Willie Lloyd Turner v. David A. Williams, Warden, Powhatan Correctional Center

35 F.3d 872, 1994 U.S. App. LEXIS 25608, 1994 WL 501343

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 15, 1994
• Docket: 93-4001
• Status: Published

Opinions

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge K.K. HALL joined. Judge LUTTIG wrote a separate opinion, concurring in the judgment.

OPINION

MICHAEL, Circuit Judge:

Petitioner Willie Lloyd Turner is a Virginia prisoner who was convicted of murder and first sentenced to death in 1979. In 1986, after state and federal collateral review, the United States Supreme Court vacated his sentence and remanded for resen-tencing. In 1987, a Virginia jury again sentenced him to death. In 1992, after unsuccessful direct and collateral review in the Virginia courts, Turner petitioned the United States District Court for the Eastern District of Virginia for relief pursuant to 28 U.S.C. § 2254. The district court denied that relief. Turner v. Williams, 812 F.Supp. 1400 (E.D.Va.1993). Turner appeals, arguing that the district court erred in dismissing (1) his claims attacking the application of a statutory aggravating factor that permits imposition of death upon a finding that the defendant’s conduct was “outrageously or wantonly vile, horrible or inhuman,” and (2) his several ineffective assistance of counsel claims. For the reasons that follow, we affirm.

I

On the morning of July 12, 1978, Turner entered Smith Jewelers, owned and operated by W. Jack Smith, Jr. in City of Franklin, Virginia. Turner went in the store with a sawed-off shotgun wrapped in a towel. Without saying a word, Turner displayed his shotgun and motioned to Smith. Smith immediately began stuffing money into a jewelry bag. While he was filling the bag, Smith inconspicuously activated the store’s silent alarm to the police department. Meanwhile, Turner directed the several customers and employees present to line up behind the store counter, kicking a customer in the process.

Shortly after Smith triggered the alarm, a police officer, Alan D. Bain, Jr. arrived at the store and told Smith that his alarm was activated. Turner pointed his shotgun at Officer Bain’s head and ordered him to remove his revolver from its holster and put it on the floor. Turner then grabbed Officer Bain’s revolver off the floor, jabbed his shotgun at the officer, and directed him to the back of the store with the others.

Turner, now brandishing his shotgun in one hand and Bain’s revolver in the other, fired the revolver into the back wall of the store. He threatened to “start killing” if another police officer showed up. At this point, without any provocation, Turner pointed the revolver at Smith and fired. The bullet struck Smith in the head. Smith yelled, slumped over the counter and fell to the floor, unconscious, gurgling, and bleeding from the head. The shot caused bleeding and bruising on Smith’s brain surface, but was not fatal.

At this point, Officer Bain began talking to Turner. He offered to take Turner out of the store if he would agree not to shoot anyone else. While Bain talked to Turner, two customers were able to escape from the store. Turner then said, “I’m going to kill this nigger squealer,” JA 314, referring to Smith, who was not African American. Turner then immediately reached over the counter with the revolver and fired two close-range shots into the left side of Smith’s chest. The shots caused Smith’s body to jump. (One of the bullets penetrated his heart, food and wind pipes before ultimately lodging in his spine; the other bullet passed through his lung and out his- back. Medical testimony established that either of the two shots to the chest would have been fatal.) Immediately after these shots, Officer Bain was able to shove Turner and grab his weapons. Bain then forced Turner to get down on the floor and called for help.

On December 4, 1979, Turner was convicted for murdering Smith, and on December 6, 1979, a jury in Northampton County recommended that he be sentenced to death. On direct appeal, the Supreme Court of Virginia affirmed the conviction and sentence, and the United States Supreme Court denied certio-rari. Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert. denied sub nom. Turner v. Virginia, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). Turner then filed a petition for a writ of habeas corpus in the circuit court of Southampton County, Virginia. That petition was denied, and the Supreme Court of Virginia affirmed. The United States Supreme Court again- denied his certiorari petition. Turner v. Virginia, 462 U.S. 1112 (1983).

Turner next sought relief in the federal courts. On July 27, 1983, he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The petition was denied, and our court .affirmed. Turner v. Bass, 753 F.2d 342 (4th Cir.1985). Turner then filed another certiorari petition in the United States Supreme Court, which was , granted. On April 30, 1986, the Supreme Court vacated Turner’s death sentence (but not his conviction) because the trial court had refused to question prospective jurors about possible bias resulting from the fact that Turner was African American and his victim was white. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986). The Supreme Court remanded the case, which ultimately went to the circuit court of Southampton County for a new sentencing hearing.¹

Turner was represented at resentencing by court-appointed lawyers, J. Lloyd Snook, III and Thomas L. Woodward, Jr. The resen-tencing hearing (a jury proceeding) occurred on January 7-9 and 12, 1987. The Commonwealth finished its case on Friday, January 9, and the defense rested on Monday, January 12, without putting on any mitigating evidence. The jury was then instructed. Under Virginia’s death penalty scheme, the jury may fix the sentence at death if it finds either one of two aggravating factors: (1) “that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (the “future dangerousness” factor), or (2) “that his conduct in committing the offense ... was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim” (the “vileness” factor). Va.Code Ann. § 19.2-264.2 (Michie 1990).² Turner’s jury was given limiting instructions that defined the “aggravated battery” and “depravity of mind” components of the .vileness factor.

■ On January 12, 1987, Turner’s resentenc-ing jury returned a verdict fixing his sentence at death based solely on the vileness factor.³ His sentence was upheld on direct appeal to the Supreme Court of Virginia, and the United States Supreme Court denied his certiorari petition. Turner v. Commonwealth, 234 Va. 543, 364 S.E.2d 483, cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988).

Turner then filed a petition for a writ of habeas corpus in the circuit court of Southampton County, alleging ineffective assistance of counsel and other claims. On September 11-13, 1989, the state court held an evidentiary hearing on some of his ineffective assistance claims; all other claims were dismissed without an evidentiary hearing. On May 23, 1990, the court issued a letter order that adopted the Commonwealth’s proposed findings of fact and rejected Turner’s ineffective assistance claims. On July 5, 1990, the court issued a formal order incorporating the letter order and dismissing Turner’s habeas petition. On April 30, 1991, the Supreme Court of Virginia dismissed Turner’s habeas appeal. Turner v. Williams, No. 901335 (Va. Apr. 30, 1991). That court rejected his ineffective assistance claims on the merits and concluded that his other claims were procedurally defaulted.

Turner next sought collateral review in the federal courts. On December 10, 1991, he filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The Commonwealth moved for dismissal under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. On February 1, 1993, the district court granted the Commonwealth’s motion for summary judgment and dismissed his petition. Turner v. Williams, 812 F.Supp. 1400 (E.D.Va.1993). The court found that most of Turner’s claims were procedurally barred and rejected the others on the merits. Turner now appeals to this court.

Turner’s claims on this appeal can be grouped in two general categories. First, he raises several challenges to the application of the vileness factor. Second, he says his lawyers rendered ineffective assistance in several respects.⁴ The Commonwealth responds that all of Turner’s claims are barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion), because they would require us to announce new constitutional rules of criminal procedure on collateral review. The Commonwealth next asserts that Turner’s challenges to the application of the vileness factor, as well as one of his ineffective assistance claims, are procedurally barred. We must first address these arguments to determine whether we can even reach the merits of Turner’s claims.

II

In Teague v. Lane, a plurality of the Supreme Court adopted the second Justice Harlan’s retroactivity approach and held that a “new rule” of federal constitutional law will not be applied or announced on collateral review unless the rule falls within one of two narrow exceptions.⁵ See generally Teague, 489 U.S. at 299-316, 109 S.Ct. at 1068-78 (plurality opinion). Shortly thereafter, Teag-ue ’s retroactivity approach was adopted by a majority of the Court and held to apply to capital cases. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The new rule principle is predicated on interests in comity and in the finality of criminal convictions. Gilmore v. Taylor, — U.S. —, —, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306 (1993).

The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.

Sawyer v. Smith, 497 U.S. 227, 234, 110 S.Ct. 2822, 2827, 111 L.Ed.2d 193 (1990).

Generally, there are two types of Teague eases. In the first type, the petitioner seeks to rely on a decision announced after his conviction became final. In the second type, the petitioner relies on a decision announced before his conviction became final. In the latter, “it is necessary to inquire whether granting the relief sought would create a new rule because the prior decision is applied in a novel setting, thereby extending the precedent.” Stringer v. Black, — U.S. —, —, 112 S.Ct.1130, 1135, 117 L.Ed.2d 367 (1992); see also Nickerson v. Lee, 971 F.2d 1125, 1132 n. 12 (4th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993).

The policy behind the new rule principle is desirable; but applying that principle leaves something to be desired, for “[i]t is admittedly often difficult to determine when a case announces a new rule....” Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (plurality opinion). In Teague, the plurality said:

In general, ... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. T<5 put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. Id. (citations omitted); see also Penny, 489 U.S. at 314, 109 S.Ct. at 1077; Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990); Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct. 1212, 1216, 108 L.Ed.2d 347 (1990); Sawyer, 497 U.S. at 234, 110 S.Ct. at 2827; Stringer, — U.S. at —, 112 S.Ct. at 1135; Graham v. Collins, — U.S. —, —, 113 S.Ct. 892, 897, 122 L.Ed.2d 260 (1993); Gilmore, — U.S. at —, 113 S.Ct. at 2116; Caspari v. Bohlen, — U.S. —,—, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Subsequent cases have added more words (if not guidance) to the new rule inquiry. See, e.g., Butler, 494 U.S. at 415, 110 S.Ct. at 1217 (a case announces a new rule when the rule “was susceptible to debate among reasonable minds”); Parks, 494 U.S. at 488, 110 S.Ct. at 1260 (a case does not announce a new rule if “a state court considering [petitioner’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution”); Sawyer, 497 U.S. at 234, 110 S.Ct. at 2827 (a “gradual development ] in the law over which reasonable jurists may disagree” is a new rule); Graham, — U.S. at-, 113 S.Ct. at 898 (a case announces a new rule “unless reasonable jurists hearing petitioner’s claim at the time his conviction became final “would have felt compelled by existing precedent’ to rule in his favor”).. In its most recent new rule case, the Court set forth the following three-pronged approach:

In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must [s]urve[y] the legal landscape as it then existed, and determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle.

Bohlen, — U.S. at-, 114 S.Ct. at 953 (internal quotation marks and citations omitted). Guided by Teague and the cases it has spawned, we will proceed through the Bohlen formula.

Turner’s conviction and sentence became final in 1988, when the United States Supreme Court denied his petition for certiorari in Turner II. We must therefore determine whether a state court considering Turner’s claims in 1988 would have felt compelled to conclude that the rules he seeks were required by the Constitution. To do this, we address the Commonwealth’s Teague challenges in turn, and we ultimately conclude that Turner does not seek new rules.

A. The Applicability of Teague v. Lane to Turner’s Claim that the Commonwealth Applied the Vileness Factor in an Unconstitutional Manner

Turner contends that Virginia’s facially vague vileness factor was not constitutionally applied in his case. Specifically, he says that the limiting definitions of “depravity of mind” and “aggravated battery” given to his jury were inadequate because they did not sufficiently cure the vague language of the vile-riess factor.⁶ Further, he says the Supreme Court of Virginia, which applied the same limiting construction, did not cure that infirmity with an adequate review of his sentence. He thus seeks the benefit of a rule that a vague aggravating factor must be supplemented with constitutionally sufficient limiting instructions or appellate review.

Turner bases his claim on Justice Stewart’s plurality opinion in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), decided eight years before his conviction became final. In Godfrey, the Supreme Court vacated a death sentencé that was based on an aggravating factor virtually identical to Virginia’s vileness factor.⁷ ■ God-frey’s jury was instructed only with the bare language of the aggravating factor; the jury did not receive any limiting instructions. Id. at 426, 100 S.Ct. at 1763-64 (plurality opinion). Moreover, on direct review the Georgia Supreme Court, in conclusory fashion, held that the evidence supported a finding of vileness; the court did not provide any limiting construction to narrow the statutory language. • Id. at 427, 432, 100 S.Ct. at 1764, 1766-67 (plurality opinion).

Justice Stewart’s plurality opinion began by noting that the language of the vileness factor was vague: There was nothing in the words “ ‘outrageously or wantonly vile, horrible, and inhuman’ ... standing alone, that implie[d] any inherent restraint” on the jury’s discretion to impose the death penalty. Id. at 428, 100 S.Ct. at 1764-65 (plurality opinion). The plurality observed that the Georgia courts did not cure that vagueness through adequate jury instructions or meaningful appellate review. Id. at 429, 432, 100 S.Ct. at 1765,1766-67 (plurality opinion). In vacating Godfrey’s sentence, the plurality emphasized a central tenet of the Court’s Eighth Amendment jurisprudence: The state “must channel the sentencer’s discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death.” Id. at 428, 100 S.Ct. at 1764-65 (plurality opinion) (footnotes and internal quotation marks omitted).

We read Godfrey to say that the Eighth Amendment proscribes the imposition of a death, sentence based on avague aggravating factor unless the vague factor has been narrowed by a constitutionally sufficient limiting construction, either at sentencing (in the form of a limiting instruction when a jury is involved) or on appellate review. Not just any limiting construction will do; a constitutionally sufficient one is required. See id. at 433, 100 S.Ct. at 1767 (plurality opinion) (“Thus, the validity of the petitioner’s death sentences turns on whether ... the Georgia Supreme Court can be said to have applied a constitutional construction of the [vileness factor].”) (emphasis added); Jones v. Murray, 976 F.2d 169, 174 (4th Cir.) (“[W]hen limiting instructions are used to cure a defect in a facially vague statute, the instructions must meet the specificity requirements of Godfrey.”), cert. denied, — U.S. —, 113 S.Ct. 27, 120 L.Ed.2d 951 (1992); Turner, 753 F.2d at 353 (noting that the “constitutional flaw of Godfrey ” was “the Georgia Court’s failure to give a constitutional construction to the vileness criterion”) (emphasis added). A limiting construction that is itself,too vague leaves a defendant in no better position than the petitioner in God-frey — sentenced on the basis of “ ‘standards so vague that they would fail adequately to channel the sentencing decision-’ ” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1765 (plurality opinion) (quoting Gregg v. Georgia, 428 U.S. 153, 195 n. 46, 96 S.Ct. 2909, 2935 n. 46, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).¹ “Vague terms do not suddenly become clear when they are defined by reference to other vague terms.” Cartwright v. Maynard, 822 F,2d 1477, 1489 (10th Cir.1987) (en banc), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).⁸

Godfrey thus dictates Turner’s challenge to the constitutional sufficiency of the limiting instructions given to his jury as well as the appellate review of his sentence. Indeed, the Supreme Court, in Stringer v. Black, supra, has recently held that the application of Godfrey did not amount to a new rule for purposes of Teague. Stringer addressed, inter alia, whether Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), announced a new rule under Teague. Cartwright involved an Oklahoma death sentence predicated on two aggravating factors, one of which permitted the imposition of a death sentence if the defendant’s murder was “especially heinous, atrocious, or cruel” (the “heinousness” factor). Cartwright, 822 F.2d at 1478. ' Cartwright’s sentencing jury was given a limiting instruction beyond the bare terms of the heinousness factor. Id. at 1488. On direct review, the Oklahoma Court of Criminal Appeals affirmed after -applying a limiting construction to the facts of Cartwright’s case, focusing on the “manner” in which the murder was committed. See Cartwright v. Oklahoma, 695 P.2d 548, 554 (Okla.Crim.App.1985). That court previously had approved jury instructions similar to those given to Cartwright’s jury. Cartwright, 822 F.2d at 1487-88.

In his habeas petition, Cartwright alleged that the Oklahoma courts applied the heinousness factor in an unconstitutionally vague and overbroad manner in his case. Id. at 1478. Specifically, Cartwright claimed; (1) the language of the heinousness factor was vague, and (2) the Oklahoma courts failed to apply a constitutionally sufficient limiting construction (through jury instructions or on direct review of his sentence) to cure the vagueness. Id. The Tenth Circuit, sitting en banc, agreed. .See id. at 1479 (“the Oklahoma courts failed to apply a constitutionally adequate narrowing construction in this case”), 1491, 1492. The Tenth Circuit’s decision was predicated on Godfrey. See id. at 1489, 1491. The Supreme Court affirmed the Tenth Circuit. . The Court noted the Tenth Circuit’s conclusion that the Oklahoma courts had not “adopted a limiting construction that cured the infirmity” of the vague heinousness factor. Cartwright, 486 U.S. at , 108 S.Ct. at 1857. Significantly, the Court thought the Tenth Circuit “was quite right in holding that Godfrey controls this case.” Id. at 363, 108 S.Ct. at 1858-59.

Then, four years after it decided Cartwright, the Court decided Stringer v. Black. In Stringer, the habeas petitioner attempted to rely on Cartwright to challenge the constitutionality of his death sentence. Stringer, — IIS. at ——, 112 S.Ct. at 1133. The State of Mississippi invoked Teague, arguing that the petitioner could not rely on Cartwright because that decision was announced after his conviction became final. Id. The Court thus had to decide whether Cartwright announced a new rule, i.e., whether Cartwright’s challenge was dictated by Godfrey. Id. The Court held: “In applying Godfrey to the language before us 'in [Cartwright ], we did not ‘brea[k] new ground.’ [Cartwright ] was, therefore, for purposes of Teague, controlled by Godfrey, and it did not announce a new rule.” Id. at-, 112 S.Ct. at 1135-36 (quoting Butler, 494 U.S. at 412,110 S.Ct. at 1216).

Stringer thus teaches that Teague does not bar a habeas petitioner’s invocation of God-frey to challenge the constitutional sufficiency of limiting instructions or appellate review if a state uses a vague aggravating factor. See Wiley v. Puckett, 969 F.2d 86, 97 (5th Cir.1992); cf. Newlon v. Armontrout, 885 F.2d 1328, 1331-35 (8th Cir.1989), cert. denied sub nom. Delo v. Newlon, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990); Smith v. Dixon, 766 F.Supp. 1370, 1383-86 (E.D.N.C.1991), aff'd, 996 F.2d 667 (4th Cir.1993), rev’d on other grounds, 14 F.3d 956 (4th Cir.1994) (en bane), cert. denied, — U.S. —, 115 S.Ct. 129, — L.Ed.2d—(1994); Jones v. Murray, 976 F.2d 169, 173 (4th Cir.) (both parties agreed that the application of Godfrey was not barred by Teague and therefore we did not have to reach the Teague issue; nevertheless, we indicated that challenges to Virginia’s limiting instructions and appellate review were not barred by Teague), cert. denied, — U.S. —, 113 S.Ct. 27, 120 L.Ed.2d 951 (1992).

The similarities between Cartwright and the instant case are striking. Like Cartwright, Turner was sentenced on the basis of a vague statutory aggravating factor. Like Cartwright, Turner’s jury was given a limiting instruction and a limiting construction was applied on appellate review. Like Cartwright, Turner argues that the Commonwealth’s limiting construction was constitutionally insufficient; i.e., it did not cure the infirmity of the aggravating factor and thereby failed to guide adequately the jury’s discretion. And, like Cartwright, Turner’s challenge is predicated on Godfrey. Because Stringer expressly held that Godfrey dictated Cartwright’s claim and thus Cartwright did not seek the benefit of a new rule for purposes of Teague, we are compelled to reach the same conclusion here.

In sum, we are satisfied that a state court in 1988 would have felt compelled to conclude that Godfrey and Cartwright dictate the rule or result Turner seeks. (Although Cartwright came down shortly after Turner’s conviction became final, Turner may use that decision because Cartwright did not announce a new rule. See generally Stringer, supra.)⁹

The Commonwealth nevertheless emphasizes that before Turner’s conviction became final in 1988, our court, in Turner v. Bass, supra, upheld a limiting construction of the vileness factor that was virtually identical to the limiting instruction given to Turner’s jury and applied on direct review of his sentence. Thus, the argument follows, a Virginia court in 1988 would not have felt compelled to declare unconstitutional the specific limiting construction used in his case. Cf. Graham, — U.S. at-, 113 S.Ct. at 903. And, relatedly, the argument goes, a decision in Turner’s favor would require the creation of a new rule insofar as it would repudiate Turner v. Bass. See id. at-, 113 S.Ct. at 897.

Before we address this argument, we note that Turner challenges "the limiting definitions of two components of the vileness factor, “aggravated battery” and “depravity of mind.” In Turner v. Bass, however, we upheld only a (virtually identical) limiting definition of “aggravated battery”; we did not address the sufficiency of the “depravity of mind” limiting definition. See Turner, 753 F.2d at 353. Thus, were we to accept the Commonwealth’s Teague theory here, at most we would be barred from reviewing the sufficiency of the aggravated battery definition.

Turning then to the limiting definition of aggravated battery applied in Turner II, the Commonwealth, on the face of it, appears to have a good argument that Turner seeks a new rule vis-a-vis Turner v. Bass. However, the answer is not so simple. The Commonwealth’s theory focuses on the most specific conclusion or holding Turner hopes we reach: that the limiting definition used in his case was constitutionally insufficient. But we cannot ignore the fact that the principle of law (the “constitutional rule[ ] of criminal procedure,” Teague, 489 U.S. at 316, 109 S.Ct. at 1078 (plurality opinion)) from which Turner seeks to benefit is the extant rule propounded in Godfrey and reaffirmed in Cartwright. Cf. Bohlen, — U.S. at -, 114 S.Ct. at 955 (in its new rule analysis, the Court focused on the more general rule sought — that the Double Jeopardy Clause applies to a noncapital sentencing proceeding — as opposed to the specific holding sought by the petitioner, that his sentence violated the Double Jeopardy Clause). Here, we are asked simply to apply, rather than extend, the Godfrey/Cartwright principle. Cf. Stringer, — U.S. at-, 112 S.Ct. at 1135. Although “it can be a difficult question whether a particular holding presents simply a new setting for an old rule, or announces a new one,” Graham, — U.S. at ——, 113 S.Ct. at 918 (Souter, J., dissenting), we think the former best characterizes Turner’s claim.

Penry v. Lynaugh makes the point. In Penry, the petitioner (Penry) claimed he “was sentenced to death in violation of the Eighth Amendment because the jury was not instructed that it could consider and give effect to his mitigating evidence in imposing its sentence.” Penry, 492 U.S. at 307, 109 S.Ct. at 2941. On collateral review, the' Fifth Circuit had rejected Penry’s claim because his jury was allowed to hear all mitigating evidence (mental limitations and abused childhood). See Penry v. Lynaugh, 832 F.2d 915, 920 (5th Cir.1987), aff'd, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The court nevertheless was concerned that, under the Texas scheme, Penry’s jury was not able to consider and give effect to his mitigating evidence. See generally id. at 920-26. The Fifth Circuit concluded that it could not rule in Penry’s favor, “because 'prior Fifth Circuit decisions have rejected claims similar to Penry’s. These prior panel holdings bar a different holding by us.” Id. at 926 (emphasis added) (citations omitted). Thus, granting Penry the relief he sought would have required the Fifth Circuit to overrule its precedents. The Supreme Court granted certiorari.

The Supreme Court first addressed whether Penry’s claim was barred under Teague. See generally Penry, 492 U.S. at 313-19, 109 S.Ct. at 2943-47. One would think this was an easy case; granting Penry the relief he sought seemingly would have required the creation of a new rule insofar as it would have repudiated prior Fifth Circuit decisions. And, with those Fifth Circuit cases in the legal landscape, presumably a state court at the time his conviction became final would not have felt compelled to grant Penry the relief he sought. But the Supreme Court held that Penry’s claim was not Teague-barred: He did not seek a new rule because he simply sought the application (not the extension) of a preexisting rule of law in a new factual setting. See id. at 314-15, 318-19, 109 S.Ct. at 2944-45, 2946-47.

[T]he facial validity of the Texas death penalty statute had been upheld in [Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) ] on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present. Penry argues that those assurances were not fulfilled in his particular case because, without appropriate instructions, the jury could not fully consider and give effect to the mitigating evidence of his mental retardation and abused childhood in rendering its sentencing decision. ... [I]n light of the assurances upon which Jurek was based, we conclude that the relief Penry seeks does not “impos[e] a new obligation” on the State of Texas.

Id. 492 U.S. at 318-19, 109 S.Ct. at 2946-47 (emphasis in original) (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (plurality opinion)). The Jurek rule created a standard which the Court simply applied to the facts of Penry’s case, i.e., to his mitigating evidence. See Parks, 494 U.S. at 492, 110 S.Ct. at 1262. Despite the fact that the specific holding announced in Penry was novel and repudiated prior Fifth Circuit decisions, Pen-ry’s claim was not Teague-barred because it did not impose a new obligation on the state; the state already was obligated to apply the Jurek standard. Accord Stringer, — U.S. at-, 112 ’S.Ct. at 1135-40 (Court applying the principle announced in God-frey ).

Penry thus demonstrates (and Stringer confirms) the critical distinction between the extension of an existing rule on collateral review and the mere application of an existing normative rule (such as Godfrey/Cart-wright) to a new set of facts.¹⁰ Cf. Stringer, — U.S. at -, 112 S.Ct. at 1135. Our court too has recognized this distinction. In West v. Wright, 931 F.2d 262 (4th Cir.1991), rev’d oh other grounds, — U.S. —, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992), the petitioner raised a sufficiency of the evidence challenge under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Commonwealth argued that granting the petitioner the relief he sought would have created a new rule in violation of Teague. West, 931 F.2d at 265. Specifically, the Commonwealth noted that, although Jackson v. Virginia came down before petitioner’s conviction became final, a decision in his favor would have required our court to disregard Virginia’s common law permissive inference that one in unexplained possession of stolen goods is the thief. Id. We rejected the Teague challenge: “Obviously, a federal habeas court cannot be said to apply a ‘new constitutional rule’ whenever it applies the Jackson v. Virginia test to a ‘new⁵ set of facts in evidence.” Id. at 266.¹¹

A divided Supreme Court reversed our West decision on the merits after concluding there was sufficient evidence to support the petitioner’s conviction under the Jackson standard; but the Court did not directly address the Teague issue. See generally Wright v. West, — U.S. —, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992).¹² However, in her concurring opinion, Justice O’Connor, the author of the plurality opinion in Teague, emphasized: “If a proffered factual distinction between the case under consideration and pre-existing precedent does not change the force with which the precedent’s underlying principle applies, the distinction is not meaningful, and any deviation from precedent is not reasonable.” Id. at-, 112 S.Ct. at 2497 (O’Connor, J., concurring in the judgment). Justice Kennedy elaborated:

If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule. The rule of [Jackson v. Virginia ] is an example. By its very terms it provides a general standard which calls for some examination of the facts.... Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent.

Id. at-, 112 S.Ct. at 2499 (Kennedy, J., concurring in the judgment); see also Graham, — U.S. at -, 113 S.Ct. at 918 (Souter, J., dissenting) (noting that “[o]ne general rule that has emerged under Teague is that application of existing precedent in a new factual setting will not amount to announcing a new rule”).¹³

In sum, when we apply an extant normative rule to a new set of facts (leaving intact the extant rule) generally we do not announce a new constitutional rule of criminal procedure for purposes of Teague. To be sure, Teague is implicated “by the application of an old rule in a manner that was not dictated by precedent.” Stringer, — U.S. at-, 112 S.Ct. at 1135; cf. Butler, 494 U.S. at 414-15, 110 S.Ct. at 1217-18. But when a rule provides a standard that of necessity requires a case-by-case examination, generally the results yielded by that application are not “new rules” because those results do not “break[ ] new ground or impose[ ] a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301, 109 S.Ct. at 1070 (plurality opinion); cf. Penry, 492 U.S. at 315, 319, 109 S.Ct. at 2945, 2947 (emphasizing that the application of the pre-existing rule at issue did not impose a new obligation on the state). Rather, the state courts presumably are aware of the pre-existing rule and it is foreseeable to them that the rule is to be applied.

Consequently, although comity interests would have us defer to a state court’s determination that a petitioner seeks the expansion or extension of a pre-existing rule, i.e., a new rule, reflexive deference is inappropriate when we are asked to review a state court’s application of that rule to the specific facts of a new case. Otherwise, we would have to say that Teague altered the standard of review on habeas, which the Supreme Court declined to hold in Wright v. West. See West, - — - U.S. at-, 112 S.Ct. at 2497 (O’Connor, J., concurring in the judgment) (“In Teague, we refused to give state prisoners the retroactive benefit of new rules of law, but we did not create any deferential standard of review with regard to old rules.”); cf. Sawyer, 497 U.S. at 239, 110 S.Ct. at 2830 (“Federal habeas corpus serves to ensure that state convictions comport with the federal law that was established at the time the petitioner’s conviction became final.”).¹⁴

We now return to the instant ease. God-frey held that state courts must supplement facially vague aggravating factors with “constitutionally sufficient,” Walton, 497 U.S. at 655, 110 S.Ct. at 3058, limiting instructions or appellate review. Godfrey and Cartwright, like Jackson v. Virginia, set forth “a general standard which calls for some examination of the facts,” West, — U.S. at-, 112 S.Ct. at 2499 (Kennedy, J., concurring in the judgment) — namely, examination of the language of the particular limiting instruction or the appellate review at issue. Although the state courts below may have relied on Turner v. Bass, supra, in concluding that the limiting construction of “aggravated battery” given to Turner’s jury and applied on review was constitutionally sufficient, that conclusion is not subject to a deferential standard of review under Teague. To borrow the language from Penry, Godfrey upheld the statutory vfieness factor on the basis of “assurances” that the sentencer’s discretion would be channelled by constitutionally sufficient standards. Turner “argues that those assurances were not fulfilled in his particular case because, without appropriate instructions [or appellate review, his sentencer’s discretion could not be channelled by clear and objective standards]_ [I]n light of the assurances upon which [Godfrey ] was based, we conclude that the relief [Turner] seeks does not ‘imposte] a new obligation’ on the State of [Virginia].” See Penry, 492 U.S. at 318-19, 109 S.Ct. at 2946-47 (quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1077 (plurality opinion)).¹⁵

In the final analysis, we hold that, in challenging the Commonwealth’s application of its vileness factor in his case, Turner does not “seek[ ] the benefit of a new rule,” Boh-len> — U.S. at-, 114 S.Ct. at 953, for purposes of Teague. Accordingly, Teague does not bar us from reaching the merits.

B. The Applicability of Téague v. Lane to Turner’s Ineffective Assistance of Counsel Claims

Turner claims that his lawyers at the resentencing proceeding rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although Strickland was decided four years before Turner’s conviction became final, the Commonwealth contends that Turner’s Strickland claims are Teague-barred. The Commonwealth’s Teag-ue challenge is predicated on its view that, “under the facts of this case ‘reasonable jurists reading the case law that existed’ in 1988 could have concluded that defense counsel were not ineffective_” Appellee’s Br. at 9. As noted above, Teague does not mandate deference to á state court’s application of law to fact. See generally Wright v. West, supra. Rather, mixed questions of law and fact are subject to de novo review on habeas. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51,. 88 L.Ed.2d 405 (1985). And, whether counsel rendered ineffective assistance is a mixed question' of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. Teague thus does not mandate deference to the Virginia courts’ application of Strickland to the facts of Turner’s case. We therefore reject the Commonwealth’s argument that Teague bars us from reaching the merits of Turner’s various ineffective assistance of counsel claims.¹⁶

III

The Commonwealth next contends that Turner procedurally defaulted on most of his claims. First, it says he procedurally defaulted on his challenges to the application of the statutory idleness factor because the Supreme Court of Virginia found these claims procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (generally, when a habeas petitioner has defaulted on a federal claim in state court pursuant to an independent and adequate state procedural rule, federal review of the defaulted claim is barred); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038,103 L.Ed.2d 308 (1989). Second, it says he procedurally defaulted on one of his ineffective assistance claims (challenging counsel’s failure to put on mitigating evidence described in the opening statement) because it was never raised in the state courts. See Bas-sette v. Thompson, 915 F.2d 932, 936-37 (4th Cir.1990) (ineffective assistance claims not raised on state habeas are procedurally defaulted) (citing Teague, 489 U.S. 297-99, 109 S.Ct. at 1068-69), cert. denied, 499 U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991). We will address the Commonwealth’s procedural default arguments in turn and ultimately conclude that Turner has not procedurally defaulted on these claims.

A. Challenges to the Application of the Vileness Factor

Turner challenges the application of the idleness factor in several respects. In overlapping arguments, he says (1) the limiting definitions (instructions) for “aggravated battery” and “depravity of mind” were constitutionally insufficient, (2) the Supreme Court of Virginia’s-direct review of his sentence was inadequate, (3) the facts of the Smith murder do not support the vileness factor, and (4) the Supreme Court of Virginia generally does not provide capital defendants with meaningful appellate review. These various allegations were scattered throughout claims VII and XIV of Turner’s state habeas petition.¹⁷ The Supreme Court of Virginia, on collateral review, held that these claims were procedurally defaulted, stating:

Applying the rule in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974) ... to the extent allegations numbered VII, VIII, XIV, XV, and XVI in his petition for writ of habeas corpus advance matters not asserted on direct appeal; and, applying the rule in Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970), to allegations [VII, VIII, XIV, XV, and XVI] ... to the extent that they advance matters asserted on direct appeal, the petition for appeal is denied for reasons of procedural default.

Turner v. Williams, No. 901335 (Va. Apr. 30, 1991). Slayton generally says that claims that could have been raised on direct appeal, but were not, cannot be raised on state collateral review. Slayton, 205 S.E.2d at 682. Hawks has been read to say that claims raised and decided against petitioner on direct review cannot be raised on state habeas. See Hawks, 175 S.E.2d at 274. Thus, the Supreme Court of Virginia dismissed these claims either because they were raised and decided on direct appeal CHawks) or because they were not raised on direct appeal (Slay-ton).

Slayton is a valid procedural default rule. Smith v. Murray, 477 U.S. 527, 533-39, 106 S.Ct. 2661, 2665-69, 91 L.Ed.2d 434 (1986). Hawks, however, is not a true procedural default rule; rather, it is more in the nature of a collateral estoppel rule. Hawks cannot prevent federal habeas review of federal constitutional claims properly raised on direct appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803-07, 111 S.Ct. 2590, 2595-96, 115 L.Ed.2d 706 (1991). Thus, we must ascertain whether Turner raised on direct appeal the aforementioned challenges to the application of the vileness factor. If he did, he is not procedurally barred from raising them here.

In his brief to the Supreme Court of Virginia on direct appeal, Turner , argued that the murder of Smith was not vile, i.e., that the murder involved neither depravity of mind nor an aggravated battery. He also argued that imposition of the death sentence for the murder of Smith would be disproportionate to the crime when viewed in comparison to other cases where the death sentence was predicated solely on the vileness factor. Moreover, he attacked the vileness factor (and the Virginia death penalty statute) on its face as being unconstitutionally vague and overbroad.

As for the sufficiency of the limiting definitions given to his jury, Turner’s brief on direct appeal contained a subsection entitled: “This Court must adopt stricter standards for defining and applying the vileness aggravating circumstance.” JA 553. In this subsection, Turner argued:

This Court should make clear that an aggravated battery must be one which, qualitatively and quantitatively, is much more vile than the minimum necessary to áccomplish the act of murder, and that “depravity of mind” is a- degree of moral turpitude and psychical debasement that far surpasses that inherent in the definition of legal malice and premeditation.

JA 553-54 (emphases in original). The highlighted portions above represented his suggested modifications to the limiting definitions given to his jury; without those modifications, he argued, the instructions were constitutionally deficient. See Turner, 364 S.E.2d at 488 n. 2 (“Turner argues that we must apply stricter standards for determining ‘vileness’ or else face the risk of having the present standards declared unconstitutional. We reject this argument.”).

Finally, as for Turner’s attack on Virginia’s system of appellate review generally, Turner listed as one of ten questions presented on direct appeal: “3. Does this Court provide adequate appellate review of death sentences?” JA 544. Listed as an assignment of error was an allegation “[t]hat the failure of the Virginia courts to afford adequate appellate review of death sentences means that death sentences are being imposed in Virginia in an arbitrary and capricious manner, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.” JA 545.¹⁸

In sum, Turner’s various challenges to the application of the vileness factor were raised on direct appeal and therefore the Supreme Court of Virginia (on collateral review) must have dismissed these claims under Hawks, not Slayton. Accordingly, because Hawks does not bar us from reviewing the merits of federal constitutional claims properly raised on direct appeal, we reject the Commonwealth’s argument that Turner is proeedurally barred from raising these claims on federal habeas.

B. Ineffective Assistance Challenge

We also reject the Commonwealth’s argument that Turner proeedurally defaulted on his ineffective assistance claim arising from counsel’s failure to put on the mitigating evidence described in the opening statement. Turner’s state habeas petition alleged that “[cjounsel failed to present mitigating evidence ... despite defense counsel’s opening statement to the jury that several witnesses would testify on Mr. Turner’s behalf.” JA 591. The state habeas court held an evidentiary hearing in part to address counsel’s failure to put on mitigating evidence. After the hearing, Turner submitted to the court proposed findings of fact and conclusions of law, wherein he argued that the “broken promises made by Mr. Snook to the jury in his opening statement” were “independently prejudicial.” JA 1315. He continued:

“We cannot but conclude that to promise even a condensed recital of such powerful evidence, and then not produce it, could not be disregarded as harmless. We find it prejudicial as [a] matter of law.” Anderson v. Butler, 858 F.2d 16, 19 (1st Cir.1988) (emphasis added). In that case, the Court of Appeals reversed the district court’s denial of habeas corpus based on facts nearly identical to those here.

Id.; see also JA 1397. The Commonwealth responded to this argument in its proposed findings of fact and conclusions of law. JA 1432 (¶26). Then, in his (habeas) Petition For Appeal to the Supreme Court of Virginia, Turner argued:

Even if counsel knew that he could keep his promises (as Mr. Snook could not have known), it still would be “prejudicial as [a] matter of law” to “promise even a condensed recital of such powerful evidence, and then not produce it.” Anderson v. Butler, 858 F.2d 16, 19 (1st Cir.1988).

JA 1595-96 (footnotes omitted). In an accompanying footnote, Turner noted that “[ojther courts have found counsel ineffective based in part on the failure to deliver evidence promised in opening statements.” JA 1596.

We conclude that Turner has fairly presented this ineffective assistance claim in the state collateral proceedings and therefore hold that he is not barred from raising it on federal habeas. Having concluded that Turner’s claims are not proeedurally barred, we now turn to the merits.

rv

As noted above, Turner raises numerous challenges to the application of the vileness factor, several of which are interrelated.

He first says the jury instructions inadequately defined the vileness factor. More particularly, he says that the limiting definitions for “aggravated battery” and “depravity of mind” were constitutionally insufficient. The jury was instructed that “an aggravated battery is a battery which qualitatively and quantitatively is more culpable than the minimum necessary to accomplish an act of murder.” JA 517-P. The jury also was instructed that “depravity of mind is a degree of moral turpitude and and [sic] psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.” JA 517-Q. The court further defined malice and premeditation. Turner says that these definitions are incomprehensible and that they fail to narrow the class of persons eligible for the death penalty. See Arave v. Creech, — U.S.—,—, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993) (the language of a limiting construction must be determinate and “must ‘genuinely narrow the class of persons eligible for the death penalty’ ” (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983))).

We have on several occasions upheld limiting definitions that were identical or virtually identical to those challenged here. See, e.g., Jones, 976 F.2d at 174—75 (holding that identical limiting definitions of depravity of mind and aggravated battery “were specific and provided adequate guidance to the jury” as required by Godfrey). Recognizing that “the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision,” Walton, 497 U.S. at 655, 110 S.Ct. at 3058, we believe the limiting definitions here are sufficiently clear and objective. And, as we have previously observed, the limiting definitions adequately narrow the class of persons eligible to receive the death penalty because a juror of ordinary sensibility would not find that all murders involve depravity of mind or an aggravated battery. “The instructions clearly direct the jury away from that result by requiring that something extra be present, i.e., either force greater ‘than the minimum necessary to accomplish an act of murder’ or ‘a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.’ ” Jones, 976 F.2d at 174-75. We therefore reaffirm our prior holdings, which we think are amply supported by the Supreme Court’s recent decision in Creech.

In Creech, the death sentence was based in part on Idaho’s utter disregard factor: “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.” — U.S. at-, 113 S.Ct. at 1538 (quoting Idaho Code § 19-2515(g)(6) (1987)). Idaho had adopted a limiting construction, whereby the utter disregard factor was “meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded, pitiless slayer.” Id. at-, 113 S.Ct. at 1539. The Supreme Court held that this construction satisfied constitutional requirements. Id. at-, 113 S.Ct. at 1541. Surely the limiting construction applied in Turner’s case is as clear and objective as, and satisfies the narrowing requirement as well as, the construction upheld in Creech. See also Walton, 497 U.S. at 654, 110 S.Ct. at 3057-58 (upholding Arizona court’s limiting construction which said a murder was “especially cruel” if “the perpetrator inflicts mental anguish or physical abuse before the victim’s death,” with mental anguish including “a victim’s uncertainty as to his ultimate fate”) (internal quotation marks omitted); compare Shell v. Mississippi, 554 So.2d 887, 905-06 (Miss.1989), rev’d per curiam, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (holding unconstitutional a limiting construction of Mississippi’s heinousness factor); Cartwright, 822 F.2d at 1488, aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (holding .unconstitutional a limiting construction of Oklahoma’s heinousness factor).¹⁹

Turner also claims that the Supreme Court of Virginia’s appellate review of his sentence was inadequate because that court “allowed the death sentence to stand even though ... the crime was less culpable than the conduct in other death penalty cases or in many cases in which the defendant was sentenced to life imprisonment.” Appellant’s Br. at 50. He further “argues that the Virginia system does not provide capital defendants meaningful appellate review, even in cases in which the results appear arbitrary.” Id. at 57. However, because we have held that the Virginia courts applied a constitutionally sufficient limiting construction for the vileness factor in Turner’s ease, it is clear from the Supreme Court’s cases that these additional claims carry no constitutional weight. For instance, in Walton, supra, the Supreme Court upheld the state court’s limiting construction and then disposed of arguments similar to those raised by Turner here:

Walton nevertheless contends that the heinous, cruel, or depraved factor has been applied in an arbitrary manner and, as applied, does not distinguish his case from cases in which the death sentence has not been imposed. In effect Walton challenges the proportionality review of the Arizona Supreme Court as erroneous and asks us to overturn it. This we decline to do, for we have just concluded that the challenged factor has been construed by the Arizona courts in a manner that furnishes sufficient guidance to the senteneer. This being so, proportionality review is not constitutionally required, and we “lawfully may presume that [Walton’s] death sentence was not “wantonly and freakishly’ imposed—and thus that the sentence is not disproportionate within any recognized meaning of the Eighth Amendment.”

497 U.S. at 655-56, 110 S.Ct. at 3058-59 (quoting McCleskey v. Kemp, 481 U.S. 279, 306, 308, 107 S.Ct. 1756, 1774-75, 1775, 95 L.Ed.2d 262 (1987)); see also Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (“Our decision in Walton thus makes clear that if a State has adopted a constitutionally narrow construction of a facially vague aggravating circumstance, and if the State has applied that construction to the facts of the particular case, then the ‘fundamental constitutional requirement’ of ‘channeling and limiting ... the senteneer’s discretion in imposing the death penalty,’ has been satisfied.” (citation omitted) (quoting Cartwright, 486 U.S. at 362, 108 S.Ct. at 1858)); Creech, — U.S. at-, 113 S.Ct. at 1544 (“our decisions do not authorize review of state court cases to determine whether a limiting construction has been applied consistently”).

In any event, the Supreme Court of Virginia’s review of Turner’s sentence was adequate. The court found that the evidence was sufficient to trigger the vileness factor. See Turner, 364 S.E.2d at 488-89. Moreover, pursuant to Virginia law, the court determined that the sentence (1) was not “imposed under the influence of passion, prejudice or any other arbitrary factor,” and (2) was not “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Id. at 490 (quoting Va.Code Ann. § 17-110.1(0 (Michie 1992)). The court conducted a proportionality review based on the records of all Virginia capital felony cases and found that Turner’s murder was “just as brutal” as the murders in other cases where the death sentence was imposed. Id. The court concluded “that juries in this jurisdiction generally approve of the death penalty for offenses comparable to the murder committed by Turner.” Id. at 491 (citing Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196, 203 (1987) (“vileness” found in murder of store employee shot three times during struggle with robber; Barnes held “that a killing inflicted by multiple gunshot wounds may constitute an ‘aggravated battery’ ... where there is an appreciable lapse of time between the first shot and the last, and where death does not result instantaneously from the first”), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988)). In short, the Supreme Court of Virginia “plainly undertook its proportionality review in good faith,” and “[t]he Constitution does not require us to look behind [its] conclusion.” Walton, 497 U.S. at 656, 110 S.Ct. at 3058.

Turner’s general attack on the Virginia system of appellate review is equally unpersuasive; the Virginia system does provide for meaningful review and its results are fairly consistent.²⁰

Turner’s final claim is that, even if the vileness factor has been constitutionally-defined, the facts of his case do not fit within that factor, ie., the vileness factor does not apply to him. A challenge to a state court’s application of an aggravating factor, however, raises primarily a question of state law: “[F]ederal habeas review of a state court’s application of a constitutionally narrowed aggravating circumstance is limited, at most, to determining whether the state court’s finding was so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation.” Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102. “A state- court’s finding of an aggravating circumstance in a particular case ... is arbitrary or capricious if and only if no reasonable senteneer could have so concluded.” Id. at 783, 110 S.Ct. at 3103. The “standard of review is the ‘rational factfinder’ standard established in Jackson v. Virginia.” Id. at 781, 110 S.Ct. at 3101— 02; see also Creech, — U.S. at—, 113 S.Ct. at 1544; Richmond v. Lewis, — U.S. —,—, 113 S.Ct. 528, 536, 121 L.Ed.2d 411 (1992).

We conclude that a rational senteneer could have found that the murder of Smith involved either depravity of mind or an aggravated battery. Turner emphasizes that his murder cannot possibly be considered an aggravated battery because he rapidly fired two successive shots into Smith’s chest, either one of which may have been fatal. However, Turner shot Smith in the head before he fired the two shots into Smith’s chest. And, between the shot to the head and the shots to the chest, enough time elapsed for Officer Bain to talk to Turner and for two customers to escape from the store. As the Supreme Court of Virginia emphasized on direct review in Turner I: “After being wounded [in the head] by Turner, Smith slumped helplessly behind the counter. Unlike Godfrey’s victims, Smith did not die instantaneously from a single discharge of a firearm.” Turner, 273 S.E.2d at 45. Thus, a rational factfinder could have found an aggravated battery here and therefore we reaffirm our conclusion in Turner I, where “[w]e rejected] Turner’s contention that his crime was not so vile as to justify the imposition of death.” Turner, 753 F.2d at 353.

In sum, we hold that the vileness factor was constitutionally applied in Turner’s ease.

V

Turner contends that his appointed lawyers, J. Lloyd Snook, III and Thomas L. Woodward, Jr., rendered ineffective assistance.²¹ He challenges Snook’s assistance in six respects: (1) his investigation of mitigating evidence, (2) his supervision and preparation of the mental health expert, (3) his failure to interview prosecution witnesses, (4) his informing the venire that a prior jury sentenced Turner to death for the same crime, (5) his failure to present any mitigating evidence, and (6) his failure to put on the evidence described in the opening statement.

We evaluate ineffective assistance claims under the standard set forth in Strickland v. Washington, supra. Under Strickland, an ineffective assistance claim has two components. First, defendant must show that counsel’s performance was deficient, i.e., “that counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-88, 104 S.Ct. at 2064-65. Second, defendant must show that he was prejudiced by the deficient performance. Id. at 687, 104 S.Ct. at 2064. When a defendant challenges a death sentence, prejudice is established when “there is a reasonable probability that, absent [counsel’s] errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. at 2069. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. As explained below, we conclude that Turner has not carried his burden under Strickland.22

A. Pretrial Preparation

1. Investigation of Mitigating Evidence

Turner argues that Snook inadequately investigated, or failed to investigate, certain mitigating evidence, namely evidence relating to (a) his background and (b) his role in a 1984 death row escape from Mecklenburg Correctional Center. His allegations focus on Snook’s performance during the five-month period between Snook’s July 31, 1986, appointment and the January 1987 resen-tencing proceeding. Viewing this period in isolation, we agree Snook spent relatively little time investigating and developing mitigating evidence. However, we cannot ignore the fact that he was not a blank slate when he was appointed in July 1986. Quite the contrary. Snook had been working on Turner’s case since 1980, when he was appointed to represent Turner on direct appeal in Turner I. Snook represented him in the Turner I state and federal habeas proceedings, including Turner’s victory in the United States Supreme Court in Turner v. Murray, supra. By the time of the resentencing hearing, Snook had devoted approximately 1,000 hours to Turner’s case, including approximately 250 hours after the July 1986 appointment. (Woodward, moreover, began working on Turner’s case in 1979, when he was appointed to serve as co-counsel in the Turner I murder trial and capital sentencing proceeding.)

Snook thus was knowledgable about Turner’s ease when he was reappointed in 1986. More importantly, Snook was aware of the mitigating evidence that had been developed for the Turner I capital sentencing proceeding and related collateral proceedings. At the original sentencing proceeding, for instance, several mitigation witnesses testified, including a psychiatrist and Turner’s mother, aunt and first cousin. More significant was the evidence developed during the federal habeas phase of Turner I. There, ironically, Snook attempted to show that Turner’s trial counsel rendered ineffective assistance for inadequately investigating mitigating evidence. In order to advance that claim, Snook necessarily had to develop additional mitigating evidence. He delegated that task to Marie Deans, the Executive Director of the Virginia Coalition on Jails and Prisons (an organization that, inter alia, assisted attorneys handling capital trials and appeals). Deans had assisted with many capital cases.

Deans interviewed by telephone (on multiple occasions) Turner’s sister and uncle, neither of whom testified at the original sentencing trial. She also interviewed numerous other potential character witnesses. Deans then prepared reports for Snook that highlighted the results of her investigation. These reports provided part of the substance for a motion to alter or amend judgment filed in federal court in 1984.

Another development in 1984 was Turner’s involvement in the escape of death row inmates from Mecklenburg Correctional Center; although Turner did not escape, he was involved in the planning and execution of the breakout. Snook had five clients on death row at Mecklenburg at the time. Within a week after the escape, he went to Mecklen-burg to conduct an investigation. He may have spoken with as many as ten guards and inmates (including Turner) with firsthand knowledge of the escape, and Deans “had talked with a bunch more.” JA1291. Snook also spoke with officials at the Attorney General’s Office and the Governor’s Office, the head of the Corrections Board, and the Director of the National Prison Project of the American Civil Liberties Union, all of whom were involved in the investigation of the incident. Furthermore, he was present when Turner was interviewed by the police shortly after the incident. As a result of these efforts, Snook had in his possession prior to resentencing a comprehensive file relating to the 1984 Mecklenburg escape, and he was aware of potential mitigating and aggravating testimony.

In sum, by the time of his appointment in July 1986, Snook generally was familiar with Turner’s potential mitigating evidence. With this background in mind, we address Turner’s challenge to the adequacy of Snook’s pretrial investigation.

a. Background evidence

Turner first challenges Snook’s investigation of evidence relating to his early and formative years, alleging that Snook (i) failed to conduct face-to-face interviews or meet personally with potential defense witnesses prior to the resentencing proceeding (they met after the proceeding was underway), (ii) failed to contact other persons who might have had knowledge about Turner’s early and formative years, and (iii) failed to conduct an adequate interview of Turner.

As for Snook’s failure to conduct face-to-face (as opposed to telephone) interviews or meet personally with defense witnesses prior to the resentencing proceeding, Snook did not deem such meetings necessary because he generally was familiar with the substance of what these witnesses would say. For instance, he had reviewed a number of times the potentially mitigating evidence that Deans had collected. In addition, he had telephoned potential defense witnesses the month before the resentencing proceeding. Although face-to-face meetings with witnesses may be the more desirable approach, we cannot say that Snook’s performance was unreasonable. See Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987) (“[Counsel] could well have made a more thorough investigation than he did. Nevertheless, in considering claims of ineffective assistance of counsel, ‘[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.’ ” (quoting United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 2050 n. 38, 80 L.Ed.2d 657 (1984))). Moreover, Turner fails to explain what additional evidence would have been obtained from face-to-face interviews or meetings. See Bassette, 915 F.2d at 940-41 (when challenging the adequacy of counsel’s investigation, defendant must show what an “adequate” investigation would have uncovered).

As for Snook’s failure to contact more people familiar with Turner’s background, counsel’s duty to investigate is limited to a reasonable investigation. Strickland, 466 U.S. at'691, 104 S.Ct. at 2066. “Particularly when evaluating decisions not to investigate further, we must regard counsel’s choices with an eye for ‘reasonableness in all circumstances, applying a heavy measure of deference to counsel’s judgments.’ ” Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir.1991) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. at 2066), cert. denied, — U.S. —, 112 S.Ct. 3056, 120 L.Ed.2d 922 (1992). As noted above, the list of individuals previously approached at one time or another for background information included Turner’s mother (his father was deceased), his sister, his aunt, his uncle and his first cousin. It was not unreasonable for Snook to think he (and Deans) had identified and contacted those individuals most likely to possess potentially mitigating information.

Moreover, Turner has not demonstrated that he was prejudiced by Snook’s failure to contact other individuals. He presents affidavits of several unapproached persons who knew about Turner’s parents or the conditions of Turner’s childhood, but the substance of these affidavits is cumulative of that which Snook already knew; for example, Turner’s family was poor and his parents abused him. See Jones v. Murray, 947 F.2d 1106, 1113 (4th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992); Bunch, 949 F.2d at 1365. And, to the extent Turner generally claims that additional sources should have been investigated (e.g., neighbors, teachers, friends), “he does not advise us of what an adequate investigation would have revealed or what these witnesses might have said, if they had been called to testify.” Bassette, 915 F.2d at 940-41.

Finally, as for Snook’s alleged failure to have a “comprehensive” conversation with Turner about his background, we note that, although Snook testified that he did not recall having a conversation with Turner “starting off with childhood and going all the way through the present,” he and Turner “talked a fair amount,” discussing “bits and pieces” of Turner’s life history “from time to time.” JA 755. Indeed, between the time of his original appointment in 1980 and the resentencing proceeding, Snook visited Turner a number of times and spoke with him by phone an average of once per month. They specifically discussed Turner’s history while preparing his affidavit for filing in federal court in 1984. Moreover, Woodward had previously interviewed Turner at length. And, Deans (to whom Snook had assigned the task of gathering mitigating evidence) spoke with Turner in person (at Mecklen-burg) about three times per year and by telephone about once or twice per month over a period of years. In view of the frequency of direct and indirect client contact, we decline to hold that Snook inadequately interviewed Turner. Nor has Turner shown how he was prejudiced, for he fails to advise us what additional information would have been uncovered by a “comprehensive” interview.

In sum, although Snook “could have perhaps investigated the facts of the case more thoroughly and with more diligence,” Williams v. Dixon, 961 F.2d 448, 451 (4th Cir.), cert. denied, — U.S. —, 113 S.Ct. 510, 121 L.Ed.2d 445 (1992), and perhaps could have prepared more thoroughly for the resentencing proceeding, Turner has not shown that Snook’s performance fell below an objective standard of reasonableness. In fact, Snook’s opening statement to the jury, which described Turner’s background, belies that contention. Even Turner’s expert witness (Dr. Link) at the state habeas hearing conceded that Snook’s opening statement demonstrated familiarity with Turner’s background.

b. The 1984 Mecklenburg breakout

More readily disposable is Turner’s claim that “[n]o investigation was undertaken of the 1984 breakout incident at Mecklenburg or of the constructive role [he] played in protecting the lives of hostages and other inmates when the situation was most tense.” Appellant’s Br. at 9. As noted above, Snook was well aware of the facts surrounding, and Turner’s role in, the Mecklenburg incident. In fact, in 1985 Snook wrote a letter to then-Governor Robb requesting clemency, wherein he described the gratuitous actions taken by Turner during the escape. Because Snook previously had conducted an investigation of the incident, it was not unreasonable for him to find it unnecessary “to go back and track these people down again....” JA 1246.

2. Supervision and Preparation of Mental Health Expert

In his next attack on Snook’s pretrial performance, Turner contends that Snook inadequately supervised and prepared Dr. Fisher, a court-appointed mental health expert. He emphasizes that, because of Snook’s alleged inattentiveness, Dr. Fisher failed to examine him (Turner) prior to the resentencing proceeding. (Dr. Fisher examined Turner after the resentencing proceeding was underway.) Consequently, he says, Dr. Fisher was forced to base his diagnosis on trial transcripts and prison and medical records.

To evaluate the reasonableness of Snook’s handling of Dr. Fisher, we must back up and-recognize why Dr. Fisher was retained. The jury in Turner I had recommended the death penalty after finding that both aggravating factors, future dangerousness and vileness, were established. Snook and Woodward, however, did not think that the murder of Smith fit within the vileness factor. They thought that, although the re-sentencing jury might add vileness as a second factor if it first found future dangerousness, it likely would not find vileness in the absence of future dangerousness. Thus, their strategy was to convince the jury that Turner no longer represented a future danger to society. It was for this reason that Snook sought the appointment of Dr. Fisher.

Dr. Fisher, a clinical forensic psychologist, was an expert in the field of prison conditions, the classification of prisoners, and the adaptability of inmates to prison life. Snook sought. a rather narrow opinion from Dr. Fisher — that Turner’s violent days were behind him and that he no longer posed a future danger to others. Dr. Fisher referred to this as the “burnout syndrome,” whereby one diagnosed as having had an antisocial personality disorder in his early years begins to manifest less antisocial behavior by his mid-thirties (Turner was in his forties).

Significantly, because Snook concluded that Turner’s mental health was not a viable issue, Snook never intended to have Dr. Fisher provide a conventional psychological diagnosis or question the validity of any prior psychological diagnoses. Snook wanted him because he was a corrections expert; it was irrelevant to Snook that Dr. Fisher was a psychologist. It thus was not remarkable that “Dr. Fisher did not know any of the details of [Turner’s] crime, much less anything about his psychiatric condition.” Appellant’s Br. at 25. As for the necessity of a personal examination, Dr. Fisher explained in his affidavit for the state habeas hearing that, because future dangerousness was the focus of the resentencing proceeding, “the existing prisoner and medical files for Mr. Turner, which were ample, became that much more important in my evaluation. Once I carefully reviewed these various materials, one direct meeting with Mr. Turner was, all that became necessary.” JA 1913.

We conclude that Snook’s handling of Dr. Fisher did not fall below an objective standard of reasonableness. In addition, we fail to see how Turner could have been prejudiced by Dr. Fisher’s failure to examine him prior to trial. When he examined Turner after the resentencing proceeding was underway, Dr. Fisher discovered nothing new and only confirmed his previously developed conclusions.

3. Failure to Interview Prosecution Witnesses

Turner complains that Snook did not interview the Commonwealth’s witnesses. ‘“A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance when the person’s account is otherwise fairly known to defense counsel.’” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir.1986) (quoting United States v. Decoster, 624 F.2d 196, 209 (D.C.Cir.1976) (en banc)); see Mulligan v. Kemp, 771 F.2d 1436, 1442 (11th Cir.1985), cert. denied, 480 U.S. 911, 107 S.Ct. 1358, 94 L.Ed.2d 529 (1987). Here, from their conversations with the prosecutor, Snook and Woodward were aware of the substance of the witnesses’ anticipated testimony. Turner has not identified additional information that would have been revealed had counsel interviewed the Commonwealth’s witnesses. See Eggleston, 798 F.2d at 376; Aldrich v. Wainwright, 777 F.2d 630, 636-37 (11th Cir.1985), cert. denied, 479 U.S. 918, 107 S.Ct. 324, 93 L.Ed.2d 297 (1986).

B. Trial Performance

In addition to the above attacks on Snook’s pretrial preparation, Turner next challenges Snook’s trial performance in three respects: (1) he informed prospective jurors that a jury previously had sentenced Turner to death for the murder of Smith, (2) he failed to present any mitigating evidence, and (3) he failed to put on the mitigating evidence described in the opening statement to the jury.

1. Informing Prospective Jurors of the Prior Sentence

Because the resentencing jury would be told that its sole function was to determine the penalty for a murder committed nine years earlier and that it could only choose between life imprisonment and death, Snook and Woodward were concerned that jurors would deduce that Turner previously had been sentenced to death for the murder of Smith; i.e., the jurors would figure out that one sentenced to life would not appeal and.risk a death sentence.

More importantly, the Commonwealth planned to introduce evidence of Turner’s involvement in the highly publicized 1984 escape, and in a 1985 attempted escape, from death row at Mecklenburg. Snook reasoned that, from references to Mecklenburg, death row or the names of the prisoners who escaped, jurors surely would realize that Turner was sentenced to death for the murder of Smith.

Snook and Woodward thus faced a dilemma. They thought their best alternative was to ask the court to preclude the Commonwealth from mentioning Mecklenburg, death row or the prisoners who escaped; for example, “a fictionalized prison in some fictionalized location with fictionalized co-conspirators.” JA 828. Indeed, this was the advice of the death penalty experts with whom Snook consulted. Accordingly, in a pretrial hearing, counsel urged the court to preclude the Commonwealth from making direct or indirect references to Turner’s having been on death row:

MR. WOODWARD: Let me ask a question now.... If the defendant elects not to have [the prior sentence] brought to the attention of the jury, then would the Commonwealth be precluded, not that he attempted to escape from Mecklenburg, but would he be precluded from indicating that he attempted to escape from death row?

THE COURT: No, sir. No.

THE COURT: You can’t cover it up, Tom.

MR. WOODWARD: ... but I’m simply asking ... is not there a way to present it so that death row doesn’t come out?

MR. WOODWARD: ... I’m simply asking more as a matter of inquiry is not there a way ... without indicating that people are on death row. Can’t you go through institutional escape without going through what people are there for?

THE COURT: No, because I don’t think you can do it. The Commonwealth is going to try to show the future dangerousness of the individual. You’re going to try to show that even though this man" has been convicted of capital murder and is being held in Mecklenburg and this, that, and the other. I don’t know, it seems to me it makes your case stronger to tell them it was than if you try to hold it away from them.

MR. WOODWARD: Again, I’m simply asking.

THE COURT: There’s no way I can see to keep it from them. If he’s .on death row these guards are going to come in and testify and these other people are going to come in and testify....

JA 152-54. The court’s position was clear. Snook decided to inform prospective jurors about the prior death sentence.

Turner says this decision amounted to ineffective assistance under Strickland. He cites two cases to support his claim, Arthur v. Bordenkircher, 715 F.2d 118 (4th Cir.1983), and Barker v. Commonwealth, 230 Va. 370, 337 S.E.2d 729 (1985). In Arthur, a pre-Strickland case, we found ineffective assistance where counsel drafted and consented to the reading of a jury instruction stating that defendant had been convicted by another jury for the same murder, but was being retried because his earlier conviction had been reversed on procedural grounds. Arthur, 715 F.2d at 118-19.. In Barker, which was not an ineffective assistance case, a prospective juror in a retrial stated during voir dire that she was aware defendant had been convicted previously of the crime charged and that she was aware of his prior sentence. Barker, 337 S.E.2d at 732. The issue before the Supreme Court of Virginia was whether the trial court erred in refusing to exclude her for cause. Id. The court held “that when a venireman knows of an accused’s previous conviction of the same offense for which he is being retried, the venireman cannot qualify as a juror in the new trial.” Id. at 733.

Barker and Arthur stand for the general proposition that a defendant’s case is damaged by a juror’s knowledge that defendant had previously been convicted for the crime charged. We cannot disagree with that proposition in the abstract, and the reasoning of those cases should apply when a juror in a capital sentencing proceeding learns that, a prior jury had imposed the death penalty for the crime charged. Cf. Burger, 483 U.S. at 788, 107 S.Ct. at 3122-23 (comparing capital sentencing proceeding to a trial). However, we do not read these cases to mandate a finding of ineffective assistance as a matter of law. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065 (noting that no “set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel”). These decisions simply do not address whether it is unreasonable in all circumstances for counsel to inform a prospective juror about a prior verdict. In neither case, for instance, was there any indication that it would be difficult to impanel a jury with no knowledge of the prior verdict. In this case, however, Snook (well aware of the Barker decision) reasonably thought it more likely than not that jurors would learn of the prior death sentence.

The question, then, is whether Snook acted unreasonably in the face of his dilemma. He requested that the court declare inadmissible any references by the Commonwealth to death row or the prisoners who escaped from Mecklenburg. The court denied this request. He also considered using voir dire to strike for cause those prospective jurors with knowledge of the 1984 Mecklenburg escape, but decided that this would not be practical. This conclusion was justifiable because, although he might have been able to impanel a jury that was unaware of the 1984 escape, the Commonwealth nevertheless could have mentioned death row. Having exhausted these alternatives, Snook decided to inform the venire of the prior death sentence so he could appear forthcoming and, more importantly, so he could gauge the reaction of each prospective juror during voir dire. He then could strike for cause any prospective jurors who indicated that they would be more inclined to impose the death penalty because of their knowledge of the prior sentence. Contra Arthur, 715 F.2d at 119 (jurors, as opposed to prospective jurors, were informed of the prior conviction).²³

In the final analysis, Strickland teaches that “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65. Considering all the circumstances in this case — namely, the anticipated direct or indirect references to death row in conjunction with the risk that jurors might independently deduce the prior death sentence — we hold that counsel did not fall below an objective standard of reasonableness. Rather, this was the type of strategic decision to which we must defer under Strickland,²⁴

2. Failure to Present Mitigating Evidence

The Commonwealth finished its case in chief on Friday, January 9, 1987. On Monday, January 12, defense counsel rested without putting on any mitigating evidence. Turner claims this decision was both unreasonable and prejudicial under Strickland. As set out below, we conclude that counsel made a sound tactical decision not to present any mitigating evidence, a decision which we should avoid second guessing.

The Commonwealth had in its possession a substantial amount of aggravating evidence. Yet, the prosecutor, Grizzard, put on a rather mild ease in chief. He first presented the facts of the Smith murder. But instead of putting on live eyewitness testimony, transcripts from the Turner I sentencing proceeding were read verbatim to the jury. Snook thought the jury appeared bored by this approach.

Next, Grizzard presented Turner’s criminal history. But, instead of fleshing out the aggravating details of his numerous prior crimes, an official from the Virginia Department of Corrections simply stated each offense, and the date, location and sentence for each offense.

Finally, Grizzard presented evidence relating to the 1984 breakout and the. 1985 attempted escape from Mecklenburg. With regard to the 1984 escape, instead of calling eyewitnesses to testify about Turner’s role and actions, the Commonwealth called a police officer (Officer Mills) to read Turner’s account of the incident. (Mills had interviewed Turner in the presence of Snook shortly after the incident.)

In short, despite the fact that the Commonwealth had a substantial amount of damaging evidence relating to future dangerousness, by its own account it withheld from its ease in chief eighty percent of that evidence, including some of the most damaging information. For example, Grizzard was prepared to call Lorenzo Artis, the victim of Turner’s 1970 malicious wounding offense, and police officers involved with that incident. Artis would have described how Turner shot him five times as he (Artis) left a restaurant; a police officer (Chief Britt) would have presented Turner’s reaction when arrested: “[Y]ou-all after me because I shot that nigger? ... I hope he dies.” JA 695.

Snook and Woodward were well aware of the Commonwealth’s evidence, and they knew that Grizzard’s strategy was to dump damaging evidence during cross-examination and rebuttal. (In fact, Grizzard effectively used the same strategy in Turner I, where the jury found future dangerousness in addition to vileness.) Nevertheless, Snook and Woodward were surprised at how much Grizzard withheld from his case in chief; they thought he made a tactical error, and they thought Turner could not be in a much better position at that point. Because Snook believed “there was more evidence suggestive of [Turner’s] bad character than there was suggestive of his good character,” JA 797, and that it might do more harm than good to open the door for more aggravating evidence, they immediately considered not putting on any mitigating evidence.

Snook first decided not to call Dr. Fisher. Dr. Fisher’s function, after all, was to rebut the Commonwealth’s future dangerousness evidence, much of which had not been presented in its case in chief. And, the Commonwealth’s principal strategy was to wait for Dr. Fisher’s testimony to open the door for significant aggravating evidence during cross-examination and rebuttal. For instance, Grizzard would have called Dr. Lee, a clinical psychologist, to testify “that there was a substantial probability that Mr. Turner would commit future criminal offenses of a violent nature. And of the degree that this would probably put society in danger.” JA 1133. A psychiatrist (Dr. Dimitris) would have confirmed this. Thus, calling Dr. Fisher could have done more harm than good, and Snook’s decision not to call Dr. Fisher clearly was the type of tactical decision to which we must defer under Strickland. See Fitzgerald v. Thompson, 943 F.2d 463, 470 (4th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 1219, 117 L.Ed.2d 456 (1992); Bunch, 949 F.2d at 1364 (had counsel called their psychiatrist, harmful evidence would have emerged on cross-examination). Indeed, Turner’s expert (Dr. Link) at the state habeas hearing conceded it “was a good decision not to use [Dr. Fisher].” JA 1096.

Likewise, although a closer call, it was a tactical decision not to present evidence relating to Turner’s gratuitous actions during the 1984 Mecklenburg escape. Here, there was more concern with cross-examination than rebuttal. For example, although witnesses could have testified that Turner helped some of the hostages, they also would have reaffirmed the aggravating circumstances surrounding Turner’s role in the incident. Indeed, one of Turner’s potential witnesses (Officer Fitts) could have revealed on cross-examination that Turner stuck a knife in his back and told him to “get down or die.” JA 2337, 2335.

The best mitigating evidence here was a statement allegedly made by Turner to other inmates who were threatening to kill some hostages: ‘You’re going to have to go thru [sic] me first. If you’re going to kill somebody, you will have to kill me first.” JA 2364. Yet, by withholding this statement, Snook precluded the Commonwealth from recycling (on cross-examination) aggravating evidence about Turner’s role in the escape: Turner helped plan and execute the escape of dangerous death row inmates, he provided inmates with weapons, he took hostages, etc. Although the jury had already heard this aggravating evidence, it had heard it only once — and only from Turner’s perspective (from Officer Mills’ interview after the incident). We cannot fault counsel for wanting to leave it at that. Moreover, Snook thought the Commonwealth’s reliance on Turner’s statement made him appear trustworthy. (We note that Turner’s account of the incident, which was read to the jury, did include some mitigating facts: He wanted to back out of the plan, he urged the inmates not to harm a correctional officer, he tried to give a knife to Lt. Hawkins, and he checked on Nurse Barksdale, who had been disrobed and placed in his cell.)

Having decided not to call Dr. Fisher or Mecklenburg witnesses, Snook was left with background and character evidence, which he thought to be rather marginal. As for the background evidence in particular, Snook thought that juries were not very receptive to evidence of a deprived upbringing without a “solid mental health issue.” JA 836-37. And, Snook and Woodward thought it might offend some members of the rural Virginia jury if they emphasized Turner’s deprived upbringing or suggested that one might commit murder as a result of it. See Card v. Dugger, 911 F.2d 1494, 1511 (11th Cir.1990) (“emphasizing a client’s deprived childhood does not have a very beneficial impact on a northwest Florida jury, given the fact that many jurors have had difficult lives, but have not turned to criminal conduct”). Indeed, during his opening statement Snook had noticed that some jurors appeared unreceptive when he referred to Turner’s deprived upbringing.

Of more concern was the permissible, scope of rebuttal were Snook to put on background or character evidence. Snook did not believe this evidence was so overwhelming that it was worth opening the door for extensive aggravating evidence. Accordingly, Snook and Woodward returned to court on Monday, January 12, 1987, and asked for a ruling on the permissible scope of rebuttal evidence. The court declined to rule on the motion until it heard the specific evidence at trial but clearly indicated that there would be few, if any, restrictions on the scope of rebuttal. See, e.g., JA 424-25 (the court warned, “I think the Commonwealth has a right to come back and show the bad, if you show the good”); JA 426 (the court advised, “[b]ecause this whole hearing is based on ... what kind of man is Willie Lloyd Turner ... you’ve got to take the bitter with the sweet and vice versa”); id. (court saying the Commonwealth can “come in and show well, [Turner] was a pretty bad guy”). Snook and Woodward immediately told the court that, based on the court’s statements, they would rest their case without putting on any evidence.

In sum, Snook and Woodward thought Turner had a chance for a life sentence if the Commonwealth failed to meet its burden of establishing that Turner was a future danger to society. Snook thought (and argued to the jury during closing argument) that the Commonwealth did not carry that burden in its case in chief. Moreover, he was concerned that the presentation of mitigating evidence would provoke damaging cross-examination and rebuttal. As we have observed:

Trial counsel is too frequently placed in a no-win situation with respect to possible mitigating evidence at the sentencing phase of a capital case. The failure to put on such evidence, or the presentation of evidence which then backfires, may equally expose counsel to collateral charges of ineffectiveness. The best course for a federal habeas court is to credit plausible strategic judgments in the trial of a state case.

Bunch, 949 F.2d at 1364 (failure to put on evidence of traumatic childhood and psychiatric testimony). In view of all the circumstances surrounding Snook’s decision to fore-go a mitigation case, Turner has not overcome the presumption that the decision constituted “sound trial strategy,” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. See Burger, 483 U.S. at 795, 107 S.Ct. at 3126; Strickland, 466 U.S. at 700, 104 S.Ct. at 2071; Bunch, 949 F.2d at 1364; Whitley v. Bair, 802 F.2d 1487, 1496 (4th Cir.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987); McAleese v. Mazurkiewicz, 1 F.3d 159, 167 (3d Cir.), cert. denied, — U.S. —, 114 S.Ct. 645, 126 L.Ed.2d 603 (1993); Prejean v. Smith, 889 F.2d 1391, 1398 (5th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1836, 108 L.Ed.2d 964 (1990); Mitchell v. Kemp, 762 F.2d 886, 890 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987). Having held that counsel did not fall below an objective standard of reasonableness, we need not explore whether Turner was prejudiced by the failure to introduce mitigating evidence.²⁵

3. Failure to Put On Mitigating Evidence Described in the Opening Statement

At the outset of the sentencing proceeding, Snook planned to introduce mitigating evidence. Accordingly, in his opening statement, he told the jury that he would produce certain mitigating evidence (testimony and other evidence). As discussed above, he rested without putting on that evidence. Turner says Snook’s failure to present the evidence described in the opening statement, in and of itself, was ineffective assistance. We disagree.

Turner relies principally on a First Circuit decision, Anderson v. Butler, 858 F.2d 16 (1st Cir.1988). In Anderson, defense counsel, in his opening at the close of the state’s case, told the jury that he would call a psychiatrist and a psychologist. Id. at 17. The next day counsel rested without calling the doctors. Id. The court, over then-judge Breyer’s dissent, emphasized that “little is more damaging than to fail to produce important evidence that had been promised in an opening” because “the jurors would believe, in the absence of some other explanation, ... that the [witnesses] were unwilling, viz., unable, to live up to their billing.” Id. The court’s opinion suggests that counsel renders ineffective assistance as a matter of law when evidence promised in an opening statement is not delivered at trial, unless perhaps counsel completely abandons a defense. See id. at 18-19. Turner asks that we adopt such a rule.²⁶

However, in a recent case not cited by Turner, United States v. McGill, 11 F.3d 223 (1st Cir.1993), the First Circuit appeared to read narrowly its Anderson decision. The court said: “Although a failure to produce a promised witness may under sonu> circumstances be deemed ineffective assistance, see, e.g., Anderson v. Butler, 858 F.2d 16, 19 (1st Cir.1988), the determination of inefficacy is necessarily fact based. ‘[N]o particular set of rules can be established to define effective assistance_Id. at 227 (emphases added) (quoting United States v. Natanel, 938 F.2d 302, 310 (1st Cir.1991), cert. denied,U.S. -, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992)).

We agree with the reasoning of the more recent First Circuit decision and with Judge Breyer’s dissenting opinion in Anderson, both of which adhere to Strickland’s express warning that:

No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.

Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. See also McAleese, 1 F.3d at 167-68 (in dicta, the Third Circuit noted that even if the opening statement contained an implicit promise to produce certain evidence, counsel’s “later decision not to do so is not necessarily ineffective”); Johnson v. Johnson, 531 F.2d 169, 177 n. 19 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). In our view, assuming counsel does not know at the time of the opening statement that he will not produce the promised evidence, an informed change of strategy in the midst of trial is “virtually unchallengeable,” Strickland, 466 U.S. at 690,104 S.Ct. at 2066. Were we to adopt Turner’s position, we would effectively be instructing defense counsel to continue to pursue a trial strategy even after they conclude that the original strategy was mistaken or that the client may be better served by a different strategy. See Anderson, 858 F.2d at 20 (Breyer, J., dissenting) (“Consider the pressure that such a view places upon a criminal defense attorney (once having mentioned a witness) to call that witness, even if doing so will hurt his client”). In addition, we would discourage counsel from making effective use of opening statements, thereby precipitating ineffective assistance challenges to the quality of opening statements.

In the instant case, Snook intended at the outset to present the evidence described in the opening statement. He changed his trial strategy because he thought the Commonwealth rested prematurely and because the court indicated that the scope of rebuttal would be quite broad. We conclude that his strategic decision to withhold evidence promised in the opening statement was not unreasonable. Nor was it unreasonable for him to mention mitigating evidence in his opening statement. This, again, was a strategic decision; had Snook not described mitigating evidence in the opening statement, we suspect that Turner would have challenged that omission. Finally, Turner’s allegation that the opening statement was made without the benefit of adequate pretrial preparation must be rejected, for we have concluded above that Snook’s pretrial preparation was adequate.

VI

In conclusion, we hold that the Virginia courts applied the statutory vileness factor in a constitutionally adequate manner and that counsel did not render ineffective assistance. We therefore affirm the district court’s denial of Turner’s § 2254 petition for habeas corpus.

AFFIRMED.

1 . We will refer to the original (1979) sentencing proceeding and related collateral proceedings as "Turner I" and to the resentencing proceeding and related collateral proceedings as “Turner II."

2 . In full, Virginia’s death penalty statute provides:

In assessing the penalty of any person convicted of an offense for which the death penalty may be imposed, a sentence of death shall not be imposed unless the court or jury shall (1) after consideration of the past criminal record of convictions of the defendant, find that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or that his conduct in committing the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim; and (2) recommend that the penalty of death be imposed.

3 .Although the trial court instructed the jury on the “future dangerousness” factor, the juiy did not find that factor established. In Turner I, however, the jury found both the vileness factor and the future dangerousness factor.

4 . Turner does not appeal the numerous other claims dismissed by the district court below.

5 . The first exception is for new rules that place "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.” Teague, 489 U.S. at 311, 109 S.Ct. at 1075 (plurality opinion) (internal quotation marks omitted). The second exception is for " ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415 (1990). Because we ultimately conclude that Turner's claims are not barred by Teague, we need not discuss whether his claims can fit within either narrow exception.

6 . The resentencing court instructed the jury that "an aggravated battery is a battery which qualitatively and quantitatively is more culpable than the minimum necessary to accomplish an act of murder.” JA 517-P. The court further instructed that "depravity of mind is a degree of moral turpitude and and [sic] psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation." JA 517-Q.

7 . The Georgia factor permitted the imposition of death if it was found beyond a reasonable doubt that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to tire victim.” Id. 446 U.S. at 422, 100 S.Ct. at 1762 (plurality opinion) (quoting Ga.Code § 27-2534.1(b)(7) (1978)). Compare supra note 2 (Virginia statute).

8 . See Shell v. Mississippi, 498 U.S. 1, 3, 111 S.Ct. 313, 314, 112 L.Ed.2d 1 (1990) (Marshall, J., concurring) ("Obviously, a limiting instruction can be used to give content to a statutory factor that 'is itself too vague to provide any guidance to the sentencer' only if the limiting instruction's own 'definitions are constitutionally sufficient,' that is, only if the limiting instruction itself 'provide[s] some guidance to the sentencer.' " (quoting Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990))); Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir.1989) ("The depravity of mind instruction ... fails to meet Godfrey requirements.... The depravity instruction in this case, although it contains more words, is no more capable of channeling discretion than the ... instruction rejected in [Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)] or the ... instruction in Godfrey.”), vacated on other grounds, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991).

9 . Several Supreme Court decisions announced after Turner’s conviction became final seemingly take for granted that challenges to a state’s limiting construction are predicated on Godfrey and Cartwright. For example, in Shell, supra, a non-habeas case, the Court, in a per curiam opinion, reversed the petitioner’s sentence, saying: "Although the trial court in this case used a limiting instruction to define the [heinousness] factor, that instruction is not constitutionally sufficient.” 498 U.S. at 1, 111 S.Ct. at 313 (citing Godfrey and Cartwright). Similarly; Walton v. Arizona, supra, a nonhabeas case, involved a Godfrey/Cartwright challenge to Arizona’s limiting construction of its heinousness factor. The Supreme Court said:

When a federal court is asked to review a state court’s application of an individual statutory aggravating ... circumstance in a particular case, it must" first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, i.e., whether they provide some guidance to the sentencer.

Walton, 497 U.S. at 654, 110 S.Ct. at 3057-58 (first emphasis added). In Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3098-99, 111 L.Ed.2d 606 (1990), the habeas petitioner likewise argued that Arizona’s construction of its heinousness factor contravened Godfrey and Cartwright. The Court said:

We have reiterated the general principle that aggravating circumstances must be construed to permit the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.

Indeed, in [Cartwright ] we applied the teachings of Godfrey to hold that the Oklahoma courts had not construed Oklahoma’s [heinousness factor] in.a manner sufficient "to cure the unfettered discretion of the jury and to satisfy the commands of the Eighth Amendment."

Id. at 776, 110 S.Ct. at 3100 (quoting Cartwright, 486 U.S. at 364, 108 S.Ct. at 1859) (emphasis added) (citations omitted); see also Arave v. Creech,-U.S.-,-, 113 S.Ct. 1534, 1540-41, 123 L.Ed.2d 188 (1993).

10 . See Chambers v. United States , 22 F.3d 939, 942 (9th Cir.1994) ("We do not create a new rule when we simply apply 'a rule of this general application, Wright v. West, -U.S.-,-, 112 S.Ct. 2482, 2499 (Kennedy, J., concurring), to a new set of facts.” (citing Stringer, supra)): Beam v. Paskett, 3 F.3d 1301, 1310 (9th Cir.1993) ("As the Supreme Court has recently noted [in Stringer ], a rule is not 'new' simply because it is applied to a set of different facts. Because we simply applied the general Herndon rule [holding that any limitation upon individual liberty must have an appropriate relation to the safety of the state] to the specific facts of this case, we conclude that our holding does not create a 'new' rule.” (citation omitted)), cert, denied sub nom. Aravev. Beam,-U.S.-, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994).

11 . Accord Paradis v. Arave, 20 F.3d 950, 953-54 (9th Cir.1994) (holding Jackson v. Virginia challenge is not barred by Teague; also holding that Teague did not bar application of either Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (due process requirement that a defendant be advised of all materials to be used against him in sentencing), or Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (Eighth Amendment rule requiring proportionate culpability for imposing death sentence)).

12 . Justice Thomas wrote an opinion joined by two other Justices. Justice O'Connor wrote an opinion joined by two other Justices. Justices White, Kennedy and Souter each wrote concurring opinions, none of which were joined by other Justices.

13 . This point was not lost on the second Justice Harlan, the father of our new rule jurisprudence. He emphasized that "it is necessary to determine whether a particular decision has really announced a 'new' rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.” Desist v. United States, 394 U.S. 244, 263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting) (emphases added); see also Mackey v. United States, 401 U.S. 667, 695, 91 S.Ct. 1160, 1181, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). Other pre-Teague retroactivity cases similarly have highlighted this point. See, e.g., Yates v. Aiken, 484 U.S. 211, 216, 108 S.Ct. 534, 537, 98 L.Ed.2d 546 (1988) ("many ‘new’ holdings are merely applications of principles that were well settled at the time of conviction”); United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 2587, 73 L.Ed.2d 202 (1982) ("[W]hen a.decision of this Court merely has applied settled precedents to new and different factual situations, no real question has arisen as to whether the later decision should apply retrospectively. In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way.”).

14 . We think Judge Luttig, in his opinion concurring in the judgment, overlooks the significance of Wright v. West. To reiterate, there the Court declined to hold that Teague established a deferential standard of review of state court decisions of federal law. See West, -U.S. at-, 112 S.Ct. at 2498 (Kennedy, J., concurring in the judgment) ("Teague did not establish a deferential standard of review of state court decisions of federal law.”). Rather, the familiar standards still control: On federal habeas a state court's factual findings are "presumed to be correct,” 28 U.S.C. § 2254(d), whereas its findings on questions of law and mixed questions of fact and law receive independent federal consideration, Miller v. Fenton, 474 U.S. 104, 115, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985). We believe that it is not a question of historical fact whether a state court has given a constitutionally sufficient limiting instruction for a vague aggravating factor or whether a state court has provided constitutionally sufficient appellate review of a sentence based a vague factor. Therefore, the sufficiency of the limiting instruction or appellate review is reviewed de novo.

Judge Luttig, however, suggests that so long as a reasonable state court jurist finds the instruction/appellate review at issue to be constitutionally sufficient (more accurately, if the jurist would not have felt compelled to find the instruction or review constitutionally insufficient), we defer to the state court’s judgment. To us, this is contrary to Miller and West. See West,-U.S. at -, 112 S.Ct. at 2497 (O'Connor, J., concurring in the judgment) ("[W]e have [not] held in the past that federal courts must presume the correctness of a state court’s legal conclusions on habeas, or that a state court's incorrect legal determination has ever been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is.”); id. at-, 112 S.Ct. at 2499 (Kennedy, J., concurring in the judgment) ("The comity interest [underlying Teague ] is not, however, in saying that since the question is close the state court decision ought to be deemed correct because we are in no better position to judge.”).

15 . Judge Luttig takes the position that a holding in Turner's favor "would, quite obviously, impose a ‘new obligation' on the Commonwealth of Virginia,” post, at 919-20 (citation omitted), but he says that the holding in Penry “vacating Penry's death sentence, and requiring an additional instruction that the jury could consider his mitigating evidence as such, did not 'impose a new obligation’ on the State of Texas,” id. at 911 n. 4 (citation omitted). According to Judge Luttig, Penry did not impose a new obligation because “such an obligation”—that the state could not foreclose altogether the sentencer's consideration of a defendant's mitigating evidence—’"had already been imposed by prior law.” Id. But in the instant case, as in Penry, there is an extant obligation imposed on the states: When a state uses a vague aggravating factor, the state's limiting instruction or appellate review must be constitutionally sufficient. See supra note 9. The question presented in Penry and the instant case is the same: has the state fulfilled its obligation. As Judge Luttig's discussion of Penry indicates, a federal court's finding that a state failed to fulfill an extant obligation does not necessarily impose a new obligation.

16 . "Because Teague and its Supreme Court progeny ... have sent somewhat inconsistent signals, the circuit courts have had difficulty in coherently following those cases.” 8C James W. Moore et al., Moore's Federal Practice § 14.06[4], App. 14-102.5 (2d ed.1994).. Yet Judge Luttig tells us that the Supreme Court’s new rule cases have been consistent and clear. Despite that alleged consistency, his opinion is devoted in large measure to a discussion of but one case, Graham v. Collins, supra, a case which he says we have ignored. We have not-4gnored Graham. Rather, because we think the Court has not spoken in one clear voice, we have attempted to reconcile the Court's new rule cases. To that end, our attention was drawn to Stringer and Penry, the two new rule cases where the Court found no Teague problem. ■ We think the instant case is more like Stringer and Penry than Graham and the Court’s other new rule cases.

Before addressing the distinction between Pen-ry and Graham, we pause to comment on Judge Luttig's assessment of Stringer as "an unexceptional application of the Court’s consistently-applied standard,” post, at 912-13. This would come as a surprise to the three Stringer dissenters. For one thing, Stringer held that Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), did not announce a new rule despite the fact that an earlier case, Zant v. Stephens, 462 U.S. 862, 890, 103 S.Ct. 2733, 2749-50, 77 L.Ed.2d 235 (1983), had expressly left undecided the constitutional issue decided in Clemons—whether in a "weighing” state the state court must reweigh aggravating factors against mitigating evidence if one of the aggravating factors used by the sentencer is held to be invalid. The Stringer dissenters were thus baffled about how a reasonable jurist at the time Clemons's conviction became final could have felt compelled to conclude that the result in Clemons was dictated by precedent when precedent (Stephens) expressly left the issue undecided. See Stringer, -U.S. at-, 112 S.Ct. at 1144 (Souter, J., dissenting).

More significant is the Stringer majority's response to the dissent's insistence that the result in Clemons was not dictated by extant case law.

When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence. This clear principle emerges not from any single case, as the dissent would require, ... but from our long line of authority setting forth the dual constitutional criteria of precise and individualized sentencing.

Id.-U.S. at-, 112 S.Ct. at 1137 (emphasis added). In other words, although the result in Clemons was not dictated by a particular case, Clemons did not announce a new rule because the result "emerged” from the principle that sentencing must be “precise and individualized.” We think this is a less restrictive standard than that employed in Graham (and endorsed by Judge Luttig) and consequently we disagree with Judge Luttig’s position that Stringer was a run-of-the-mill Teague case.

Moving on to the relationship between Penry and Graham, we are- not persuaded by how Judge Luttig has reconciled the two cases. The cases are distinguishable: Penry involved the application of a pre-existing rule to a new set of facts, whereas Graham involved a petitioner seeking the benefit of a brand new rule of law, i.e., an extension of a pre-existing rule. Specifically, in Penry the Court applied to Peniy's facts the preexisting rule set forth in the Jurek/Lock-ett/Eddings line of cases — relevant mitigating evidence must not be placed beyond the effective reach of the sentencer. However, as Judge Lut-tig observes, Graham's evidence was not placed beyond the sentencer's reach. See post, at 910-11 ("Pemy’s juiy was not, but Graham's was, permitted to consider mitigating evidence as such....”). Graham argued that under the Texas scheme a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond Texas's "special issues.” See id. at 911 n. 4 ("Vacating Graham’s death sentence, by contrast, would have required a holding that Texas could not channel the effect of a defendant’s mitigating evidence at all."). Graham thus sought more than the application' of a pre-exist-ing rule; he sought an extension of the Ju-rek/Lockett/Eddings line of cases (and thus sought the benefit of a whole new rule).

Of course, as Judge Luttig observes, see id. at 909, Graham thought he sought merely the application of a pre-existing rule. But at best, what Graham actually sought was the application of pre-existing principles (those underlying the Jú-rele/Lock ett/Eddings line of cases). In short, Graham's problem was that he invoked a preexisting rule at too high a level of generality. As Justice Souter has observed:

The crux of the analysis when Teague is invoked ... is identification of the rule on which the claim for habeas relief depends. To survive Teague, it must be ... specific enough to dictate the rule on which the conviction may be held to be unlawful.... [Pjassing on its requisite specificity, calls for analytical care.

West,-U.S. at-, 112 S.Ct. at 2501 (Souter, J., concurring in the judgment). Because it is our legal tradition that developments in the law be guided by extant principles, virtually every habeas petitioner will contend that a general principle, e.g., that the death penalty not be "arbitrarily and capriciously” inflicted, dictates the rule he seeks. Teague would be meaningless if habeas petitioners could benefit from the application of pre-existing rules at too high a level of generality.' Sawyer, 497 U.S. at 236, 110 S.Ct. at 2828.

Judge Luttig in essence charges us with applying Godfrey at too high a level of generality. Under his reading of Godfrey, a jury instruction on an aggravating factor can be reviewed on habeas in only two situations: (1) where, as in Godfrey, a jury is given the bare terms of a "vague” aggravating factor, and (2) where, as in Cartwright, a jury is given a limiting construction which gives " ‘no more guidance than did the statute in Godfrey,’ ” post, at 915 (quoting Stringer, -U.S. at-, 112 S.Ct. at 1135), i.e., where the "instruction providefs] no limitation whatsoever on the jury's discretion,” id. But how do we know whether a limiting instruction provides "no more guidance” or "no limitation whatsoever”? To find out, we must review the factor or limiting construction to assess its constitutional sufficiency. See supra note 9 (discussing Walton v. Arizona (non-habeas case) and Lewis v. Jeffers (habeas case)). Yet Judge Luttig takes us to task for conducting this "full merits review,” post, at 904. Put another way, Judge Luttig seems to say that review of the constitutional sufficiency of a limiting construction (i.e., a review on the merits) is not Teague-barred if the limiting construction is constitutionally insufficient, which we would not know unless we undertook a review on the merits, which Judge Luttig says we are barred from doing.

We are no less intrigued by Judge Luttig's conclusion that Turner's ineffective assistance claims are not Teague-barred. Judge Luttig vehemently stresses that "Teague bars consideration of a claim where the defendant could not even prevail on the merits,” id. at 911, and that "avoidance of a new rule is possible only where the prior precedent resolves the case in the petitioner's favor,” id. at 911. Yet he concludes that Teague does not bar consideration of Turner’s ineffective assistance claims, see id. at 84 n. 14, despite the fact that Turner does not prevail on the merits of these claims. Put another way, Turner’s constitutional challenges to his lawyers’ performance are not Teague-barred even though reasonable jurists would not have felt compelled to conclude that Turner's lawyers were constitutionally deficient. (For example, reasonable ju-lists would not have felt compelled to conclude that it was necessarily ineffective assistance to inform a venire that a petitioner was previously sentenced to death by a different jury for the same crime.)

In the final analysis, and contrary to Judge Luttig's suggestions, we have not "alter[ed] for this circuit the Supreme Court’s 'new rule' jurisprudence,” id. at 904, nor have we “disre-gardfed] ... Supreme Court authority,” id. at 905. At bottom, we disagree with Judge Luttig that there is an "unambiguous directive,” id. at 910, in the Supreme Court’s new rule cases. Most of the Court's new rule cases were five-to-four decisions with shifting majorities. Indeed, in Wright v. West, Justice O’Connor, the author of the Teague plurality opinion, issued an opinion . (joined by two Justices) in which she attempted to define what constitutes a new rule, see West, -U.S. at --, 112 S.Ct. at 2497 (O'Connor, J., concurring in the judgment); Justice Thomas’s opinion (also joined by two Justices) "dis-agreefd], however, with Justice O'Connor’s definition of what constitutes a 'new rule' for Teague purposes.” Id.-U.S. at-n. 8, 112 S.Ct. at 2490 n. 8 (plurality opinion).

We have not created a new standard today. We hold simply that the application of a preexisting normative rule, a rule which by its nature contemplates prospective application, generally is not Teague-barred. Hence our dictum that Godfrey "dictates Turner's challenge,” supra p. 881; cf. supra p. 882, for the challenge is simply the application of the preexisting rule. And notwithstanding Judge Luttig's parade of horribles, our decision will not "render reviewable on ha-beas essentially every claim,” post, at 908. Teag-ue controls when a petitioner does not seek the application of an old rule or when a petitioner seeks- to apply an old rule in a manner not dictated by precedent, “thereby extending the precedent.” Stringer,-U.S. at-, 112 S.Ct. at 1135. We, to be sure, do "recognize[ ] the inevitable difficulties that will arise in attempting to determine whether a particular decision has really announced a new rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.” Penry, 492 U.S. at 314, 109 S.Ct. at 2944 (internal quotation marks omitted) (quoting Mackey v. United States, 401 U.S. 667, 695, 91 S.Ct. 1160, 1181, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), in turn quoting Desist v. United States, 394 U.S. 244, 263, 89 S.Ct. 1030, 1041, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)); see also Graham, - U.S. at-, 113 S.Ct. at 918 (Souter, J., dissenting) ("it can be a difficult question whether a particular holding presents simply a new setting for an old rule, or announces a new one”). This difficulty, however, must be attributed to Teague and its progeny, not to us.

17 . In claim VII he argued that there was an insufficient factual basis to find depravity of mind or an aggravated battery. In claim XIV he argued that the vileness factor was vague on its face, that the limiting definitions of “aggravated battery” and “depravity of mind” also were vague, and that the Virginia Supreme Court's appellate review was deficient both generally and in his case.

18 . Of course, Turner's challenge to the appellate review of his own sentence could not have been raised on direct appeal, because appellate review had yet to take place (though he did argue in his brief on direct appeal: “If this Court fails to reverse the jury's verdict, the Court will have failed to provide adequate appellate review of the propriety of the death sentence.” JA 547). This claim was raised in his state habeas petition and in his habeas Petition for Appeal to the Supreme Court of Virginia and therefore was properly exhausted.

19 . According to Turner, Godfrey says that an aggravated battery requires "evidence of serious physical abuse of the victim before death.” Appellant’s Br. at 48 (quoting (Godfrey, 446 U.S. at 431, 100 S.Ct. 1759 (plurality opinion)). We disagree. We agree instead with the district court below that Turner misreads Justice Stewart's plurality opinion. See Turner, 812 F.Supp. at 1423 n. 31.

20 . In support of his argument that the Virginia Supreme Court arbitrarily applied the vileness factor in his case, Turner provides a litany of cites to Virginia death penalty cases which, according to him, involved murders with "significantly greater brutality” than his. Appellant’s Br. at 54. But these cases go to demonstrate that Virginia consistently reserves the vileness factor for the most gruesome facts, thereby deflating his argument that Virginia imposes the death penalty in an arbitrary and capricious manner.

21 . Woodward served in a limited capacity as Snook's co-counsel. Turner’s challenges are directed in large measure against Snook. In discussing Turner’s claims, we will refer to Snook unless otherwise appropriate.

22 . The state habeas court held an evidentiary hearing (the “state habeas hearing”) on Turner’s ineffective assistance claims. Although a state court’s findings of historical fact are presumed correct under 28 U.S.C. § 2254(d), see supra note 14, Turner argues that we should not defer to the state habeas court's findings here because the court adopted verbatim the Commonwealth's proposed findings of fact. Providing examples, he further maintains that the record does not support many of these findings. We think these examples either are insignificant or involve conclusions drawn from historical facts. In any event, we have conducted an independent review of the record, and we are satisfied that counsel rendered effective assistance.

23 . To that end, Turner says that one prospective juror, Samuel Lambert, indicated during voir dire that his knowledge of the prior death sentence would affect his judgment. Perhaps Lambert equivocated at first, but after Snook moved to strike him for cause, the resentencing court pursued the matter further. The court asked whether Lambert could base his decision solely on what he heard at the resentencing proceeding and not on the prior death sentence. Lambert answered in the affirmative. The court, having observed Lambert, was satisfied with his response. We agree with the district court below that there is nothing in the record that could have us doubt the resentencing court's finding of impartiality. See Turner, 812 F.Supp. at 1435; see also Turner, 364 S.E.2d at 486 (Supreme Court of Virginia, on direct review in Turner II, finding no abuse of discretion).

24 . Turner says that counsel were unreasonable for ignoring the advice of experts from the NAACP Legal Defense Fund and the Southern Prisoners Defense Committee. Those experts were of the opinion that a jury never should be informed that a defendant had previously been sentenced to death for the same crime. Though perhaps a prudent rule in theory, such a categorical rule was of no help here in light of the difficulties counsel would face in attempting to keep this evidence from the jury. In fact, counsel followed the only practical suggestion offered by these experts when they moved for redaction of damaging references from the Commonwealth’s evidence, but the trial court was not amenable to this approach.

Because Turner accords weight to the views of death penalty "experts,” it is perhaps worth noting here that Snook, who lectured and wrote about death penally defense, was no novice himself. The state habeas court found that Snook was "one of the experts in the field of capital cases,” had "handled more death penally litigation than any other private attorney in Virginia,” and was "one of the most experienced criminal lawyers in Virginia.” JA 1486. Furthermore, the court found that Woodward "was undoubtedly one of the most effective criminal lawyers in Eastern Virginia.” Id. He had been practicing criminal law for nearly two decades, "predominantly representing criminal defendants from the same or similar backgrounds as Turner.” Id.

25 . The district court below apparently concluded that Turner was not prejudiced by Snook's failure to present the Mecklenburg evidence, because this evidence was relevant only to the issue of future dangerousness (which the jury did not find), not vileness. See Turner, 812 F.Supp. at 1429-30. The suggestion here is that a petitioner cannot be prejudiced when counsel withholds mitigating evidence that lacks a direct substantive relationship to the aggravating factor(s) found by the sentencer. The Supreme Court, however, has made clear that a sentencer may not be precluded from considering, and therefore basing a life sentence on, any mitigating evidence — even when there is no direct relationship between that evidence and the established aggravating factor(s). See Hitchcock v. Dugger, 481 U.S. 393, 398-99, 107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 114-16, 102 S.Ct. 869, 877-78, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion). It follows that a petitioner may be prejudiced when counsel fails to present “unrelated” mitigating evidence, so long as there is a reasonable probability that, had the sentencer considered the mitigating evidence, it "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

26 . Turner also refers us to a Seventh Circuit decision, Harris v. Reed, 894 F.2d 871 (7th Cir.1990), which cited Anderson. But Harris did not involve a distinct challenge to counsel's failure to put on evidence promised in an opening statement. Rather, defendant attacked generally counsel's failure to put on mitigating evidence, evidence the court thought "would have greatly aided his case.” See id. at 879. The fact that this evidence was described in the opening statement, though a factor, was not determinative. See id.

1 . See also ante at 882 ("Because Stringer expressly held that Godfrey dictated Cartwright's claim and thus Cartwright did not seek a new rule for purposes of Teague, we are compelled to reach the same conclusion here.”); id. at 882 ("The Tenth Circuit’s decision [in Cartwright] was predicated on Godfrey."); id. at 882-83 n. 9 ("Several [later] Supreme Court decisions ... seemingly take for granted that challenges to a state's limiting construction are predicated on Godfrey and Cartwright.").

5 . The majority ascribes significance to the fact that the Court's holding in Penry "repudiated prior Fifth Circuit decisions,” ante at 884:

One would think this was an easy case; granting Penry the relief he sought seemingly would have required the creation of a new rule insofar as it would have repudiated prior Fifth Circuit decisions. And, with those Fifth Circuit cases in the legal landscape, presumably a state court at the time [Penry's] conviction became final would not have felt compelled to grant Penry the relief he sought.

Id.

This fact of course is not in any way dispositive of the Teague inquiry. Prior circuit court decisions not infrequently are "objectively unreasonable,” as the Supreme Court found with respect to two Fifth Circuit decisions in Stringer, see-U.S. at-, 112 S.Ct. at 1140. A "reasonable jurist” would simply ignore such objectively unreasonable decisions. In this respect, a reasonable jurist is freer than sitting judges, as Penry itself proves. Although the Fifth Circuit panel believed that its prior decisions conflicted with the Supreme Court’s holdings regarding restrictions on the consideration of mitigating evidence, Penry v. Ly-naugh, 832 F.2d 915, 926 (5th Cir.1987), it nonetheless concluded that, as a panel, it was bound by those decisions.