Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. Michael Charles Satcher, having been convicted in the Circuit Court of Arlington County of capital murder, is held under penalty of death at the Mecklenburg Correctional Center in Boydton, Virginia. Pursuant to 28 U.S.C. § 2254, Satcher filed a Petition for a Writ of Habeas Corpus and an Amended and Restated Petition for a Writ of Habeas Corpus. The Respondent thereafter filed a Motion to Dismiss the Petition. The motion has been briefed and argued. There has been substantial supplemental briefing as a result of issues raised during oral argument, legislative amendments to the controlling statutes, and judicial response to that legislation. STATEMENT OF FACTS At approximately 7:00 p.m. on March 31, 1990, Deborah Abel was riding her bicycle in the Rosslyn section of Arlington County on a bicycle path which runs roughly parallel to the Lee Highway and near the Air Force Association building. This section of the bicycle path is hidden from the view of motorists by a sound barrier wall approximately fifteen to twenty feet high. Abel had just passed the Air Force Association building when she noticed a man walking toward her. As they passed, they made eye contact. A few seconds thereafter, Abel was jumped from behind, pulled off her bicycle and dragged into a ditch alongside the bicycle path. The assailant beat Abel in the face and head and pulled her pants part way down. One of the attacker’s early blows dislodged Abel’s glasses, and thereafter he forcibly kept her head turned toward the ground. Suddenly, the attacker stopped beating Abel, picked up her purse, and ran because, we know now, Mark Polemani, another cyclist, happened upon the scene as he was on his way to a banquet at Georgetown University which was to begin at 7:30 p.m. Polema-ni saw Abel’s bicycle lying askew off the path and noticed a man, kneeling alongside the path, “throw a punch to the ground.” This prompted Polemani to get off of his bicycle to investigate. As Polemani approached, the assailant stopped the attack, picked up Abel’s purse and fled. Polemani pursued the attacker up the path, to the top of the street, but the assailant escaped. As Polemani returned to the scene, he noticed Abel, who was covered with blood and partially disrobed, emerge from the ditch. Polemani helped Abel to a nearby apartment complex where they called the police. As a result of Polemani’s report, a police officer arrived on the scene at 7:27 p.m. Shortly thereafter, several other officers arrived and, approximately one hour after the attack (8:00 p.m. or shortly thereafter), a tracking dog was brought to the area. The search of the area lasted for about an hour. At 8:00 p.m. that same evening, Ann Bor-ghesani was expected to arrive at her birthday party in the Crystal City area of Arlington County. Susan Cohen, Borghesani’s roommate, was the last person to see Bor-ghesani alive. According to Cohen, when, at approximately 7:10 p.m., she left the apartment which she and Borghesani shared to go to dinner with her fiance, Borghesani was ironing the clothes that she was to wear to her birthday party. It is a walk of about five minutes time from Borghesani’s apartment to the Rosslyn Metro station where she would have taken a train to Crystal City. The record does not disclose Borghesani’s expected route, but the most direct route to the Metro Station is along the bicycle path on which Abel was attacked. The Air Force Association building, adjacent to the bicycle path, is located between Borghesani’s apartment and the Metro station. When Borghesani failed to appear at the party, her friends became concerned because she was typically prompt; and they would have expected her to have informed them if she was running late. After alerting the authorities, several of Borghesani’s friends began to search for her, looking, among other places, at her apartment and along the bicycle path between the apartment and the Rosslyn Metro station. The efforts of her Mends were unsuccessful, but Borghesani’s body was found shortly after 8:00 a.m. the next morning (April 1, 1990) at the bottom of a stairwell in the Air Force Association building which is located on the north side of the bicycle path and not far from the site of the attack on Abel. Borghesani was nude from the waist down, had been raped, stabbed -21 times with a sharp-tipped object, and robbed of her jewelry and purse. The record contains no evidence of the time at which Borghesani died. One of Borghesani’s shoes was found on the bicycle path between the stairwell and the intersection of Oak Street and Lee Highway by an individual who earlier that morning had placed it on a brick wall bordering the path. Borghesani’s purse was found a few days later near Abel’s purse in some bushes next to a parking lot which is located across the highway approximately two blocks away from the Air Force Association building. Neither purse contained any money. Five months after the Abel attack and Borghesani’s murder, Sateher was arrested for offenses committed on the Washington and Old Dominion Bike Trail, also located in Arlington County, but not the same bike trail on which the Abel attack had occurred and near which Borghesani’s body was discovered. The background of Satcher’s arrest bears some discussion. At about 9:80 a.m. on August 18, 1990, Joanna Chusid was walking along the Washington and Old Dominion Bike Trail when she was grabbed from behind and forced into the woods by a black man wielding a Swiss army knife. The attack was terminated when Chusid involuntarily urinated. Approximately two hours later, at 11:30 a.m., Regina Overholt was grabbed from behind by a black man as she walked along a bicycle path, approximately 30 yards from, but parallel to, the path on which Chusid had been assaulted. Overholt’s assailant used a knife with a four-inch blade to force her off the path. The attack was interrupted when two people responded to Overholt’s cries for help. After the attacker fled, Overholt and her rescuers, while looking for a telephone to report the attack, came upon Joyce Bern who recounted that she had just been “about knocked ... down” by a black man wearing an off-white shirt with faded red writing, red jogging pants, and “a black fanny pack.” This description matched that given by Over-holt and her rescuers. At noon, approximately one-half hour after the attack on Overholt, Alice Rooney was jogging on the same bicycle path, about a mile from the other attacks. As Rooney crossed a footbridge, a black man gave chase. A motorcycle police officer, who previously had been alerted to the description of Over-holt’s assailant, observed the man running close behind Rooney, and realized that he matched the description of the suspect in the Overholt attack. The officer stopped the man who was running behind Rooney and identified him as Sateher. Another officer arrived at the scene, queried Sateher about what was in his hand and, when Sateher did not respond, the officer reached for the item in Satcher’s hand. Sateher dropped the item and the officer identified it to be a white T-shirt with red letters wrapped around an open knife. Sateher then was arrested and Bern, who was brought to the scene, (about a ten minute walk from her condominium) identified Sateher as the person who almost knocked her down shortly after the thwarted attack on Overholt. After Sateher was arrested, the police found an awl in the glove compartment of his car. Sateher acknowledged that he had owned the awl when Abel was attacked and Borghesani was murdered. The awl was not identified as the murder weapon, but in the medical examiner’s opinion, the awl was “consistent with [Borghesani’s] wounds.” Even though nothing was said to Sateher about the Abel or Borghesani offenses upon the event of his arrest for the Overholt attack, Sateher, as he was being transported to police headquarters, responded to a police officer’s question: <cWhat’s up?” with the statement that the police were “trying to frame [him] for a murder or something or a rape or something.” Satcher v. Commonwealth, 244 Va. 220, 421 S.E.2d 821, 825 (1992). Following the arrest, Sateher voluntarily gave blood, saliva, and hair samples. The serological analysis showed that Sateher is within a group comprised of seven percent of the national population who could have produced the semen found on Borghesani’s pants. Scientific testing by a forensics expert of the hair confirmed that pubic hairs found on Borghesani’s clothing were neither Satcher’s nor Borghesani’s. However, DNA testing established a match between Sateher and the DNA recovered from the vaginal swabs taken from Borghesani’s clothing. Immediately after the attack on Abel in March 1990, Abel gave a description of her assailant as a black male who was 25 to 30 years of age, stood approximately 5'9" to 5'10" in height, and weighed 190 to 200 pounds. He reportedly had no visible facial hair or scars and wore a short Afro haircut. Polemani was likewise asked to give a description of the attacker the day after the attack. His description of Abel’s assailant was virtually identical to that given by Abel. At the time of his arrest in August 1990, Sateher was 21 years old, weighed 152 pounds, was 5'6", wore his hair short, and had a facial scar. Hence, the descriptions given by Abel and Polemani most proximate to the attack were substantially dissimilar to Sateher’s appearance in August, just over four months later. There is nothing in the record to suggest that Satcher’s appearance in August was different than it was in March. On November 19,1990, Sateher was indicted for the murder, rape, and robbery of Borghesani. On April 15, 1991, only three months before the commencement of trial, Sateher was indicted for the attack on, and robbery of, Abel. Fifteen days before trial, Abel viewed a lineup in which Sateher participated. Before viewing the lineup, Abel viewed the police sketch based on the description she had given immediately after the attack on her in March. Thereafter, at the lineup, Abel iden-tilled someone other than Sateher; but, immediately after the lineup, Abel stated to Detective Carter that she also had a strong feeling that Sateher could have been her assailant. Polemani was unable positively to identify anyone out of that lineup. Nonetheless, Polemani testified at trial that, at the time of the lineup, he was “pretty sure” that “number four” (Sateher) was the assailant. Polemani was not asked at trial whether he could identify Sateher as Abel’s assailant. After having observed Sateher as he entered and left the courtroom in custody and as he sat at the defense table during the two-day jury selection process, Abel concluded that Sateher, the only black man at the defense table, was her assailant and so informed the prosecuting attorney. Over Satcher’s objection, Abel was permitted to identify Sateher before the jury. PROCEDURAL HISTORY In the first phase of a bifurcated trial conducted pursuant to Virginia Code §§ 19.2-264.3 and -264.4, a jury convicted Sateher of the robbery, assault and battery, and attempted rape of Deborah Abel, and the robbery, rape, and capital murder of Ann Elizabeth Borghesani. The jury set Satcher’s punishment at “imprisonment for life plus ten years and twelve months” for the offenses against Abel, and at two terms of life imprisonment for the noncapital offenses against Borghesani. In the capital sentencing phase of the trial, the jury returned the death penalty for the killing of Borghesani, based upon both statutory predicates of “future dangerousness” and “vileness.” The Circuit Court of Arlington County imposed the sentences fixed by the jury and pronounced the sentence of death on December 24, 1991. On direct appeal to the Supreme Court of Virginia, Satcher’s conviction and sentence were affirmed. Satcher v. Commonwealth, 244 Va. 220, 421 S.E.2d 821 (1992). On February 22, 1993, the Supreme Court of the United States denied Satcher’s petition for writ of certiorari. Satcher v. Virginia, 507 U.S. 933, 113 S.Ct. 1319, 122 L.Ed.2d 705 (1993). Satcher’s motion for rehearing on the petition for certiorari was denied on April 19, 1993. Satcher v. Virginia, 507 U.S. 1046, 113 S.Ct. 1888, 123 L.Ed.2d 504 (1993). On November 23, 1993, Satcher, through counsel appointed at the expense of the Commonwealth, filed a habeas corpus petition in the Circuit Court of Arlington County reasserting the same arguments which he had raised on direct appeal. On February 14, 1994, the Circuit Court entered an order dismissing the petition on the basis of the rule of Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970), which bars post-conviction relit-igation on collateral attack of claims already raised and decided on direct appeal. Because of an error in the Circuit Court clerk’s office, Satcher’s state habeas counsel was not notified that the petition had been dismissed until April 10, 1994, after the time for filing a notice of appeal had expired. Accordingly, the Circuit Court vacated its February 14, 1994 dismissal order and, on April 12, 1994, entered a new order dismissing Satcher’s petition. The stated purpose of the new order was to preserve Satcher’s right to appeal the dismissal of his state habeas corpus petition. Satcher then filed a notice of appeal. The Supreme Court of Virginia denied Satcher’s petition for appeal on October 3, 1994 on the ground that the Circuit Court did not have jurisdiction to vacate its original February 14, 1994 order. This, of course, meant that Satcher’s petition for appeal from the denial of his state habeas petition was untimely. The Supreme Court of the United States denied Satcher’s petition for a writ of certiorari on February 27, 1995. Satcher v. Netherlands — U.S. -, 115 S.Ct. 1259, 131 L.Ed.2d 139 (1995). Subsequently, Satcher requested this court to appoint counsel to prepare and prosecute a federal habeas petition under 28 U.S.C. § 2254. DISCUSSION THE APPLICABILITY OF THE 1996 ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT On April 24, 1996, while Satcher’s petition was pending, the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“the Act”), became effective. Title I of the Act, entitled “Habeas Corpus Reform,” substantially alters the substantive law governing habeas corpus petitions. Sections 101-106 of the Act modify pre-existing habeas corpus procedures contained in Chapter 153 of the Judicial Code, 28 U.S.C. §§ 2241-2255. Section 107(a) of the Act enacts a new Chapter 154, 28 U.S.C. §§ 2261-2266, which applies to petitions in capital eases. The Respondent asserts that the Act, which amends and adds to pre-existing law governing habeas corpus review, should be applied retroactively in resolving the issues presented by Satcher’s petition. Satcher argues that the law in effect at the time he filed the petition should govern. Before addressing the substance of Satcher’s claims, it is, therefore, necessary to determine whether, and to what extent, the Act applies to Satcher’s petition. I. New Chapter 154: Special Habeas Corpus Procedures In Capital Cases. Section 107(a) of the Act, codified at Chapter 154, 28 U.S.C. §§ 2261-2266, essentially offers a system of expedited review and other “benefits” to States that qualify under either of two so-called “opt in” procedures: (1) the “post-conviction” procedure provided by Section 2261; or (2) the “unitary review” procedure provided by Section 2265. Virginia has no unitary review procedure so the issues in this action focus on the post-eonviction review procedures specified in Section 2261. Section 2261 establishes a “quid pro quo arrangement under which States are accorded stronger finality rules on federal habeas corpus review in return for strengthening the right to counsel for indigent capital defendants.” H.R.Rep. No. 23, 104th Cong., 1st Sess. 10 (1995); See Ad Hoc Committee of the Judicial Conference on Federal Habeas Corpus in Capital Cases, 45 CRIM.L.REP. (BNA) 3239, 3240 (Sept. 27,1989) (the “Powell Committee Report”). The quid pro quo arrangement reflected in the “opt-in” provisions is the federal legislative acknowledgement that competent counsel throughout collateral review of state capital proceedings is “crucial to ensuring fairness and protecting the constitutional rights of capital litigants.” Powell Committee Report at 3240; See also House Report at 8; 137 Cong.Rec. at S3220 and S3222 (March 13,1991); Ashmus v. Calderon, 935 F.Supp. 1048 (N.D.Cal.1996). The Act’s substantive changes to the law governing federal habeas review in capital cases are succinctly summarized in Hill v. Butterworth: If a state opts in to the new habeas provisions, it receives several procedural benefits. First, petitions for habeas relief under Section 2254 must be filed in federal court within 180 days ‘after final state court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review.’ 28 U.S.C. § 2264(a). Second, federal district courts are limited to only considering ‘a claim or claims that have been raised and decided on the merits in the State courts.’ 28 U.S.C. § 2264. Third, adjudication of a petition subject to Chapter 154 must be given priority by the district court and court of appeals ‘over all noncapital matters.’ 28 U.S.C. § 2266(a). Fourth, reviewing courts are forced to expedite their review of habeas petitions brought under the Chapter 154. District courts must render a final judgment on a habeas petition within 180 days after the petition is filed, allowing the parties at least 120 of those days to brief the case and have a hearing on the merits. A court of appeals must hear and render a final determination of an appeal within 120 days after the reply brief is filed. 28 U.S.C. § 2266. Fifth, no amendment to a habeas petition subject to Chapter 154 is permitted after the filing of the answer to the petition, except on certain grounds set forth in section 2244(b). 28 U.S.C. § 2266(b)(3)(B). 941 F.Supp. 1129, 1134-35 (N.D.Fla.1996) (footnotes and citations omitted); see also Bennett v. Angelone, 92 F.3d 1336, 1341-42 (4th Cir.1996). The Fourth Circuit’s analysis of the Act in Bennett requires that Satcher’s petition be analyzed under § 107 of the Act, the provision applicable to capital petitions, Bennett, 92 F.3d at 1342, because that section specifically states that the Act “shall apply to cases pending on or after the date of enactment of this Act.” See § 107(c). However, as explained by the Court of Appeals in Bennett, that does not end the inquiry “as to what effect the new provisions set up by § 107(a) will have on this petition.” Id. Although, as discussed above, § 107 does give greater finality to state courts’ resolution of issues later raised in federal petitions, it does so only if the state has established procedures to ensure the appointment of qualified counsel to represent indigent petitioners in state post-conviction proceedings. Id. (citations omitted) (emphasis added). Thus, whether § 107(a) (new Chapter 154) applies to Satcher’s petition turns on whether Virginia has established the requisite procedures under the “opt-in” provisions of the Act. A. “Opt-in” Requirements. Although the new capital review provisions of Chapter 154 “shall apply to all cases pending on or after the date of enactment,” the Act expressly makes those provisions applicable only if a state formally establishes: by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings ... The rule of court or statute must provide standards of competency for the appointment of such counsel. 28 U.S.C. § 2261(b). The statute further requires: [a]ny mechanism for the appointment, compensation, and reimbursement of counsel as provided [above] must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record— (1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer; (2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or (3) denying the appointment of counsel' upon a finding that the prisoner is not indigent. 28 Ú.S.C. § 2261(c) (emphasis added). The plain language of the Act, therefore, makes the new Chapter 154 provisions apply only upon satisfaction of all of the criteria set forth in subsections (b) and (c) of new Section 2261. 28 U.S.C. § 2261(a) (“[This chapter] shall apply only if the provisions of subsections (b) and (c) are satisfied”) (emphasis added); See Hill v. Butterworth, 941 F.Supp. 1129, 1140-41 (N.D.Fla.1996) (“[I]f Florida may take advantage of Chapter 154 of the Act, it may only do so if it meets all the requirements for “post-conviction” procedures .... Failure to meet any one of these requirements would prevent a state from having qualifying ‘post-conviction procedures’ ”) (emphasis added); Ashmus v. Calderon, 935 F.Supp. at 1069 (interpreting parallel section § 2265 of the Act, which incorporates § 2261, to require that, “[ffailure to comply with any of these mandatory requirements is fatal to a state’s ability to opt-in under [the Act]”) (emphasis added). B. Has Virginia Satisfied The “Opt-in” Requirements? As the Fourth Circuit recognized in Ben,nett, “[s]inee July 1, 1992, Virginia has required appointment of competent counsel to represent indigent petitioners in its post-conviction proceedings.” Bennett v. Angelone, 92 F.3d at 1342 (citing Va.Code §§ 19.2-163.7, -163.8 (Michie Supp.1995); Virginia Public Defender Commission, Standards for the Qualifications of Appointed Counsel in Capital Cases (1992)). In Bennett, the Court of Appeals did not decide whether Virginia’s post-conviction appointment provisions qualified it as an “opt-in” state under the Act, because the system was set-up “after [the petitioner’s] Virginia habe-as petition had been finally denied by the Virginia Supreme Court.” Id. Here, however, Satcher’s state habeas petition was originally filed and ultimately denied by the Supreme Court of Virginia after Virginia’s 1992 post-conviction system was in place. Thus, here.it is necessary to decide the issue whether Virginia qualifies as an “opt-in” state under § 2261(a) of the Act. Under the Fourth Circuit’s analysis in Bennett, it is necessary to assess the adequacy of the Virginia system as it stood on the date that Satcher’s petition was “finally denied by the Virginia Supreme Court.” Id. In Satcher’s case, that occurred on October 3, 1994. The Virginia post-conviction counsel appointment scheme, codified in Va. Code §§ 19.2-163.7, -163.8, was established on July 1, 1992 and remained unchanged until July 1, 1995, when certain amendments were added. Because the July 1, 1995 amendments were effected after Satcher’s petition was “finally denied,” these amendments need not be taken into account in the assessment of the Virginia system under the “opt-in” provisions of the Act. See Bennett v. Angelone, 92 F.3d at 1342. The assessment to be made is whether the Virginia system meets each of the four “opt-in’’ requirements on which Congress has conditioned the right of a State to the benefits of the Act. In sum, those requirements are: 1. The State must establish by statute, rule of its court of last resort, or other agency authorized by state law, a “mechanism” for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent capital defendants. See § 2261(b). 2. Such mechanism must provide standards of competency for the appointment of such counsel. See § 2261(b). 3. Such mechanism must affirmatively offer counsel to all state prisoners under capital sentence. See § 2261(c). 4. Such mechanism must provide for the entry of a court order either appointing counsel to each indigent capital defendant, or explaining that such an appointment was not made on the basis that a defendant was not indigent or rejected the offer of counsel with an understanding of the legal consequences. See § 2261(c). That assessment follows. 1. Mechanism for the Appointment, Compensation, and Reimbursement of Litigation Expenses for Competent Post-Conviction Counsel. The parties agree that, since July 1, 1992, Virginia has required by statute the appointment of competent counsel to represent indigent petitioners in its post-conviction proceedings. The issue here is whether Virginia’s statutes provide, as the Act requires, for the compensation and the reimbursement of litigation expenses for post-conviction counsel. See § 2261(b). The short answer is no. As the Fourth Circuit recently noted in Bennett: the Virginia statutes and regulations do not specifically provide for compensation or payment of litigation expenses of appointed counsel, as § 107 requires. 92 F.3d at 1342 n. 2. The Commonwealth argues that it is in substantial compliance with new Section 2261(b) because “for many years” Virginia has provided for the payment of counsel and litigation expenses of appointed counsel by appropriations acts passed by the Virginia General Assembly. That argument misses the mark because, although the budget legislation sets aside funds for a general category of state court expenditures, it does not establish “a mechanism for the ... compensation and payment of reasonable litigation expenses” as required by Section 2261(b). Nor is such a mechanism provided in Va.Code § 19.2-163.7, the statute which provides for the appointment of counsel. The Commonwealth has identified no other statute establishing a mechanism for the payment of those fees and expenses. The Commonwealth’s argument amounts to the assertion that, because it has, by statute, provided for appointment of qualified counsel and has, in fact, paid counsel in the past, it has satisfied the requirements of the Act. That argument fails because the Act requires that the mechanism to appoint counsel, to pay counsel, and to pay counsel’s litigation expenses be established by a state statute, a rule of the state’s highest court or of an authorized state agency. In so doing, the Act requires a formal, institutionalized commitment to the payment of counsel and litigation expenses. The institutionalized and statutorily predicated condition set by Congress cannot be met unless the mechanism for these purposes is established by the State in the fashion prescribed by Congress. If Congress had intended to afford the States the very significant benefits conferred by Chapter 154 on the basis of a finding of substantial compliance based on past performance, it could have done so. However, it elected not to do so; and, instead, Congress chose to confer those benefits only if the State made an affirmative, institutionalized, formal commitment to provide a post-conviction review system which Congress considered to be “crucial to ensuring fairness and protecting the constitutional rights of capital litigants.” Powell Committee Report at 3240. Where, as here, that commitment has not been made in the manner, and to the extent, prescribed by Congress, the state is not entitled to the very significant benefits accorded by the Act. 2. Standards of Competency. The standards of competency for appointed counsel for post-conviction proceedings in Virginia have been set and administered since July 1, 1992 by the Public Defender Commission, a state agency, pursuant to Va.Code § 19.2-163.8(B). Satcher does not contest the existence of, or the substantive adequacy, of those standards. Satcher does claim, however, that the standards are insufficient under the Act because they are not promulgated by statute or court rule as required by the last sentence of Section 2261(b) which provides that: “[t]he rule of court or statute must provide standards of competency for the appointment of such counsel.” (emphasis added). As Satcher notes, there is a difference in the language in the first and last sentences of Section 2261(b). The first sentence provides that the mechanism for the appointment, the compensation, and the satisfaction of litigation expenses of post-conviction counsel must be established “by statute, rule of [the state’s] court of last resort or by another agency authorized by law,” while the last sentence requires that: “[t]he rule of court or statute must provide for the standards of competency....” Satcher asserts that because the last sentence controls the setting of standards, it can be satisfied only if competency standards are set by statute or by rule of court. There is no obvious explanation for the omission of the language “or by another agency authorized by state law” from the second sentence of Section 2261(b). It could have been that careless drafting omitted parallelism with the first sentence. It also could have been that Congress chose not to restrict the kind of statutory system employed by a state to establish standards of competence. Of course, omission could have been for other reasons. However, unartful drafting notwithstanding, the courts are instructed to construe statutes as a whole and in such a way as to avoid absurd results. See King v. St. Vincent’s Hosp., 502 U.S. 215, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (statute to be read as a whole, because meaning of statutory language depends on context); Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (in determining the meaning of a statute, court looks not only to the particular statutory language but to the design of the statute as a whole and to its object and policy); McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) (statutory language must always be read in its context); Salomon Forex, Inc. v. Tauber, 8 F.3d 966 (4th Cir.1993) (courts are bound to construe a statute to avoid absurd results, and to presume that statute is not self-contradictory or otherwise irrational), cert. denied, — U.S. -, 114 S.Ct. 1540, 128 L.Ed.2d 192 (1994). The unduly formalistic interpretation urged by Satcher would offend both of these fundamental canons of statutory construction for it would invalidate a comprehensive scheme administered by a state agency charged by state statute with setting up detailed standards pursuant to a fairly specific statutory interpretation outlining what the standards should be. The two sentences can be harmonized to further the obviously stated intent of the Act by reading Section 2261(b), as a whole, to mean that, where a state statute provides reasonable guidance to a state agency respecting competency standards and then vests the agency with authority to develop more specific standards, Section 2261(b) is satisfied. That is what Virginia has done. Furthermore, Va.Code § 19.2-16S.8(A), standing alone, satisfies the second “opt-in” requirement by “provid[ing]” standards of competency. See § 2261(b). In delegating the promulgation of competency standards to the Public Defender’s Commission, the Virginia statute “provides” detailed guidance insofar as the particular considerations the standards should address: The Public Defender Commission ... shall adopt standards for the appointment of counsel in capital cases, which take into consideration, to the extent practicable, the following criteria: (i) license or permission to practice law in Virginia; (ii) general background in criminal litigation; (iii) demonstrated experience in felony practice at trial and appeal; (iv) experience in death penalty litigation; (v) familiarity with the requisite court system; (vi) current training in death penalty litigation; and (vii) demonstrated proficiency and commitment to quality representation. Va.Code § 19.2-163.8(A). In a very real sense, then, the Virginia statute actually contains standards of competency for appointed post-conviction counsel, as required by the Act as a condition of “opting-in.” For the foregoing reasons, the Court rejects Satcher’s argument and finds that Virginia is in compliance with the second “opt-in” requirement. 3. & 4. Mandatory Provision of Court-Ordered Post-Conviction Counsel. Virginia’s method for determining the need for appointed counsel, however, does not comply with Section 2261(c) of the Act. Under the version of the statute in effect at the time Satcher’s petition was “finally denied” by the Supreme Court of Virginia, counsel was appointed in state habeas capital proceedings only upon request of the prisoner. See Va.Code § 19.2-163.7 (“If the sentence of death is affirmed on appeal, the court shall, upon request, appoint counsel from the [list established by the Commission]”) (as enacted July 1, 1992) (emphasis added). To qualify as an “opt-in” state under Section 2261(c), the statutory appointment mechanism must place an affirmative and automatic duty upon the State to offer competent post-conviction counsel to all prisoners sentenced to death. In addition, to qualify under the Act, a State may permit a convicted capital prisoner to proceed without counsel only if there is a court determination, which is memorialized in a formal order, that the prisoner is not indigent or that the prisoner declined appointed counsel and that the prisoner is fully competent to make such a determination. The Virginia system in effect when Satcher’s petition was finally denied did not require the State affirmatively to offer counsel to all prisoners, and it did not require a court to issue an order pertaining to the appointment of counsel, or stating reasons for the absence of appointed counsel. Thus, the Virginia statutory scheme provided no protection to prisoners who either did not know how to go about obtaining counsel for state habeas proceedings, or who were not competent to decide that they did not want the services of counsel. The Commonwealth, relying on its longstanding “practices” respecting the appointment of post-conviction counsel, argues that it is in compliance with Section 2261(e). It will be assumed here that the Commonwealth’s assertions are accurate. But, the Court notes that, in Satcher’s case, Virginia’s system failed because his post-conviction counsel did not meet established standards. Nonetheless, the plain language of the Act precludes a finding that a State’s practices suffice to qualify it as an “opt-in” State under the Act. Section 2261(b) requires that a State establish the mandatory mechanism “by statute, rule of its court of last resort, or by another agency authorized by State law”—not by ‘practice. 28 U.S.C. § 2261(b). In so doing, the Act requires that the “mechanism” must be put down in a concrete fashion where it can be seen and relied upon, rather than be something which is subject to the vagaries of differing interpretations of what is done “in practice.” See Hill v. Butterworth, 941 F.Supp. 1129, 1143 (holding that the insufficient standards of competency required by Florida law were not cured by the fact that the Supreme Court of Florida regulates the adequacy of post-conviction counsel; “a plain reading of Section 2261(b) indicates that Congress wanted more than the general supervision of a state high court. Instead, a specific mechanism, for competent counsel representing indigents in all post-conviction capital proceedings has to be established”) (emphasis added); Powell Committee Report at 3242 (“Unless a State takes the affirmative steps required in [section 2261(b) and (c) ], its litigation of capital cases under section 2254 will be governed by the statutory and court rules that presently apply to all federal habeas corpus cases”). This is confirmed by the Powell Committee Report which stressed the need for, and the importance of, a judicial order: [The state mechanism for appointment] must provide for the entry of an appropriate judicial order based on the state prisoner’s response to the offer of counsel. Judicial control of this process is necessary to establish a dear point in time to determine the applicability of [new sections 2262 and 2263]. It is also necessary to assure that a full record exists showing which state prisoners have appointed counsel and which do not. Powell Committee Report at 3242. Virginia’s statutory mechanism fails to comply with this essential “opt-in” requirement. Hence, past practices notwithstanding, Virginia is not in compliance with either the third or the fourth “opt-in” requirements of the Act. C. Virginia Is Not An “Opt-In” State Under the Act. Section 2261(a) of the Act grants “opt-in” status to a state only if the state complies with all of the requirements contained in subsections (b) and (c) of section 2261. Virginia’s system fails to satisfy three of the “opt-in” requirements. Its pleadings concede as much by arguing for application of the doctrine of substantial compliance. That argument has met with no success in other federal courts which have been confronted with it. Indeed, the courts have strictly enforced the “opt-in” provisions which form the basis for the “quid pro quo” under the Act. See Felker v. Turpin, 83 F.3d 1303, 1305 n. 1 (11th Cir.) (noting that not all states with unitary or post-conviction procedures would automatically be able to avail themselves of the benefits under Chapter 154), cert. granted, — U.S. -, 116 S.Ct. 1588, 134 L.Ed.2d 685 (1996), aff'd, on other grounds, — U.S. -, 116 S.Ct. 2383, 135 L.Ed.2d 827 (1996); Austin v. Bell, 927 F.Supp. 1058, 1061-62 (M.D.Tenn.1996) (declining to apply new Chapter 154 in considering petitioner’s claims because Tennessee’s systems of appointment of counsel and competency standards were insufficient to ensure that only qualified, competent counsel would be appointed and thus did not meet the requirements of § 2261); Hill v. Butterworth, 941 F.Supp. at 1140-48 (holding that Florida does not qualify as an “opt-in” state because its post-conviction system was insufficient in terms of both the standards for competency and offer of counsel); Ashmus v. Calderon, 935 F.Supp. at 1069-75 (noting that “[this] Court has previously held, that California does not qualify under § 2261’s ‘post-conviction’ procedure” and that, although California did have a unitary review procedure, the court determined that the system was insufficient to “opt-in” under § 2265, a parallel provision to § 2261); see also C.R. S7814 (June 7, 1995) (statement of Mr. Specter agreeing with Senator Biden that “we have to be meticulous on right to counsel”); Powell Committee Report at 3242 (“The final judgment as to the adequacy of any system for the appointment of counsel under subsection (b), however, rests ultimately with the federal judiciary”). Strict interpretation of the stringent opt-in requirements of the Act is not mere formalism. Rather, strict interpretation is necessary to meaningfully effectuate the quid pro quo arrangement which lies at the core of Chapter 154. This is critically important because, if a state provides full and fair state habeas proceedings, the federal courts will be able to review eases more quickly and efficiently because they will have the benefit of a fully developed record of facts and constitutional rulings to review. Congress has determined that competent counsel who will be reasonably compensated and who has the availability of funds for reasonable litigation expenses is essential to full and fair state habeas proceedings. If any one of the safeguards of Section 2261 is not met, but the state is nonetheless provided with the “benefits” of opt-in status anyway, prisoners will be subjected to less than full and fair state habeas review and then truncated federal court review unthout having the guarantees thought by Congress to warrant the truncated review. This was not Congress’ intent under the Act. More importantly, it is not what Congress explicitly provided in the Act. Because Virginia’s mechanism for the appointment of post-conviction counsel fails to meet three out of the four “opt-in” requirements under the Act, Chapter 154 of Title 28 does not apply to the petition in this ease. II. Chapter 153 Amendments: General Habeas Corpus Reform. The issue still remains whether the Act’s general habeas reform provisions, §§ 101-106, apply to Satcher’s petition. These provisions effect a number of procedural changes to previous habeas corpus statutes codified in Chapter 153 of Title 28 including: a stricter, one-year period of limitations, see §§ 101, 105 (amending 28 U.S.C. §§ 2244(a), 2255); limits on second or successive petitions, see § 106 (amending 28 U.S.C. § 2244(b)); and limits on appeals, see §§ 102, 103 (amending 28 U.S.C. § 2253 and Rule 22 of the Federal Rules of Appellate Procedure). In addition, § 104 effects a number of substantive changes to the standards of review under 28 U.S.C. § 2254, by (1) limiting the grounds on which petitions may be granted (§ 2254(d)); (2) requiring greater defer-enee to state court findings of fact (§ 2254(e)(1)); (3) limiting the availability of evidentiary hearings in a habeas court (§ 2254(e)(2)); and (4) eliminating ineffectiveness or incompetence of post-conviction counsel as a ground for relief under section 2254 (§ 2254(i)). Unlike Chapter 154, the general habeas provisions are not explicitly made applicable to petitions pending when the Act took effect. See Bennett v. Angelone, 92 F.3d at 1342-43. Nonetheless, the Commonwealth urges the retroactive application of the Chapter 153 amendments to Satcher’s petition. For the reasons set forth below, the Court finds that the Act’s general habeas reforms are inapplicable to this case. A. The Legal Standard for Determining the Retroactive Application of a Statute. Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), is the Supreme Court’s most recent and definitive discussion of the retroactive application of new statutory provisions. As does the Commonwealth here, the petitioner in Landgraf sought the application of a new statute (Title VII of the Civil Rights Act of 1964) to cases pending on the date the new law was enacted. The Supreme Court rejected that interpretation of Title VII, which would have made that statute “applicable to conduct that occurred, and to cases that were filed, before the Act’s effective date.” Landgraf, 511 U.S. at -, 114 S.Ct. at 1489. In Landgraf, the Supreme Court recognized the “apparent tension” between two “generally applicable rules for interpreting statutes that do not specify their temporal reach.” Id. at -, 114 S.Ct. at 1489. The first is the rule that ‘a court is to apply the law in effect at the time it renders its decision’ [quoting Bradley v. Richmond School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) ]. The second is the axiom that ‘Retroactivity is not favored in the law,’ and its interpretive corollary that ‘congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result’ [quoting Bowen v. Georgetown University Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471-72, 102 L.Ed.2d 493 (1988) ]. Id. 511 U.S. at -, 114 S.Ct. at 1496. However, the Supreme Court made clear that the presumption against retrospective application maintains primacy over the former canon of interpretation. Id. at -, 114 S.Ct. at 1503 (“[W]e now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely ‘retroactive’ effect.”). “The presumption against retrospective legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.” Id. at -, 114 S.Ct. at 1497; see also Id. at -, 114 S.Ct. at 1499 (“Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights ... ”). The Supreme Court explained that retroactive application of legislation is disfavored because: The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. Id. at-, 114 S.Ct. at 1497. In Landgraf, the Supreme Court held that first a court must examine the language of a statute to determine if it demonstrates the “clear intent” of Congress with respect to retroactivity. See Id. at -, -, 114 S.Ct. at 1501, 1505. “Where the congressional intent is clear, it governs.” Id. at -, 114 S.Ct. at 1496 (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837-38, 110 S.Ct. 1570, 1576-78, 108 L.Ed.2d 842 (1990)). If the statute does not evince a clear congressional intent, a court must then determine whether each provision of the act at issue “attaches new legal consequences to events completed before its enactment” as judged by “familiar considerations of fair notice, reasonable reliance and settled expectations ...” Landgraf, 511 U.S. at -, 114 S.Ct. at 1499. Under Landgraf, a statute would have “retroactive effect” if it “im-pairfs] rights a party possessed when he acted, inerease[s] a party’s liability for past conduct, or imposefs] new duties with respect to transactions already completed.” Id. at -, 114 S.Ct. at 1505. If the statute has such retroactive effect, the traditional presumption against retroactive application prohibits the retroactive application of the statute “absent clear congressional intent” to the contrary. Id. Both the language of the Act and the Landgraf analysis counsel against retroactive application of the Chapter 153 amendments. B. The Chapter 153 Amendments Are Not Applicable to Satcher’s Petition. 1. The Language of the Act. In formulating the Act, Congress clearly contemplated the question of its retroactive application. Section 107(c) of the Act expressly states that “Chapter 154 ... shall apply to cases pending on or after the date of enactment of this Act.” The Act contains no similar provision, however, concerning the Chapter 153 Amendments. See Bennett v. Angelone, 92 F.3d at 1342-43. This omission evinces a Congressional intent that only the new Chapter 154 provisions apply retroactively to cases pending on the date of enactment. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300-01, 78 L.Ed.2d 17 (1983) (“[W]here Congress includes particular language in one section of a statute, but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); See also Landgraf 511 U.S. at -, 114 S.Ct. at 1494 (“Had Congress wished [Title VII] to have [retroactive effect], it surely would have used language comparable to its reference to the predecessor Title VII damages provisions in the 1990 legislation: that the new provisions ‘shall apply to all proceedings pending on or commenced after the date of enactment of this Act’ ”). Faced with this precise issue, the overwhelming majority of federal courts, including the Second and Tenth Circuits, have held that the Chapter 153 Amendments are not applicable to pending petitions. See Boria v. Keane, 90 F.3d 36, 38 (2nd Cir.1996) (per curiam) (“While Congress has spoken clearly in some portions of the new statute with respect to the application of the statute to pending eases, see, e.g., § 107(c), in the context of non-capital habeas cases the statute’s silence is striking. This silence, coupled with the presumption against retroactivity, leads us to hold that the new statute does not apply to this case.”) (emphasis added); Edens v. Hannigan, 87 F.3d 1109, 1111 n. 1 (10th Cir.1996) (“The only effective date provision specified within Title I of the habeas corpus amendments is under the special death penalty litigation procedures, which states that those provisions shall apply to cases pending on or after enactment. [Petitioner] filed his petition pursuant to 28 U.S.C. § 2254 ... well before the new habe-as corpus amendments were enacted. Under these facts we conclude that the new law does not apply to this case”). Landgraf directs application of the presumption against retroactivity unless clear Congressional intent favors retroactivity. 511 U.S. at -, 114 S.Ct. at 1505. The explicit language of the Act clearly indicates that Congress had no intention to apply the Chapter 153 amendments retroactively. Thus, under the presumption against retroac-tivity, the Act’s general habeas reform provisions are not applicable to Satcher’s petition. 2. Retroactive Effect of the Act. Because the Act does not evince a clear Congressional intent, it is necessary, under Landgraf, to determine whether the provisions of the Act “attach[] new legal consequences to events completed before its enactment.” 511 U.S. at -, 114 S.Ct. at 1499. The Act would have such “retroactive effect” if it “impair[s] rights a party possessed when he acted, increase^] a party’s liability for past conduct, or impose[s] new duties with respect to transactions already completed.” Id. at -, 114 S.Ct. at 1505. In this case, the Chapter 153 amendments of the Act would have retroactive effect if applied to Satcher’s petition. Hence, the traditional presumption against retroactive application prohibits the retroactive application of the statute absent clear Congressional intent to the contrary. Id. And, as discussed above, there is no such clearly stated Congressional intent. Relying on Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), the Respondent urges that Section 2254(d)(1) applies to Satcher’s petition. That section prohibits the grant of a writ of habeas corpus “unless the adjudication of the claim [in state court] resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” In Lindh, the Seventh Circuit held that Section 2254(d)(1) applied to petitions which were pending on April 24, 1996, the effective date of the Act. The reasoning of the Seventh Circuit in Lindh is interesting but not as persuasive as that on which the Second and Tenth Circuits reached the result that no part of the amendments to Chapter 153, including Section 2254(d)(1), apply to pending petitions. Indeed, the rationale of Lindh is at odds with the clear instruction in Landgraf, just two terms ago, that absent a clear statement of Congressional intent to the contrary, the presumption against retroactivity prevails over the often contrary principle that a Court must “apply the law at the time it renders its decision.” More importantly, if Section 2254(d)(1) is given the construction urged by the Respondent and found in Lindh, it would be necessary to confront, as does the dissent in Lindh, whether Section 2254(d)(1) offends the Third Article of the Constitution. That is not necessary here because the only basis for granting the petition involves a state decision which was contrary to, and which did involve an unreasonable application of, “Federal law, as determined by the Supreme Court of the United States.” Furthermore, the other issues presented in the petition are resolved on the basis of Supreme Court jurisprudence. Hence, it is unnecessary to reach the constitutional challenge which inherently is presented when Section 2254(d)(1) is interpreted as urged by the Respondent. For the reasons set forth above, the Court finds that new Chapter 154 of the Act is inapplicable to Satcher’s petition because, at the time Satcher’s petition was finally denied, Virginia did not qualify as an “opt-in” state under the Act. Likewise, the amendments to Chapter 153 are inapplicable under the Supreme Court’s Landgraf analysis. Hence, the petition will be evaluated based on the law governing federal habeas corpus review in effect at the time Satcher filed his petition. THE CLAIMS ASSERTED IN THIS PETITION In his federal habeas petition, Satcher raises the following claims: I. Satcher is actually innocent; 11(A). The trial court erred in denying Satcher’s motion to sever the Borghesani and Abel offenses; 11(B). The evidence was insufficient to convict; 11(C). The trial court committed constitutional errors in the selection of the jury; 11(D). The trial court erred in allowing testimony from Dr. Ferrara, a prosecution witness, in violation of the Confrontation Clause of the Sixth Amendment; 11(E). The prosecutor engaged in misconduct by presenting false testimony from Dr. Ferrara; 11(F). The prosecutor misled the jury about the significance of the DNA evidence in violation of the Due Process clause; 11(G). The courtroom identification of Satcher by Deborah Abel was unduly suggestive in violation of the Due Process clause; 11(H). The Commonwealth failed to preserve some of the forensic DNA sample for independent testing by the defense, in violation of the Due Process clause; II(I). The prosecutor engaged in misconduct in violation of the Due Process clause by: (1) violating a pretrial discovery agreement; (2) falsely implying that the Commonwealth possessed the murder weapon, which was found in Satcher’s car; (3) falsely stating that the victims’ purses were found together; and (4) presenting Mark Polemani’s testimony in a fashion that implied he had identified Satcher in a lineup; II(J). The Commonwealth engaged in prejudicial conduct by injecting passion and prejudice into the jury’s sentencing determination; 111(A). Trial counsel was constitutionally ineffective for failing properly to investigate, develop, and present psychiatric and neurological evidence at the penalty phase of trial; III(B). Trial counsel was constitutionally ineffective for failing to procure an independent DNA test; III(C). Trial counsel was constitutionally ineffective for failing to object to testimony that the victims’ purses were found together; III(D). Appellate counsel was constitutionally ineffective for failing to raise on direct appeal significant constitutional errors that occurred during Satcher’s trial; IV(A). Virginia Code § 19.2-270.5, respecting the reliability of DNA evidence, is unconstitutional; IV(B). Virginia Code § 19.2-264.4, respecting Virginia’s capital murder aggravating factors, is unconstitutional; and IV(C). The imposition of the death penalty is cruel and unusual punishment. The assessment of Satcher’s several claims must be made in perspective of two fundamental principles. First, the scope of review of a state court conviction on federal habeas corpus is confined to whether the petitioner is held in state custody as the result of a violation of federal constitutional or statutory law. See 28 U.S.C. § 2241(c)(3). If so, the petition will be granted. If not, the petition is to be denied even if the conviction offends state procedural, evidentiary or substantive law rules. Second, “28 U.S.C. § 2254(b) bars the granting of habeas corpus relief ‘unless it appears that the applicant has exhausted the remedies available in the courts of the State.’” Gray v. Netherlands -U.S. -, -, 116 S.Ct. 2074, 2080, 135 L.Ed.2d 457 (1996). I. Exhaustion and Procedural Bar The exhaustion requirement is grounded in principles of comity which are central to our system of federalism. Keeney v. Tamayo-Reyes, 504 U.S. 1, 8, 112 S.Ct. 1715, 1719, 118 L.Ed.2d 318 (1992). Therefore, in the interest of giving state courts the first opportunity to consider the alleged constitutional errors in his conviction and sentencing, Satcher must have exhausted all state court remedies before this Court can even consider his claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A state court must have “an opportunity to confront the federal constitutional issue on the merits” or else the federal court’s review “would not be a ‘review of the state court judgment, but rather would be another avenue of direct appeal.” Komahrens v. Evatt, 66 F.3d 1350, 1363 (4th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1575, 134 L.Ed.2d 673 (1996). A state court has not been given a full opportunity to rule on a claim unless it has been presented before the state’s highest court. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). And, in presenting a claim to the state court, the petitioner must “fairly present” claims cognizable under federal law. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). That is, in order to exhaust a federal claim for purposes of federal habeas corpus review, a petitioner cannot simply raise the claim in state court, citing state law, even if the state claim is analytically similar to a federal claim. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Duncan v. Henry, — U.S. -, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (presentation of a “miscarriage of justice” claim under California law was not the same as an allegation of a violation of federal due process). Furthermore, a federal habeas petitioner is not entitled to federal review of claims which are procedurally barred. The procedural bar rule complements the exhaustion requirement “[bjecause ‘[the exhaustion] requirement ... refers only to remedies still available at the time of the federal petition,’ ” Gray v. Netherlands — U.S. at -, 116 S.Ct. at 2080 (citing Engle v. Isaac, 456 U.S. 107, 126 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982)), and therefore “it is satisfied ‘if it is clear that [the habeas petitioner’s] claims are now procedurally barred under [state] law.’ ” Id. (citing Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989)). This rule of procedural bar is triggered when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on the procedural bar. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Also, the procedural bar rule is given effect where a claim was never presented to the state court and the applicable state rule would clearly bar consideration of the new allegations. Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.1990), cert. denied, 499 U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991). In Virginia, no writ of habeas will be granted on the basis of any legal or factual claim which the petitioner previously could have made, but did not. Gray v. Netherlands — U.S. at -, 116 S.Ct. at 2080; 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); Va.Code Ann. § 8.01-654(B)(2). Because Satcher already has filed a state habeas petition, a successive petition, if filed, would be barred by Virginia Code § 8.01-654(B)(2). The procedural bar: which gives rise to exhaustion provides an independent and adequate state law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default. Gray v. Netherlands — U.S. at -, 116 S.Ct. at 2080 (emphasis added); see also Teague v. Lane, 489 U.S. at 298, 109 S.Ct. at 1068-69; Isaac, 456 U.S. at 126, 102 S.Ct. at 1571; Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-2509, 53 L.Ed.2d 594 (1977). Or, a petitioner can show that there has been a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991). All of Satcher’s federal habeas corpus claims have either been exhausted by virtue of previous presentation to the courts of Virginia, thereby preserving them for review here, or been waived by virtue of not having be