Full opinion text
MEMORANDUM OPINION CACHERIS, Chief Judge. This matter is before the Court on Respondent David A. Williams’ motion to dismiss Petitioner Willie Lloyd Turner’s 28 U.S.C. § 2254 (1988) petition for a writ of habeas corpus. Respondent’s motion is brought pursuant to Federal Rules of Civil Procedure 12(b)(6), or in the alternative Rule 56(b). For reasons set forth below, Respondent’s motion is GRANTED, judgment entered in favor of Respondent, and the petition for habeas corpus dismissed with prejudice. I. BACKGROUND. Over fourteen years ago, at approximately 11:30 a.m. on July 12, 1978, Petitioner Willie Lloyd Turner entered Smith Jewelers store located in the City of Franklin, Virginia, which was owned and operated by W. Jack Smith, Jr. As Turner entered the store, he carried with him a sawed-off shotgun concealed under a green towel. Turner walked to the back of the store, and without saying a word motioned toward Smith with his gun, causing Smith to begin loading money and jewelry into a jewelry bag. While he was stuffing the jewelry bag, Smith was inconspicuously able to activate the store’s silent alarm. In almost immediate response to the alarm, Police Officer Alan D. Bain, Jr., entered the store, and informed Smith that his alarm had been triggered. Before Officer Bain could observe the situation, Turner placed his shotgun next to Officer Bain's head and ordered Bain to remove his service revolver, which Turner then confiscated. Turner then ordered Smith to turn off the alarm and continue loading bags with jewelry. After fidgeting with the revolver for a few moments, Turner fired the gun into the back wall of the store, yelling that he did not want any more police contacted. At this point, Smith started to step out from behind the counter. Turner looked at him for a moment, and then shot Smith in the head with the revolver, causing Smith to yell, slump down, and fall to the floor. The bullet passed through Smith’s scalp, and although not fatal, it caused bleeding and bruising to the brain surface. The shot knocked Smith unconscious, where he remained crumpled behind the counter, bleeding from his head, and emitting a faint gurgling noise. Turner backed up, and according to Judith R. Cosby, a customer in the store at the time, declared “I’m going to kill that nig[g]er for snitching on me.” Turner then reached over the counter, rapidly firing two successive close range pistol shots into the left side of the unconscious Smith’s chest. The shots caused Smith’s body to jump at the force of impact, with one of the bullets penetrating his heart, food and wind pipes, finally lodging in his spine. The other bullet passed through his chest and lung, exiting out his back, so that the flattened slug was later found loose in his shirt. There was no more noise or motion from Smith following these shots. The medical examiner testified that the shots to Smith’s chest were the cause of death, and that either shot alone would have been sufficient to kill him. After Smith’s body lay lifeless, Officer Bain was able to regain control of his weapon, and subsequently subdue Turner. Turner was convicted of murdering Smith on December 4, 1979, and on December 6, 1979, a jury sentenced him to death, which the Supreme Court of Virginia approved on appeal. Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980) (Turner I), cert. denied sub nom. Turner v. Virginia, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). On April 30, 1986, the United States Supreme Court upheld Turner's conviction, but reversed his death sentence because of the trial court’s failure to question prospective jurors about possible bias resulting from the fact that Turner was black and his victim was white. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). The case was then returned to the Circuit Court for the County of Southampton, Virginia, the Honorable James C. Godwin presiding, for a new jury trial on the sentence, which took place on January 7-9, and 12, 1987. One of the decisions to be made at this point by court-appointed attorney J. Lloyd Snook and assisting counsel Thomas L. Woodward, Jr., was whether to tell the jury that Turner previously had received a death sentence. Snook had been counseled by other death penalty experts against allowing the jury to know of the previous sentence. The difficulty with that advice was that part of the mitigating evidence he planned to introduce concerned Turner’s actions during a 1984 escape attempt by himself and other death row inmates at Mecklenburg prison. Judge Godwin had indicated he would not sever any portion of the evidence regarding the fact that Turner was on death row, and that all such rebuttal evidence would be admitted. See Transcript I, supra note 2, at 21-24. Snook also felt the jury would be able to figure out on its own that Turner previously had received the death penalty, knowing that Turner had already been convicted, that the offense had occurred some ten years before, and that the only issue before them was whether to impose a life or death sentence. Transcript II, supra note 5, at 76. As Prosecutor Grizzard observed when discussing the issue with Snook and Judge Godwin, “any halfway intelligent jury knows that a man that’s sentenced to life in the first instance is not appealing the life sentence so that he can get the possibility of a death penalty.” Turner v. Commonwealth, No. 870554, Tr. at 24 (Southampton County Cir.Ct. Nov. 12, 1986). Judge Godwin agreed that “[t]hat should be obvious very quickly.” Id. Based on Judge Godwin’s comments, as well as his feeling that the jury would realize on its own that there had been a previous death sentence, Snook determined that his best course of action was to have the court inform jurors of the prior death sentence during voir dire. This allowed Snook to gauge any potential resulting prejudice upon the part of individual jurors, as well as to avoid the appearance of having held back damaging evidence once the prior death sentence became apparent. The next major trial decision for Snook came at the end of the Commonwealth’s case in chief. After the prosecution rested, Snook felt the Commonwealth had held back about eighty percent of its evidence, saving the most devastating evidence for use in rebuttal to the defendant’s case. Snook also was concerned that mitigating evidence on Turner’s character ultimately showed more bad than good, and that all of this damaging character evidence would come in if he tried to introduce what relatively limited evidence there was of good character. Finally, Snook felt the jury had been bored by the government’s case, so that based on all these factors, putting on mitigating evidence would not have placed the defendant in a better position than the one in which he stood currently. Thus, Snook decided to rest the defendant’s case without putting on a defense. Woodward, who was personally acquainted with the prosecutor, concurred. Woodward had tried many cases against prosecutor Griz-zard, and he knew Grizzard had a habit of holding back damaging evidence for use in rebuttal. On January 12, 1987, this second jury returned a verdict again fixing the sentence at death, based solely upon the “vileness” predicate established by Ya.Code Ann. § 19.2-264.2 (Michie 1990). This sentence was again upheld on appeal to the Virginia Supreme Court. Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483 (Va.) (Turner II), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988). The collateral review process began anew when Petitioner filed for a writ of habeas corpus with the Circuit Court for the County of Southampton, based upon alleged ineffective assistance of counsel. An evidentiary hearing on this issue was held before Judge Godwin on September 11-13, 1989. All other claims were dismissed without an evidentiary hearing. On May 23, 1990, Judge Godwin issued a five-page letter order finding nothing to substantiate Turner’s claim, and adopting verbatim the Attorney General's proposed findings of fact. On July 5, 1990, the letter order was formalized in an order dismissing Turner’s petition. On April 30, 1991, the Supreme Court of Virginia dismissed Turner’s appeal of the lower court’s decision. On December 10, 1991, Turner filed this petition, which is his first petition for habeas corpus in federal court with respect to the January 12, 1987 death sentence. The Commonwealth has moved for dismissal of the petition pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56. II. APPLICABLE LEGAL STANDARD. The respondent has styled this alternatively as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or for summary judgment under Rule 56. Because a considerable record has already been developed as a result of prior proceedings in this matter, it is more appropriate for the Court to treat this as a motion for summary judgment, as provided for in Rule 12(b). Summary judgment is appropriate only if “ ‘the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Baber v. Hospital Corp. of America, 977 F.2d 872, 874 (4th Cir.1992); Fed.R.Civ.P. 56(c). “A district court must grant summary judgment if, after an adequate time for discovery, a party fails to make a showing sufficient to establish the existence of an essential element of that party’s case.” Baber, 977 F.2d at 874 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In summary judgment proceedings, the moving party must demonstrate absence of a genuine issue of material fact. Baber, 977 F.2d at 874. Once the moving party has met its burden, the nonmoving party must come forward with some evidence beyond mere allegations contained in the pleadings to show there is a genuine issue for trial. Id. at 874-75. “While this does not require the non-moving party to submit evidence in a form that would be admissible at trial ... ‘unsupported speculation is not sufficient to defeat a summary judgment motion.’ ” Id. at 875 (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987)). “The mere existence of a scintilla of evidence in support of the [party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for th[at] [party].” Anderson, 106 S.Ct. at 2512, 106 S.Ct. at 252. Finally, “[i]n reviewing the evidence submitted by the parties ..., [the court] must view all evidence in the light most favorable to the non-moving party.” Baber, 977 F.2d at 875. III. SUMMARY OF THE BASES FOR PETITIONER’S CLAIM THAT HE IS ENTITLED TO A WRIT OF HABEAS CORPUS. A.That he was denied effective assistance of counsel in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution because his attorneys: 1) permitted prospective jurors to know about his prior death sentence (discussed infra at 1429); 2) improperly decided not to put on for mitigation purposes evidence of Petitioner’s actions during an escape attempt involving six death row inmates in 1984 (discussed infra at 1429); 3) did not perform adequate pretrial investigation of mitigation evidence (discussed infra at 1430); 4) failed to develop and use psychiatric evidence (discussed infra at 1431); 5) failed to put on mitigating evidence that had been promised to the jury by the defense in opening statements (discussed infra at 1432); 6) failed to object to the presentation of evidence concerning defendant’s unconstitutional second degree murder conviction (discussed infra at 1432); and, 7) failed to raise and thereby preserve the presently claimed errors (discussed infra at 1414-27). B. That Virginia’s capital murder statutory sentencing mechanism has resulted in arbitrary and discriminatory application of the death penalty based upon the offender and victims’ race, gender, and financial statuses, so that Petitioner’s death sentence was imposed in violation of his rights under the Eighth and Fourteenth Amendments (discussed infra at 1417). C. That the collateral review of his death sentence afforded Petitioner by the Virginia courts was so “shallow and shameful” as to be in violation of his rights under the Eighth and Fourteenth Amendments (discussed infra at 1432). D. That the prosecution used information received from Petitioner’s counsel during post-conviction hearings on the original sentence in violation of the attorney-client privilege, and therefore his Fifth Amendment right against self-incrimination, his Sixth Amendment right to counsel, and his Fourteenth Amendment right to due process, which combine to make his death sentence in violation of the Eighth and Fourteenth Amendments (discussed infra at 1433). E. That the court-appointed mental health expert provided to evaluate Petitioner for purposes of mitigation failed to provide competent assistance (discussed infra at 1418). F. That the scope of proportionality review provided by the Virginia Supreme Court is constitutionally inadequate generally, as well as in this case (discussed infra at 1419). G. That juror Samuel Lambert should have been struck for cause, because his voir dire revealed he could not refrain from allowing the prior death penalty from affecting his consideration (discussed infra at 1434). H. That the Virginia Capital Sentencing Statute, Va.Code Ann. § 19.2-264.2 (Michie 1990), is unconstitutional on its face and as applied in violation of the Eighth Amendment (discussed infra at 1420). I. That jury instructions were biased toward imposition of the death penalty (discussed infra at 1435). J. That the trial court failed to instruct the jury adequately concerning aggravating and mitigating circumstances in violation of the Eighth and Fourteenth Amendments (discussed infra at 1421). K. That the trial court erred by permitting the jury to impose the death penalty based upon a finding that his conduct was “outrageously or wantonly vile, horrible or inhuman,” because the evidence was insufficient to support such a finding (discussed infra at 1423). L. That the trial court improperly excluded evidence or instructions concerning Petitioner’s remote chance of parole if given a life sentence, thereby unreasonably interfering with his right to present mitigation evidence (discussed infra at 1437). M. That the trial court improperly removed for cause two jurors whose answers during voir dire concerning inability to apply the death penalty did not sufficiently demonstrate an inability to serve on the jury (discussed infra at 1424). N. That application of Va.Code Ann. § 19.2-264.3(C) (Michie 1990) to Petitioner’s case was in violation of the United States Constitution’s ex post facto clause (discussed infra at 1437). O. That the Commonwealth of Virginia improperly introduced as aggravating evidence an unconstitutional prior conviction, for second degree murder (discussed infra at 1425). P.That Petitioner was excluded from critical stages of his resentencing proceeding in violation of his Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution (discussed infra at 1426). IV. DISCUSSION AND APPLICATION OF LAW. A. Claims Procedurally Barred From Being Pursued. 1. Legal Framework. The Commonwealth has asserted that many claims set forth by Petitioner are barred from review on procedural grounds. Therefore, before this Court can consider the merits of Petitioner’s asserted grounds for relief, it is necessary to discuss the framework by which habeas corpus claims may be barred from the review of a federal court, and whether any of Petitioner’s claims are in fact barred. The United States Supreme Court has long held that where a state court judgment rests on a state-law ground that is both independent of the merits of the federal claim, and serves as an adequate basis for that judgment, a federal court cannot consider the merits of the federal claim because this would amount to an advisory opinion in violation of Article III of the United States Constitution. See Coleman v. Thompson, — U.S.-,-, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 22 L.Ed. 429 (1875). This proposition applies to state court judgments on direct review before the Supreme Court, and more importantly for these purposes, to state court judgments challenged in federal habeas corpus proceedings pursuant to 28 U.S.C. § 2254 (1988). Harris, 489 U.S. at 262, 109 S.Ct. at 1042-43. Furthermore, the independent and adequate state ground doctrine may be based either upon substantive state law, or upon a violation of state procedural rules. Id. at 261, 109 S.Ct. at 1042. The question thus arises as to when a state procedural ground is both “independent” and “adequate.” A state procedural law is “independent” for these purposes if it does not depend upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985). A state procedural ground is “adequate” where the procedural rule is followed strictly or regularly by the courts of that state, see Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988), so long as the State has a legitimate interest in enforcing the procedural rule. Michigan v. Tyler, 436 U.S. 499, 512 n. 7, 98 S.Ct. 1942, 1951 n. 7, 56 L.Ed.2d 486 (1978); Wainwright v. Sykes, 433 U.S. 72, 83 n. 8, 97 S.Ct. 2497, 2504 n. 8, 53 L.Ed.2d 594 (1977). Finally, for a state procedural ground to bar review, the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case, and its opinion must contain a “plain statement” to this effect. Harris, 489 U.S. at 261, 109 S.Ct. at 1042. Thus, where a state court gives a plain statement expressly and unambiguously holding a habeas corpus claim barred on independent and adequate state procedural grounds, that claim will also be barred from review by the federal court. Harris, 489 U.S. at 262, 109 S.Ct. at 1042-43; Bassette v. Thompson, 915 F.2d 932, 935-37 (4th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991); Justus v. Murray, 897 F.2d 709 (4th Cir.1990); DeLong v. Thompson, 790 F.Supp. 594, 600-01 (E.D.Va.1991). Therefore a federal court ordinarily must dismiss those claims expressly barred by the highest state court on procedural grounds. Coleman, — U.S. at-, 111 S.Ct. at 2553-57; Bassette, 915 F.2d at 935-37; Pruett v. Thompson, 771 F.Supp. 1428, 1437 (E.D.Va.1991). The Court turns first to the question of whether there has been a plain statement by the Virginia Supreme Court to the effect that some of Petitioner’s claims are barred on state procedural grounds. In its order upholding the trial court’s denial of habeas corpus dated April 30, 1991, the Virginia Supreme Court stated “the petition for appeal is denied for reasons of procedural default.” Turner v. Williams, No. 901335 (Va. April 30, 1991). The Court finds this statement to be a sufficiently clear or plain statement of procedural default. Turning to the issue of whether the procedural ground asserted is independent and adequate, the Virginia high court stated in its letter that the procedural rule defined in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied sub nom. Parrigan v. Paderick, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975), barred review of Petitioner’s claims listed above in Part III as (B), (E), (F), (H), (J), (K), (M), (O), and (P). Slayton stands for the proposition that under Virginia law, a state habeas petition may not be used to review a claim of error in collateral proceedings that could have been, but was not, raised on direct appeal. Slayton does not rely upon federal law for its conclusion, and is therefore “independent.” Likewise, it serves a legitimate state interest and has been enforced strictly by the Virginia courts, as has been recognized continually by the federal courts, and is thus “adequate.” See Smith v. Murray, 477 U.S. 527, 533-39, 106 S.Ct. 2661, 2665-69, 91 L.Ed.2d 434 (1986) (applying Slayton as a legitimate bar to a defaulted claim); Poyner v. Murray, 964 F.2d 1404, 1423 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992); Bunch v. Thompson, 949 F.2d 1354, 1362-63 (4th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 3056, 120 L.Ed.2d 922 (1992); Epperly v. Booker, 235 Va. 35, 366 S.E.2d 62, 66-67 (1988). Thus, because there is a plain statement by the Virginia court that claims (B), (E), (F), (H), (J), (K), (M), (O), and (P) are barred on an independent and adequate state procedural ground, those claims will be barred from review by this Court, unless default of those claims is excused, which is the next subject the Court must undertake. 2. Exceptions for Claims Otherwise Barred. a. Cause and Prejudice. Two exceptions exist to the rule that a federal court cannot review a habeas corpus claim defaulted on the basis of an independent and adequate state ground. The first is that a petitioner will be excused where he can show “just cause” for the state procedural default, and “prejudice” resulting therefrom. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Bassette, 915 F.2d at 937. In the context of procedural default, the Supreme Court purposefully has refrained from defining what constitutes “just cause,” recognizing there is a “broad range of potential reasons for an attorney’s failure to comply with a procedural rule, and [a] virtually limitless array of contexts in which a procedural default can occur.” Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901, 2909, 82 L.Ed.2d 1 (1984). The Court stresses that [underlying the concept of cause, however, is at least the dual notion that, absent exceptional circumstances, a defendant is bound by the tactical decisions of competent counsel, and that defense counsel may not flout state procedures and then turn around and seek refuge in federal court from the consequences of such conduct. Id. (citations omitted). As the Court explained in Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), we discern no inequity in requiring [the petitioner] to bear the risk of attorney error that results in a procedural default. Instead, we think that the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. Nevertheless, the Court in Murray was careful to point out that “[ineffective assistance of counsel ... is cause for a procedural default.” Id. at 488, 106 S.Ct. at 2645. Turner asserts here, as he did during state collateral proceedings, that to the extent any of his claims have been defaulted, this is the result of ineffective assistance of counsel. Thus, before any of Turner’s claims can be held to have been defaulted, this Court must find that each allegedly defaulted claim did not occur as a result of ineffective assistance of counsel. i. Strickland Standard for Ineffective Assistance of Counsel. Generally under 28 U.S.C. § 2254(d) (1988), factual determinations made by state courts are presumed correct. State court findings as to ineffective assistance of counsel, however, are mixed questions of law and fact, and are therefore not entitled to the same presumption. Thus, a state court finding “that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by [§ 2254(d)].” Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984); see also Clozza v. Murray, 913 F.2d 1092, 1100 (4th Cir.1990) (accord), cert. denied, — U.S. -, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991). Nevertheless, so far “as -the state court’s findings of historical fact bear on the question, they are presumed to be correct under the statute.” Clozza, 913 F.2d at 1100. Thus, in reviewing this claim, the “Court must individually analyze each ineffective assistance of counsel claim and reach its own conclusion of law.” DeLong v. Thompson, 790 F.Supp. 594, 601 (E.D.Va.1991). It should be stressed, however, that there is no requirement that this Court hold an evidentiary hearing on the claimed ineffective assistance of counsel in order to resolve this matter. Poyner v. Murray, 964 F.2d 1404, 1421 (4th Cir.) (noting that no evidentiary hearing is required where petitioner “would not be entitled to relief on ineffective assistance grounds even if the facts were as he alleges”), cert. denied, — U.S. -, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992). To state a claim for ineffective assistance of counsel under Strickland, the petitioner must satisfy a two-pronged test. He must first show “counsel’s performance was deficient” by “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To do this, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. Furthermore, “[¡Judicial scrutiny of counsel’s performance must be highly deferential.... [T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might by considered sound trial strategy.’ ” Id. at 689, 104 S.Ct. at 2065 (citation omitted). Thus, the Court expressly has cautioned against “Monday-morning-quarterbacking” by federal courts when reviewing a trial attorney’s choices, stating that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. Even if the first prong focusing on reasonably competent performance is satisfied, the petitioner must also show he was in fact prejudiced by counsel’s deficient representation. Id. at 693, 104 S.Ct. at 2067. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. It is important for the Court to identify the specific nature of counsel’s actions asserted to have been “ineffective” in this context. As will be recalled, the claims have been declared defaulted by the Virginia Supreme Court under the rule in Slay-ton. In other words, counsel is claimed to have been ineffective by failing to raise certain arguments on direct appeal, resulting in default of those arguments for purposes of collateral review. Thus, under Strickland, Petitioner must first show that failure to raise those arguments on appeal falls below an objective standard of reasonableness. In examining whether the decision to forgo certain claims on appeal was reasonable, this Court is mindful of Jones v. Barnes, 463 U.S. 745, 746, 103 S.Ct. 3308, 3310, 77 L.Ed.2d 987 (1983), where the Supreme Court examined “whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant.” In answering this question negatively, the Court observed that [experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated: “One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one_ [Experience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Jackson, Advocacy Before the United States Supreme Court, 25 Temple L.Q. 115, 119 (1951)_ A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions [Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)] recognized that the role of the advocate “requires that he support his client’s appeal to the best of his ability_” For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every “colorable” claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard. Id. at 751-54, 103 S.Ct. at 3313-14 (citations omitted). The Court is also mindful of Evans v. Thompson, 881 F.2d 117, 124 (4th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 764 (1990), where the Fourth Circuit stated that when challenging trial or appellate counsels’ effectiveness, Petitioner must “overcome the strong presumption that counsel’s performance was reasonable.” It is “sound trial strategy” for appellate counsel to “determine[ ] what he believe[s] to be petitioner’s most viable arguments and raise[] them on appeal.” Id. Barnes and Evans make it clear a reasonable attorney can choose to forgo arguing a claim, even though that claim might have some chance of success, and even though the failure to present the claim will result in default. Barnes goes so far as to make it clear that in the views of the Supreme Court and other experts on appellate litigation, a constitutionally competent attorney will choose not to argue claims that on their face have some merit, if those arguments would detract from the defendant’s strongest points. Strickland says this Court cannot second-guess counsel as to his prioritization of claims for appeal. Therefore, in examining the reasonableness of counsel’s actions in discarding certain claims on appeal, resulting in their potential default, this Court must weigh counsel’s decisions in light of Strickland’s, caution that [j]udicial scrutiny of counsel’s performance must be highly deferential.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). Even if the showing of unreasonableness is successful, under Strickland the petitioner must still demonstrate resulting harm. In this context, where Petitioner alleges he has been harmed because of counsel’s failure to raise points on appeal, resulting in their procedural default, the Court cites the Supreme Court’s reasoning in Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In Kimmelman, the Supreme Court was presented with a defendant who claimed ineffective assistance because his counsel failed to litigate a Fourth Amendment claim, resulting in that claim’s default. There the Court said [wjhere defense counsel’s failure to litigate a ... claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his ... claim is meritorious and that there is a reasonable probability that the verdict would have been different.... Id. at 375, 106 S.Ct. at 2583. Therefore, in order for Petitioner to show harm under Strickland and Kimmelman in this context, he must show the forsaken ground for appeal is meritorious, and that there is a reasonable probability that had counsel raised it, Petitioner’s death sentence would have been reversed. ii. Claim of Alleged Bias Resulting from Race, Gender, and Economic Status. Having described the analytic framework, the Court now proceeds to an examination of potentially defaulted claims. In claim (B), Petitioner argues the Virginia death penalty statute is biased in terms of race, gender, and economic status. In McCleskey v. Kemp, 481 U.S. 279, 291, 107 S.Ct. 1756, 1766, 95 L.Ed.2d 262 (1987), which was extent when Petitioner’s counsel was formulating his arguments for direct appeal, the Supreme Court rejected a defendant’s claim that the death penalty was unconstitutional because statistical studies showed “persons who murder whites are more likely to be sentenced to death than person who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.” In rejecting the claim, the Court observed that the claim that [the death] sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender.... Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. Id. at 315-19, 107 S.Ct. at 1779-81. Therefore, McCleskey cannot be limited solely to studies based on race. The Court’s reasoning clearly would extend to a rejection of similar studies based upon gender or financial status. Thus, in light of McCleskey, it was entirely reasonable in the Strickland sense for Petitioner’s counsel to forgo arguments based upon gender or financial status, as those arguments had no chance of succeeding, and would serve only to detract from stronger arguments. Furthermore, even if counsel should have raised these points, Petitioner was not prejudiced, because the issue clearly would have been decided against him under McCleskey. Because Petitioner has failed to meet the standard of Strickland, the actions of counsel in failing to raise this issue cannot serve as cause to excuse the procedural bar, and thus the claim remains procedurally beyond the reach of this Court under Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). iii. Claimed Ineffective Assistance of Court Appointed Mental Health Expert. In claim (E), Petitioner asserts that the mental health expert appointed to evaluate him for mitigation purposes, Dr. Brad Fisher, provided incompetent assistance. In Ake v. Oklahoma, 470 U.S. 68, 83-87, 105 S.Ct. 1087, 1096-98, 84 L.Ed.2d 53 (1985), the Supreme Court held that a capital defendant has the right to an examination by a psychiatrist for the sentencing phase when the State plans to present psychiatric evidence of the defendant’s future dangerousness. At the time Petitioner’s counsel was formulating arguments for appeal, the Virginia Supreme Court had interpreted Ake to mean that where the Commonwealth did not present psychiatric evidence of future dangerousness at sentencing, then the accused would not have a right to a court-appointed psychiatrist. Pruett v. Commonwealth, 232 Va. 266, 351 S.E.2d 1, 7 n. 3 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987). A review of the transcript shows the Commonwealth did not present any psychiatric evidence concerning Petitioner’s future dangerousness, and as was noted previously, the defense rested without putting on a case. Therefore, a reasonable attorney under Strickland could have determined that to appeal on the basis of Dr. Fisher’s performance would have been futile in two respects. First, the Virginia Supreme Court following Pruett would have said that because the Commonwealth had not introduced psychiatric evidence on future dangerousness, Petitioner had no right to a psychiatrist, competent or otherwise. Second, in the view of a reasonable attorney, the Virginia Court might also have found any failure by Dr. Fisher to have been harmless error, because the jury convicted solely on the basis of “vileness,” and Dr. Fisher’s testimony would not have detracted from the factual vileness of Petitioner’s crime. For these same reasons, even if counsel should have raised the issue of Dr. Fisher on appeal, that failure did not prejudice Petitioner because it would not have resulted in a reversal. Therefore, because counsel’s failure to raise the issue of Dr. Fisher on appeal was not ineffective or prejudicial under Strickland, Petitioner has failed to show cause for excusing default of this issue due to his attorney’s failure to raise it on direct appeal, and it remains barred from review by this Court. iv. Claimed Unconstitutionality of Virginia’s Proportionality Review. Petitioner’s claim (F) alleges that Virginia’s proportionality review, mandated under Va.Code Ann. § 17-110.1(C) (Michie 1992), is constitutionally inadequate. Petitioner wishes to argue the statutory review scheme is unconstitutional because it fails to require comparison of his case with other cases where a life imprisonment sentence was imposed. At the time Petitioner’s counsel was formulating his appeal, it was the rule in Virginia, and has continued to be, that the required comparison is whether “ ‘juries in [Virginia] generally approve the supreme penalty for comparable or similar crimes.’ ” Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650, 668 (1987) (quoting Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980)), cert. denied, 485 U.S. 971, 108 S.Ct. 1249, 99 L.Ed.2d 447 (1988); see also Stamper, 257 S.E.2d at 824 (“The test is not whether a jury may have declined to recommend the death penalty in a particular case but whether generally juries in [Virginia] impose the death sentence for conduct similar to that of the defendant.”); King v. Commonwealth, 243 Va. 353, 416 S.E.2d 669, 679 (accord), cert. denied, — U.S. -, 113 S.Ct. 417, 121 L.Ed.2d 340 (1992). Thus, the Virginia Supreme Court interprets the statute to require only a comparison with death sentence cases, rather than also requiring comparison with life imprisonment cases. In Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the United States Supreme Court held that a state’s capital sentencing procedure may be constitutional despite the fact that the state does not require any so-called proportionality review whatsoever. Given that proportionality review is not constitutionally required, it cannot be argued that Virginia’s scheme is unconstitutional simply because the relevant comparison has been limited to death cases. Indeed, this is how the rule had been consistently interpreted by the Virginia Court at the time of Petitioner’s appeal. Therefore, Petitioner’s counsel was not unreasonable for failing to raise this argument, as it would have been a weak argument at best. Additionally, Petitioner was not prejudiced by counsel’s failure to raise the argument, as it most likely would have been decided against him. Therefore Petitioner’s claim remains procedurally barred from review by this Court, as he has failed to show the required cause and prejudice for excusing that bar based upon his appellate counsel’s alleged incompetence. v. Virginia Capital Statute’s Alleged Vagueness and Overbreadth. Claim (H), which is Petitioner’s next potentially defaulted claim, alleges that Va.Code Ann. 19.2-264.2 (Michie 1992), is unconstitutional on its face and as applied because of vagueness and over-breadth. At the time of Petitioner’s direct appeal, this challenge consistently had been rejected by the Virginia Supreme Court. See, e.g., Gray v. Commonwealth, 233 Va. 313, 356 S.E.2d 157 cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); Evan v. Commonwealth, 222 Va. 766, 284 S.E.2d 816 (1981), cert. denied, 455 U.S. 1038, 102 S.Ct. 1741, 72 L.Ed.2d 155 (1982); Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57 (1980); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Indeed, the Virginia court has continued to reject such challenges. See, e.g., Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380, 385 (1992). In light of the Virginia Supreme Court’s consistent rejection of Petitioner’s challenges to the statutory scheme, it was not unreasonable for his counsel to forgo such arguments in formulating issues for appeal, as such arguments were weak, and would have detracted from other stronger arguments. Furthermore, there could be no prejudice resulting from waiver of these arguments, as they would have been resolved against Petitioner even if raised. Thus, Petitioner has again failed to show cause or prejudice based on his appellate counsel’s performance, and this claim remains procedurally barred from review. vi. Claim Regarding Allegedly Problematic Jury Instructions on Aggravating Circumstances and Mitigating Evidence. In claim (J), Petitioner asserts that the trial court failed to instruct the jury adequately concerning aggravating circumstances and use of mitigating evidence. Specifically, Petitioner seeks to challenge (i) the adequacy of instructions relating to vileness and aggravated battery; (ii) the instruction offered concerning “depravity of mind”; (iii) the failure to instruct the jury concerning the definition, use, and function of mitigating evidence; and finally, (iv) the court’s failure to instruct jurors that the existence and consideration of mitigating factors need not be unanimous. At the time Petitioner’s counsel was formulating arguments for appeal, the Virginia Supreme Court had already addressed the concerns raised by (i) and (ii) above in Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 148-49 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). There the Virginia high court had defined “vileness,” “aggravated battery,” and “depravity of mind” almost exactly as the trial court did in the complained of instructions. Id. at 149. At the time of Petitioner’s direct appeal, the Smith reasoning or similar instructions had received the Virginia Supreme Court’s continual support. See, e.g., Wise v. Commonwealth, 230 Va. 322, 337 S.E.2d 715, 723 (1985), cert. denied, 475 U.S. 1112, 106 S.Ct. 1524, 89 L.Ed.2d 921 (1986); Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d 407, 421-22 (Va.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 (1986); Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, 831-33 cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985); Edmonds v. Commonwealth, 329 S.E.2d 807, 814 (Va.), cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554, 564-66 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985); Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371, 386 cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271, 281-85 & nn. 2-3, cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983); LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644, 659 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984); Briley v. Commonwealth, 221 Va. 563, 273 S.E.2d 57, 65-67 (1980). Based upon the overwhelming rejection by the Virginia Supreme Court of arguments concerning instructions or definitions relating to the phrases “vileness,” “aggravated battery,” and “depravity of mind,” Petitioner’s counsel was reasonable not to make the now proffered arguments, in that these relatively weak arguments would have further detracted from the strength of his appeal. Furthermore, based upon the Virginia Supreme Court’s continual reliance on Smith, and instructions comporting with it, Petitioner cannot be said to have been prejudiced by his counsel’s failure to raise these arguments on appeal, as there is no chance the outcome would have been different. See Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380, 385, 395-96 (1992); Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d 606, 619-20, cert. denied, — U.S. -, 113 S.Ct. 421, 121 L.Ed.2d 343 (1992); Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656, 659-60 cert. denied, — U.S.-, 113 S.Ct. 423, 121 L.Ed.2d 345 (1992); Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196, 201-02 (1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988). It can also be observed that based upon Virginia and United States Supreme Court precedent at the time of the direct appeal, Petitioner’s counsel was also reasonable for declining to raise patently weak arguments concerning the instruction given on mitigating evidence, because arguments of this type consistently had been rejected and would have weakened the rest of the appeal. Petitioner was likewise not prejudiced, as seen by rejection of such arguments in subsequent holdings, so that even had the arguments been raised, a reversal on this basis would have had a remote chance at best. Finally, as to Petitioner’s argument that there should have been an instruction stating that unanimity was unnecessary for mitigating factors, at the time of Petitioner’s appeal this argument had been rejected by the Virginia Supreme court. See Clark v. Commonwealth, 220 Va. 201, 257 S.E.2d 784, 791 (1979) (“Such an instruction is unnecessary and would have been confusing.”), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). Thus, counsel was reasonable for failing to argue a point already rejected. Furthermore, there was no prejudice to Petitioner for counsel’s failure, in that the argument would not have been successful. See Gray v. Commonwealth, 233 Va. 313, 356 S.E.2d 157, 178, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). Therefore, because Petitioner has failed to show either cause or prejudice based upon his appellate counsel’s choices in formulating the appeal, these claims remain barred from review by this Court on procedural grounds. vii. Claimed Insufficiency of Evidence Showing “Vileness.” In claim (K), Petitioner states that the trial court erred in permitting the jury to impose death based upon a finding that his conduct was “outrageously or wantonly vile, horrible or inhuman.” Petitioner in essence seeks to argue that the facts of this case are insufficient to show “vileness,” because the facts do not show an “aggravated battery” or “depravity of mind.” Therefore, Petitioner claims it was error to instruct the jury concerning the Virginia statute’s vileness component. Although Petitioner failed to raise this claim on direct appeal, it is apparent that in discussing Petitioner’s vagueness claims the Virginia Supreme Court found the evidence sufficient to establish aggravated battery and depravity of mind, meeting the statutory test for “vileness.” See Turner II, 364 S.E.2d at 488-89. Therefore, because the issues Petitioner now attempts to raise actually were reached by the state court, it does not offend comity or the principles of federalism for this Court also to reach the merits of this aspect of Petitioner’s claim. Cf. Briley v. Bass, 750 F.2d 1238, 1242 n. 6 (4th Cir.1984) (federal court could reach the merits of a claim potentially barred on state procedural grounds where the state court actually reached the claim’s merits on collateral review), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985). Turning then to the merits, this Court holds that based on its own independent examination of the record the murder here was cold-blooded and calculated.... Turner initially shot Smith for no reason at all. While Smith lay alive but helpless and while Officer Bain pleaded, Turner fired two shots into Smith’s chest after stating that he was going to kill him for snitching on him.... We reject Turner's contention that his crime was not so vile as to justify the imposition of death. The case fits within the constitutionally limited construction of the vileness criterion established by the Virginia Supreme Court, and we are of opinion Virginia’s death penalty provisions were constitutionally applied. Turner v. Bass, 753 F.2d 342, 353 (4th Cir.1985), rev’d on other grounds sub nom. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). Accordingly, this portion of Petitioner’s claim is denied on the merits. viii. Claimed Error in Exclusion of Jurors. Returning to an examination of claims potentially barred on procedural grounds unless Petitioner can establish cause due to ineffective assistance of counsel, in claim (M), Petitioner seeks to argue that jurors Deborah Calhoun and Delphine Freeman were removed from the panel improperly. At the time Petitioner’s counsel was formulating arguments for appeal, the law was (and is) that a juror could not be excluded merely because of conscientious scruples over capital punishment unless that “juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980), and expanding on the Court’s previous holding in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)). The Supreme Court stressed, however, that “there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law,” so that “this is why deference must be paid to the trial judge who sees and hears the juror.” Id. at 425-26, 105 S.Ct. at 853. Thus, in keeping with this observation, the Virginia Supreme Court had held at the time of Petitioner’s direct appeal, and has continued to hold, that the determination of whether a juror can be stricken for cause is committed to the trial judge’s sound discretion, and would not be reversed but for manifest error. Wage v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, 206, cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979); George v. Commonwealth, 242 Va. 264, 411 S.E.2d 12, 19 (1991) (showing continued deference to trial judge’s determinations as to a juror’s qualifications), cert. denied, — U.S.-, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992); see also Boggs v. Commonwealth, 229 Va. 501, 331 S.E.2d 407, 418 (1985) (in reviewing a juror’s answers on voir dire, the “entire voir dire rather than the single question and answer” must be examined), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 347 (1986); Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d 815, 824-26 (discussing Virginia application of the juror exclusion standard), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985); LeVasseur v. Commonwealth, 225 Va. 564, 304 S.E.2d 644, 650 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). In order to determine whether counsel was reasonable in deciding not to appeal exclusion of jurors Calhoun and Freeman, the Court must examine the record confronting counsel. When Ms. Calhoun was asked “if the evidence is sufficient to justify the death penalty, can you vote for it,” she responded “No, sir ... I just don’t believe in giving the death penalty.” When asked whether she could “think of a circumstance under which [she] would give the death penalty,” she answered “No, sir.” When Snook attempted to rehabilitate her on cross, he asked her if, after hearing all the evidence and receiving the judge’s instructions on the law, she could “see any circumstances under which [she] might come back with a verdict of death,” to which she again answered “No,” whereupon the court excused her. Transcript I, supra note 2, at 194-96. Mrs. Freeman similarly was asked, “In a given case in which the evidence does justify that a sentence of death be imposed, can you say I send that man to the electric chair,” to which she replied “No, I couldn’t.” When asked if that was “an absolute belief,” she responded “Yes.” When Snook attempted to rehabilitate her, he asked if she “would be able if the facts justified it, to come back with a verdict of death,” to which she again stated “No, I wouldn’t, you know.” Snook then said, “Not under any circumstances,” to which she responded “No,” and was excused. Id. at 151-54. Given these colloquies, counsel reasonably could have determined there was little to no chance of making a winning argument on appeal concerning exclusion of these jurors. Both jurors agreed they could not think of any circumstance under which they would impose the death penalty, which easily supports exclusion under the Witherspoon/Witt standard. In addition, counsel also reasonably could have concluded his best argument over jury selection concerned juror Samuel Lambert, so that raising relatively weak arguments regarding jurors Calhoun and Freeman would only detract from the strength of that argument. In addition, given the statements of these jurors coupled with the applicable highly deferential standard of review, Petitioner was not prejudiced by counsel’s failure to raise this argument on appeal, as it most certainly would have been decided against him. Therefore, this Court holds that Petitioner has failed to meet the standard under Strickland concerning his appellate counsel’s failure to raise this point on direct appeal, and thus he has failed to show cause for excusing the procedural bar. Accordingly, this Court cannot reach the merits of this claim, as the procedural bar remains in force. Claim Regarding Evidence of an Unconstitutional Prior Conviction. ix. Petitioner’s next claim potentially defaulted on procedural grounds due to counsel’s failure to raise the issue on appeal is claim (0), which states that improper evidence of an unconstitutional prior conviction was allowed to be presented. As part of its case, the Commonwealth did indeed present evidence that on March 21, 1974, Petitioner was convicted in Powhatan Circuit Court of second degree murder. Transcript I, supra note 2, at 234, 374-75. The trial for this murder, the killing of a fellow inmate by Turner while he was also incarcerated, occurred within Powhatan Correctional Center, a procedure later declared unconstitutional by the Virginia courts as a violation of the defendant’s right to a public trial. See Vescuso v. Commonwealth, 5 Va.App. 59, 360 S.E.2d 547 (1987) (en banc). Vescuso was decided on September 15, 1987. Id. Yet Petitioner’s resentencing trial ended on January 12, 1987. At the time of trial, as well as for the period during which counsel would have been formulating arguments for appeal, the law in Virginia was Dammerau v. Commonwealth, 3 Va.App. 285, 349 S.E.2d 409 (1986), which had upheld a trial staged within the confines of a correctional center. Although it is certainly a closer question given that Dammerau ultimately was reversed, this Court finds that under the deferential standard of Strickland, counsel was not unreasonable for failing to raise an argument for appeal that had existing precedent standing solidly against it. Counsel reasonably could have surmised, given that the Virginia Supreme Court had indicated no displeasure with the Dammerau holding by the Virginia Court of Appeals, that the argument presented little chance of success, and would have weakened the appeal by detracting from relatively stronger arguments. Although it is apparent to this Court that a credible argument can be made to the effect that counsel might have gambled the other way, this is the type of second-guessing which Strickland prohibits. Therefore, because this Court finds that counsel’s failure to raise this argument was constitutionally reasonable, Petitioner has failed to show cause for excusing the resulting procedural bar. Accordingly, this Court cannot review the claim on its merits, and Petitioner’s claim on this ground is denied. x. Claim of Unconstitutional Exclusion from Various Stages of Resentencing. The final claim potentially barred from review on procedural grounds is claim (P), where Petitioner alleges he was excluded from critical stages of resentencing. The factual basis of this claim stems from Petitioner’s absence from certain pretrial proceedings occurring on September 11, November 12, November 25, and December 10 of 1986, as well as from various hearings and conferences during trial on January 9 and 12, 1987. At the time of his appeal, the case law in Virginia concerning a prisoner’s Sixth Amendment right to be present, as well as his parallel state right under Va.Code Ann. § 19.2-259 (Michie 1992), was that one tried for a felony has the right to be personally present during the trial.... Generally stated, the rule is that he must be present on his arraignment, when any evidence is given or excluded, when the jury is charged, when the trial court wishes to communicate with the jury in answering questions by them, and when the jury receives further instructions. Palmer v. Commonwealth, 143 Va. 592, 130 S.E. 398, 402 (1925); see also Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643, 652 (1982) (quoting Palmer), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983). The right to be present was not construed, however, to extend under Virginia law to a conference held in chambers five days before trial on the defendant’s motion for a Spanish-speaking psychiatrist. See Quintana, 224 Va. 127, 295 S.E.2d at 652. Nor did it extend to a conference in chambers on “a purely legal question” concerning admissibility of evidence, where the official ruling on admissibility “was actually made in open court in [the defendant’s] presence and objections and exceptions there taken” so that “[njothing was done in the absence of the accused that could affect his interest.” Williams v. Commonwealth, 188 Va. 583, 50 S.E.2d 407, 411 (1948). Furthermore, the Virginia Court had held this right could be waived if, during the trial, evidence taken in violation of the right was introduced by the defendant’s counsel while the defendant was present, with the defendant failing to object at that time. Bilokur v. Commonwealth, 221 Va. 467, 270 S.E.2d 747, 751-52 (1980); see also Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 (1984) (waiver of right to be present when jury viewed scene found where defendant expressly declined to attend); Quintana, 295 S.E.2d at 651-52 (right to be present at trial can be waived by persistent disruptive conduct). Under Strickland, counsel reasonably could have concluded that under Virginia case law the defendant’s presence was not required during any of the complained of discussions. No evidence was taken, and none was excluded. Other matters involved purely legal issues. Nothing took place that under Palmer, Williams, or Quintana would have required Petitioner’s presence. Therefore counsel reasonably could have concluded that because this argument had little to no chance of success before the Virgini