Va. man who killed two is executed

By Dena Potter - PilotOnline.com

Associated Press - May 21, 2010

JARRATT - A Virginia inmate was executed Thursday for killing two men in front of their families in separate shootings. Darick Demorris Walker, 37, died by injection at 9:24 p.m. at Greensville Correctional Center for the shooting deaths of Stanley Beale in 1996 and Clarence Elwood Threat in 1997. Virginia law allows the death penalty for anyone who commits two premeditated murders within three years.

When asked for his last words, Walker referred to the extra time it took to insert one of the two intravenous lines in his arms: "Last words being: I don't think y'all done this right, took y'all too long to hook it up. You can print that. That's it." Corrections spokesman Larry Traylor acknowledged that prison officials had difficulty getting one of the IVs started, but said there were no other problems. There were no visible problems with the injection. Once the drugs started, he took about four deep breaths and then some shorter breaths before being declared dead about four minutes later.

The U.S. Supreme Court waited until about two hours before the execution to refuse to take up Walker's two appeals. Gov. Bob McDonnell refused to block the execution days earlier. Walker's attorneys claimed he was mentally unfit for capital punishment and that prosecutors withheld evidence casting doubt on eyewitness testimony at his trial.

Witnesses testified that Walker kicked in the door to the apartment where Beale lived with his three children and their mother on Nov. 22, 1996, pointed a gun at him and asked why Beale kept coming to his house looking for him. Beale told Walker he didn't know him and Walker shot him three times.

In the other shooting on June 18, 1997, Threat and his girlfriend, Andrea Noble, were sleeping in their bedroom when Walker kicked open the door and shot Threat seven times as Noble's children screamed and cried in their bedrooms.

In each case, the victims knew Walker by a different name. Beale's 13-year-old daughter, Bianca Taylor, testified that she knew Walker from their Richmond neighborhood as "Todd." She said she saw him bust in and shoot her father before her mother ushered her into a bathroom to hide. Noble told police she knew Walker as "Paul," and that she recently had turned down a date invitation from him. At trial, another woman testified that Walker robbed her, but she knew him as "Ty."

Reached by phone, Noble refused to comment. Working numbers for Beale's family could not be located. None of the victims' family members witnessed the execution, said Traylor.

Walker met with members of his immediate family Thursday, Traylor said. Condemned inmates' families are not allowed to witness executions.

Walker was the 107th inmate put to death in Virginia since the U.S. Supreme Court reinstated capital punishment in 1976. Only Texas has executed more prisoners.

Virginia executes inmate who killed 2 men

By Dena Potter - The Washington Post

Associated Press - May 20, 2010

JARRATT, Va. -- A Virginia inmate who killed two Richmond men in separate shootings has been executed. Thirty-seven-year-old Darick Demorris Walker died by injection at 9:24 p.m. Thursday at Greensville Correctional Center in Jarratt.

Walker was convicted of killing Stanley Beale in 1996 and Clarence Elwood Threat in 1997. Virginia law allows the death penalty for anyone who commits two premeditated murders within three years.

The U.S. Supreme Court refused to block Walker's execution Thursday, days after Gov. Bob McDonnell said he found no compelling reason to commute the sentence to life.

Walker was the 107th inmate put to death in Virginia since the U.S. Supreme Court reinstated capital punishment in 1976. Only Texas has executed more prisoners.

Virginia executes double-murderer

By Dave Gibson - Examiner.com

May 20, 2010

Convicted double-murderer Darick Demorris Walker, 37, was put to death tonight by lethal injection at the Greensville Correctional Center in Jarratt, Va. The time of death was 9:24 p.m. Earlier tonight, the U.S. Supreme Court rejected Walker’s request for a stay of execution, which removed any hope he had of escaping his sentence. Last week, Gov. Bob McDonnell rejected Walker’s plea for clemency.

Walker was convicted of two separate murders in Richmond, the last of which occurred 13 years ago. According to trial records, on Nov. 22, 1996, Walker broke into the apartment of Stanley Beale, pointed a gun at him and asked: “What you keep coming up to my door? What you looking for me for?” Beale told Walker he did not know him, Walker then shot Beale to death in front of his 13-year-old daughter.

The other murder occurred on June 18, 1997, when Walker forced his way into the home of Clarence Elwood Threat, after the man’s girlfriend turned Walker down for a date. Walker shot Threat seven times.

Throughout his lengthy appeals process, Walker made various claims including that he was mentally disabled.

The execution was Virginia's 107th since the 1976 U.S. Supreme Court decision allowing the resumption of the death penalty. Only Texas has carried out more executions with 451. In Virginia, the condemned are given the choice of death either by lethal injection or the electric chair. On March 18, convicted murderer, rapist Paul Warner Powell chose the electric chair, making him only the third to do so since the Commonwealth began using lethal injection as a means of execution in 1994.

Darick Demorris Walker, 37, was convicted of killing Stanley Beale in 1996 and Clarence Elwood Threat in 1997. Virginia law allows the death penalty for anyone who commits two premeditated murders within three years.

Catherine Taylor and her children, Monique, Bianca, and Sidney, lived in the University Terrace Apartments with Stanley Beale, the children's father. On the evening of November 22, 1996, Catherine heard "a boom like noise" in the living room. She left the bedroom where she had been with Sidney, an infant, and as she entered the living room, she saw a man kick in the locked front door. Taylor later identified the man as Darick Walker. Walker was holding a gun yelling, "Where is he?" Walker continued yelling, asking Stanley "what you keep coming up to my door, what you looking for me for?" Stanley, who was standing in the doorway to the kitchen, answered that he did not know Walker and did not know where Walker lived. Bianca, who was 13 years old at the time, shouted at Walker that her father did not know him. Walker began shooting at Stanley as Catherine ushered Bianca and Monique into the bathroom to hide in the bathtub. Walker shot Stanley three times, killing him. Bianca testified that she knew Walker as "Todd" and subsequently identified Walker in a photo line-up as the person who killed her father. A fourteen-year-old girl who was visiting a friend who lived in the University Terrace Apartments testified that on the night of Stanley Beale's murder, she saw a man she knew as "Todd" enter her friend's apartment and say "I shot him." When shown a photo spread, the girl identified Walker as the person who had entered the apartment.

On the night of June 18, 1997, Andrea Noble and Clarence Threat were sleeping in their bedroom when they were awakened by a "pop" coming from the screen door, followed by a knock at the door. Andrea went to the door and looked outside through a small window in the door, but did not see anyone. On two subsequent occasions she again heard a knock and went to the door, but did not see anyone. Sometime after the third knock, the door was "kicked open." Andrea went to the living room and saw a person she knew as "Paul" standing with a gun. "Paul" pointed the gun at her as she backed into the bedroom. When they reached the bedroom, "Paul" hit Ahdrea with the back of the gun and then shot Clarence Threat in the leg. In the bedroom, "Paul" and Clarence exchanged words and "Paul" shot him again. Clarence sustained a total of seven gunshot wounds. He died as a result of a gunshot wound to the chest. The shooter told Andrea that if she told anyone "he would come back and kill me and my kids."

At trial, Andrea Noble identified Walker as the person she knew as "Paul." During the punishment phase of the trial, prosecutors introduced Walker's prior convictions for carnal knowledge, forgery, assault, and unauthorized use of a motor vehicle. The evidence also showed that Walker regularly stole from friends and acquaintances and, in a rage, had punched a pregnant woman in the stomach. In addition, as the trial court noted in imposing sentence in accordance with the jury's recommendation, the commission of two brutal, unprovoked murders within a six month period is a "strong indication . . . that he is prone towards violence."

Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (Va. 1999) (Direct Appeal).

Defendant was convicted in the Circuit Court, City of Richmond, James B. Wilkinson, J., of willful, deliberate, and premeditated killing of more than one person within three-year period. Death sentence was imposed. Defendant appealed. The Supreme Court, Lacy, J., held that: (1) death penalty statutes are constitutional; (2) request for bill of particulars was properly denied; (3) evidence of unadjudicated criminal acts was properly admitted to demonstrate defendant's future dangerousness; (4) photographs of crime scene and autopsy were admissible; (5) evidence supported finding of three aggravating circumstances; and (6) death penalty was neither excessive nor disproportionate. Affirmed.

LACY, Justice.

Darick Demorris Walker was indicted for the capital murder of Stanley Roger Beale and Clarence Threat within a three-year period, Code § 18.2-31(8), for four counts of the use of a firearm in the commission of a felony, Code § 18.2-53.1, and for two counts of burglary, Code § 18.2-90. He was convicted of all offenses by a jury. After hearing evidence on the issue of punishment, the jury fixed the punishment for the capital offense at death based upon the vileness and future dangerousness predicates, life imprisonment on each of the burglaries, and a total of 18 years imprisonment for the firearms offenses. The trial court, after considering the sentencing report of a probation officer, sentenced Walker in accord with the jury verdicts. Walker appealed his capital murder conviction, Record No. 990096. We have certified Walker's appeal of his non-capital murder convictions from the Court of Appeals, Record No. 990097, and have consolidated the two appeals.

I. Evidence

Applying familiar principles, we recite the facts in the light most favorable to the Commonwealth, the party prevailing below. See Horton v. Commonwealth, 255 Va. 606, 609, 499 S.E.2d 258, 259 (1998).

A. Stanley Beale

Catherine Taylor and her children, Monique, Bianca, and Sidney, lived in the University Terrace Apartments with Stanley Beale, the children's father. On the evening of November 22, 1996, Taylor heard “a boom like noise” in the living room. Taylor left the bedroom where she had been with Sidney, an infant, and as she entered the living room, she saw a man kick in the locked front door. Taylor later identified the man as Walker. Walker was holding a gun yelling, “Where is he?” Walker continued yelling, asking Beale “what you keep coming up to my door, what you looking for me for?” Beale, who was standing in the doorway to the kitchen, answered that he did not know Walker and did not know where Walker lived. Bianca, who was 13 years old at the time, shouted at Walker that her father did not know him. Walker began shooting at Beale as Taylor ushered Bianca and Monique into the bathroom to hide in the bathtub. Walker shot Beale three times, killing him.

Bianca testified that she knew Walker as “Todd” and subsequently identified Walker in a photo line-up as the person who killed her father. Tameria Patterson, a fourteen-year-old girl who was visiting a friend who lived in the University Terrace Apartments, testified that on the night of the murder, she saw a man she knew as “Todd” enter her friend's apartment and say “I shot him.” When shown a photo spread, Tameria identified Walker as the person who had entered the apartment.

B. Clarence Threat

On the night of June 18, 1997, Andrea Noble and Clarence Threat were sleeping in their bedroom when they were awakened by a “pop” coming from the screen door, followed by a knock at the door. Noble went to the door and looked outside through a small window in the door, but did not see anyone. On two subsequent occasions she again heard a knock and went to the door, but did not see anyone. Sometime after the third knock, the door was “kicked open.” Noble went to the living room and saw a person she knew as “Paul” standing with a gun. “Paul” pointed the gun at Noble as she backed into the bedroom. When they reached the bedroom, “Paul” hit Noble with the back of the gun and then shot Threat in the leg. In the bedroom, “Paul” and Threat exchanged words and “Paul” shot Threat again. Threat sustained a total of seven gunshot wounds. He died as a result of a gunshot wound to the chest. The shooter told Noble that if she told anyone “he would come back and kill [her] and [her] kids.” At trial, Noble identified Walker as the person she knew as “Paul.”

II. Constitutionality of Virginia's Death Penalty Statutes

In his first assignment of error, Walker asserts that Virginia's death penalty statutes, Code §§ 19.2-264.2 to -264.5, and 17.1-313, are unconstitutional. Specifically, he argues that the aggravating factors which the jury must consider to impose the death penalty are unconstitutionally vague, and that the failure to provide jury instructions regarding the meaning of those terms or to properly inform and instruct the jury on the consideration of mitigation evidence violates the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 11 of Article I of the Virginia Constitution. We have previously considered and rejected these contentions, and Walker presents no basis for altering our prior decisions. See M. Smith v. Commonwealth, 219 Va. 455, 476-77, 248 S.E.2d 135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979)(rejecting contention that “vileness” and “future dangerousness” predicates for imposition of the death penalty unconstitutionally fail to guide the jury's discretion); Watkins v. Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)(Constitution requires only that jury be instructed to consider mitigating evidence.)

Walker also asserts that the death penalty statutes are unconstitutional because they do not require the trial court to set aside a sentence of death upon a showing of good cause, they allow the trial court to consider hearsay evidence in the post-hearing sentence report, and the review conducted by this Court is inconsistent with the requirements of the Eighth Amendment. These assertions have previously been rejected in Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994); O'Dell v. Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); R. Smith v. Commonwealth, 239 Va. 243, 253, 389 S.E.2d 871, 876, cert. denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990), respectively, and Walker fails to advance any reason to depart from these decisions.

III. Request for a Bill of Particulars

Walker next assigns error to the trial court's denial of his request for a bill of particulars. He contends that the information he requested was necessary to ensure his Sixth Amendment right to effective assistance of counsel, and that the lack of such information undermines the “greater degree of reliability” that due process requires in death penalty cases.

In his request for a bill of particulars, Walker sought identification of the grounds for the capital murder charge and the evidence upon which the Commonwealth would rely to prove the charge. He further requested the Commonwealth to identify and provide a “narrowing construction” of the aggravating factors upon which it intended to rely in seeking the death penalty as well as the evidence it intended to use in support of the aggravating factors.

The Commonwealth responded to Walker's request by reciting the grounds upon which it believed Walker was guilty of capital murder. The Commonwealth further stated that, if Walker was convicted of capital murder, it would seek the death penalty based on the aggravating factors of “vileness” and “future dangerousness.” The Commonwealth stated that, to prove “vileness,” it would rely on the depravity of mind and aggravated battery components provided in Code § 19.2-264(C). Finally, the Commonwealth informed Walker that in proving “future dangerousness,” it would rely on Walker's adult and juvenile criminal record, the circumstances of the commission of the current offenses, Walker's lack of remorse, and evidence of other crimes whether adjudicated or unadjudicated.

The information requested by Walker is virtually identical to that requested by the defendant in Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991). In Strickler, we held that where the indictment is sufficient, i.e., gives the accused “notice of the nature and character of the offense charged so he can make his defense,” a bill of particulars is not required. Id. at 490, 404 S.E.2d at 233 (quoting Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976)).

Here, there is no challenge to the sufficiency of the indictment. As in Strickler, those parts of Walker's request for a bill of particulars seeking disclosure of the evidence upon which the Commonwealth intended to rely in the guilt and sentencing phases of the trial “are sweeping demands for pretrial disclosure of all the Commonwealth's evidence.” 241 Va. at 490, 404 S.E.2d at 233.

However, “[t]here is no general constitutional right to discovery in a criminal case, even where a capital offense is charged.” Id. at 490-91, 404 S.E.2d at 233. Walker, like the defendant in Strickler, received all the information to which he was entitled. Furthermore, whether to require the Commonwealth to file a bill of particulars is a matter that falls within the sound discretion of the trial court, Goins v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996), and Walker has not demonstrated an abuse of that discretion. Accordingly, we conclude that the trial court did not err in denying Walker's request for a bill of particulars in this case.

IV. Motion for Discovery and Inspection

Walker assigns error to the trial court's denial of his motion for discovery and inspection. He admits that the Commonwealth provided him with all discovery and inspection to which he was entitled under state statutes and Rules of Court, and he does not assert that the Commonwealth improperly withheld any exculpatory information. Instead, Walker argues that the trial court erroneously refused to extend the Commonwealth's duty to disclose exculpatory evidence imposed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and to require the Commonwealth to disclose “all evidence, information and all other materials which the Commonwealth intended to offer to establish the guilt of the appellant....” Walker argues that such extension is required to ensure the defendant's right to effective assistance of counsel and to meet the due process requirement of reliability in the determination that the death penalty is the appropriate punishment. We disagree.

Neither the holding in Brady nor principles of due process impose any requirement on the Commonwealth to provide the information sought by Walker beyond that which is exculpatory. United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see Spencer v. Commonwealth, 238 Va. 295, 303, 384 S.E.2d 785, 791 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). We do not find anything in Walker's arguments to warrant the extension of the holding in Brady he suggests. Because the Commonwealth provided Walker all the discovery to which he was entitled, we find no error in the denial of his motion for discovery and inspection.

V. Additional Peremptory Challenges

Walker asserts that a defendant is entitled to additional peremptory challenges to “ensure rights guaranteed by the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States,” and suggests that because a number of states and federal courts have allowed additional peremptory strikes the trial court erred in denying his request for additional strikes.

However, a criminal defendant has no constitutional right to peremptory challenges. Mu'Min v. Virginia, 500 U.S. 415, 424-25, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). And, as we have said on numerous previous occasions, there is no provision in Virginia law for granting such additional peremptory strikes. Strickler, 241 Va. at 489, 404 S.E.2d at 232; Spencer v. Commonwealth, 240 Va. 78, 84-85, 393 S.E.2d 609, 613, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990); see Code § 19.2-262. Walker has presented no reason for us to alter our previous rulings.

VI. Evidence of Unadjudicated Criminal Behavior

On August 10, 17, and 18, 1998, pursuant to Code § 19.2-265.3:2, the Commonwealth filed notices of its intent to present evidence of unadjudicated criminal conduct of the defendant at the sentencing phase of the trial. Walker asserts that admission of this evidence was error on three primary grounds: (1) without a positive connection of the evidence to the defendant by some standard of proof, the evidence does not meet the test of relevancy; (2) due process requires proof of unadjudicated prior criminal acts beyond a reasonable doubt when such conduct is relied upon to expose the defendant to greater or additional punishment; and (3) the use of unadjudicated criminal acts evidence denies the defendant his due process rights to notice and a meaningful opportunity to be heard on evidence used against him which also results in denial of the defendant's Sixth Amendment right to effective assistance of counsel. We reject all three of these arguments for the reasons discussed below.

First, we have previously held that evidence of prior violent criminal conduct, whether or not adjudicated, is relevant to the determination of a defendant's future dangerousness because it has a tendency to show that the accused would commit criminal acts of violence in the future. Pruett v. Commonwealth, 232 Va. 266, 284-85, 351 S.E.2d 1, 11-12 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987). Whether the evidence produced establishes the ultimate fact at issue must, of course, be tested by some standard of proof. Here, the ultimate issue of fact was Walker's “future dangerousness,” which the Commonwealth was required to prove beyond a reasonable doubt. Walker cites no authority for the proposition that each piece of evidence offered to prove the ultimate issue of fact must itself also be tested by some standard of proof. Rather, that evidence is tested by the credibility or weight the fact finder chooses to give it. See Gray v. Commonwealth, 233 Va. 313, 346-47, 356 S.E.2d 157, 175-76, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). Therefore, we reject Walker's assertion that the evidence of unadjudicated criminal acts did not meet the test of relevancy because that evidence was not established by any standard of proof.

Next Walker relies on and quotes from McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), for the proposition that evidence of unadjudicated criminal conduct is subject to the reasonable doubt standard of evidence in the sentencing phase of a capital murder trial because it “expose [s]” the defendant to greater punishment and presents a “radically different situation from the usual sentencing procedures.”

The Supreme Court in McMillan considered whether due process was offended by a statute which raised the minimum sentence if the trial court in the sentencing phase found that a defendant had “visibly possessed a firearm” in the commission of the charged offense. The trial court's finding did not have to be beyond a reasonable doubt. The defendant in that case argued that the evidentiary standard of beyond a reasonable doubt was required because visible possession of a firearm was, in effect, an element of the offense. He argued further that even if it was not an element of the offense, due process required application of the reasonable doubt standard because a finding of visible possession subjected the defendant to a greater penalty. The Supreme Court disagreed, concluding that visible possession of a firearm was not an element of the offense charged, and that the trial court's finding did not subject the defendant to a greater penalty but only raised the minimum sentence. Id. at 95, 106 S.Ct. 2411.

In the course of its discussion, the Court observed that, had the trial court's finding of visible possession of a firearm exposed the defendant to “greater or additional punishment,” the argument that the finding was an element of the crime subject to the reasonable doubt standard of proof “would have at least more superficial appeal.” Id. at 88, 106 S.Ct. 2411. The Court also observed that if the sentencing proceeding was “radically different,” the reasonable doubt standard may be applied to post-trial findings. Id. at 89, 106 S.Ct. 2411.

Contrary to Walker's assertion, these comments do not impose a due process requirement that the Commonwealth prove beyond a reasonable doubt that the defendant engaged in the unadjudicated criminal conduct offered as evidence in the sentencing phase of a capital murder trial. These comments merely suggest that such a burden of proof may be required for a factual finding that exposes the defendant to greater punishment when such finding is made in a sentencing proceeding that is “radically different” from the normal sentencing proceeding. Even if this suggestion were the rule, the Virginia death penalty sentencing statute satisfies that rule. The “finding” that exposes the defendant to the death penalty is that of future dangerousness, or alternatively, vileness, which by statute must be supported by proof beyond a reasonable doubt. See Code § 19.2-264.4(C). Furthermore, in McMillan, the Supreme Court specifically cited its holding in Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), for the proposition that the state need not prove beyond a reasonable doubt every fact it recognizes as a circumstance affecting the severity of punishment. McMillan, 477 U.S. at 84, 106 S.Ct. 2411. Therefore, we reject Walker's assertion that due process requires that evidence of unadjudicated criminal conduct admitted to show the defendant's future dangerousness is subject to the reasonable doubt standard.

Finally, Walker asserts that the use of the unadjudicated criminal conduct evidence denies him a meaningful opportunity to be heard on the evidence used against him, thus denying him effective assistance of counsel. Walker had notice of the evidence the Commonwealth intended to introduce and the opportunity to cross-examine the witnesses offering this evidence. He does not claim such notice was inadequate nor does he contend that his counsel's performance was inadequate.

Rather Walker argues, on a more general level, that “counsel defending against prior unadjudicated criminal conduct [evidence] is beyond the resources and realm of effective representation in defending a single capital crime.” By this argument Walker seeks to raise a Sixth Amendment claim without inquiry into counsel's actual performance at trial. Whether or not such a claim might be sufficient in limited circumstances, it cannot prevail in this case.

The United States Supreme Court has found constitutional error without inquiring into counsel's actual performance only when surrounding circumstances justify a presumption of ineffectiveness. United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). For example, where counsel was totally absent, was prevented from assisting the accused during a critical stage of the proceeding, or was prevented from exercising independent judgment in the manner of conducting the defense, the Supreme Court has presumed that counsel was ineffective and that the defendant was thus prejudiced. See id. at 659 n. 25, 104 S.Ct. 2039; Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)(attorney barred by law from consulting with client during overnight recess); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975)(attorney barred by law from giving summation at bench trial); Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972)(requirement that defendant be first defense witness); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)(counsel for defendant charged with capital offense appointed on day of trial).

The admission of evidence of unadjudicated criminal conduct, unlike the cases cited above, does not present circumstances justifying a presumption of ineffective assistance of counsel. After having obtained a guilty verdict, the Commonwealth was burdened by statute with the responsibility of proving beyond a reasonable doubt either future dangerousness or vileness before the death penalty could be imposed. As discussed above, the unadjudicated criminal conduct was relevant to Walker's future dangerousness, Walker had notice that such evidence would be used, and he had the opportunity to cross-examine the witnesses through whom the Commonwealth offered this evidence.

Accordingly, we find that admission of this evidence did not violate Walker's due process or Sixth Amendment rights to effective assistance of counsel and a meaningful opportunity to defend himself.

VII. Admission of Evidence of Cartridge

During the guilt phase, Detective Curtis R. Mullins testified that he received a cartridge from Steve Martin, who was the property manager of the University Terrace Apartments where the Beale murder occurred. Walker lived in an apartment there with Karen Beech until some time after Beale's death. Martin found the cartridge in the apartment following Walker and Beech's departure and prior to the arrival of a new tenant. A certificate of analysis introduced at trial indicated that the cartridge came from the same firearm as seven cartridge cases recovered at the scene of the Beale murder.

At trial, Walker sought to exclude evidence regarding the cartridge on the basis that it was found three to four months after the murder. Walker argues on appeal that the trial court erred in admitting Martin's testimony and the certificate of analysis into evidence because it was “neither relevant nor material, and its prejudicial effect far outweighed any possible probative value it may have had.” Walker bases his relevancy argument on his view that the trial court stated from the bench that the cartridge was not relevant. He concludes, therefore, that the trial court abused its discretion in admitting the cartridge into evidence.

Viewed in context, however, the trial court's statement reveals that what it found “irrelevant” was the effect of the time gap between the murder and Martin's discovery of the cartridge on the admissibility of the evidence concerning the cartridge. Every fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue, is factually relevant and admissible. Epperly v. Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982). The fact that a cartridge matching those in the Beale murder was found in an apartment once occupied by the defendant tends to implicate the defendant in that murder and is thus relevant. As the trial court indicated, the four-month time period between the murder and discovery of the cartridge may affect the weight to be attached to the evidence, but it does not render the cartridge irrelevant and thus inadmissible.

Evidence that is factually relevant must nevertheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). The responsibility for balancing the competing considerations of probative value and prejudice rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of a clear abuse. Spencer, 240 Va. at 90, 393 S.E.2d at 617. Walker does not identify any prejudice that arose from the admission of the cartridge other than its tendency to show that Walker killed Beale. Accordingly, we find that the trial court did not err by admitting evidence related to the cartridge into evidence.

VIII. Admission of Photographs

During both the guilt and sentencing phases of the proceeding, the Commonwealth introduced photographs of the crime scenes and autopsy photographs of Threat. Walker asserts that the photographs were “a calculated attempt to arouse the jurors's sympathies” and that because they were not “substantially necessary” to the Commonwealth's case, the trial court erred in admitting them into evidence. We disagree.

Admission of photographs is within the discretion of the trial court. Walton v. Commonwealth, 256 Va. 85, 91, 501 S.E.2d 134, 138 (1998). Photographs of crime scenes are admissible to show motive, intent, method, malice, premeditation, and atrociousness of the crime. Id. at 92, 501 S.E.2d at 138. Photographs which accurately depict the crime scene are not rendered inadmissible simply because they are gruesome or shocking. Id. There is no assertion that the photographs here were not accurate representations of the murder scenes.

The Commonwealth offered the crime scene photographs to show the positioning of Beale's body and other incidents of his murder and to show where items of evidence were found at the Threat murder scene. Such photographs are relevant and probative evidence for the jury to consider. Clagett v. Commonwealth, 252 Va. 79, 87, 472 S.E.2d 263, 268 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997); Goins, 251 Va. at 459, 470 S.E.2d at 126. The autopsy photographs, introduced at the penalty phase of the proceeding, showed the “stippling” near Threat's wounds, indicating the close range at which Walker shot Threat, and were relevant on the issue of whether Walker's conduct was outrageously vile. Washington v. Commonwealth, 228 Va. 535, 551, 323 S.E.2d 577, 588 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985).

As discussed above, evidence that is logically relevant must be excluded if its probative value is substantially outweighed by its prejudicial effect. Coe, 231 Va. at 87, 340 S.E.2d at 823. This balancing is left to the sound discretion of the trial court and will not be disturbed on appeal absent clear abuse of discretion. Id. We have examined the photographs and conclude that the trial court did not abuse its discretion in admitting them into evidence.

IX. Toxicologist Evidence

Walker assigns error to the trial court's refusal to admit into evidence the testimony and reports of a toxicologist who found the presence of drugs in the systems of both victims. Walker asserts that this evidence was relevant because it “would be circumstantial evidence ... of a possible alternative motive for the killing by someone else.” We disagree.

Only evidence which bears upon and is pertinent to matters in issue is relevant and should be admitted. Coe, 231 Va. at 87, 340 S.E.2d at 823. Evidence of collateral facts and facts incapable of supporting an inference on the issue are irrelevant and cannot be accepted into evidence. Id. There is nothing in this record which supports Walker's theory that the murders were drug-related, and evidence of the presence of drugs in the victims' systems simply does not support the inference that someone other than Walker committed the crimes. Accordingly, the trial court did not abuse its discretion in refusing to admit this evidence.

X. Testimony of Prison Conditions

During the penalty phase of the proceeding, Walker sought to introduce the testimony of Gary Bass, Chief of Operations for the Virginia Department of Corrections, regarding the conditions of prison life, specifically life without parole in a maximum security prison. Walker asserts that this evidence was relevant and properly admissible because it would mitigate against his receiving the death penalty, and therefore, the trial court erred in refusing to admit it. However, we have previously held that such testimony is not proper mitigating evidence. Cherrix v. Commonwealth, 257 Va. 292, 309-10, 513 S.E.2d 642, 653 (1999).

XI. Sufficiency of the Evidence

A. Guilt Phase

Walker asserts that the trial court should have sustained his motion to strike the Commonwealth's evidence made at the close of the Commonwealth's case-in-chief because the evidence was insufficient as a matter of law to convict Walker of the offenses charged. Walker argues that the “sole” evidence against him is the testimony of the eyewitnesses and that this testimony is “inherently incredible.” With regard to the Beale murder, Walker argues that the ages of Bianca and Tameria, thirteen and fourteen respectively, made their testimony “suspect.” Walker asserts that their credibility is further undermined by the testimony of Christopher Miller, a witness for the Commonwealth, who stated that the person he saw with a gun at the apartment complex on the night of the murder was not bald, in contradiction to the fact that Taylor had described the shooter as being bald. With regard to the murder of Threat, Walker claims that Noble's testimony should be discounted because she told the investigating officer both that she did not know the shooters and that one shooter was named “Paul.” Walker asserts that this inconsistency renders Noble's testimony inherently incredible.

Walker's argument is based entirely on the issue of witness credibility. The trier of fact is the sole judge of the credibility of the witnesses, Davis v. Commonwealth, 230 Va. 201, 206, 335 S.E.2d 375, 379 (1985), unless, as a matter of law, the testimony is inherently incredible, Rogers v. Commonwealth, 183 Va. 190, 201-02, 31 S.E.2d 576, 580 (1944). The jury in this case resolved the credibility issues regarding the testimony of Bianca, Tameria, and Noble against the position advanced by Walker. The ages of Bianca and Tameria and the conflict in testimony regarding whether the person seen was bald, while issues to be weighed by the fact finder, do not support a finding that the testimony is inherently incredible. Similarly, Noble's statements to the investigating officer did not render her testimony inherently incredible. Accordingly, we will not disturb the ruling of the trial court denying Walker's motion to strike the Commonwealth's evidence.

B. Evidence of Aggravating Factors

Walker asserts that the Commonwealth failed to carry the burden imposed upon it by Code § 19.2-264.4(C) to prove beyond a reasonable doubt that he would be a continuing threat to society, or that his conduct in committing the murders was outrageously vile, horrible, or inhuman, in that it involved depravity of mind or aggravated battery.

This argument is without merit. With regard to future dangerousness, the Commonwealth introduced Walker's prior convictions for carnal knowledge, forgery, assault, and unauthorized use of a motor vehicle. The evidence also showed that Walker regularly stole from friends and acquaintances and, in a rage, had punched a pregnant woman in the stomach. In addition, as the trial court noted in imposing sentence in accordance with the jury's recommendation, the commission of two brutal, unprovoked murders within a six month period is a “strong indication ... that [Walker] is prone towards violence.”

With regard to vileness, the Commonwealth's evidence supports two of the alternative factors which can support a finding of vileness - aggravated battery and depravity of mind. See Goins, 251 Va. at 468, 470 S.E.2d at 131 (proof of any one of these statutory components will support a finding of vileness). Aggravated battery is a battery which “qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” M. Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). In this case Beale was shot three times, and any one of the shots could have been fatal. Walker shot Threat seven times. These multiple gunshots establish aggravated battery. Goins, 251 Va. at 468, 470 S.E.2d at 131.

Walker's actions established depravity of mind, that is, a “degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.” M. Smith, 219 Va. at 478, 248 S.E.2d at 149. Walker shot his victims in front of their loved ones and family members, after having forcibly invaded the sanctity of their homes. The evidence showed that the killings were unprovoked, premeditated, and methodical. Walker showed no mercy toward his victims or their loved ones.

Based on this evidence, we conclude that the Commonwealth proved beyond a reasonable doubt that Walker would be a continuing serious threat to society and that his conduct in committing the murders was vile. Accordingly, the trial court did not err in refusing to strike the Commonwealth's evidence of the aggravating factors.

XII. Statutory Review

Code § 17.1-313(C) requires this Court to consider whether the sentence of death was imposed “under the influence of passion, prejudice or any other arbitrary factor,” and whether such sentence is excessive or disproportionate to penalties imposed in similar cases, “considering both the crime and the defendant.” Walker presents no arguments asserting that his sentence resulted from passion or prejudice, but relies on our statutorily mandated review of this issue. Our review of the record reveals nothing to suggest that the sentence of death resulted from passion, prejudice or arbitrariness. As we have said, the record supports the findings of guilt and of the aggravating factors, and there is nothing to suggest that Walker's sentence of death was imposed because of any arbitrary factor.

Walker also relies on the review we must undertake to determine whether the sentence imposed in this case is excessive or disproportionate to other sentences imposed by sentencing bodies in this Commonwealth for similar crimes. This is the first case we have considered in which the death penalty had been imposed for the willful, deliberate, and premeditated killing of more than one person within a three-year period. Code § 18.2-31(8).FN* The General Assembly classified this conduct as capital murder in 1996. Acts 1996, ch. 959. However, the lack of directly comparable crimes does not prevent our consideration of whether the sentence imposed in this case was disproportionate under the review mandated by Code § 17.1-313(C)(2). If it did, as we observed in Stewart v. Commonwealth, 245 Va. 222, 248, 427 S.E.2d 394, 410, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993), then “a death sentence could never be imposed where there are no previous cases similar to the one at bar.”

FN* The defendant in Walton v. Commonwealth, 256 Va. 85, 501 S.E.2d 134 (1998), was convicted of four charges of capital murder. One of those convictions was pursuant to Code § 18.2-31(8); however, the trial court dismissed the charge after sentencing on the other three convictions. After reviewing the incidents of this crime and the circumstances of this defendant, we conclude that the sentence of death was not disproportionate to other sentences imposed in this Commonwealth for similar crimes. There are a number of incidents of this capital murder which are comparable to the facts surrounding other cases in which the death penalty has been imposed.

First, Walker invaded the homes of both of his victims and shot them in front of family members or a loved one. Juries have imposed the death penalty for the murder of victims in their homes and in the presence of another family member. See Goins, 251 Va. 442, 470 S.E.2d 114; Burket v. Commonwealth, 248 Va. 596, 450 S.E.2d 124 (1994), cert. denied, 514 U.S. 1053, 115 S.Ct. 1433, 131 L.Ed.2d 314 (1995); Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 394; Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656, cert. denied, 506 U.S. 959, 113 S.Ct. 423, 121 L.Ed.2d 345 (1992). Second, as with Stewart, Goins and Burket above, the jury in this case found upon sufficient evidence that Walker's conduct in committing these murders was outrageously or wantonly vile, and that Walker posed a continuing serious threat to society. Third, the jury found upon sufficient evidence that Walker committed the willful, deliberate, premeditated killing of multiple persons. Juries have in the past, based on the predicate of future dangerousness and vileness, imposed the death sentence upon perpetrators of multiple homicides within a brief time period under Code § 18.2-31(7), which makes it a capital crime to murder more than one person in the same transaction. See Goins, 251 Va. 442, 470 S.E.2d 114; Burket, 248 Va. 596, 450 S.E.2d 124; Stewart, 245 Va. 222, 427 S.E.2d 394.

In the instant case, the separation of time between the murders arguably evidences an even greater disregard for human life. The second murder in this case did not occur because that victim was located proximately to the first, as in some single transaction murders. Here, Walker engaged in distinct complete acts of willful, deliberate, and premeditated murder. The serial nature of his criminal conduct is no less egregious because it was not performed as part of a single transaction.

Finally, the evidence Walker offered in mitigation during the sentencing phase, when compared to the evidence of his prior history and circumstances of this crime, does not distinguish him from defendants who have been sentenced to death in past cases.

Based upon this review, we find that the sentence of death in this case is neither excessive nor disproportionate to sentences imposed by sentencing bodies in this Commonwealth for similar crimes. Consequently, we hold that the trial court committed no reversible error and, based on our independent review of the record, conclude that the sentence of death was properly imposed. Thus, we will affirm the trial court's judgment concerning Walker's conviction and sentence for capital murder. We will also affirm the trial court's judgment concerning Walker's convictions and sentences for burglary and use of a firearm.

Walker v. Kelly, 593 F.3d 319 (4th Cir. 2010) (Habeas).

Background: Following affirmance of his conviction of capital murder, 258 Va. 54, 515 S.E.2d 565, and denial of postconviction relief, petitioner sought writ of habeas corpus. The United States District Court for the Eastern District of Virginia denied the petition. On appeal, the Court of Appeals granted petitioner's application to file successive petition. The District Court, Claude M. Hilton, Senior District Judge, dismissed the second petition, and the Court of Appeals, Luttig, Circuit Judge, 399 F.3d 315, vacated and remanded. On remand, the District Court, Hilton, Senior District Judge, denied the petition. Petitioner appealed.

Holding: The Court of Appeals, Shedd, Circuit Judge, held that district court did not clearly err in determining petitioner did not establish he was “mentally retarded” under Virginia law. Affirmed. Gregory, Circuit Judge, filed an opinion concurring in part and dissenting in part.

SHEDD, Circuit Judge:

In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment prohibits the execution of mentally retarded persons. Relying on Atkins, Virginia capital inmate Darick Demorris Walker filed a petition for federal habeas corpus relief seeking to prevent his execution. Finding that Walker failed to prove that he is mentally retarded under Virginia law,FN1 the district court denied the petition, and he now appeals. For the following reasons, we affirm the judgment of the district court.

FN1. “While Walker's claim ultimately derives from his rights under the Eighth Amendment, whether he is mentally retarded is governed by Virginia law.” Walker v. True, 399 F.3d 315, 319 (4th Cir.2005) ( “ Walker v. True II ”).

I

In 1998, the Commonwealth of Virginia convicted Walker of capital murder for the killings of two men within a three-year period. Walker was sentenced to death, and his conviction and capital sentence were affirmed. Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000). The underlying facts of his crimes, which are not pertinent to this appeal, are set forth in the state supreme court's opinion. See 515 S.E.2d at 568-69.

After unsuccessfully pursuing state post-conviction relief, Walker filed the first of two petitions for habeas corpus relief in the district court. The claims involved in Walker's first habeas petition are not before us in this appeal. See Walker v. Kelly, 589 F.3d 127 (4th Cir.2009) (affirming the denial of Walker's first habeas petition).

While Walker's first habeas petition was pending in the district court, the Supreme Court decided Atkins. Concluding that a national consensus had developed against the execution of the mentally retarded, the Court held that the Eighth Amendment bars their execution. In doing so, the Court noted: To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. Atkins, 536 U.S. at 317, 122 S.Ct. 2242. However, the Court “did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation will be so impaired as to fall” within the class of defendants ineligible for capital punishment. Bobby v. Bies, ---U.S. ----, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009) (internal punctuation omitted). Instead, the Court expressly left to the states the “ ‘task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)). “States ... have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation.” Schriro v. Smith, 546 U.S. 6, 7, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005).

The Virginia General Assembly responded to Atkins by enacting a statutory scheme to determine capital defendants' claims of mental retardation. Pertinent to this case, the General Assembly mandated that a capital defendant has the burden of proving mental retardation by a preponderance of the evidence, Va.Code § 19.2-264.3:1.1(C), and it defined the term “mentally retarded” as: [A] disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills. Va.Code § 19.2-264.3:1.1(A). For a capital defendant (such as Walker) who had completed his direct appeal and state habeas proceeding as of the effective date of the legislation, the General Assembly specified that “he shall not be entitled to file any further habeas petitions in the [Virginia] Supreme Court and his sole remedy shall lie in federal court.” Va.Code § 8.01-654.2.

Walker initially presented his Atkins claim in his appeal from the denial of his first federal habeas petition. Construing his Atkins claim in that appeal as a motion for authorization to file a successive habeas corpus petition, we granted Walker authorization. See Walker v. True, 67 Fed.Appx. 758, 770-71 (4th Cir.) (“ Walker v. True I ”), vacated on other grounds, 540 U.S. 1013, 124 S.Ct. 567, 157 L.Ed.2d 426 (2003). Walker then filed his second federal habeas petition (which is now before us), and the Commonwealth moved to dismiss that petition. The district court granted the Commonwealth's motion and entered judgment against Walker.

On appeal, we vacated the judgment, concluding that the district court erred by dismissing the petition without holding an evidentiary hearing; consequently, we remanded the case for an evidentiary hearing to address whether Walker is mentally retarded under Virginia law. See Walker v. True II, 399 F.3d at 327. However, although we ruled in Walker's favor concerning his right to have an evidentiary hearing, we rejected his contention that he was entitled to have a jury decide whether he is mentally retarded. As we explained: [T]he portion of the Virginia statute that refers to a jury determination does so in the context of the appropriate procedure at sentencing in state court. It does not bear on the appropriate federal procedure governing Walker's Eighth Amendment claim that is based, in part, upon Virginia's definition of mentally retarded. 399 F.3d at 324-25.

On remand, the district court held a multi-day evidentiary hearing without a jury, during which the parties introduced a substantial amount of evidence on the issue of Walker's mental retardation. This evidence included Walker's scores on various standardized tests; documentary evidence from school, prison, and medical records; and declarations from his family, acquaintances, and fellow inmates. The court also heard testimony from several witnesses, including designated experts who testified on the issue of Walker's mental retardation. Eventually, the court denied Walker's petition. This appeal followed.

II

In accordance with Virginia law, Walker presented his Atkins claim only in federal court; therefore, the standard of review mandated by AEDPA does not apply. See Walker v. True II, 399 F.3d at 319. Instead, we review the district court's legal conclusions de novo and its factual findings for clear error. Green v. Johnson, 515 F.3d 290, 301 (4th Cir.), cert. denied, --- U.S. ----, 128 S.Ct. 2999, ---L.Ed.2d ---- (2008). Because the determination of mental retardation involves a question of fact, Atkins v. Commonwealth, 272 Va. 144, 631 S.E.2d 93, 98 (2006), we review the district court's finding that Walker is not mentally retarded for clear error, Holladay v. Allen, 555 F.3d 1346, 1353 (11th Cir.2009). When we review factual findings under this standard,

Our scope of review is narrow; we do not exercise de novo review ... or substitute our version of the facts for that found by the district court. Instead, “[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Thus, facts found by the district court are conclusive on appeal “unless they are plainly wrong.” A factual finding by the district court may be reversed only if, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir.2006) (en banc) (citations omitted).

A.

To prevail on his Atkins claim under Virginia law, Walker must meet the comprehensive definition of the statutory term “mentally retarded.” Green, 515 F.3d at 298. Thus, he must prove by a preponderance of the evidence that he has a disability that originated before the age of 18, and that the disability is characterized by (1) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean (“the I.Q. prong”) and (2) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills (“the adaptive prong”). Although Walker devotes much of his appeal to the district court's analysis of the I.Q. prong, it is unnecessary for us to address those arguments because we conclude that the court did not clearly err in rejecting his claim on the adaptive prong. See Green, 515 F.3d at 301 (recognizing that the failure to prevail on the adaptive prong necessarily defeats an Atkins claim).

As noted, the adaptive prong focuses on whether a person can prove “significant limitations in adaptive behavior” and it measures such behavior by looking to the person's conceptual, social, and practical adaptive skills. Conceptual adaptive skills “involve skills pertaining to language, reading and writing, money concepts, and self-direction;” social adaptive skills “are measured by interpersonal skills and responsibility, self-esteem, gullibility and naivete, and ability to follow rules and obey laws;” and practical adaptive skills “involve activities relevant to daily living, occupational skills, and maintenance of a safe environment.” Green, 515 F.3d at 302.FN2 During the evidentiary hearing the parties presented a substantial amount of evidence pertaining to Walker's adaptive behavior. We now turn to a brief summary of that evidence. FN2. These definitions come from the American Association of Mental Retardation's standards for measuring adaptive skills. See Green, 515 F.3d at 302.

(1)

As evidence of his conceptual limitations, Walker pointed to his difficulties reading and writing. He presented evidence that “he never reads or looks at books or magazines,” J.A. 310, and he also claimed that he relies on other inmates to help him read, write, and fill out forms. Moreover, affidavits from family members note that Walker would ask others to read letters to him, and his brother's affidavit related a particularly telling moment: “When I was in Ninth grade and Darick was seventeen years old, I remember coming back from school to find Darick at home with a bunch of blank job applications. I had to fill them out for him.” J.A. 159.

Walker also pointed to his inability to handle money and his heavy reliance on others to get by in the world. His family members noted that, while growing up, Walker never knew what to do with money. Moreover, his fellow inmates claimed that he relies on them for help in maintaining his account with the prison commissary. His experts also observed that “[a]fter leaving home, Mr. Walker consistently relied on others to help him negotiate the basics of everyday life,” J.A. 378, and that even in prison he is dependent on others to “support and intercede on his behalf,” J.A. 313. There was also evidence that Walker relies on others for help in seeking medical attention.

Finally, Walker pointed to evidence of his lack of direction and inability to deal with unstructured time. He claimed that he lacks interest in any activities, other than watching television. During interviews with his experts, Walker could not state who the President of the United States was, had not heard of Hurricane Katrina (which had just recently occurred), and misstated his age as 32 when he had in fact turned 33 two months prior.

The Commonwealth took a different tack with respect to Walker's conceptual skills. While admitting that Walker possessed conceptual skills that are “below average,” the Commonwealth's expert, Dr. Hagan, opined that these limitations “did not significantly impair his capacity to adapt to the requirements of life including transportation, use of communication technology, planning, scheming, dealing with reasonably foreseeable contingencies, self advocacy, self-protective mechanisms, and selective portrayal of facts and circumstances.” J.A. 977. In support of this assertion, the Commonwealth and Dr. Hagan pointed to several events that purport to showcase Walker's conceptual skills.

In particular, the Commonwealth focused on Walker's extensive criminal history as evidencing his conceptual abilities. The Commonwealth referenced a fraudulent scheme concocted by Walker, whereby he arranged to sell a vehicle to an individual, told the individual that some money was needed to correct problems with the title, and absconded with the money. Dr. Hagan opined: This conduct clearly demonstrates Mr. Walker's capacity to develop a plan, consider various contingencies in connection with that plan, promote the plan to an unsuspecting person, and pull off the ruse by affecting [sic] his departure without being detected at least for the time being. He not only had to put the plan together, but also had to fool his victim into going along with the plan without arousing suspicion. This reflects considerable conceptual capabilities. J.A. 978.

Dr. Hagan also considered how Walker reacted when he was being investigated for an armed robbery and drew the following conclusions: Mr. Walker gave a statement to law enforcement on 3/2/93 (age 20) in connection with the Virginia Beach Armed Robbery charge. Mr. Walker had sufficient conceptual grasp of his situation to deny any involvement in or knowledge of the offense. This was designed to protect his liberty interest. After [a law enforcement official] advised Mr. Walker of additional information provided by a witness, Mr. Walker then made an adjustment in his story to deal with this contingency. This reflects a degree of executive functioning and conceptual reasoning in that Mr. Walker had entered the interview with one strategy in mind and then changed that strategy based on immediately unfolding circumstances. He then gave a written statement which, although marked by misspelling and grammatical error, reflected a linear thought process with no oddities or illogical reasoning. The statement, which if believed, would have furthered his liberty interest. J.A. 985. The Commonwealth also introduced court transcripts that contain examples of Walker testifying as to historical events and even correcting prosecutors as to the timeline of his various arrests.

In addition, the Commonwealth presented evidence of Walker's ability to read and write. For example, the Commonwealth provided several examples of Walker's writing ability, including prison forms and the written statement that he prepared in connection with an armed robbery charge. Dr. Hagan noted Walker's admission that he would use a fellow inmate to write letters, not because “I cannot find the words,” but because “it's easier for him to do it.” J.A. 979. Thus, according to Dr. Hagan, Walker's reason for having others write letters for him was less a matter of inability and more a matter of convenience.

(2)

In attempting to prove significant limitations in his social skills, Walker presented evidence that he is a loner who has always had difficulties maintaining appropriate relationships with his peers. In particular, Walker presented school records replete with observations of his social and behavioral difficulties. His records describe his behavior variously as “aberrant,” “inappropriate,” “disruptive,” and “deviant.” J.A. 607, 609, 613, 1073. One report from Walker's school years notes that he would “threaten[ ] smaller children and tease[ ] other students cruelly.” J.A. 607. Walker also presented evidence that this anti-social behavior continues to this day, in the form of affidavits from fellow inmates that he will flood his cell when he gets upset.

However, the Commonwealth presented its own evidence suggesting that Walker's deficits in social skills are not significant. First, although Walker's school records generally indicate his difficulties getting along with peers at school, other records from the same time period suggest that he was capable of developing and maintaining social relationships outside of the classroom. For example, his mother's responses to a 1987 Virginia Department of Education Social Behavior Checklist indicate that Walker had “plenty of friends” and got along well with adults. J.A. 1064. Among his favorite activities, his mother listed “sports, church activities and talking to adults.” J.A. 1067. Moreover, a 1983 psychiatric evaluation noted: There is no history of school avoidance or separation difficulties. Patient states that in classroom he is made fun of and called “retarded” by his classmates. He states that they get jealous when he makes 100's and they get C's and D's on their tests. He states that they will not let him play any games with them and so then goes to play with the sixth graders. He and his mother both report that he is able to get along with neighborhood children without problems. He and his mother both report that he is the “class-clown” and this may bring some attention to him in addition to his hyperactive type behavior in the classroom and might set him up to be the scape-goat. J.A. 1076-77. Further, some of Walker's school records indicate his ability to maintain appropriate social intercourse. Classroom reviews from 1987 note his “very appropriate classroom behavior” and his ability to “get[ ] along with his peers.” J.A. 1097.

Additionally, Dr. Hagan pointed to reports from prison officials of Walker's behavior as indicative of social skills. Prison officials reported that Walker never had difficulty communicating his needs and interests and was cordial and conversational. Prison mental health services screenings of Walker note that he was clean, cooperative, and capable of engaging in “extensive conversations about family [and] security complaints.” J.A. 1435. His behavior during these screenings was variously described as “polite” and “cooperative.” J.A. 1435, 1438, 1441, 1444. Moreover, Dr. Hagan noted Walker's ability to ingratiate himself to women and establish intimate relationships with them in a relatively short period of time as evidence of his social skills.

(3)

Walker presented evidence suggesting that he suffers from limitations in his practical adaptive skills. For example, he pointed to evidence that he is incapable of performing the basic tasks incidental to an independent life, such as renting an apartment, managing money, and paying bills. His mother's affidavit portrays him as a man who “just wouldn't have been able to read and understand a bill or a lease,” J.A. 156, and his brother averred that Walker “never knew how to handle money,” J.A. 159. The Commonwealth's expert agreed that there is no evidence that Walker ever had a bill in his name.

Walker also introduced evidence that he was unable to obtain a driver's license and was wholly dependent on others for transportation. His brother averred that Walker “never had a driver's license. I never saw him take a public bus. If Darick wanted to get somewhere, me or another relative would have to drive him.” J.A. 159. Another relative stated that Walker “had a tough time understanding easy directions. I used to work straight down the street from my apartment. I told Darick exactly how to get from one place to the other, but he couldn't find his way home even though it was right down the street.” J.A. 864. Finally, Walker put forth evidence that he has a very limited job history and was unable to maintain steady employment prior to his incarceration. According to one of his experts, Walker “did not have a regular job or even stable part-time employment.” J.A. 311. Walker's expert considered these facts important because “[a] critical adaptive behavior domain for adults is employment and self-support.” J.A. 310.

On the other hand, the Commonwealth presented a considerable amount of evidence illustrating Walker's practical skills. For example, the Commonwealth presented Walker's own testimony from his 1998 trial for armed robbery. That testimony included the following exchanges: Q: And when you were stopped by Officer Hamilton, you were coming out of 3404 Howard Road? A: Yes, I was, that's my apartment number. * * * The Court: Mr. Walker, how did you get from Richmond down to Chesapeake? Witness Derrick [sic] Walker: Well, sir, um, the person's car that I had, I returned the car, and that person wanted to know why did I want a ride to the Tidewater area. I explained to that person what I had did. I just didn't want to take the car and go to the Tidewater area and then have that person without a car, so she gave me a ride and dropped me off at my brother's house. J.A. at 1296, 1300. According to Dr. Hagan, these exchanges showcased Walker's ability to remember addresses, his ability to make his way from one place to another, and his ability to drive. Dr. Hagan also pointed to records from Walker's case file on his carnal knowledge conviction that relate instances of Walker driving a car, using a pager, and renting a hotel room.

In addition, Dr. Hagan testified as to his interviews with one of Walker's girlfriends, Kelly Walker White. Ms. White related that Walker shared an apartment with her for a period of time, during which Walker babysat her son, cared for the apartment, and cooked from scratch. During the evidentiary hearing, Dr. Hagan gave the following testimony: And it wasn't just that he took on these tasks, he did them effectively, he did them repeatedly, he did them consistently. She would come home from work, the child was clean, was dressed, was powdered, bathed and not with a whimper of discontent from the child, and dinner was ready. And she was very pleased to have his able assistance. J.A. 1876.

Moreover, Dr. Hagan noted that, with respect to Walker's employment history, there was no evidence that Walker was ever discharged from employment due to an inability to perform the duties of the job. In his report, Dr. Hagan observed: Although his experts declare that Mr. Walker was not able to secure and maintain a job, his own statement is that he found several jobs, but quit them at his own election, just as he quit Job Corps. He left because he did not have family support.... He said he left Long John Silver in Richmond after 7-8 months because he wanted to go home and help his mother who had an unconfirmed heart condition. This was voluntary unemployment. J.A. 1018. Dr. Hagan went on to explain that “[Walker's] elected lifestyle, including chronic involvement in criminal activities, did not lend itself to mainstream employment, but there was no indication of an actual inability in that regard.” J.A. 1019-20.

Finally, there is evidence in the record tending to show that Walker is able to adequately care for himself. For example, Walker washes his own clothing in prison in order to avoid skin irritation which he attributed to the soap used in the prison laundry. Dr. Hagan's report also relied on statements from prison officials that they had never observed hygiene problems with regard to Walker and that Walker had never had any trouble communicating his needs and concerns to prison officials.

B.

Ultimately, four experts testified that Walker's skills limitations are significant, basing their conclusions on school and medical records, clinical interviews, prior psychological evaluations, declarations from individuals familiar with Walker, and other records concerning his background, as well as the results of a standardized measure called the Adaptive Behavior Assessment System, second edition (“ABAS-II”). In contrast, the Commonwealth's expert, Dr. Hagan, testified that Walker does not suffer from significant limitations in his adaptive behavior. He based his conclusions on “[a] clinical interview with a collateral informant, review of interview summaries by trial defense investigators and mitigation specialist, in-person observation of Walker's interviews with three psychologists on two occasions, numerous reports of psychological testing including IQ scores as well as [a] review of educational, correctional and vocational records.” J.A. 976. In his report, Dr. Hagan also concluded that Walker's experts' reliance on the ABAS-II to determine Walker's adaptive behavior was not “sound practice.” J.A. 977.

Apparently crediting Dr. Hagan's testimony over Walker's experts' testimony, the district court concluded that Walker failed to meet his burden of showing significant limitations in his adaptive behavior:

Petitioner has failed to show by a preponderance of the evidence that he has “significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” See Va.Code Ann. § 19.2-264.3:1.1(A). While Petitioner has presented evidence that he suffers from below average mental intelligence, struggles to perform some basic activities, exhibits anti-social behavior, and obtains financial support from others, Petitioner has not shown by a preponderance of the evidence that he has significant limitations in adaptive behavior. Petitioner has committed various crimes requiring the ability to relate to others, associated himself with women on a personal and intimate level, engaged in homemaking activities, seduced under-aged girls, used others to help him avoid authorities, independently invoked his Miranda rights, used his brother's identity to obtain a driver's license, and obtained goods for himself while in prison. Therefore, while [P]etitioner has below average mental intelligence and some limitations in adaptive behavior, the Court finds that Petitioner has not shown by a preponderance of the evidence that he is mentally retarded as defined by Virginia law. J.A. 2370-71.FN3

FN3. That the district court set forth these factual findings under the heading “Conclusions of Law” is immaterial to our review. See Tri-Tron Int'l v. Velto, 525 F.2d 432, 435 (9th Cir.1975) (“The fact that the district court intermingled some of its findings of fact with its conclusions of law is of no significance. We look at a finding or a conclusion in its true light, regardless of the label that the district court may have placed on it.”).

In challenging these findings as being clearly erroneous, Walker argues that the district court's holding “could only result from a complete failure to consider his overwhelming proof, appropriately weigh it, and make specific findings to explain the basis for its ruling.” Brief for Appellant Darick Demorris Walker, at 16. He further contends that the court's “general findings ... lack evidentiary support and are consistent with the definition of mental retardation.” Id. We find no merit to these contentions.

As we have summarized above, the district court was presented with conflicting evidence concerning Walker's adaptive skills, and it had the opportunity to assess the various witnesses who testified. Unfortunately for Walker, the court was not persuaded by his evidentiary presentation, and it concluded that he failed to meet his burden of proving the necessary fact that he suffers from significant limitations in adaptive behavior.FN4 Although the court's finding in this regard may not be compelled by the evidence in the record, there is certainly evidence in the record to support it. Applying our limited standard of appellate review, we cannot conclude on the record presented that the court clearly erred. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ( “Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.”); see e.g., Green, 515 F.3d at 301-03 (affirming district court's finding that the petitioner failed to prove significant limitations in adaptive behavior under Virginia law notwithstanding conflicting evidence).FN5

FN4. To the extent that Walker challenges the adequacy of the district court's findings, we find no error. The district court listed the characteristics that it felt militate against finding that Walker met his burden. The court noted Walker's criminal history, his social relationships, his practical skills, and his ability to navigate the prison environment, among other evidence, as supporting its judgment. Moreover, the court heard from competing experts, and its decision suggests that it credited the testimony of the Commonwealth's expert over those of Walker.

FN5. We also are unpersuaded by Walker's contention that the judgment must be reversed because mentally retarded individuals are capable of exhibiting many of the skills that the district court relied on when it made its finding that he is not mentally retarded. As noted, Walker bore the burden of proving significant limitations in adaptive behavior, and he unsuccessfully attempted to meet that burden during the evidentiary hearing. As we view his argument, he now implicitly argues that the Commonwealth had some obligation to establish that he does not suffer from significant limitations in adaptive behavior. However, we rejected that view in Walker II. See 399 F.3d at 326 (“The state does not have a corollary duty to prove that a defendant is ‘not retarded....’ ”).

III

Walker also claims that he was entitled to a jury determination of his mental retardation and that the district court erred by failing to empanel a jury. Although we previously rejected this claim in Walker II, he contends that our prior decision is erroneous based on what he perceives to be an intervening change in the law. We disagree. Section 8.01-654.2 of the Virginia Code sets forth the framework for the resolution of Atkins claims filed by petitioners, like Walker, who were sentenced to death before April 29, 2003. It provides:

Notwithstanding any other provision of law, any person under sentence of death whose sentence became final in the circuit court before April 29, 2003, and who desires to have a claim of his mental retardation presented to the Supreme Court, shall do so by one of the following methods: (i) if the person has not commenced a direct appeal, he shall present his claim of mental retardation by assignment of error and in his brief in that appeal, or if his direct appeal is pending in the Supreme Court, he shall file a supplemental assignment of error and brief containing his claim of mental retardation, or (ii) if the person has not filed a petition for a writ of habeas corpus under subsection C of § 8.01-654, he shall present his claim of mental retardation in a petition for a writ of habeas corpus under such subsection, or if such a petition is pending in the Supreme Court, he shall file an amended petition containing his claim of mental retardation. A person proceeding under this section shall allege the factual basis for his claim of mental retardation. The Supreme Court shall consider a claim raised under this section and if it determines that the claim is not frivolous, it shall remand the claim to the circuit court for a determination of mental retardation; otherwise the Supreme Court shall dismiss the petition. The provisions of §§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a determination of mental retardation made pursuant to this section. If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.

If the person has completed both a direct appeal and a habeas corpus proceeding under subsection C of § 8.01-654, he shall not be entitled to file any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal court. Va.Code Ann. § 8.01-654.2.

We explained in Walker II that on its face “the Virginia statute does not provide for a jury for claims raised in federal court.” 399 F.3d at 324. We also held that § 19.2-264.3:1.1(C), which provides that “in any case in which the offense may be punishable by death and is tried before a jury, the issue of mental retardation ... shall be determined by the jury as part of the sentencing proceeding,” does not entitle Walker to a jury determination because that section's reference to a jury determination is “in the context of the appropriate procedure at sentencing in state court.” Id. at 324-25.

Walker now argues that a subsequent Virginia case, Burns v. Warden of Sussex I State Prison, 269 Va. 351, 609 S.E.2d 608 (2005), constitutes an intervening change in the law that establishes his right to a jury. The issue in Burns was whether the jury provisions of § 19.2-264.3:1.1 apply to a determination of mental retardation when the Atkins claim is brought in a state habeas corpus proceeding. Specifically, in Burns the Commonwealth argued that § 8.01-654.2 only provides for a jury determination of an individual's mental retardation claim when that claim is raised to the Virginia Supreme Court on direct appeal. 609 S.E.2d at 610. The Virginia Supreme Court rejected that argument, however, interpreting § 8.01-654.2 as requiring that the jury provisions of § 19.2-264.3:1.1 “apply whether the claim is raised in a direct appeal or as a habeas corpus petition.” 609 S.E.2d at 610.

Walker claims that Burns has somehow clarified that the jury provisions of § 19.2-264.3:1.1 are a substantive component of his rights under Atkins that must be applied to his case. We disagree. Burns squarely holds that the jury provisions of § 19.2-264.3:1.1 apply to mental retardation claims that proceed in state court, regardless of whether they are raised on direct review or in a state habeas proceeding. This is wholly consistent with the language of § 8.01-654.2, which expressly states that “[t]he provisions of §§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a determination of mental retardation made pursuant to this section”-referencing claims brought in state court. Burns does not address the language that our panel found to be controlling when Walker originally raised this claim-specifically, the provision providing that: “If the person has completed both a direct appeal and a habeas corpus proceeding under subsection C of § 8.01-654, he shall not be entitled to file any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal court.” § 8.01-654.2.

In short, Burns merely clarifies that the jury provisions of § 19.2-264.3:1.1 apply to all Atkins claims brought in a state court proceeding, both on direct review and state habeas review. This does not affect our prior determination that Walker is not entitled to a jury in this case because he is in federal court. Accordingly, the district court did not err by refusing to empanel a jury to determine Walker's mental retardation claim.

IV

Based on the foregoing, we affirm the judgment of the district court.

AFFIRMED

*****

GREGORY, Circuit Judge, concurring in part and dissenting in part:

In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the imposition of the death penalty on individuals with mental retardation violates the Eighth Amendment. While the Supreme Court “le[ft] to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences,” id. at 317, 122 S.Ct. 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)) (internal quotations omitted), it surely set some floor for determining who is mentally retarded.

The Supreme Court found that “[b]ecause of their disabilities in areas of reasoning, judgment, and control of their impulses, ... [mentally retarded persons] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.” Id. at 306-07, 122 S.Ct. 2242. Thus, there is a substantive component of the Eighth Amendment that must not be eviscerated by judicial interpretation of state definitions of mental retardation. Yet, today's result allows the Commonwealth to defeat any mental retardation claim, no matter how compelling in its entirety, by cherry picking evidence relevant to a single component of Virginia's definition. This does satisfy Atkins' mandate.

While I agree that both prongs of the Virginia definition must be satisfied for a defendant to prove mental retardation, I depart from the majority's assertion that each component of the definition may always be read in isolation. The Virginia statute itself states that the defendant must “prov[e] that he is mentally retarded by a preponderance of the evidence” and not that the defendant must prove each component by a preponderance of the evidence. Va.Code Ann. § 19.2-264.3:1.1(C) [hereinafter Section 3:1.1]. Furthermore, though we are guided by state law, this Court has an obligation to fulfill the federal Supreme Court directive from Atkins that persons with mental retardation shall not be executed. The spirit of Atkins cannot be upheld by an interpretation of a mental retardation definition that ignores vast quantities of relevant evidence as well as blatant constitutional violations that prevent a petitioner from presenting his claim. For example, it must not be that a court tasked with following Atkins may find it immaterial that the defendant was diagnosed as mentally retarded by scoring more than two standard deviations below the mean on an I.Q. test, regardless of how low the score, simply because a defendant can have intimate relations with a woman or obtain a driver's license.

The majority cites to our decision in Green v. Johnson, 515 F.3d 290 (4th Cir.2008) to support its conclusion that it is unnecessary to reach Walker's intellectual functioning arguments. In Green, we found that under Virginia law, “Green must prove both prongs of Virginia's statutory definition for mental retardation in order to establish that he is mentally retarded.” Id. at 301 (citation omitted). We then affirmed the district court's dismissal of petitioner's Atkins claim based on evidence relevant to the adaptive functioning prong of Virginia's definition of mental retardation. Id. at 301-03.

I believe Green comes perilously close to the substantive floor set in Atkins by seemingly analyzing the two prongs of the Virginia definition independently.FN1 In Green, however, we affirmed the dismissal of the mental retardation claim only after finding that “the district court's (and magistrate judge's) consideration of the evidence [relevant to petitioner's adaptive functioning] was thorough.” Id. (“The magistrate judge set forth in detail the expert testimony presented by both sides at the evidentiary hearing and explained its findings and conclusions with respect to [petitioner's] adaptive skills.”). Thus, although close, the constitutional floor set in Atkins was protected by a thorough and complete review of petitioner's evidence of mental retardation. The same cannot be said of the case before us now.

FN1. Green at least analyzes both prongs. This Court in Green, in contrast to the majority here, undertook an analysis of the intellectual functioning prong as an alternative basis for its holding. 515 F.3d at 300. In this capital case, a case that has generated an appellate record of over 2,300 pages, the district court's opinion spanned fewer than ten pages. In particular, the district court's “consideration of the evidence” on the adaptive functioning prong in this case amounted to at most three sentences. J.A. 2370-71. Based on this record, we cannot have the degree of confidence required to affirm the district court's dismissal of Walker's Atkins claim by looking exclusively to the adaptive functioning prong.

Furthermore, this Court in Green was not faced with serious errors by the district court that affected the petitioner's ability to present his mental retardation claim in the first instance: a blatant due process violation affecting Walker's ability to present evidence of significantly subaverage intellectual functioning and a failure by the district court to consider Walker's evidence of generally accepted professional practices in interpreting the results of intellectual functioning tests. These errors cannot be harmless, as the majority finds, when the floor set by Atkins is not secure.

Nor did we face in Green a case in which the district court specifically failed to adhere to a previous order from this Court. In Walker v. True II, 399 F.3d 315 (4th Cir.2005), we described the nature of the evidentiary hearing that Walker should have been afforded on remand: “Walker is entitled under law both to an evidentiary hearing in which he is afforded an opportunity to fully develop the factual basis of his mental retardation claim and to consideration by the courts of all of the evidence that is relevant to that claim under Virginia's statutory framework.” Id. at 327 (internal citations omitted) (emphasis added). If our decision in Walker v. True II is to have any significance, we must remand this case so that Walker may receive the consideration to which he is entitled.

Because I find that the district court committed clear error by not properly considering Walker's evidence of significant limitations in adaptive behavior, I also consider Walker's claims on the intellectual functioning prong. On that prong, I find both that the district court violated Walker's procedural due process rights and erred in failing to consider Walker's evidence of generally accepted professional practices in interpreting the results of intellectual functioning tests. Based on these errors, this Court should remand for the district court to consider all evidence relevant to Walker's Atkins claim. Moreover, I do not read our precedent to mean that any evidence on one prong, no matter how slight, may always be cited by the district court to preclude our review of a petitioner's full Atkins claim under Virginia law. Atkins requires a reasonable appellate review to uphold the constitutional proscription of the use of capital punishment on offenders who are mentally retarded. Thus, I respectfully dissent from section II of this opinion.

I.

A.

On this record, I would find that the district court committed clear error by not properly considering Walker's evidence of significant limitations in adaptive behavior. Based on this error alone, I believe this Court has an obligation to consider Walker's claim that his due process rights were violated and his claim that the district court failed to follow this Court's previous decision and consider Walker's evidence of generally accepted professional practices in interpreting intellectual functioning tests' results.

The majority finds that Walker's Atkins claim fails because Walker possesses some adaptive skills. However, the district court made no finding that Walker was unequivocally functioning at such a level that he could not be classified as a person with mental retardation. The district court simply parroted several findings of the Commonwealth's expert that should have been considered along with all other evidence proffered on the issue of adaptive functioning. This three-sentence reasoning by the district court should not withstand any level of scrutiny.

While the district court acknowledged that Walker “suffers from below average mental intelligence, struggles to perform some basic activities, exhibits anti-social behavior, and obtains financial support from others,” the court dismissed Walker's claim by citing evidence that he “has committed various crimes requiring the ability to relate to others, associated with women on a personal and intimate level, engaged in homemaking activities, seduced under-aged girls, used others to help him avoid authorities, independently invoked his Miranda rights, used his brother's identity to obtain a driver's license, and obtained goods for himself while in prison.” J.A. 2370-71.

Although the clear error standard under which we review the district court's findings is quite deferential, this Court may reverse the district court where its determination was “made without properly taking into account substantial evidence to the contrary.” Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir.1983). Thus, the question here is whether the district court properly took into account Walker's expert testimony regarding his limitations in adaptive behavior.

In its decision, the district court did not specifically discuss any of Walker's evidence; instead, it merely summarized the testimony of the Warden's expert, Dr. Hagan. On its face, this seems like a classic “battle of the experts,” and thus it would be extremely difficult to find that the district court erred in believing one expert's testimony over another.FN2 However, the district court did not purport to lend more credence to Dr. Hagan's testimony than to Walker's experts. Rather, the court apparently found that Dr. Hagan's testimony somehow negated Walker's showing of significant limitations in adaptive behavior. But as Walker's experts testified, the activities cited by the district court are entirely consistent with mental retardation.FN3 This adheres to the logic that the American Association on Mental Retardation (“AAMR”) says one must follow when applying the definition of mental retardation:

FN2. Indeed, this is the majority's interpretation of the district court's opinion. Supra at 328. However, even the majority seems to assume that the court credited Dr. Hagan's testimony over Walker's experts' testimony. FN3. Thus, the district court was not necessarily “presented with conflicting evidence,” as the majority states. Supra at 328. “Within an individual, limitations often coexist with strengths.” This means that people with mental retardation are complex human beings who likely have certain gifts as well as limitations. Like all people, they often do some things better than other things. Individuals may have capabilities and strengths that are independent of their mental retardation. AAMR, User's Guide: Mental Retardation: Definition, Classification, and Systems of Support 8 (10th ed. 2002) (2007). In particular, individuals with mental retardation can have intimate relationships, perform homemaking activities, craft simple lies, and invoke FN4 their Miranda rights. With regard to the crime cited by Dr. Hagan which purportedly demonstrated that Walker had the “ability to relate to others,” Walker's expert testified that his execution of the scheme, including giving the victim his phone number, did not demonstrate a high level of cognitive or conceptual ability.

FN4. In fact, the record indicates that Walker did not affirmatively invoke his Miranda rights but rather merely remained silent. Because the district court did not properly consider Walker's evidence of significant limitations in adaptive behavior, the district court committed clear error. This basis is sufficient for this Court to proceed to Walker's arguments on the intellectual functioning prong. In addition, I believe that Atkins requires more in this case than simply relying on the Commonwealth's evidence of Walker's adaptive functioning, to the exclusion of all else, in order to dismiss Walker's claim of mental retardation.

B.

Because the majority relies only on the Commonwealth's evidence of Walker's adaptive functioning, it fails to recognize a blatant due process violation by the district court. This constitutional violation resulted in the exclusion of two empirical tests that satisfied the intellectual functioning component of Virginia's definition of mental retardation, thus preventing Walker from fully developing the basis for his claim, in contradiction of our previous decision in Walker v. True II, 399 F.3d at 327.

In order to establish “significantly subaverage intellectual functioning,” Virginia requires the “administration of at least one standardized measure generally accepted by the field of psychological testing.” Section 3:1.1(B)(1). The statute further directs the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services (the “Department”) to “maintain an exclusive list of standardized measures of intellectual functioning generally accepted by the field of psychological testing.” Id.

On January 4, 2005, the Department published the exclusive list of standardized measures as required by Section 3:1.1 (the “January list”). It is undisputed that the January list was in effect at the time that this Court reversed the district court's dismissal of Walker's petition. Included in the January list were three standardized tests administered to Walker: the Comprehensive Test of Nonverbal Intelligence (“CTONI”), the General Ability Measure for Adults (“GAMA”), and the Wechsler-series tests.

Walker's scores on two tests, the GAMA and CTONI, were indisputably two standard deviations below the mean, and both of those tests were included in the January list. Walker relied on the January list in developing the record to support his Atkins claim, and Walker was required to submit all expert disclosures by September 7, 2005. The Department only publishes its list on its website, and according to Walker, the January list remained posted until after the commencement of Walker's evidentiary hearing, which began on November 1, 2005. On the first day of the hearing, Dr. James Morris, the Director of the Office of Forensic Services for the Department and the person with “final responsibility for what's included or not included on the list,” J.A. 1598, testified that the GAMA qualified as an approved measure on Virginia's published list. Dr. Morris also testified that the public could rely on the list that was published on the Department's website, which contained both the GAMA and the CTONI.

Then, in January 2006, after the close of the evidence, the Warden filed a post-hearing brief. This brief referenced a new list of I.Q. tests approved by the Department for use in capital proceedings. That new list (“the October list”) bore a date of October 31, 2005, which was the day prior to Walker's hearing. According to Walker, neither the Warden nor Dr. Morris disclosed the existence of the new list to the district court or himself before this post-hearing brief. The October list did not include either the GAMA or the CTONI as approved measures.

Following the evidentiary hearing, the district court found that Walker could not prove that he scored two standard deviations below the mean on an approved measure. In reaching this conclusion, the district court relied on the October list and excluded Walker's scores on the GAMA and CTONI. Under the Due Process Clause of the Fifth Amendment to the United States Constitution, no person shall be “deprived of life, liberty, or property, without due process of law.” At a minimum, procedural due process requires both fair notice and an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In order to determine whether an individual has received fair notice, this Court “must examine the relevant facts of each case.” United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir.1997). While “[g]enerally, ignorance of the law or a mistake of the law is no defense,” courts will determine “fair notice” by examining whether particular persons would reasonably know the consequences of their conduct. See id. (internal citations and quotations omitted); see also Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir.1998) (per curiam).

This concept of fair procedure is of “special importance ... in the capital sentencing context.” Lankford v. Idaho, 500 U.S. 110, 125, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). This Circuit has impliedly recognized this concept as well. In United States v. Barnette, 211 F.3d 803, 824 (4th Cir.2000), this Court vacated a death sentence where the defendant was unable to present surrebuttal evidence to counter rebuttal evidence of an aggravating factor because such an action violated the concept of “simple fairness.”

The district court excluded two of Walker's I.Q. scores that indisputably were two standard deviations below the mean. In applying the October list instead of the January list without affording Walker the opportunity to develop evidence of mental retardation in accordance with the October list, the district court thus violated Walker's procedural due process rights.

C.

The district court also determined that Walker failed to show that he was mentally retarded before age eighteen. In particular, the district court found that [e]ach WISC-R [“Weschler Intelligence Scale for Children-Revised”] administered to Petitioner before the age of eighteen supports a finding that Petitioner, while suffering from below average mental intelligence, is not mentally retarded. The evidence presented by Petitioner of his below average mental intelligence and limitations in conceptual, practical, and social skills do not constitute mental retardation or outweigh the results of the three WISC-R administrations in 1982, 1984, and 1987. J.A. 2368. Apparently, the district court did not consider the impact of the Flynn effect and Standard Error of Measurement (“SEM”) on the 1984 administration of the WISC-R.FN5 See id.

FN5. Dr. Daniel Reschly testified that the Flynn effect and SEM should be considered in interpreting I.Q. scores, and thus Walker's score of seventy-six on the 1984 administration of the WISC-R would be within the range of mental retardation. I.Q. tests are almost universally scaled so that the mean for the population is 100, with a standard deviation of fifteen. For such tests, an individual must score seventy or lower for the score to be at least two standard deviations below the mean. However, several phenomena have been identified that may be considered for purposes of adjusting or interpreting I.Q. scores. The Flynn effect is the theory that I.Q. tests rise by .3 points per year after they are normed, and thus one must consider when an individual is administered an I.Q. test compared to when that test was last normed. The SEM is an interpretative tool that reflects the idea that I.Q. scores have a ninety-five percent confidence interval, and thus an individual's true score is somewhere within a five-point range of the reported score. I find that the district court erred in determining that the 1984 WISC-R full scale score of seventy-six could not satisfy the intellectual functioning prong of the Virginia mental retardation definition. For its part, the district court did not express any opinion regarding whether the Flynn effect could be taken to account,FN6 but rather found that this Court's decisions in Walton v. Johnson, 440 F.3d 160 (4th Cir.2006), and Hedrick v. True, 443 F.3d 342 (4th Cir.2006), foreclosed consideration of the SEM.

FN6. The failure to consider the Flynn effect itself was error because this Court in Walker v. True II, 399 F.3d at 323, held that “on remand the district court should consider the persuasiveness of Walker's Flynn Effect evidence.” The district court rejected Walker's contention that his 1984 WISC-R full scale score of seventy-six could support his claim of mental retardation because it interpreted this Court's decisions in Walton and Hedrick as standing for the proposition that courts should “refus[e] to use the standard error of measurement to lower IQ scores in Atkins cases due to the inherent speculation of using the standard error of measurement to lower an IQ score when it could just as likely be used to raise an IQ score.” J.A. 2370. However, the district court misconstrued the import of these two decisions. In Walton, this Court found that the petitioner's claim regarding the SEM should be dismissed because “Walton does not explain what this ‘standard error of measurement’ is or why it should reduce his particular score to 70 or less. Walton can only speculate that this standard measure error ... actually lowered his given score of 77 enough to meet Virginia's mental retardation standard.” 440 F.3d at 178. Similarly, in Hedrick, the Court declined to consider the SEM because the petitioner did not provide expert evidence regarding the application of the SEM, and thus “only speculation on [the Court's] part would lower Hedrick's IQ score of 76.” 443 F.3d at 368. Fairly read, Walton and Hedrick stand for the proposition that bare allegations, without more, are insufficient to state a claim for Atkins relief, and the decisions do not imply that the SEM can never be considered on account of “inherent speculation.”

Nor can the district court's ruling be sustained on the ground that Walker provided no evidence on the accepted professional practice regarding the SEM. The definitions of mental retardation promulgated by the AAMR and the American Psychiatric Association state that the SEM should be considered in diagnosing mental retardation. J.A. 879, 888-89. Moreover, Walker's experts testified that the SEM creates a band of approximately five points around a particular I.Q. score, which means that an individual who scores within five points of two standard deviations below the mean should be diagnosed as having mental retardation.

Had the district court taken into account the Flynn effect and SEM, Walker's score of seventy-six on the 1984 WISC-R may have been two standard deviations below the mean. Given this, the district court erred in not considering this score for purposes of subaverage intellectual functioning or for onset before the age of eighteen. In particular, even if a score such as this is not conclusive proof of subaverage intellectual functioning, it is certainly consistent with onset before the age of eighteen, and thus it should have been considered in that regard. Thus, the district court erred in interpreting our precedent as foreclosing consideration of the SEM in assessing scores on I.Q. tests and in not considering the Flynn effect. Like the due process violation, these errors thwarted Walker's efforts to develop the basis for his mental retardation claim, in contradiction of our previous decision in Walker v. True II, 399 F.3d at 327.

II.