was extensive, it did not have that pervasive, inflammatory, corrupting character held by the Supreme Court decisions to be the sine qua non of a finding of such prejudice as would make the empaneling of an impartial jury impossible. A Fifth Circuit case which provides a useful paradigm for determining how a federal court goes about examining such claims is Mayola v. State of Alabama, 623 F.2d 992, 996 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981). Defendant Mayóla was convicted and sentenced to life imprisonment for the first degree murder of an 11-year old Alabama boy. The kidnap-murder of his victim spawned a great deal of press attention; two local papers gave prominent and extensive written and photographic coverage to the crime and its subsequent investigation and prosecution. Attention thus generated was heightened by the theme of sexual deviance pervading the newspaper coverage. Moreover, the day before the jury was to be empaneled the Birmingham News’ lead front-page article featured an interview with Mayóla in his jail cell. Mayóla was reported as intending to repudiate the pleas of not guilty and not guilty by reason of insanity entered by his attorneys. The story included Mayola’s personal view that he was not crazy and would deserve anything he got for his crime. The Fifth Circuit pointed out that: “[0]ne seeking to have his conviction nullified on the ground that he was denied a fair trial to an impartial jury due to adverse pretrial publicity ordinarily must demonstrate an actual, identifiable prejudice attributable to that publicity on the part of members of his jury. Irvin v. Dowd, 366 U.S. 717, 723 [81 S.Ct. 1639, 1643, 6 L.Ed.2d 751] (1961)”; as the Mayo-la court went on to state, the sole exception to this conventional approach of showing actual prejudice was announced by the Supreme Court in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), Mayola at 996. In Rideau, petitioner, only hours after his arrest on charges of robbery, kidnapping, and murder, confessed, orally and in writing to these crimes. The morning thereafter, a sound film was made of an interview between petitioner and the sheriff; during that interview, petitioner admitted his guilt once more. The film was broadcast on a local television station for three days. The Supreme Court held: [I]t was a denial of due process of law to refuse the request for a change of venue after the people of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to crimes with which he was later to be charged____ Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality____ [W]e do not hesitate to hold, without pausing to examine a particularized transcript of the voir dire examination of the members of the jury, that due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised “interview.” Rideau, 373 U.S. at 726-727, 83 S.Ct. at 1419-20. Justice Clark, however, joined by Justice Harlan, dissented: [The Court failed to establish] any substantial nexus between the televised “interview” and petitioner’s trial which occurred almost two months later. Unless the adverse publicity is shown by the record to have fatally infected the trial, there is 'simply no basis for the Court’s inference that the publicity, epitomized by the televised interview, called up some informal and illicit analogy to res judicata, making petitioner’s trial a meaningless formality. Rideau at 728, 83 S.Ct. at 1420. The difference between the majority and the dissent strikingly illustrates the attitudes of counsel for the petitioner, Linwood Briley, and his trial judge. Petitioner’s attorneys moved in a special motions hearing conducted on 6 February 1980, for a change of venue, arguing that pre-trial publicity was so intense, so pervasive, that it must of necessity be prejudicial. The tenor of both the television transcripts as well as the newspaper articles presented to the trial court by the petitioner was informative, factual. None of the publicity proffered by then defendant Briley in any way appeared designed to inflame the mind of the community. True, the slayings alleged were themselves horrible; true, the publicity surrounding the earlier trials of petitioner and of his brother had been extensive. However, it is impossible to conceive of a situation where three brothers have been indicted for multiple rapes, armed robberies, first degree murder, and capital murder, and there not be extensive publicity. Counsel for petitioner takes the view that the situation presented in this appeal resembles that in Rideau. Specifically, she argues that the pretrial publicity was so inflammatory, so pervasive, so intense that it became a practical impossibility to empanel a fair jury. Hence, the holding in Rideau must apply: where inflammatory pre-trial publicity has saturated the community, prejudice is presumed and the voir dire of the jury need not be examined. Rideau at 727, 83 S.Ct. at 1419. Judge Spain, the trial court judge, took the position that Justice Clark did in the Rideau dissent: his belief was that pre-trial publicity notwithstanding, the proper procedure was to continue bringing before the court successive panels of veniremen until 12 impartial jurors could be selected. Even if we look to the Rideau majority and realize that there are situations where pretrial publicity has so corrupted the mind of the community that the defendant has been tried and found guilty in advance of the actual court proceeding, such has not been the case here. Nothing in the newspaper reports or the television transcripts reveal inflammatory publicity analogous to defendant Rideau’s televised confession of the crimes for which he was later charged and to which he later pled not guilty. It is worth noting that “only in Rideau itself has the Supreme Court reversed a state court conviction on this basis of presumed prejudice deriving solely from pre-trial publicity.” Mayóla at 997. In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), six murders were committed near Evansville, Indiana; extensively treated by the news media in the locality, the crimes aroused great outrage throughout Vanderburgh County and Gibson County. Petitioner was arrested; shortly thereafter, the Vanderburgh County prosecutor and Evansville police issued press releases, also extensively publicized, which told of how petitioner had confessed to these six killings. Petitioner, having been granted a change of venue to Gibson County, sought another change of venue to some county far enough removed from the Evansville locality that a fair trial would not be prejudiced. The Supreme Court held that the increase of prejudice through pretrial publicity was “clear and convincing.” Irvin at 725, 81 S.Ct. at 1644. The anticipated trial of petitioner had become so notorious that street corner opinions as to a suitable punishment were sought and recorded on the public thoroughfares by reporters and broadcast over local stations. Indeed, headlines reported that “impartial jurors are hard to find.” Irvin at 727, 81 S.Ct. at 1645. Unlike Rideau, where the Supreme Court found it unnecessary to review the voir dire in the light of the prejudice presumptively created by pre-trial publicity, the Supreme Court actually examined jury selection process: An examination of the 2,783-page voir dire record shows that 370 prospective jurors or almost 90% of those examined on the point (10 members of the panel were never asked whether or not they had any opinion) entertained some opinion as to guilt — ranging in intensity from mere suspicion to absolute certainty. A number admitted that, if they were in the accused’s place in the dock and he in theirs on the jury with their opinions, they would not want him on a jury. Here the “pattern of deep and bitter prejudice” shown to be present throughout the community, cf. Stroble v. California, 343 U.S. 181 [72 S.Ct. 599, 96 L.Ed. 872] ..., was clearly reflected in the sum total of the voir dire examination of a majority of the jurors finally placed in the jury box. Eight out of the 12 thought petitioner was guilty. With such an opinion permeating their minds, it would be difficult to say that each could exclude this preconception of guilt from his deliberations. The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. Irvin at 727, 81 S.Ct. 1645. The Supreme Court found that petitioner had been denied due process of law in not being tried by an impartial jury; but' it went on to discuss on the degree of pretrial publicity permissible before a jury was so influenced by pre-formed opinion it could not be said to be capable of impartiality: It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread, and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective jur- or’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin at 722-23, 81 S.Ct. at 1642-43. The facts of Irvin reveal such a complete contamination, not merely of the community, not just of the venire, but of the actual jury selected, that in no way could those jurors lay aside their opinions and arrive at an impartial verdict. The case here is not thus. The veniremen from whom Linwood Briley’s jury were actually selected were consistently questioned as to whether or not they had ever heard of Linwood Briley; many had not. Of those who had heard of him, many had no clear idea of what he was charged with except that it'was criminal and involved killing. All jurors actually selected asserted that they would be able to lay aside whatever vague or ill-formulated notions they may have had and reach a verdict based solely on the law and the evidence. See Appendix. There comes a point in a trial where the judge must believe what a venireman says under oath. It is interesting to note that in both Irvin and Rideau, the defendant had either been seen in the act of confessing or police officials reported that he had confessed. There is not a sentence, not a word, indeed not a syllable, that Linwood Briley ever did other than assert his innocence. In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court specifically addressed the question of whether petitioner was denied a fair trial because jurors had learned of a prior felony conviction or of certain facts about the crime with which he was charged from news accounts. In Murphy, petitioner was convicted in Dade County, Florida, in 1970 of breaking and entering a home, while armed, with the intent to commit robbery and of assault with the intent to rob. Petitioner’s arrest gained widespread press coverage because petitioner himself had been greatly in the news. First having been made notorious by participating in the 1964 theft of the Star of India sapphire from a New York Museum, he was labeled “Murph the Surf” by the media. Prior to the date set for petitioner’s trial on the breaking and entering and assault charges, he was indicted on two counts of murder in Broward County, Florida. The Dade County court, however, found defendant mentally incompetent to stand trial and committed him to a hospital; the prosecutor nol prossed the robbery indictment. In August, 1968, Murphy was indicted by a federal grand jury for conspiring to transport stolen securities in interstate commerce. Having been found competent to stand trial, he was convicted on one count of murder in Broward County in March of 1969 and. pleaded guilty to one count of the federal indictment in December of that same year.’ The indictment for robbery was refiled in August of 1969 and came to trial a year later. These events of 1968 and 1969 drew extensive press coverage. Each new case was considered newsworthy not only in Dade County but elsewhere. Petitioner moved to dismiss the jurors chosen from a 78-person venire on the ground that they were aware of his earlier conviction of either the 1964 Star of India theft or the Broward County murder. This motion was denied as was his renewed motion for a change of venue based on allegedly prejudicial pretrial publicity. In Murphy as in the ease at bar, we have defendants whose previous crimes were the subject of widespread publicity, and who moved the trial court either for a change of venire or venue, and whose motions were denied. In Murphy, the Supreme Court reviewed its pre-trial publicity holdings and summarized: The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. To resolve this case, we must turn, therefore, to any indications in the totality of circumstances that petitioner’s trial is not fundamentally fair. Murphy at 799, 95 S.Ct. at 2036. The Supreme Court went on to establish a model by which this constitutional standard of fairness maybe determined: The constitutional standard of fairness requires that a defendant have “a panel of impartial ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. at 722 [81 S.Ct. at 1642]____ Qualified jurors need not, however, be totally ignorant of the facts and issues involved. “To hold the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court” Id., at 723 [81 S.Ct. at 1642-43]____ At the same time, the juror’s assurances that he is equal to this task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate “the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.” Ibid. Murphy at 800, 95 S.Ct. at 2036. The “Watergate” trials of Presidential advisors Haldeman, Ehrlichman, and Mitchell place the entire issue of change of venue based on pre-trial publicity in sharp perspective. In the most highly publicized case in the history of the world, United States v. Haldeman, 559 F.2d 31, 59 (D.C. Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250; reh. denied, 433 U.S. 916, 97 S.Ct. 2992, 53 L.Ed.2d 1103 (1977), the D.C. Circuit examined the extensive pre-trial publicity surrounding the trials of Harry R. Haldeman, John D. Ehrlich-man, and John N. Mitchell for conspiracy, obstruction of justice, and making false statements to the Federal Bureau of Investigations as well as to the Senate Committee on Presidential Campaign activities. Appellants had raised the contention that pre-trial publicity was so pervasive and so harmful to them that it must be assumed they could not receive a fair adjudication of the charges against them at the time and in the place which they were tried. The D.C. Circuit in Haldeman looked initially at the right to a fair trial by a panel of impartial, “indifferent,” jurors. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The Haldeman court spoke of the necessity to refer to the voir dire of the jury in order to establish such impartiality but noted that in extreme circumstances prejudice to the defendants’ rights might be presumed. The Court of Appeals also remarked that the Supreme Court has reversed a conviction because it presumed pre-trial publicity had made a fair trial impossible only once: in the case of Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). Having looked at the “Watergate” articles submitted by the appellants, the Haldeman court held: [W]e find that the pre-trial publicity in this case, although massive, was neither as inherently prejudicial nor as unforgettable as the spectacle of Rideau’s dramatically staged and broadcast confession. It is true that some of the pieces contained in the extensive collection of articles governed by appellants are hostile in tone and accusatory in content. The overwhelming bulk of the materials submitted, however, consist of straightforward, unemotional, factual accounts of events and of the progress of official and unofficial investigations. In short, unlike the situation faced by the Court in Rideau, we find in the publicity here no reason for concluding that the population of Washington, D.C., was so aroused against appellants and so unlikely to be able objectively to judge their innocence on the basis of the evidence presented at trial that their due process rights were violated by the District Court’s refusal to grant a lengthy continuance or a change of venue prior to attempting selection of a jury. Haldeman at 61-62. Manifestly, if a Washington, D.C., jury could be empaneled, capable of the necessary impartiality, in order to assess the charges against Haldeman, Ehrlichman, and Mitchell, in the face of the savage onslought of publicity, surely an impartial jury could be found to assess the charges against Linwood Briley. As we have seen, as the Supreme Court of Virginia pointed out, the publicity was massive but factual, not encompassing and accusatory, widespread in the local area, not a worldwide news phenomenon, straightforward, instead of politically tainted, in its coverage.. At the outset, it is presumed that a prospective juror may judge impartially; even if there has been extensive pretrial publicity, even if the juror actually has formed an opinion, his initial state of mind, standing alone, does not rebut that presumption. If the juror is able to lay aside the opinion he has formed, if he is able to put from him any predisposition to find the defendant guilty based on his reading of newspapers or viewing of television, his impartiality remains intact. But if a venireman, who has formed such an opinion, merely asserts his impartiality in the face of circumstances, such as extensive pretrial coverage, which might make that impartiality suspect, it is open to the defendant to demonstrate that the opinion the venireman has formed will persist and will prevent him from reaching a fair verdict based solely on the law and the evidence as they are presented in open court. In the case at bar, the Court has examined pre-trial publicity stipulated to have been before the trial judge. Here, unlike Rideau, we have no publicized confession of defendant; nor have there been statements by the jurors, as in Irvin, that they would need actual evidence to overcome their belief in the defendant’s guilt. It remains then to scrutinize the voir dire of the jury actually chosen to see whether or not the defendant, on whom the burden then rested, was able to demonstrate the actual existence of an opinion which wiped out the presumption of impartiality accorded that juror. The Court has done this and is satisfied that a jury free from constitutional objection was sealed. It is patently obvious from the transcript that the trial court made a conscientious effort when empaneling all three groups of veniremen to ascertain if the venire collectively had formed an opinion as to the guilt or innocence of the accused. Moreover, both prosecution and defense counsel carefully questioned each member of the venire to determine whether or not there was cause for their dismissal. Overwhelmingly, the reason for which veniremen were stricken for cause was religious objections, or personal objections, to imposition of the death penalty. An examination of the voir dire of the entire venire, with particular attention paid to the voir dire of the twelve actually selected as jurors, does not reveal the deep-seated prejudice which the Supreme Court has found necessary in order to declare that an impartial jury could not be' found. Nor does the pretrial publicity adduced by petitioner reveal the wide-spread prejudice, the “carnival atmosphere,” that in and of itself justifies granting a change of venue, without such examination of the voir dire to discern whether or not an impartial jury was actually empaneled. Here, although jurors had read of the case in the newspapers, no fixed opinions had been formed. No inability to lay aside such opinion, even if it existed, was manifest in any of the twelve who determined that Linwood Briley was in fact guilty and should receive the death penalty. The Supreme Court of Virginia spoke well when it said with regard to the matter of pretrial publicity: The defendant’s complaint concerning pretrial publicity is no more than a claim that the sheer volume of the media coverage of his and his brothers’ many crimes required a change in the location of his trial. Such a claim, standing alone, does not suffice to require a change of venue. Dobbert v. Florida, 432 U.S. 282, 303 [97 S.Ct. 2290, 2303, 53 L.Ed.2d -344] (1977).... Briley 273 S.E.2d at 52. Accordingly, h