Dubois v. Greene ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JOHNILE L. DUBOIS,
    Petitioner-Appellant,
    v.
    No. 97-21
    FRED W. GREENE, Warden,
    Mecklenburg Correctional Center,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Alexandria.
    Claude M. Hilton, Chief District Judge.
    (CA-96-1132-AM)
    Argued: March 2, 1998
    Decided: May 26, 1998
    Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Dismissed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    ARGUED: Joseph N. Bowman, Alexandria, Virginia; Mark Evan
    Olive, VIRGINIA CAPITAL REPRESENTATION RESOURCE
    CENTER, Richmond, Virginia, for Appellant. Pamela Anne Rumpz,
    Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
    ERAL, Richmond, Virginia, for Appellee. ON BRIEF: Robert Lee,
    VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER,
    Richmond, Virginia; Joseph J. McCarthy, DELANEY, MCCARTHY,
    COLTON & BOTZIN, P.C., Alexandria, Virginia, for Appellant.
    Richard Cullen, Attorney General of Virginia, OFFICE OF THE
    ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Petitioner Johnile Dubois, who pled guilty to capital murder and
    was sentenced to death in the Virginia courts, seeks a certificate of
    appealability and an appeal from the district court's dismissal of his
    petition for habeas corpus relief pursuant to 
    28 U.S.C. § 2254
    .
    Dubois' conviction and sentence were affirmed on direct appeal to the
    Virginia Supreme Court on September 17, 1993. Dubois v.
    Commonwealth, 
    246 Va. 260
     (1993), cert. denied, 
    511 U.S. 1012
    (1994). Dubois then filed a petition for state habeas corpus relief,
    which was denied by the Virginia Supreme Court on March 15, 1996.
    J.A. at 279. On January 2, 1997, Dubois filed the instant federal
    habeas corpus petition and on June 30, 1997, the district court dis-
    missed Dubois' petition. J.A. at 447. For the reasons that follow, we
    deny Dubois' application for a certificate of appealability and dismiss
    this appeal.
    I.
    The facts of this case have been adequately summarized by the Vir-
    ginia Supreme Court:
    On November 20, 1991, Dubois and three other men
    entered a convenience store in Portsmouth. Three store
    employees were in the store. Shari Watson was working
    near the rear of the store. Philip C. Council and Angela Gar-
    cia were working as cashiers in the front. As Dubois and his
    2
    companions entered the store, Dubois, the only man armed
    with a gun, fired in Watson's direction, barely missing her
    head.
    One of the men ordered Garcia and Council to open the
    cash registers. When Council, frightened and suffering from
    mental and neurological difficulties stemming from an auto-
    mobile accident, could not open the register quickly, three
    of the robbers jumped over the counter and began to beat
    him. Dubois then shot Council in the chest at point blank
    range. The register was opened and Dubois took approxi-
    mately $400 in cash and fled with his accomplices. Council
    died from the gunshot wound. . . .
    Dubois was indicted on charges of capital murder, rob-
    bery, use of a firearm while committing capital murder, use
    of a firearm while committing a robbery, attempted murder,
    and use of a firearm while attempting to commit murder.
    Dubois entered into a plea agreement with the Common-
    wealth. Under its terms, Dubois agreed to plead guilty to all
    charges and to cooperate fully in the prosecution of his co-
    defendants' cases. In exchange, the Commonwealth agreed
    not to seek the death penalty in his case.
    At his arraignment on August 4, 1992, Dubois, repre-
    sented by counsel, entered guilty pleas to all the charges,
    including the capital murder count. At the hearing, Dubois,
    under oath and in response to the trial judge's questions,
    stated that he understood the charges against him, the plea
    agreement and the possible consequences of his pleas.
    Dubois also stated that he understood that the maximum
    sentence for the capital murder was death and that the trial
    court was not bound by the plea agreement and could
    impose a death sentence.
    After the Commonwealth summarized the evidence it
    would have presented at trial, Dubois reaffirmed his guilty
    pleas. The court found that Dubois had entered the pleas
    knowingly, intelligently, and voluntarily and that the evi-
    3
    dence supported those pleas of guilty. The court then
    ordered a presentence report.
    At the sentencing hearing, Dubois stated that he had read
    and understood the presentence report. In response to the
    court's inquiries, Dubois indicated that he did not wish to
    question the probation officer who prepared the report nor
    did he wish to present any mitigating evidence. The court
    proceeded to hear argument from counsel. Dubois's counsel
    argued that the court should not impose the death penalty
    because the record before the court did not support imposi-
    tion of the death penalty, that Dubois had expressed
    remorse, and that he had cooperated with the police as
    required under the plea agreement. The Commonwealth
    acknowledged that, pursuant to the terms of the plea agree-
    ment, it was not asking for the death penalty, but urged the
    court to impose the maximum sentence possible consistent
    with the agreement.
    The trial court, after considering the record before it, sen-
    tenced Dubois to death for the capital murder of Philip
    Council. The judge found that Dubois presented a continu-
    ing serious future threat to society.
    Dubois v. Commonwealth, 
    246 Va. 260
    , 262-63 (1993) (citations
    omitted).
    II.
    In the instant petition for federal habeas relief, Dubois raises the
    following claims:
    I. The trial court denied Mr. Dubois due process of law by
    imposing an illegal sentence not authorized by Virginia
    law in violation of Mr. Dubois' constitutional rights.
    II. The plea agreement was dispositional in nature and the
    trial court was without jurisdiction to enter a death sen-
    tence.
    4
    III. Mr. Dubois was denied effective assistance of counsel
    and due process of law by the lack of notice that the
    death penalty was at issue, after the prosecution had
    formally notified the defense and the court that it
    would not seek a death sentence and would not prove
    any statutory aggravating circumstances at the sen-
    tencing hearing, in violation of Mr. Dubois' rights
    under the Fifth, Sixth, Eighth, and Fourteenth Amend-
    ments to the United States Constitution and sections 1,
    8, 9, and 11 of Article One of the Virginia Constitu-
    tion.
    A. A capital defendant is entitled to the due process of
    law at the sentencing hearing, which includes the
    effective assistance of counsel and notice of the mat-
    ter at issue.
    B. Mr. Dubois had neither actual nor constructive notice
    that the death sentence could be imposed after the
    commonwealth formally abandoned any attempt to
    obtain the death sentence.
    IV. The trial court failed to put Mr. Dubois on notice that
    he would have to rebut evidence of future dangerous-
    ness and failed to put him on notice that it would con-
    sider information unknown to him and for which he
    was unprepared at the sentencing hearing, in violation
    of Mr. Dubois' rights under the Fifth, Sixth, Eighth,
    and Fourteenth Amendments to the United States Con-
    stitution and sections 1, 8, 9, and 11 of Article One of
    the Virginia Constitution.
    V. Mr. Dubois' guilty pleas were not voluntary, knowing,
    and intelligent in violation of Mr. Dubois' rights under
    the Fifth, Sixth, Eighth, and Fourteenth Amendments to
    the United States Constitution and section 1, 8, 9, and
    11 of Article One of the Virginia Constitution.
    VI. The trial court improperly requested and relied upon
    victim impact statements in imposing sentence on Mr.
    Dubois.
    5
    VII. The trial court erred in requesting and considering a
    presentence report in violation of Va. Sup. Ct. R.
    3A:8(C)(2).
    VIII. The trial court erred in accepting and entering Mr.
    Dubois' guilty pleas before determining whether to
    accept the plea agreement.
    IX. Trial counsel failed to provide Mr. Dubois with rea-
    sonable and effective assistance of counsel and denied
    Mr. Dubois his right to effective assistance of counsel
    in violation of the Fifth, Sixth, Eighth, and Fourteenth
    Amendments of the United States Constitution and
    sections 1, 8, 9, and 11 of Article One of the Virginia
    Constitution.
    A. Trial counsel failed to assert the trial court's lack of
    jurisdiction to sentence Mr. Dubois to death and
    failed to object to the trial court's assumption of pro-
    secutorial functions.
    B. Trial counsel failed to request that the trial court sen-
    tence Mr. Dubois separately for his capital and non-
    capital offenses.
    i. Trial counsel failed to move to recuse the
    judge after he presided over the case of Mr.
    Dubois' co-defendants Garrett Porter and
    Johnson Ruffin.
    C. Trial counsel failed to request an order either speci-
    fying aggravating circumstances to be considered or
    limiting issues to be tried at the sentencing hearing.
    D. Trial counsel failed to perform a reasonable and ade-
    quate investigation of the case.
    i. Trial counsel failed to make a complete and
    proper discovery request.
    6
    ii. Trial counsel failed to corroborate and negoti-
    ate an accurate summary of the evidence
    before agreeing to allow the commonwealth to
    summarize the evidence to the trial court.
    iii. Trial counsel failed to object to the prosecu-
    tor's inaccurate summary of facts at the guilt
    hearing.
    iv. Trial counsel failed to adequately investigate
    the case at guilt and at sentencing, making
    their communications with and supervision of
    the expert appointed to assist the defense
    inadequate and meaningless.
    v. Trial counsel failed to reasonably and ade-
    quately investigate the accuracy or sufficiency
    of information contained in the presentence
    report.
    vi. Trial counsel failed to investigate and corrob-
    orate information contained in the victim
    impact statements and failed to object to the
    trial court's improper consideration of these
    statements and the improper information
    included in the statements.
    vii. Trial counsel failed to investigate, develop,
    and present evidence to rebut the [sic] statu-
    tory aggravating circumstances.
    viii. Trial counsel failed to investigate or present
    any mitigating evidence on behalf of Mr.
    Dubois.
    E. Trial counsel failed to object to the trial court's
    improper request for victim impact statements.
    F. Trial counsel failed to object to the trial court's
    improper request for a presentence report.
    7
    G. Trial counsel failed to object to the trial court's fail-
    ure to follow the procedure mandated regarding plea
    agreements.
    H. Trial counsel failed to object to the trial court's con-
    sideration of extra-judicial evidence in sentencing
    Mr. Dubois.
    I. Trial counsel failed to object when the prosecutor
    breached the plea agreement by arguing for a death
    sentence.
    J. Trial counsel failed to object when the trial court vio-
    lated the plea agreement.
    K. Trial counsel failed to move to withdraw Mr.
    Dubois' guilty pleas after the trial court improperly
    requested and considered the presentence report and
    victim impact statements.
    L. Trial counsel failed to withdraw Mr. Dubois' guilty
    pleas after the prosecutor breached the terms of the
    plea agreement.
    M. Trial counsel failed to request that the trial court rule
    on Mr. Dubois' motions and to renew ignored
    motions.
    N. Trial counsel failed to safeguard Mr. Dubois' consti-
    tutional rights against self-incrimination when coop-
    erating with the probation officer preparing the
    presentence report.
    O. Trial counsel unreasonably and improperly intro-
    duced privileged and confidential evidence damag-
    ing to Mr. Dubois.
    P. Trial counsel failed to object to the trial court's
    incorrect statements to Mr. Dubois regarding his
    rights on appeal.
    8
    Q. Trial counsel failed to request the opportunity to
    present evidence on Mr. Dubois' parole eligibility.
    R. Trial counsel failed to provide effective assistance on
    appeal.
    S. Trial counsel's errors individually and collectively
    prejudiced Mr. Dubois and deprived him of the effec-
    tive assistance of counsel.
    X. The trial court failed to preserve crucial evidence
    needed as part of the record on appeal in violation of
    Mr. Dubois' rights under the Fifth, Sixth, Eighth, and
    Fourteenth Amendments to the United States Constitu-
    tion and sections 1, 8, 9, and 11 of Article One of the
    Virginia Constitution.
    XI. The prosecutor engaged in substantial misconduct by
    violating his agreement not to seek the death penalty
    in violation of Mr. Dubois' rights under the Fifth,
    Sixth, Eighth, and Fourteenth Amendments to the
    United States Constitution and sections 1, 8, 9 and 11
    of Article One of the Virginia Constitution.
    XII. The Commonwealth's attorney engaged in miscon-
    duct when he failed to reveal information to the
    defense in violation of Brady v. Maryland and Napue
    v. Illinois, in violation of Mr. Dubois' rights under
    the Fifth, Sixth, Eighth, and Fourteenth Amendments
    to the United States Constitution and sections 1, 8, 9,
    and 11 of Article One of the Virginia Constitution.
    XIII. The trial court erred in incorrectly advising Mr.
    Dubois that if he pleaded guilty, he had no right to
    appeal the trial court's decision in violation of Mr.
    Dubois' rights under the Fifth, Sixth, Eighth, and
    Fourteenth Amendments to the United States Consti-
    tution and sections 1, 8, 9, and 11 of Article One of
    the Virginia Constitution.
    9
    XIV. The trial court erred in making a finding of future
    dangerousness beyond a reasonable doubt when
    there was insufficient evidence to support such a
    finding in violation of Mr. Dubois' rights under the
    Fifth, Sixth, Eighth, and Fourteenth Amendments to
    the United States Constitution and sections 1, 8, 9,
    and 11 of Article One of the Virginia Constitution.
    XV. The Virginia Supreme Court failed to conduct consti-
    tutionally adequate proportionality review and other
    appellate review in violation of Mr. Dubois' rights
    under the Fifth, Sixth, Eighth, and Fourteenth
    Amendments to the United States Constitution and
    sections 1, 8, 9, and 11 of Article One of the Virginia
    Constitution.
    XVI. The court-appointed psychologist did not perform an
    adequate evaluation of Mr. Dubois in violation of
    Mr. Dubois' rights under the Fifth, Sixth, Eighth,
    and Fourteenth Amendments to the United States
    Constitution and sections 1, 8, 9, and 11 of Article
    One of the Virginia Constitution.
    XVII. The trial court erred in relying upon the results of
    the forensic evaluation to make a finding of future
    dangerousness in violation of Mr. Dubois' rights
    under the Fifth, Sixth, Eighth, and Fourteenth
    Amendments to the United States Constitution and
    sections 1, 8, 9, and 11 of Article One of the Vir-
    ginia Constitution.
    J.A. 320-26 (Dubois' petition for federal habeas corpus relief filed in
    district court).
    III.
    During state post-conviction proceedings, the Virginia Supreme
    Court held Claims II, IV, VI, VII, VIII, X, XI, XII, XIII, XIV, XV,
    XVI, XVII to be procedurally barred under the state procedural rule
    10
    of Slayton v. Parrigan, 
    215 Va. 27
     (1974), which prevents a state
    habeas petitioner from raising claims that could have been but were
    not raised and adjudicated during the petitioner's trial or upon direct
    appeal. The Virginia Supreme Court also held Claims IX(B),
    IX(D)(i)-(iii), IX(M), IX(O)-(P) to be procedurally barred under the
    state procedural rule of Anderson v. Warden, 
    222 Va. 511
     (1981),
    which prevents a state habeas petitioner from challenging the truth
    and accuracy of representations made by him as to the adequacy of
    his court-appointed counsel and the voluntariness of his guilty plea
    unless the prisoner offers a valid reason why he should be permitted
    to controvert his prior statements. J.A. at 279. The rule of Slayton is
    a valid procedural rule. Smith v. Murray , 
    477 U.S. 527
    , 533-39
    (1986); Turner v. Williams, 
    35 F.3d 872
    , 890 (4th Cir. 1994). So, too,
    is the Anderson rule.1 Accordingly, these above-referenced claims are
    procedurally defaulted for the purposes of federal habeas review.
    Neither has Dubois carried his burden of establishing the requisite
    "cause" and "actual prejudice" necessary to excuse these procedural
    defaults. In his brief, Dubois asserts -- in one conclusory phrase and
    without citation to any authority, Appellant's Br. at 18 -- that his pro-
    cedural defaults are excused under the "cause" and "actual prejudice"
    standard. First, with respect to Claims II, VI, VII, VIII, XI, and XIII,
    _________________________________________________________________
    1 We are not persuaded by petitioner's argument that the rule of
    Anderson was overruled by United States v. Cronic, 
    466 U.S. 648
    (1984), and Strickland v. Washington, 
    446 U.S. 668
     (1984). Although
    these cases, and Cronic in particular, suggest that in determining whether
    counsel's performance was constitutionally ineffective, a federal court
    entertaining such a claim "attach[es] no weight to either [the defendant's]
    expression of satisfaction with counsel's performance at the time of his
    trial, or to his later expression of dissatisfaction," 
    466 U.S. at
    657 n.21,
    the Anderson rule is a procedural rule holding that a prisoner raising a
    state habeas petition is not permitted to present a set of facts directly con-
    trary to his earlier statements made in open court. To the extent that
    Strickland and Cronic define the substantive standards for reviewing
    ineffective assistance of counsel claims under the Sixth Amendment,
    they do not foreclose Virginia from enforcing a procedural rule such as
    Anderson. Furthermore, we have reviewed these claims and have con-
    cluded that they do not justify issuance of the writ under the Strickland
    standard even if they were not defaulted under an adequate and indepen-
    dent state procedural rule. See also Part IV, infra.
    11
    Dubois would presumably assert -- although he has not framed any
    argument as such -- that he has demonstrated "cause" to excuse these
    procedural defaults because he has also alleged elsewhere that his
    failure to raise these claims in state court was the result of ineffective
    assistance of counsel. As we discuss infra, Dubois does not establish
    that his failure to raise any of these claims resulted from constitution-
    ally ineffective assistance of counsel, and therefore Dubois has not
    carried his burden of demonstrating "cause" for these procedural
    defaults. Murray v. Carrier, 
    477 U.S. 478
     (1986).
    Second, Dubois argues that his Slayton default of Claim XV -- the
    denial of constitutionally adequate proportionality review -- is
    excused because he was unable to raise this claim until after the Vir-
    ginia Supreme Court conducted such review and subsequently
    affirmed his sentence on direct review. To the extent that Claim XV
    raises a facial challenge to all proportionality review in Virginia,
    however, such a claim clearly could have been raised during Dubois'
    first appeal on direct review and prior to the Virginia Supreme
    Court's proportionality review of his sentence. And to the extent that
    Claim XV raises an as applied challenge to the proportionality review
    that Dubois received by the Virginia Supreme Court, Dubois could
    have raised that claim in a rehearing petition in his direct review to
    the Virginia Supreme Court. And, in any event, we have examined the
    proportionality review conducted by the Virginia Supreme Court, see
    Dubois, 246 Va. at 267-68, and we cannot conclude that Dubois has
    been denied any federal constitutional right to adequate and meaning-
    ful proportionality review.
    Third, Dubois contends that several other of his defaults were the
    result of prosecutorial or trial court misconduct-- presumably Claims
    IV, X, and XII -- although Dubois does not specifically refer to any
    claims in this regard. None of these claims, however, allege any inten-
    tional or deliberate misconduct by the trial court or prosecution
    designed to prevent the timely raising of a claim of the type necessary
    to establish "cause" for a procedural default under Amadeo v. Zant,
    
    486 U.S. 214
     (1988), and related cases.
    Finally, even if Dubois could demonstrate "cause" for his failure to
    properly raise any of these claims in state court, he has not demon-
    strated the requisite "actual prejudice" necessary to excuse any of
    12
    these procedural defaults. Other than one oblique-yet-conclusory
    assertion, see Appellant's Br. at 18 (under"non-opt-int law[ ] the dis-
    trict court erred in identifying certain claims as defaulted"), Dubois
    has not argued to this Court that he has been actually prejudiced by
    his failure to raise any of these defaulted claims in state court under
    proper procedural rules,2 and we conclude from our review of the alle-
    gations raised in Dubois' habeas petition that Dubois has not carried
    his burden of demonstrating "actual prejudice" to excuse any of these
    procedural defaults.
    Accordingly, Dubois' claims II, IV, VI, VII, VIII, IX(B), IX(D)(i)-
    (iii), IX(M), IX(O)-(P), X, XI, XII, XIII, XIV, XV, XVI, and XVII
    are all not cognizable for the purposes of the instant federal habeas
    petition.3
    IV.
    As Dubois' federal habeas petition was filed after the effective date
    of the Antiterrorism and Effective Death Penalty Act of 1996, 110
    _________________________________________________________________
    2 Dubois does argue that under the"opt-in" procedural default provi-
    sions, 
    28 U.S.C. § 2264
    , his procedural defaults are excused. Appellant's
    Br. 14-20. However, none of Dubois' arguments in this regard excuse his
    procedural defaults when analyzed under non-opt-in procedural default
    standards, particularly because Dubois' primary argument in his brief is
    that 
    28 U.S.C. § 2264
     enhanced a habeas petitioner's ability to have pro-
    cedural defaults excused by, inter alia, eliminating the need to show
    actual prejudice. Appellant's Br. at 16 ("Congress eliminated the addi-
    tional threshold need to show prejudice" under the "opt-in" provisions of
    section 2264 and thus created a "less draconian version of the rule [of
    procedural default] than that which had evolved in the case law since
    1979").
    3 The district court concluded that Virginia was an "opt in" state and
    therefore applied the new procedural default standards set forth at 
    28 U.S.C. § 2264
     as amended by the Antiterrorism and Effective Death Pen-
    alty Act of 1996 (AEDPA), 
    110 Stat. 1214
    . Because we conclude that
    several of Dubois' claims are procedurally defaulted under the pre-
    AEDPA law, we do not reach the issue of whether Virginia qualifies as
    an "opt in" state within the meaning of section 107 of the AEDPA. To
    the extent that the district court held that Virginia qualifies as an "opt in"
    state, we vacate that portion of the district court's judgment.
    
    13 Stat. 1214
     (AEDPA), the AEDPA's amendments to chapter 153 of
    Title 28 apply to Dubois' claims. Lindh v. Murphy, 
    117 S. Ct. 2059
    ,
    2068 (1997); Breard v. Pruett, 
    134 F.3d 615
    , 618 (1998). Dubois
    brought the instant petition for relief pursuant to 
    28 U.S.C. § 2254
    (a).
    Section 2254(d) of that title, as amended by the AEDPA, now pro-
    vides that:
    An application for a writ of habeas corpus on behalf of a
    person in custody pursuant to the judgment of a State court
    shall not be granted with respect to any claim that was adju-
    dicated on the merits in State court proceedings unless the
    adjudication of the claim -- (1) resulted in a decision that
    was contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the
    Supreme Court of the United States; or (2) resulted in a
    decision that was based on an unreasonable determination of
    the facts in light of the evidence presented in the State court
    proceeding.
    
    28 U.S.C. § 2254
    (d). Accordingly, we review federal claims adjudi-
    cated on the merits in state court under the standard of review set
    forth in amended section 2254(d).
    Dubois claims that he was denied due process of law when the Vir-
    ginia courts imposed a death sentence in violation of Virginia law
    (Claim I). The gravamen of this claim is that "the trial court had nei-
    ther the authority nor the power to impose the penalty of death unless
    the Commonwealth first proved at the sentencing hearing beyond a
    reasonable doubt at least one of two statutorily defined aggravating
    circumstances," and that "[t]he trial court could not properly find an
    aggravating circumstance to exist beyond a reasonable doubt because
    the Commonwealth failed to take any action to meet its burden of
    proof." J.A. at 339-40 (Dubois' federal habeas petition). To the extent
    that this claim alleges only a violation of state law, Dubois is not enti-
    tled to relief. See 
    28 U.S.C. § 2254
    (a); Estelle v. McGuire, 
    502 U.S. 62
    , 73 (1991) ("it is not the province of a federal habeas court to reex-
    amine state-court determinations on state-law questions"). Further-
    more, the Virginia Supreme Court has essentially rejected this claim
    and concluded that the evidence in the record supported the trial
    court's finding of aggravating circumstances, Dubois, 246 Va. at 263-
    14
    67, and Dubois has not carried his burden of disproving that determi-
    nation. To the extent that this claim alleges a violation of the Due Pro-
    cess Clause or any other federal right, Dubois does not appear to have
    raised this precise claim in state court -- a failure which forecloses
    our ability to award habeas relief based upon this non-exhausted
    claim, see 
    28 U.S.C. § 2254
    (b)(1)-- and in any event Dubois has not
    cited to any Supreme Court (or other applicable) precedent to which
    the Virginia Supreme Court's adjudication of this claim is contrary or
    an unreasonable application. See 28 U.S.C.§ 2254(d)(1).
    Dubois next claims that the trial court was without jurisdiction to
    enter a death sentence because his plea agreement with the Common-
    wealth was dispositional and was therefore valid only in the event that
    Dubois did not receive the death penalty (Claim II). As discussed
    supra, this claim is procedurally defaulted. This claim also raises only
    a question of state law and is therefore not cognizable on federal
    habeas. Moreover, the Virginia Supreme Court on direct appeal from
    Dubois' conviction and sentence concluded that the plea agreement
    here did not foreclose imposition of the death penalty, and we agree
    with the Virginia Supreme Court's interpretation of Virginia law. See,
    e.g., Dubois, 246 Va. at 265 ("there is no dispute that the trial court
    was in no way bound to accept the Commonwealth's recommenda-
    tion. Rule 3A:8; Johnson v. Commonwealth , 
    214 Va. 515
     (1974)").
    This construction of the plea agreement is also consistent with the
    behavior of Dubois' trial counsel, J.A. at 33 (letter from attorney to
    Dubois), as well as Dubois' conduct, J.A. at 12-17, both of which
    indicate that Dubois pled guilty pursuant to the plea agreement with
    the knowledge that the agreement only limited the prosecution's abil-
    ity to argue in favor of the death penalty but that it did not prevent
    the trial court from imposing the death penalty. This claim is therefore
    without merit.
    Dubois next claims that he was denied several constitutional rights
    because he had no notice that the death penalty would be an issue dur-
    ing proceedings in the trial court (Claim III). The record, however,
    clearly establishes that the court questioned Dubois and that Dubois
    knew (or, at the very least, was on notice) at the time of his guilty
    plea that he could receive the death penalty notwithstanding the plea
    agreement. For example, the following colloquy occurred between
    Dubois and the trial court:
    15
    Court: Do you understand, with respect to this negotiated
    plea agreement, the Court is not bound by anything you,
    your attorneys and the Commonwealth Attorney's Office
    have agreed to?
    Dubois: Yes.
    Court: Do you further understand, notwithstanding what that
    agreement may be, if it calls for a recommendation, I have
    the power and authority to reject that recommendation?
    Dubois: Yes.
    Court: If it calls for a recommendation, and I reject it, you
    have no right to withdraw your pleas of guilty?
    Dubois: Yes.
    Court: Do you understand further, if I reject it, I also have
    the power to sentence you to a term greater than they may
    be recommending?
    Dubois: Yes. . . .
    Court: What is the maximum punishment for capital mur-
    der?
    Dubois: The death penalty.
    Court: What is the maximum punishment for robbery?
    Dubois: Life. . . .
    Court: You understand that the maximum punishment for
    capital murder being sentenced to die in the electric chair,
    do you still desire to enter your pleas of guilty and enter into
    that negotiated plea agreement?
    Dubois: Yes.
    16
    J.A. at 14-17. The Virginia Supreme Court also found that Dubois
    acknowledged that the trial court was not bound by the plea agree-
    ment, Dubois, 246 Va. at 262, and counsel for Dubois also indicated
    this understanding. See, e.g., J.A. at 54. Accordingly, Dubois was on
    notice that he could receive the death penalty, and Dubois is not enti-
    tled to habeas relief based upon this claim.
    We also reject Dubois claim that his guilty plea was not voluntary,
    knowing and intelligent (Claim V). As discussed supra, Dubois
    explicitly acknowledged in open court that he could receive the death
    penalty notwithstanding his plea agreement. J.A. at 11-18. The trial
    court also asked Dubois about his education level (one year of col-
    lege), whether he understood the nature of the charges against him,
    discussed the elements of the crimes with his attorneys, received
    advice from his attorneys regarding those elements, had enough time
    to discuss possible defenses, and entered his guilty pleas of his own
    free will and without coercion. Dubois answered affirmatively to
    these five questions, J.A. at 12-13, and then the trial court specifically
    found that Dubois' plea was knowingly and voluntarily entered. J.A.
    at 27. Dubois has not carried his burden of disproving this finding,
    and neither has he otherwise demonstrated that his guilty plea was not
    knowing, intelligent, and voluntary. We therefore reject this claim.
    Dubois next claims that the trial court erred in making a finding of
    future dangerousness beyond a reasonable doubt (Claim XIV). Again,
    to the extent that this claim alleges a violation of state law only, it is
    not cognizable here. Also, the Virginia Supreme Court affirmed the
    trial court's finding of future dangerousness, and the facts in the
    record are clearly sufficient to support that finding of future danger-
    ousness. See Dubois, 245 Va. at 264-65 (discussion of all the evi-
    dence, including the murder of Council, Dubois' prior criminal record
    for other crimes of violence, his several arrests for assault, robbery,
    and armed robbery, his admissions of involvement in an attempted
    murder in Boston, his drug dealing, and general reports of his antiso-
    cial personality and excitability). We therefore reject this claim, as
    well.
    In his next claim, Dubois argues that, under Virginia law, he is
    entitled to proportionality review, that the Virginia Supreme Court's
    failure to perform "meaningful" proportionality review deprived him
    17
    of this statutory right in violation of the Due Process Clause, and that
    proportionality review is otherwise constitutionally required in his
    case (Claim XV). First, and as discussed above, this claim is proce-
    durally defaulted. Second, Dubois cites to no Supreme Court case that
    there is a constitutional right to such proportionality review, and no
    case that "meaningful proportionality review" is the type of state-
    created right whose deprivation violates due process. Cf. Pulley v.
    Harris, 
    465 U.S. 37
    , 42-51 (1984) (holding no constitutional right to
    proportionality review). Third, the Virginia Supreme Court in this
    case conducted a thorough and adequate proportionality review under
    its procedures, see Dubois, 
    246 Va. 267
    -68, and after reviewing
    Dubois' allegations we cannot conclude that the state deviated from
    its statutory duty to conduct proportionality review (if at all) so egre-
    giously as to violate Dubois' federal constitutional rights. We accord-
    ingly conclude that this claim is without merit.
    Finally, Dubois raises a number of claims of ineffective assistance
    of counsel. (Claims III, and IX(A)-(S)). Although in the district court
    below, Dubois raised twenty six different claims and sub-claims of
    ineffective assistance, on appeal Dubois has in effect only briefed one
    ineffective assistance claim -- a new claim which is different from
    the claims raised below. In this new claim, which is undoubtedly
    waived for the purposes of this appeal, Dubois contends that his trial
    counsel incorrectly advised him that under the terms of the plea
    agreement he would be ineligible to receive the death penalty whereas
    in actuality the trial court was free to impose the death penalty under
    the agreement. Even if this contention were not waived, Dubois has
    not carried his burden of proving the elements of this claim because
    all of the record evidence to which Dubois cites-- particularly the
    letters from attorneys to Dubois -- unequivocally establishes that
    Dubois' counsel only advised Dubois that under the plea agreement
    the Commonwealth would not seek the death penalty in exchange for
    Dubois' cooperation, not that Dubois would be immune from receiv-
    ing the death penalty. J.A. 33, 34, 40, 41. This understanding of the
    plea agreement is further confirmed by Dubois' statements at his
    arraignment where he acknowledged that the trial court was free to
    impose the death penalty notwithstanding the plea agreement. Fur-
    thermore, Dubois' contention that his attorneys falsely informed him
    that under Virginia law he would be ineligible for the death penalty
    under the plea agreement is inconsistent with his other contentions
    18
    that the trial court violated Virginia law by sentencing Dubois to
    death notwithstanding the plea. Therefore, Dubois has not proven the
    necessary predicate for this certainly-waived claim; Dubois has not
    proven that his trial counsel advised him that he would be legally
    immune from the death penalty under the terms of his negotiated plea
    agreement.4
    Dubois does not brief any of his remaining twenty five ineffective
    assistance claims other than to provide a conclusory laundry list of the
    titles of each of these claims and to assert that he is therefore entitled
    to relief. See Appellant's Br. at 35-39. As discussed supra, several of
    these claims are procedurally defaulted and not cognizable on federal
    habeas review. We seriously doubt that Dubois has even properly
    presented the remaining claims to this court given the superficiality
    with which they have been treated and briefed by habeas counsel.
    However, even assuming (counterfactually) that Dubois has properly
    raised these claims of ineffective assistance of counsel that have been
    rejected on the merits by the Virginia Supreme Court, we are unable
    to conclude, after our review of the briefs, the record, the submissions
    below, and after having had the benefit of oral argument, that the Vir-
    ginia Supreme Court's rejection of any of these claims -- either indi-
    vidually or collectively -- was contrary to or an unreasonable
    application of the very stringent standards established by the Supreme
    Court in Strickland v. Washington, 
    466 U.S. 668
     (1984), Hill v.
    Lockhart, 
    474 U.S. 52
     (1985), Evitts v. Lucey, 
    469 U.S. 387
     (1985).
    Dubois has therefore failed to make a "substantial showing of the
    _________________________________________________________________
    4 To the extent that Dubois may argue that his trial counsel correctly
    advised him of the legal consequences of the plea agreement but were
    nonetheless ineffective for advising him to accept the plea, we cannot
    conclude that an attorney's recommendation that his client accept such
    an agreement falls below the range of objectively competent legal advice
    under Strickland. For, even though the agreement did not guarantee that
    Dubois would avoid the death penalty, it nevertheless prevented the
    Commonwealth from arguing in favor of death, and the agreement
    would naturally reduce the chances of someone in Dubois' position
    receiving the death penalty. Dubois' trial counsel therefore acted within
    the range of professionally and constitutionally conduct as defined by the
    Supreme Court in Strickland and related cases.
    19
    denial of a constitutional right," 28 U.S.C.§ 2253(c)(2), and accord-
    ingly we deny Dubois' application for a certificate of appealability
    and dismiss this appeal.
    DISMISSED
    20