"Va. killer executed for death of inmate; Lenz is third put to death since Kaine took office," by Jamie C. Ruff. (Friday, July 28, 2006)

JARRATT -- Michael W. Lenz last night became the first Virginia inmate to be executed for killing another inmate since the death penalty resumed in 1976. Lenz, who participated in the stabbing death of Brent H. Parker on Jan. 16, 2000, during a pagan religious ceremony, was put to death by injection at Greensville Correctional Center. He was pronounced dead at 9:07 p.m. Lenz gave no last statement, according to Larry Traylor, a spokesman for the Virginia Department of Corrections.

In a field outside the prison last night, four death-penalty opponents held a vigil. They carried candles, and just before 9 p.m., they began ringing a bell that they had brought. They rang it 97 times, once for each person who has been executed in the state since the death penalty resumed. Brian Jablonski, a 46-year-old schoolteacher from Lynchburg, said, "I find the death penalty to be a poor form of justice. In my faith, I don't believe anything justifies taking the life of another person." As the group was setting up banners, Jack Payden-Travers, director of Virginians for Alternatives to the Death Penalty, said, "We kind of always hope we make these trips for nothing."

Attorneys for Lenz, 42, had asked Gov. Timothy M. Kaine for clemency, citing the use of defective verdict forms at Lenz's trial. But Kaine's office released a statement just before 6 p.m., saying the governor had reviewed Lenz's petition and judicial opinions in the case and found no reason to set aside the jury's recommended sentence.

Lenz is the third person executed since Kaine took office in January. Last month, Kaine delayed until December the execution of Percy Walton, whose mental state has been debated for nearly a decade. Not long before Kaine released his statement yesterday, the U.S. Supreme Court denied Lenz's petition and his request for a stay of execution, though a court spokesman said two of the justices, Ruth Bader Ginsburg and John Paul Stevens, said they would have granted the application for a stay.

Attorneys for Lenz had argued that their client's right to a fair and impartial jury was violated because jurors consulted a Bible while considering whether Lenz should be sentenced to death. At least one juror recalled that the Bible passages referred to by the jury indicated death is the appropriate punishment for murder, the appeal said. However, during an evidentiary hearing, the jurors said the Bible did not influence them, and appeals courts had rejected the contention that it violated Lenz's rights.

On Tuesday, a federal court rejected Lenz's challenge to the way lethal injections are performed in Virginia, noting that his last-minute effort was "obviously to unjustifiably delay the inevitable." Lenz's attorneys decided not to challenge the court's decision.

Lenz, who had no spiritual adviser, met with immediate family members yesterday, Traylor said. No members of the victim's family planned to attend the execution, Traylor said. Parker's mother, Bonnie Parker, 71, of Paw Paw, W.Va., told The Associated Press she was ambivalent about the execution, although she said her granddaughter Heather -- Parker's daughter -- believed Lenz deserved to die. Parker said she misses her son, whom she described as a good person led astray by alcohol. "It's been so long since he's been gone -- it really hurts me even to talk about him," Parker said. "He was very good to me."

Lenz and Jeffrey Remington, a fellow inmate and friend, stabbed 41-year-old Parker to death during a pagan religious ceremony at Augusta Correctional Center. Parker was stabbed 68 times. The three inmates practiced an ancient Norse religion called Asatru. Lenz had been serving a 29-year sentence after being convicted in Prince William County of burglary and weapon possession.

Remington said in a 2001 interview with The Times-Dispatch that he killed Parker because he was "disrespecting the gods" and because of a history of friction between them. Lenz said Parker blasphemed by "saying that he was teaching Asatru but what he was teaching was not Asatru."

The appeal filed with the U.S. Supreme Court said Parker had also threatened Lenz and Remington. Remington also was sentenced to death, but he committed suicide on death row in 2004. The state attorney general's office has said that one other prisoner had been sentenced to death under the "killing by an inmate" provision of the state's capital-murder law, and his sentence was commuted to life without parole.

Washington Post

"Man Who Killed Fellow Inmate in 2000 Is Executed," by Candace Rondeaux. (July 28, 2006)

Convicted killer Michael Lenz was executed by injection last night in Virginia's death chamber for fatally stabbing another inmate during a pagan religious gathering six years ago. Lenz, 42, was pronounced dead at 9:07 p.m. at the Greensville Correctional Center in Jarratt.

Lenz is the third person to be put to death in the state since Gov. Timothy M. Kaine (D) took office this year. Kaine, who has said he opposes capital punishment but has promised to uphold the state's death penalty laws, rejected a plea yesterday from Lenz's attorneys to spare his life. "Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts," Kaine said in a written statement. "Accordingly, I decline to intervene."

Lenz was one of a handful of Virginia inmates to practice Asatru, an ancient religion that worships gods from Norse mythology. Guided by his devotion to Viking warrior god Thor and others, Lenz founded an Asatru prison chapter called Ironwood Kindred, which eventually became the center of a deadly prison power struggle that led to another inmate's death in 2000.

Lenz, a drifter from Prince William County who was convicted in 1993 of burglary and illegal firearm possession, and fellow inmate Jeffrey Remington formed the chapter while serving time at Augusta Correctional Center. The two led the chapter until another inmate, Brent Parker, a convicted murderer, tried to wrest control of the group and threatened to kill Lenz, according to court documents.

On Jan. 16, 2000, Lenz, Parker, Remington and three other inmates attended a meeting of the Ironwood Kindred. Lenz read poetry and afterward called Parker to a pagan altar set up for the gathering. He confronted Parker about their longstanding friction and pulled out a knife. Lenz and Remington stabbed Parker 68 times while a prison guard stood outside the room, court records show. Lenz was convicted of capital murder and sentenced to death in February 2004. Remington was also sentenced to death for Parker's killing. He committed suicide on death row in 2004.

Stephen McNallen, director of the Asatru Folk Assembly, a leading national Asatru group, estimates that the religion has 10,000 to 20,000 followers in the United States. He compared Asatru to Native American religions. But, according to some experts, Asatru has become increasingly popular among white supremacist prison groups.

Yesterday, the U.S. Supreme Court declined to hear an appeal in which Lenz's attorney argued that the jury in his trial was not impartial because jurors consulted a Bible during sentencing deliberations.

On Tuesday, a federal judge in Richmond also dismissed an appeal that contended that the chemicals used in lethal injection cause "excruciating" pain. U.S. District Court Judge James R. Spencer rejected Lenz's claim that prison workers who administer the lethal drugs are not adequately trained.

Lenz spent time with his mother and two uncles several hours before the execution, said his attorney, Jennifer L. Givens. He did not make any special requests for his last meal. Asked if he had any last words before the injection was administered, Lenz declined to say anything.

Including Lenz, Virginia has executed 333 inmates since 1908, according to the Department of Corrections. Last week, convicted killer Brandon W. Hedrick was electrocuted in the state's death chamber. More than 1,000 inmates have been executed in the country since the Supreme Court reinstated the death penalty in 1976.

The Daily Press

"Killer executed for slaying of fellow inmate," by Kristen Gelineau. (July 27, 2006)

JARRATT, Va. -- A man who murdered a fellow inmate during a pagan religious ceremony was executed Thursday after the U.S. Supreme Court rejected his appeals and Gov. Timothy M. Kaine denied his request for clemency. Michael Lenz, 42, received a lethal injection at the Greensville Correctional Center and was pronounced dead at 9:07 p.m. When asked if he had any final words, Lenz gave a slight shake of his head, indicating no.

Lenz and another inmate, Jeffrey Remington, were sentenced to death in 2000 for stabbing 41-year-old Brent Parker a combined 68 times with makeshift knives at the Augusta Correctional Center. Lenz had been serving a 29-year sentence after being convicted in Prince William County of burglary and weapon possession.

The three inmates were followers of the Nordic pagan religion Asatru, and belonged to a group known as the Ironwood Kindred. The kindred was gathered for a ceremony when Lenz and Remington attacked Parker at the foot of a makeshift altar. Lenz testified that Parker had not been taking the religion seriously, and to protect the honor of the gods, Parker had to be punished. Lenz also testified he felt threatened by Parker, who was serving a 50-year sentence for murder. Remington committed suicide on death row in 2004. Lenz's attorneys said Parker had threatened to kill Lenz and Remington, and Lenz testified that Parker twice told him he would sharpen the point of a cane he carried and stab Lenz with it.

In their petition to the Supreme Court, Lenz's attorneys argued jurors in the case admitted they had consulted a Bible during their sentencing deliberations, and that one jury member said some jurors pointed to passages in the Bible supporting the death penalty for killers. Those actions denied Lenz the right to a fair and impartial trial, attorney Matthew Engle said. Lenz's attorneys also argued the verdict forms supplied to the jury failed to include all sentencing options. But Augusta County Commonwealth's Attorney A. Lee Ervin, who prosecuted the Lenz case, said Lenz deserved to die due to the brutality of his attack on Parker.

Lenz, dressed in a light blue shirt and dark blue pants, was brought into the execution chamber at 8:56 p.m., flanked by several guards. He did not look at witnesses seated in the viewing booth and his expression remained blank as the execution team tightened a series of leather straps around him, securing him to the gurney. The lethal drugs began to flow into his veins at 9:03 p.m., causing him to gasp sharply. He took several deep breaths before his body went still. Lenz met with his mother and two uncles for two hours Thursday afternoon. He made no last meal request.

Parker's mother, Bonnie Parker, said she is ambivalent about the execution, although her granddaughter Heather--Brent Parker's daughter--believed Lenz's crime warranted the ultimate punishment. None of the family planned to witness the execution. Parker, 71, of Paw Paw, W. Va., said she misses her son, whom she described as a good person led astray by alcohol. "It's been so long since he's been gone--it really hurts me even to talk about him," Parker said. "He was very good to me."

Virginians for Alternatives to the Deathy Penalty

Inmate: Lenz, Michael
DOB: 2-27-64
County of Conviction: Augusta
Conviction(s): murder
DOC #: 214239
Date Received: 10-20-00

Michael Lenz was born on February 27, 1964, in San Diego, California. He and his family moved to northern Virginia after his fourth grade. Although Lenz never completed high school, he received his GED when he was 17 years old. After several run-ins with the law, he returned to northern Virginia, where he camped outdoors and committed burglaries to support his drug habit and other needs. He was arrested and charged for these burglaries, and was sentenced to spend time in the Augusta Correctional Center.

On January 16, 2000 while an inmate at this facility, Lenz along with Jeffrey Remington, stabbed a fellow prisoner, Brent Parker, to death. At trial, Lenz testified that the slaying was religiously motivated. The Augusta County Circuit Court jury deliberated for about an hour before sentencing Michael Lenz to death for his role in Parker’s murder. Jeffrey Remington also sentenced to death, was on Virginia’s Death Row until his suicide in February of 2004.

On March 5, 2004 the Virginia Supreme Court ruled 4-3 to deny Lenz’s appeal for a new sentencing hearing despite the Virginia Supreme Court’s ruling in Atkins vs. Commonwealth, that it is vital to the defendant in a criminal case that the jury have a proper verdict form. Lenz’s case, however, occurred before the Atkins’ decision, and the majority decreed that the ruling was thus not pertinent to Lenz’s claims.

In addition Lenz’s counsel in a series of appeals argued that they were rendered ineffective by the distance and manner in which they were allowed to consult with their client. Following the murder, Lenz was initially transferred to a super-max prison 250 miles away from the Augusta Correctional Center. Because the ineffective counsel claim was filed on direct appeal rather than through a writ of habeas corpus it was denied as procedurally defective, not because it was unfounded. Human beings should not face executions as a result of procedural errors. Michael Lenz has been issued an execution date of July 27, 2006.

On July 11, the Virginia Capital Representation Resource Center submitted a clemency petition to Governor Timothy Kaine on behalf of Michael W. Lenz, who is scheduled to be executed on July 27, 2006. Lenz and his co-defendant, Jeffrey Remington, were convicted of killing Brent Parker, another inmate in the Augusta Correctional Center, during a meeting of the Ironwood Kindred, a group of inmates who practiced the Asatru religion. The Governor has been urged to consider the following facts about the case and to commute Michael’s sentence to life in prison.

Improper and Misleading Verdict Forms Were Given to the Jury.

There is no dispute that the penalty phase verdict forms that were supplied to Michael’s jury failed to include all of the lawful sentencing options and could never be used in a capital murder trial today. The forms given to Michael’s jury had two critical flaws: first, they failed to provide the jury with the ability to find one or both aggravating circumstances and still sentence Michael to life (as they are permitted to do under the law); second, they failed to provide the jury with the ability to sentence Lenz to one of the three sentencing options for capital murder – life imprisonment plus a fine of up to $100,000.

The Supreme Court of Virginia recently reversed a death sentence in Morrisette v. Commonwealth, 613 S.E.2d 551 (Va. 2005), based upon one of the precise errors that occurred in Michael’s case. In Morrisette, the court found that the defendant’s right to the effective assistance of counsel was violated when his trial attorneys failed to object to verdict forms that were materially identical to those used in Michael’s case. The same court had rejected Lenz’s identical claim by a 4-3 vote. The only difference was that Lenz’s trial occurred on July 26-27, 2000, before the Supreme Court of Virginia’s decision in Powell v. Commonwealth, 552 S.E.2d 344 (Va. 2001), and Morrisette’s trial occurred on August 13-15, 2001, two months after Powell was decided. It was in Powell that the Supreme Court of Virginia first explicitly addressed one of the two problems that existed with Michael’s verdict forms. The Governor should intervene to ensure that the year and seventeen days that passed between Michael’s trial and Morrisette’s is not the arbitrary difference between life and death.

If Lenz is executed on July 27, 2006, he will be executed pursuant to a sentence that was imposed by a jury that did not have all of its sentencing options before it.

Lenz’s jury was deprived of critical information that would have counseled in favor of a life sentence.

After a troubled childhood and adolescence, Michael found himself homeless and destitute, living out of a tent in the woods of Prince William County. In order to support himself, he broke into three residences and a restaurant to steal food during this time. He was convicted of burglary and possession of a firearm in October 1993 and sentenced to 29 years and 90 days. He was sent to Augusta Correctional Center.

According to prison records, Michael was not considered a problem inmate at Augusta. While incarcerated, Michael was introduced to the Asatru religion and helped form the Ironwood Kindred. The Asatru religion revives ancient Norse religious practices of the Viking Age, which pre-dated Judeo-Christian beliefs. The term “Asatru” translates to “belief in the Gods.” Asatru is an officially recognized religion by the governments of Iceland, Denmark, and Norway.

The victim in this case, Brent Parker, was a convicted murderer serving a 50-year sentence for the brutal 1985 murder of Ralph “Jimmy” Jenkins in Winchester, Virginia. The crime occurred in a trailer park, where Parker, for seemingly no reason, parked the car that he and Jenkins were riding in together and suddenly attacked Jenkins. By all accounts Jenkins was highly intoxicated and incapable of defending himself and just kept asking Parker “why are you hitting me?” An eyewitness to the crime testified that there was no provocation by Jenkins, and that Parker was laughing and taking smoke and drink breaks during the hour-long beating. At one point during the killing, Parker lifted Jenkins’ pants into the air and showed them to onlookers, stating “I kicked his ass until I kicked him out of his pants.” At Parker’s trial witnesses testified that the only thing Jenkins was able to do while being attacked was “put[] his hands over his head trying to keep any of [the blows] from connecting.” Witnesses testified that Parker also balanced himself on one foot on top of Jenkins’ head and yelled to his friends that he could balance himself on Jenkins’ ear. Parker later bragged that before leaving the scene of the murder he backed over Jenkins with his car. Parker left Jenkins for dead and drove to a nearby 7-11 with his friends where he proceeded to terrorize the young female clerk for two hours. The clerk stated that Parker was covered in blood from his knees down and that his car also had blood on it. Parker bragged to the clerk about how he “jumped up and down on [Jenkins’] head until he popped it,” and demonstrated this for her as he laughed. Parker then stole beer and cigarettes from the clerk, who stated “I wasn’t going to try and stop him after what he just told me.” Parker also made sexual advances towards her for the two hours he spent in the store that night.

In prison, Parker continued to be aggressive toward other inmates and even correctional officers. During Parker’s murder trial, Officer John Bryant was called to testify about threats Parker had made to him in the jail. Bryant testified that “[Parker] looked at my head and [Parker] said my head would pop just like [Jenkins’] did.” Other inmates described Parker as someone who “provoked other inmates regularly . . . [and] would pick at them verbally and try to intimidate inmates with threats.” One of the inmates that Parker like to threaten was Michael Lenz. Parker twice told Lenz that he would “sharpen the point of his cane and stab [Michael] through [the] heart with it.” Lenz had good reason to take these threats seriously; Parker boasted about the fact that he was a convicted murderer, reminding Lenz “I am a killer.” According to another inmate, Parker also made a point of “telling people that he was considering hurting Michael.” Parker also threatened to kill Lenz’s closest friend, Jeffrey Remington. Parker summoned Remington to Parker’s cell and, while another inmate trapped Remington by blocking the cell door, threatened to kill him. Parker later threatened to kill Remington again in a separate incident.

During a religious ceremony in January of 2000, Michael and Remington stabbed Brent Parker to death in front of a room full of inmates. At trial, the prosecutor argued that Lenz and Remington viciously attacked Brent Parker and had “no excuse” for doing so. The prosecutor repeatedly described Brent Parker as “helpless” and “defenseless,” and claimed that Parker “did nothing wrong.” The jury that sentenced Lenz to death did not hear any of the details about Brent Parker’s brutal killing of Jimmy Jenkins, or even that Parker was in prison for murder. Lenz’s jury never knew that he bragged about the man he had killed and threatened inmates and guards alike. Although the jury knew that Parker threatened to stab Lenz with the sharpened end of his cane, they had no way of knowing how serious those threats were. The jury also never heard about Parker’s repeated threats to kill Lenz’s closest friend, Jeff Remington.

None of this information excuses Lenz’s uncharacteristically violent act on January 16, 2000. Nor is it meant to suggest that Brent Parker deserved to be stabbed 68 times. Lenz acknowledged at his trial that what he did was wrong. However, this information is highly relevant to explaining Lenz’s actions. Certainly, the jury that was charged with deciding whether Michael lived or died should have been informed about the disturbing chain of events that culminated with Michael’s killing of Brent Parker. In his clemency petition, Michael has asked the Governor to consider the fact that this violent incident was highly aberrational and was based upon extreme provocation by an extraordinarily dangerous and aggressive inmate.

James Aiken, an expert on inmate classification and prison management, has reviewed Michael Lenz’s case extensively and submitted an affidavit in 2002. Mr. Aiken concluded that despite that fact that Michael had killed another inmate, he did not reflect the pattern of a prison predator and there was “not a probability that Mr. Lenz would commit criminal acts of violence” in prison. Aiken based this conclusion on several factors: (1) Michael’s non-violent criminal history; (2) Michael’s social history; (3) the fact that Michael had previously “interacted with prison officials when he has encountered conflicts, rather than resorting to violence….Lenz is not an individual that systematically uses criminal means and violence to resolve issues;” (4) the absence of any gang involvement; (5) Michael’s respect for authority, which was noted even during the commission of this offense; and (6) Michael’s age. In addition, Mr. Aiken noted that Michael would be housed in more secure facilities and would never be placed in similar circumstances to those that preceded the killing of Brent Parker.

Petition for Writ of Certiorari: Jurors consulted a Bible during penalty phase deliberations.

In a petition filed with the U.S. Supreme Court, Michael seeks a new sentencing hearing based upon the fact that the jurors in his case consulted a Bible during penalty deliberations. Remarkably, the Supreme Court of Virginia held that Michael had not proved that the jurors consulted the Bible “about the matter pending before the jury,” even though uncontradicted testimony showed that when one juror asked whether the Bible addresses the appropriate punishment for murder, another juror responded that the Bible answers that question, several jurors then referred to unspecified chapters or verses of the Bible, and one juror later recalled that the referenced Bible passages indicated that death is the appropriate punishment for murder.

ProDeathPenalty.Com

Michael Lenz and fellow inmate Jeffrey Remington were convicted of murdering Brent Henry Parker, 41, a fellow inmate at the Augusta Correctional Center on January 16, 2000. Lenz was serving 29 years for contributing to the delinquency of a minor, four counts of statutory burglary and one count of weapon possession when the murder occurred. Remington was incarcerated on unspecified charges. The homicide occurred during a meeting between inmates who claimed to be followers of a religion called Asatru, were attending a meeting of their "Ironwood Kindred." They were able to hold this meeting in a room with the door closed, as VADOC permits for religious ceremonies. However, an unarmed guard soon saw the two inmates stabbing Parker, who was laying on the floor in a fetal position. By the time backup had arrived to intervene between the five inmates present, Parker was dead, having been stabbed 68 times. Both Lenz and Remington were sentenced to death after separate trials. Remington committed suicide while incarcerated in 2004.

National Coalition to Abolish the Death Penalty

Michael Lenz - VA - July 27
Do Not Execute Michael Lenz

On January 16, 2000 Michael Lenz was joined by five fellow inmates, including Brent Parker, in a meeting of the Ironwood Kindred. The group practiced the Asatru religion, a faith based on worship of Nordic Gods. The guard assigned to watch the group was stationed outside the meeting room. About half way through the meeting three of the inmates ran out of the room saying, “They’re stabbing him.” The guard immediately entered the room to see Michael Lenz and Jeffrey Remington stabbing Brent Parker. The guard instructed the men to put down their homemade knives; neither complied, and they continued to stab Parker. As two other guards arrived they instructed the men again to put down their weapons; Lenz immediately complied and Remington followed suit. By the end of the ordeal Parker was stabbed a total of 68 times; he died later that night in intensive care.

Lenz testified that he killed Parker for religious reasons. Parker had been opposed to Lenz forming the Ironwood Kindred. Lenz stated that the reason that he attacked Parker the way that he did was because Parker had threatened to kill him twice before and that the fight broke out mutually. Jeffrey Remington had jumped in the fight unprovoked.

Lenz was the moved to a super-max prison 250 miles way, making it difficult for his attorneys to meet with him to work on the case when they had to drive five hours one way. When the attorneys requested that Lenz be moved closer, the request was granted; however Lenz was moved only about a hundred miles closer, still leaving a three hour drive for attorneys. Lenz was also not allowed to meet with his counsel or mitigating witnesses in person. Glass partitions also hindered communications between the attorneys and Lenz, with one phone for the prisoner and one phone for both attorneys to communicate with. This also held up psychiatric evaluations of Lenz that would have been presented as mitigation. In one instance the attorneys were told to leave after just 30 minutes of meeting with their client.

In a series of appeals Lenz’s counsel argued that they were rendered ineffective by the distance and non-contact visits with Lenz. This claim was denied, however, because the defense filed ineffective counsel on direct appeal rather than filing a writ of habeas. Basically this appeal was denied because it was seen as procedurally defective, not because it was unfounded.

Lenz also filed an appeal on another basis. During the punishment phase of trial one of the jurors had repeatedly brought a Bible into the court room. The juror was quoted as saying she brought the Bible because she was, “troubled by the morality of sentencing a fellow human being to death.” The court also denied this claim because, “there was no evidence of what Bible passages were read…[Lenz] did not establish that the contact with the Bible was about the matter pending before the jury.” If the juror was quoted as stating she brought the Bible due to the morality of the case, that seems evidence enough to demonstrate that she had brought the Bible for inappropriate consultation about the case.

Although Lenz is assuredly not innocent of his charges, he was not given a fair chance to represent himself in court. The corrections system had interfered with his right to counsel and he was not given an unbiased jury. Do not let Michael Lenz be put to death. He has the right to a fair and impartial trial as well as the right to proper legal representation.

Please write to Gov. Timothy Kaine on behalf of Michael Lenz.

CBS News

"Pagan Prisoner To Be Executed." (STAUNTON, Virginia, July 27, 2006)

(AP) A pagan religion that some experts say can be interpreted as encouraging violence is gaining popularity among prison inmates, one of whom is scheduled to be executed for killing a fellow prisoner at the foot of a pagan altar. Michael Lenz is scheduled to die Thursday for the death of Brent Parker, who was stabbed dozens of times at Augusta Correctional Center during a gathering of inmates devoted to Asatru, whose followers worship Norse gods.

At his trial, Lenz testified that Parker had not been taking the religion seriously and had to die to protect the honor of the gods. Other followers call the religion misunderstood and say most adherent inmates do not use it to further violent agendas.

Asatru has been gaining popularity among inmates, say religious leaders and prison experts who believe its roots in Viking mythology attract prisoners seeking power, protection and unity. The gang culture in prison also contributes, said theologian Britt Minshall, a former police officer and Baltimore pastor who ministers to inmates. Some white inmates who felt threatened by black prison gangs formed their own gangs and sought out a belief system they felt would provide additional security, he said. "It's a way of grouping together for safety," he said. "And you have to have a god in the middle of that to really keep you safe."

Asatru is often referred to as Odinism, although some followers believe the two are separate religions. It is a polytheistic, pre-Christian faith native to Scandinavia whose adherents worship gods including Thor and Odin. It emphasizes a connection with one's ancestors and values honor, loyalty, generosity and truth.

An estimated 10,000 to 20,000 people in the United States consider themselves Asatruars or Odinists, said Stephen McNallen, director of the Asatru Folk Assembly, a leading Asatru group. No national statistics are kept on how many inmates follow Asatru. But experts say its popularity enjoyed a boost from the Supreme Court, which last year sided with an Asatru inmate by upholding a federal law requiring state prisons to accommodate prisoners' religious affiliations. Asatru is often associated with white supremacy, although most Asatru leaders bristle at suggestions of such a relationship.

A 1999 FBI report on domestic terrorism described Odinism as a "white supremacist ideology that lends itself to violence." "What makes Odinists dangerous is the fact that many believe in the necessity of becoming martyrs for their cause," the report said.

Such comments are typical of those who don't understand Asatru, said Jane Ruck, who runs the National Prison Kindred Alliance and ministers to Asatru inmates. White supremacists make up only a small portion of Asatruars, and most inmates who follow the religion do not use it to push hate-filled, violent agendas, she said. "There might be some white supremacists who consider themselves Asatruars, but they're not (Asatruars) because they're not following our beliefs," Ruck said. "We don't hate anybody; we just want to take pride in our heritage."

According to Art Jipson, who studies white racial extremism and directs the University of Dayton's criminal justice studies program, Lenz's belief that fatal force was warranted is not surprising. "If he believes the fight was necessary, whether or not it was legal is the least of his concerns," Jipson said. "If he's a truly devout practicing Odinist or Asatruist, he's doing what he must do. And it would be a shame — it would be a black mark on his soul, his spirit ... for him to be cowardly and not to fight."

That kind of warrior mentality can exacerbate the tense environment behind bars, said Mark Potok, a leader at the Southern Poverty Law Center in Montgomery, Alabama, which monitors hate groups. "It's a theology that celebrates raw physical power and domination, and that is why I think it is so popular among prison inmates," Potok said. "The kind of inmate who might be attracted to this is a white man who is looking for justification for extreme violence, who is looking for an ideology which explains why he should be the boss."

Lenz v. Commonwealth, 261 Va. 451, 544 S.E.2d 299 (Va. 2001) (Direct Appeal).

Defendant was convicted in the Circuit Court, Augusta County, Thomas H. Wood, J., of capital murder, and was sentenced to death. Defendant appealed. The Supreme Court, Hassell, J., held that: (1) denial of defendant's request for appointment of expert witness on subject of “prison life” did not prejudice defendant; (2) defendant was properly precluded from eliciting penalty phase evidence of victim's criminal record; (3) evidence was sufficient to support finding that defendant acted intentionally; (4) evidence was sufficient to permit jury to find that defendant acted with premeditation; and (5) death sentence was appropriate. Affirmed.

HASSELL, Justice.
In this appeal, we review the capital murder conviction and sentence of death imposed upon Michael William Lenz.

I. Proceedings

The defendant was tried before a jury on an indictment charging him with the capital murder of Brent H. Parker in violation of Code § 18.2-31(3), “[t]he willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility.” At the time of Parker's death, the defendant and Parker were inmates at the Augusta Correctional Center. The jury found the defendant guilty of capital murder. In the penalty phase of the capital murder trial, the jury fixed the defendant's punishment at death, finding that he represented a continuing serious threat to society and 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. See Code § 19.2-264.2. After considering a report prepared by a probation officer pursuant to Code § 19.2-264.5, the circuit court sentenced the defendant in accord with the jury's verdict.

II. The Evidence Adduced During Guilt Phase

Applying familiar principles of appellate review, we will recite the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court, and we will accord the Commonwealth the benefit of all inferences fairly deducible from that evidence. Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).

During the early evening of January 16, 2000, the defendant, Parker, Jeffrey Remington, and three other inmates attended a meeting of a group referred to as the Ironwood Kindred. The meeting occurred in Building J-5, which is a part of the Augusta Correctional Center. Earl Jones, a correctional officer, was assigned to Building J-5 that evening. Jones permitted the six inmates to enter a room where the meeting occurred. He closed the door, which contained windows, and “secured” the room.

As Jones sat down at his post outside the meeting room and began to “sort through” inmate passes that he had collected, he “noticed a commotion.” Jones “got on” his radio and requested help from other correctional officers because he observed a fight. As Jones walked toward the room where the inmates were meeting, three of the inmates “ran out of the room,” and one of the inmates said, “[t]hey're stabbing him.” Jones went to the door and saw “Remington and Lenz stabbing Parker.” Parker was lying “on his back; on the floor, between Remington and Lenz.” Parker “was making a feeble attempt to defend himself···· He had his hands up.” As Parker tried to use his hands to “block” the knives from piercing his body, the defendant and Remington “took their free hand[s]; pushed [Parker's] hands aside and then stabbed him.”

Jones opened the meeting room door and ordered the defendant and Remington to stop stabbing Parker. Jones testified, “[t]hey simply looked at me and went back to stabbing him.” Jones used his radio again to request help and asked his fellow correctional officers to hurry because Remington and the defendant “were trying to kill this guy.” Jones did not go into the room because Remington and the defendant had knives, and Jones was unarmed. Edward V. Houching, a correctional officer, responded to Jones' request for assistance. When Houching arrived at the meeting room, he saw the defendant and Remington stab Parker between 10 to 15 times as Parker was lying on the floor in a fetal position. Like Jones, Houching ordered the defendant and Remington to stop, but they continued to stab Parker. Parker was not “doing anything to defend himself,” and the defendant “was bent over, stabbing [Parker], over and over and over.”

Within a few seconds after Houching arrived at the meeting room, two sergeants and correctional officer John Edward Simmons also responded. Simmons saw the defendant stab Parker six or seven times in an area that extended from Parker's “underarm” to his waist as Parker was lying on his side on the floor. Simmons also saw Remington stab Parker in the shoulder and back. After a sufficient number of correctional officers arrived at the meeting room, the officers, some of whom were armed with mace, entered the room, and Simmons told the defendant and Remington “to drop” their knives. The defendant placed his knife on a table, and Remington eventually surrendered his knife. The officers placed handcuffs on the defendant and Remington and escorted them from the area.

Rita K. Dietz, a registered nurse employed at the Augusta Correctional Center, rendered emergency assistance to Parker. When she walked into the meeting room to assist him, he was “very pale” and “surrounded by blood.” As she approached him, she noticed that his shirt was soaked in blood. She ripped his shirt off. She testified that “[e]very time I encountered a couple of wounds, I encountered more wounds.” She described Parker's medical condition as “[v]ery critical.” She placed bandages on his wounds until she “ran out.” She testified, “at that point, the stretcher had arrived. So we took the sheet off the stretcher ··· Parker was still alive, and he helped roll onto the sheet. And we lifted the sheet up, which the one wound, out of the left side, just poured like water; like somebody had turned a faucet on, when we lifted him. And we got him on the stretcher.” Parker was transported by ambulance to the Augusta Medical Center, where he died. Gregory Price Wanger, the Assistant Chief Medical Examiner for the Western District of Virginia, performed an autopsy on Parker's body. Wanger testified that Parker had sustained 68 stab wounds and one cut wound, all of which were inflicted upon Parker when he was alive. Dr. Wanger explained that a stab wound is “shorter on the surface than it is deep” and “implies a thrusting motion[,]” whereas a cut wound “is longer on the surface than it is deep” and “implies a slashing-like motion.” The stab wounds penetrated Parker's chest, abdomen, back, left arm, and right forearm.

Dr. Wanger identified 40 stab wounds, “from the upper part of [Parker's] chest down through the middle and center part of the chest, and into the abdomen.” These wounds all contributed to his death. Parker's left lung and liver were stabbed seven times each and the wounds produced serious internal bleeding. The wounds to Parker's lungs would have been fatal without the other wounds. Additionally, “the wounds to the liver; by themselves, would have been fatal without the other wounds to [his] body.”

III. Evidence Adduced During Penalty Phase

During the penalty phase of the trial, the Commonwealth presented evidence regarding the defendant's future dangerousness and the vileness of his crime. The Commonwealth introduced the defendant's prior convictions for possession of a firearm after being convicted of a felony and breaking and entering. The Commonwealth also relied upon evidence that it presented in the guilt phase of the trial.

The defendant offered evidence in mitigation of his offense. Martin Rogozinski, a psychologist employed at the Augusta Correctional Center, testified that he spoke with the defendant soon after Parker was murdered and that it was Rogozinski's opinion that the defendant had murdered Parker based “solely on a religious conviction.”

The defendant testified during the penalty phase. He stated that he was a practicing member of the “Asatru” religion. According to the defendant, several inmates had approached him and asked him to “construct” an Asatru group, but his efforts to do so were “thwarted” by Parker. The defendant testified that on the evening of the murder, he planned to perform an Asatru ceremony in the meeting room. The defendant recited poetic literature and then asked Parker to approach an altar. The defendant testified that “I called [Parker] up to the altar and I asked-and I said to him, ‘It's been a long, hard path between us.’ And [Parker] said, ‘Yes, it is.’ And I pulled the knife out of my pocket. And I said, ‘Are you trying to take it to the next step?’ And he said, ‘Yes, I am.’ And so I stabbed him.” The defendant admitted that he did not like Parker, that he had planned to kill Parker that day, and that he had threatened others in the meeting room with the knife.

The defendant presented the testimony of Gary Lee Bass, the Chief of Operations at the Virginia Department of Corrections and Jerry Wayne Armentrout, the Assistant Warden of Operations at the Red Onion State Prison. Bass and Armentrout testified about “prison life” and the security conditions that the defendant would encounter at a Virginia maximum security correctional facility if he were sentenced to life imprisonment. Two officers assigned to the Augusta Correctional Center testified that the defendant had never given them any problems while he was under their supervision. Patricia Daley Lenz, the defendant's mother, testified about his childhood and family interaction. She stated that the defendant's biological father was absent during much of the defendant's early childhood and that the defendant's adoptive father was very strict and favored his biological child.

* * *

The jury returned a verdict which fixed the defendant's punishment at death based upon both aggravating factors contained in Code § 19.2-264.2, future dangerousness and vileness. The defendant argues that the circuit court erroneously refused his proposed instruction which stated that the jury could only fix the defendant's punishment at death based upon the vileness predicate if the jury unanimously agreed that the Commonwealth's evidence proves torture or depravity of mind or an aggravated battery to the victim beyond the minimum necessary to accomplish an act of murder. The proposed instruction would have also informed the jury that its “decision must be unanimous as to at least one of the above to find that [the defendant's] conduct was outrageously or wantonly vile, horrible or inhuman.”

We need not decide the defendant's contention because the jury fixed the defendant's punishment at death based upon both statutory aggravators. The jury's finding that the defendant constituted a continuing serious threat to society is an independent basis for the jury's imposition of the death penalty. The defendant does not challenge the jury's finding of the future dangerousness aggravator, therefore, that issue is not before this Court on appeal.

* * *

The defendant argues that his research suggests that “despite there being over twenty two cases as [sic] inmate on inmate homicides in Virginia prisons since 1985 ··· only one has resulted in a sentence of death···· Furthermore, the death sentence of Joseph Payne was later committed [sic] to life in prison by the Governor.” Hence, the defendant contends that his sentence is excessive.

We find no merit in the defendant's assertion that his sentence is excessive merely because the Governor of this Commonwealth chose to commute the death sentence of an inmate who had killed another inmate. We do not consider the actions of the executive branch when making our statutory determination of proportionality. The defendant also argues that the sentence of death is excessive and disproportionate, and that it violates the Sixth, Eighth, and Fourteenth Amendments to the federal constitution. This argument is not the subject of an assignment of error and, therefore, we will not consider it on appeal.

XII. Verdict Form

This Court, sua sponte, asked the litigants to address the verdict form utilized during the penalty phase of the defendant's trial in view of our decision in Atkins v. Commonwealth, 257 Va. 160, 179, 510 S.E.2d 445, 457 (1999). Upon considering the letter briefs, the record, and argument of counsel, we conclude that any questions concerning the verdict form in this case are procedurally defaulted because the defendant neither raised these issues in the circuit court nor assigned error to the verdict form before this Court. See Rule 5:25; Burns, 261 Va. at 343 n. 16, 541 S.E.2d at 896 n. 16; Orbe v. Commonwealth, 258 Va. 390, 403 n. 13, 519 S.E.2d 808, 816 n. 13 (1999), cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000).

XIII. Conclusion

Having reviewed the sentence of death, finding no reversible error in the record, and perceiving no reason to commute the death sentence, we will affirm the judgment of the circuit court. Affirmed.

Lenz v. Warden, 265 Va. 373, 579 S.E.2d 194 (Va. 2003) (State Habeas).

After petitioner's conviction for premeditated killing of person by prisoner confined in state or local correctional facility and sentence of death was affirmed by the Supreme Court, 261 Va. 451, 544 S.E.2d 299, petitioner filed petition for writ of habeas corpus. After evidentiary hearing in the Circuit Court, Augusta County, the Supreme Court, Leroy R. Hassell Sr., C.J., held that: (1) trial counsel was ineffective for failing to object to incomplete verdict form; (2) petitioner was not prejudiced by use of stun belt during trial; and (3) defendant was not entitled to jury instruction that he could only be convicted of capital murder if jury found that he was the “triggerman.” Petition dismissed in part, granted in part, and remanded for new sentencing hearing.

Petitioner, Michael William Lenz, was convicted of the willful, deliberate, and premeditated killing of a person by a prisoner confined in a state or local correctional facility in violation of Code § 18.2-31(3). The jury fixed his punishment at death, and the circuit court sentenced petitioner in accordance with the jury verdict. We affirmed the judgment of the circuit court in Lenz v. Commonwealth, 261 Va. 451, 544 S.E.2d 299, cert. denied, 534 U.S. 1003, 122 S.Ct. 481, 151 L.Ed.2d 395 (2001). In view of our resolution of this proceeding, it is not necessary that we discuss the underlying facts related to petitioner's convictions.

As permitted by Code § 8.01-654, Lenz filed a petition for a writ of habeas corpus in this Court against Page True, Warden, Sussex I State Prison, alleging, among other things, that his trial counsel were ineffective. The Warden filed a motion to dismiss, and this Court entered an order directing that the Circuit Court of Augusta County conduct an evidentiary hearing limited to certain issues. This Court took petitioner's remaining claims under advisement. The circuit court conducted the evidentiary hearing required by this Court pursuant to Code § 8.01-654(C) and submitted its written report to this Court, which entered orders establishing a schedule for the submission of briefs. Petitioner filed an opening brief that only addressed the issues that were the subject of the circuit court's evidentiary hearing. Petitioner, in his opening brief, did not discuss the issues that this Court had taken under advisement, including petitioner's claim that trial counsel were ineffective because they failed to challenge the verdict form during petitioner's capital murder trial.

The Warden, relying upon our decision in Hedrick v. Warden, 264 Va. 486, 570 S.E.2d 840 (2002), argues that this Court must dismiss all petitioner's claims that were not discussed in his opening brief, including his ineffective assistance of counsel claims that were asserted in the petition for a writ of habeas corpus. We disagree with the Warden.

It is true, as the Warden asserts, that in Hedrick, we held that a petitioner's claims were procedurally defaulted because the petitioner, who had asserted those claims in his petition for a writ of habeas corpus, failed to discuss those claims in his opening brief. 264 Va. at 522, 570 S.E.2d at 862. However, in this case, unlike the petitioner in Hedrick, Lenz specifically incorporated by reference in his opening brief the arguments that he advanced in his petition for a writ of habeas corpus. We think that this is a material difference, and we hold that petitioner's claims that he specifically incorporated by reference as a part of his opening brief are not procedurally barred.

We recognize that we have repeatedly held that a litigant cannot incorporate by reference arguments that were made in another court or in another case. See Schmitt v. Commonwealth, 262 Va. 127, 138, 547 S.E.2d 186, 194 (2001), cert. denied, 534 U.S. 1094, 122 S.Ct. 840, 151 L.Ed.2d 719 (2002); Burns v. Commonwealth, 261 Va. 307, 319, 541 S.E.2d 872, 881, cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001); Hedrick v. Commonwealth, 257 Va. 328, 336, 513 S.E.2d 634, 638-39, cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 294 (1999); Pulliam v. Coastal Emergency Servs., Inc., 257 Va. 1, 20, n. 12, 509 S.E.2d 307, 318, n. 12 (1999); Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372 (1994), cert. denied, 515 U.S. 1161, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995); Mickens v. Commonwealth, 247 Va. 395, 401 n. 4, 442 S.E.2d 678, 683 n. 4, vacated and remanded on other grounds by 513 U.S. 922, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994); Jenkins v. Commonwealth, 244 Va. 445, 460-61, 423 S.E.2d 360, 370 (1992), cert. denied, 507 U.S. 1036, 113 S.Ct. 1862, 123 L.Ed.2d 483 (1993); Spencer v. Commonwealth, 240 Va. 78, 99-100, 393 S.E.2d 609, 622, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235 (1990). And, we adhere to these prior rulings. However, in this case, petitioner's petition for a writ of habeas corpus was filed with the Clerk of this Court. Unlike the situation that may exist when a litigant seeks to incorporate by reference arguments filed in another court or in another case, this Court has no difficulty ascertaining the exact arguments that petitioner has incorporated by reference from other pleadings filed in this Court.

Petitioner argues, among other things, that his trial counsel were ineffective because they failed to object to the verdict form during the sentencing phase of his capital murder trial. Petitioner, relying principally upon our decision in Atkins v. Commonwealth, 257 Va. 160, 510 S.E.2d 445 (1999), argues that trial counsel were ineffective because they failed to object to the verdict form that was incomplete and inaccurate. This verdict form failed to inform the jury that it could sentence petitioner to life imprisonment even if the jury found petitioner guilty of both aggravating factors beyond a reasonable doubt. Continuing, petitioner states that his trial counsel did not challenge the verdict form either in the circuit court or in petitioner's initial brief filed on appeal.

We agree with petitioner. In Atkins, we considered whether a jury, at the conclusion of the sentencing phase of a capital murder trial, was properly instructed when “the verdict form failed to provide the jury with the option of sentencing [the defendant] to life imprisonment upon a finding that neither of the aggravating factors of future dangerousness or vileness was proven beyond a reasonable doubt.” 257 Va. at 177-78, 510 S.E.2d at 456. We observed that “it is materially vital to the defendant in a criminal case that the jury have a proper verdict form.” Id. at 178, 510 S.E.2d at 456.

We reversed the circuit court's judgment in Atkins that imposed the sentence of death upon the defendant because the jury verdict form was not accurate. The form that was submitted to the jury “contained no alternative finding permitting the jury to impose only a life sentence if neither future dangerousness nor vileness had been proven beyond a reasonable doubt.” Id. When we considered Lenz' direct appeal to this Court, we raised, sua sponte, the issue whether the verdict form was proper in light of our decision in Atkins. We directed counsel to address this issue. Petitioner's trial counsel responded to our directive and stated that the jury verdict form they drafted was defective because the form did “not include the alternatives that, having found the defendant guilty of capital murder, the jury could find either or both of the aggravating factors and still impose a life sentence.” This Court did not consider petitioner's arguments on direct appeal because they were neither raised in the circuit court nor were they the subject of an assignment of error before this Court during the appeal. Lenz, 261 Va. at 472, 544 S.E.2d at 311.

The jury in the sentencing phase of Lenz' capital murder trial was given the following form which is almost identical to the language contained in Code § 19.2-264.4(D): “We, the Jury, on the issue joined, having found the defendant guilty of Capital Murder, as charged in the indictment, and having considered the evidence in aggravation and mitigation of the offense, fix his punishment at imprisonment for life.” This form, however, did not satisfy our holding in Atkins because the form failed to inform the jury that it could impose a sentence of life imprisonment or a sentence of life imprisonment and a fine if the jury found that neither of the aggravating factors had been proven beyond a reasonable doubt. Therefore, we are compelled to conclude that the above-referenced form, which is almost identical to the language contained in Code § 19.2-264.4(D), is not sufficient to satisfy our holding in Atkins.

We disagree with the Warden's contention that petitioner's trial counsel could not “have been ineffective for failing to object to a verdict form mandated by statute and which repeatedly had been held by this Court to be proper.” Our decision in Atkins, holding that it is materially vital to a defendant in a criminal case that the jury be given a proper verdict form reflecting its sentencing options, was rendered in February 1999, one and one-half years before petitioner's jury was instructed. Atkins, 257 Va. at 178, 510 S.E.2d at 456.

We note that in June 2001, we decided Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001). In Powell, we held that a verdict form identical to the one used in the present case was improper because the form failed to state that the jury could impose a sentence of life imprisonment, even after finding the defendant guilty of one or both aggravating factors beyond a reasonable doubt. 261 Va. at 545, 552 S.E.2d at 363. Thus, here, as in Powell, the absence of this sentencing alternative from the verdict form constituted error in the sentencing phase of the capital murder proceeding. Id. We disagree with the Warden that petitioner has not suffered any prejudice. Our above-stated holding in Atkins requires a finding of prejudice because had counsel assigned error to the verdict form during the direct appeal of the judgment, petitioner would have received a new sentencing proceeding. See Atkins, 257 Va. at 179, 510 S.E.2d at 457. See also Williams v. Taylor, 529 U.S. 362, 394-95, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hedrick v. Warden, 264 Va. at 496-97, 570 S.E.2d at 847; Powell, 261 Va. at 545, 552 S.E.2d at 363.

In view of our ruling that will require petitioner to receive a new sentencing hearing, we need not consider his habeas corpus claims that relate to his prior sentencing hearing.

Petitioner argues that he “was denied his right to counsel at a critical stage of the proceedings due to the trial court's refusal to order that Lenz be transported to a location where he could have reasonable access to his attorneys until a week before his capital trial commenced, and due to the conditions under which the Commonwealth forced trial counsel to consult with Lenz during the months prior to his trial.” This claim is procedurally defaulted because it could have been raised at trial and on direct appeal. Slayton v. Parrigan, 215 Va. 27, 30, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).

We recognize that in his brief on direct appeal, petitioner argued that he was “denied effective assistance of [c]ounsel in that the Department of Corrections housed [him] hours away from the site of the trial and of the offices of his appointed attorneys. Because of these great distances the defendant could only meet with his attorneys for a short period of time. The time the defendant spent with his attorneys was much less than the travel time to and from the location.” Lenz, 261 Va. at 460, 544 S.E.2d at 304. We refused to consider this claim on direct appeal because in this Commonwealth, “[c]laims raising ineffective assistance of counsel must be asserted in a habeas corpus proceeding and are not cognizable on direct appeal.” Id. However, in petitioner's petition for a writ of habeas corpus, he does not allege that his counsel were ineffective for this reason. Rather, he asserts that he was denied his right to counsel at a critical stage of the proceedings, which is different from a claim of ineffective assistance of counsel.

Petitioner argues that “[t]he death penalty in Virginia is unconstitutional.” This argument was raised on direct appeal and petitioner may not assert this argument again in this habeas corpus proceeding. Slayton, 215 Va. at 30, 205 S.E.2d at 682.

Petitioner argues that his trial counsel were ineffective because they “fail[ed] to object to the Department of Corrections' unilateral decision to place a stun belt on [petitioner] throughout his trial, without any showing of need, denied [petitioner] his rights to be tried without restraint, to effective assistance of counsel, and to a fair trial.” We disagree.

During a pretrial hearing, petitioner's trial counsel asked the circuit court for permission to purchase civilian clothes for the petitioner, even though he was an inmate. Trial counsel did not want petitioner to appear before a jury wearing a prison-issued jumpsuit and shackles. The circuit court inquired whether petitioner could wear a stun belt because “if he were to escape, that would be a danger to the public.” Apparently, petitioner was required to wear a stun belt during his trial. In view of petitioner's criminal history, which included multiple convictions for escape from custody, we hold that trial counsel were not ineffective because they did not object to the circuit court's decision to require this inmate to wear a stun belt. Even habeas counsel do not dispute that petitioner was a risk to the public if he were able to escape. There is nothing in this record that indicates the jury observed a stun belt on petitioner during his trial. Petitioner failed to demonstrate prejudice because he cannot show that there is a “reasonable probability” that, but for counsel's [allegedly] unprofessional errors, the result of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; accord Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Hedrick v. Warden, 264 Va. at 497, 570 S.E.2d at 847. Accordingly, we hold that petitioner fails to satisfy the performance or prejudice standards established in Strickland v. Washington.

Petitioner argues that his trial counsel “were ineffective for failing to object to jury instructions that incorrectly permitted the jury to convict [petitioner] of capital murder even if [the jury] did not find that the [Commonwealth] had proven beyond a reasonable doubt that [petitioner] was ··· the actual perpetrator of the victim's death.” Petitioner's contention is without merit. The evidence at trial established that Lenz and another inmate stabbed the victim with knives numerous times. The victim incurred a total of 68 stab wounds and all the wounds contributed to the victim's death. During the guilt phase of petitioner's capital murder trial, the circuit court instructed the jury that it may convict petitioner of capital murder if the Commonwealth proved “beyond a reasonable doubt that [petitioner] was an active and immediate participant in the act or acts that caused the victim's death.”

In view of the facts, the instruction that the circuit court gave the jury was a correct statement of law, and we approved that instruction in Strickler v. Commonwealth, 241 Va. 482, 493-95, 404 S.E.2d 227, 234-35, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991). Contrary to petitioner's arguments, he was not entitled to a jury instruction that he could only be convicted of capital murder in the event the jury found beyond a reasonable doubt that he was the “triggerman.” As we have held, “a defendant who ‘jointly participated in [a] fatal beating’ was subject to conviction and punishment for capital murder, [when] the other requisite elements were present. We adhere to the view that [when] two or more persons take a direct part in inflicting fatal injuries, each joint participant is an ‘immediate perpetrator’ for the purposes of the capital murder statutes.” Id. at 495, 404 S.E.2d at 235. Thus, we hold that trial counsel were not ineffective because they had no basis upon which to object to the challenged jury instruction, which was appropriate in view of the facts presented to the jury during the guilt phase of petitioner's capital murder trial.

Accordingly, we will dismiss all petitioner's claims except his claim that asserted he was denied effective assistance of counsel because trial counsel failed to object to the improper verdict form. We will grant that portion of the petition for a writ of habeas corpus challenging the use of the improper verdict form, and petitioner shall be granted a new sentencing hearing. Petition dismissed in part, granted in part, and case remanded to the circuit court for a new sentencing hearing.

Lenz v. Warden of the Sussex I State Prison, 267 Va. 318, 593 S.E.2d 292 (Va. 2004) (State Habeas).

Background: After petitioner's conviction for premeditated killing of person by prisoner confined in state or local correctional facility and sentence of death was affirmed by the Supreme Court, 261 Va. 451, 544 S.E.2d 299, petitioner filed petition for writ of habeas corpus. After evidentiary hearing in the Circuit Court, Augusta County, the Supreme Court, 265 Va. 373, 579 S.E.2d 194, granted the petition in part, dismissed the petition in part, and remanded for new sentencing hearing. Holdings: On rehearing, the Supreme Court, Elizabeth B. Lacy, J., held that: (1) evidence did not establish that bailiff provided ex parte answers to jurors' questions about trial court's sentencing instructions; (2) prejudice would not presumed, as to allegations that jurors read from Bible during sentencing deliberations; (3) evidence did not establish that prospective juror would automatically vote for the death penalty in every case; and (4) counsel did not perform deficiently in failing to seek additional continuance before sentencing hearing. Petition denied.

Lenz v. Washington, 444 F.3d 295 (4th Cir. 2006) (Federal Habeas).

Background: Following affirmance on direct appeal of petitioner's state court capital murder conviction and his death sentence, 261 Va. 451, 544 S.E.2d 299, he filed petition for writ of habeas corpus. The United States District Court for the Western District of Virginia, James P. Jones, Chief Judge, 370 F.Supp.2d 446, denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Wilkinson, Circuit Judge, held that:
(1) in determining whether the state court's decision in claim challenging the use of a Bible during jury deliberations rested upon an unreasonable determination of the facts, the district court was required to presume the state court's findings of fact to be correct;
(2) petitioner was not denied effective assistance of counsel;
(3) habeas court would not review de novo petitioner's ineffective assistance of counsel claim;
(4) exclusion of fact of murder victim's own murder conviction from the sentencing phase did not violate Eighth Amendment;
(5) exclusion of fact of murder victim's murder conviction from the sentencing phase did not violate due process; and
(6) state-court determination that jurors' use of a Bible during sentencing deliberations did not violate right to impartial jury was not an unreasonable application of clearly established federal law.

WILKINSON, Circuit Judge.
Michael Lenz was convicted of capital murder and sentenced to death for fatally stabbing a fellow inmate at a Virginia state correctional facility. His guilt is not in dispute. He now appeals the district court's denial of his federal habeas petition, seeking review of four alleged constitutional violations arising out of his state trial: denial of effective representation based on the location and conditions of his incarceration, ineffective assistance of counsel at sentencing, improper exclusion of evidence at sentencing, and juror use of a Bible during sentencing deliberations. We have reviewed these claims with care, and we affirm the judgment of the district court.

On the evening of January 16, 2000, petitioner Michael Lenz joined Brent Parker, Jeffrey Remington, and three other inmates at the Augusta Correctional Center for a meeting of a group known as the “Ironwood Kindred.” Petitioner was an adherent of a religion known as “Asatru,” and intended to lead an Asatru ceremony at the meeting. Petitioner and Parker had a history of conflict relating to the practice of Asatru. According to petitioner, Parker and others had thwarted his efforts to form an official group within the prison devoted to Asatru, and Parker had threatened his life on two separate occasions. Petitioner admitted that he planned to kill Parker that evening.

The Asatru ceremony began with petitioner performing some ritual incantations, reciting poetry, and calling upon an Asatru deity. Petitioner then called Parker to the altar. After petitioner and Parker had a brief conversation, petitioner and Remington attacked Parker with knives. The ensuing commotion alerted the only correctional officer present, who was stationed outside the meeting room. Through a window in the door, the officer observed petitioner and Remington repeatedly stabbing Parker, while Parker lay face-up on the floor between them “making a feeble attempt to defend himself” with his hands. The officer ordered them to stop, but they ignored him and carried on with their attack. He also called for backup, but did not attempt to intervene by himself because he was unarmed. While the officer awaited assistance, petitioner and Remington continued their assault. The next officer to arrive observed Parker in a fetal position, making no attempt to defend himself, while petitioner stabbed him “over and over and over.” This second officer also ordered petitioner and Remington to stop, but to no avail. Once sufficient additional personnel arrived, correctional officers entered the room and apprehended petitioner and Remington.

A prison nurse called to the scene found Parker alive, but in very critical condition. Despite her best efforts, Parker continued to bleed profusely, and he died at the Augusta Medical Center. An autopsy revealed that he had sustained sixty-eight stab wounds, all inflicted while he was still alive. These included seven stab wounds each to Parker's left lung and liver, either set of which would have been fatal even without his numerous additional injuries.

Petitioner was tried before a jury in Virginia state court and convicted of capital murder. See Va.Code Ann. § 18.2-31(3) (2004). At the penalty phase of the trial, the jury fixed his punishment at death, after finding each of two possible statutory aggravating factors: that his future violent acts “would constitute a continuing serious threat to society” and that his offense conduct “was outrageously or wantonly vile, horrible or inhuman.” Id. § 19.2-264.2 (2004). On direct appeal, the Supreme Court of Virginia affirmed petitioner's conviction and sentence. See Lenz v. Commonwealth, 261 Va. 451, 544 S.E.2d 299, 311(Va.), cert. denied, 534 U.S. 1003, 122 S.Ct. 481, 151 L.Ed.2d 395 (2001).

Petitioner subsequently filed a state habeas petition, asserting several errors in his trial and sentencing. The Supreme Court of Virginia initially concluded that petitioner had received ineffective assistance of counsel at sentencing, and thus granted the petition in part, denied it in part, and remanded for resentencing. See Lenz v. Warden, 265 Va. 373, 579 S.E.2d 194, 199 (2003). However, it granted the Commonwealth's motion for rehearing and issued a second opinion denying the petition in full. See Lenz v. Warden, 267 Va. 318, 593 S.E.2d 292, 305(Va.), cert. denied, 542 U.S. 953, 124 S.Ct. 2933, 159 L.Ed.2d 836 (2004). Petitioner thereafter filed a federal habeas petition in the district court for the Western District of Virginia, pursuant to 28 U.S.C. § 2254 (2000). The district court denied the petition, and also denied petitioner's subsequent motion to alter or amend its judgment. See Lenz v. True, 370 F.Supp.2d 446, 450 (W.D.Va.2005) (original order); Lenz v. True, 373 F.Supp.2d 606, 607 (W.D.Va.2005) (denial of motion). We granted a certificate of appealability on Petitioner's claims.

* * *

Petitioner's final claim is that jurors made impermissible use of a Bible during sentencing deliberations, in violation of his Sixth Amendment right to an impartial jury.

On state habeas, petitioner alleged that jurors had consulted the Bible to aid in their capital sentencing decision. The Supreme Court of Virginia ordered the trial court to conduct an evidentiary hearing on this matter. At the hearing, individual jurors offered live testimony, and the parties submitted written affidavits based on prior juror interviews. The trial court accepted the former into evidence, but exercised its discretion under Virginia law to consider the latter only for purposes of witness credibility. See Va.Code Ann. § 8.01-660 (2000).

Following the hearing, the trial court issued a written report to the Supreme Court of Virginia containing its findings of fact and recommended conclusions of law. It found “that Juror Anita Durrette had at least one Bible and perhaps a ‘Woman's Devotional’ with her in the jury room during the deliberations in the penalty phase of the trial.” It concluded that she was not an “opinionated, forceful juror,” but was “troubled” by the “morality of voting to sentence a fellow human being to death” (internal quotation marks omitted). It further found that [the] Bible was open during deliberations, and that Ms. Durrette read from it. It is not clear that any other jurors read from the Bible, although there is some evidence, at least, that others looked at it. The Court will presume that any juror who looked at the Bible actually read it. The evidence does not disclose what passage or passages were read. The testimony of all the jurors testifying established that their verdict was based upon the evidence presented in Court and the law contained in the instructions given to them by the Court. There is no evidence to support a finding that the verdict was based, in any way, upon any passage to be found in the Bible.

The trial court consequently concluded that there was “no reasonable possibility” of improper influence, and recommended that petitioner's claim be denied. The Supreme Court of Virginia adopted the trial court's recommendation. It considered the lower court's factual findings to be binding, and affirmed its refusal to consider the affidavits as substantive evidence. See Lenz v. Warden, 593 S.E.2d at 297, 299. Relying on Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), and Stockton v. Virginia, 852 F.2d 740 (4th Cir.1988), the court determined that to prevail on his claim of improper influence, petitioner bore the burden of demonstrating that (1) an extraneous contact had taken place and (2) that “such contact was ‘about the matter pending before the jury.’ ” Lenz v. Warden, 593 S.E.2d at 298 (quoting Remmer, 347 U.S. at 229, 74 S.Ct. 450). It concluded that petitioner had satisfied the first of these elements but not the second. Id. Because the trial court “found that there was no evidence of what Bible passages were read ··· petitioner did not establish that the ‘contact’ with the Bible was ‘about the matter pending before the jury.’ ” Id. at 299.

The district court on federal habeas declined to overturn the state court's judgment. First, it rejected petitioner's suggestion that the state court's determination of the facts had been unreasonable. See 28 U.S.C. § 2254(d)(2). The Supreme Court of Virginia had inferred from the state trial court's evidentiary findings “that ‘no evidence showed that jurors read Bible passages relating to the sentencing decision,’ ” and the district court found this inference to be “fairly supported by the record.” Lenz v. True, 370 F.Supp.2d at 462 (quoting Lenz v. Warden, 593 S.E.2d at 299). It also reasoned that the state trial court was in the best position to determine the credibility of the affidavits, and declined to hold that it had erred in excluding them. Id. Second, the district court concluded that the Supreme Court of Virginia had not unreasonably applied Remmer, agreeing with the state court that petitioner had failed to demonstrate that the “extraneous contact [was] ‘about the matter pending before the jury.’ ” Id. at 460 (quoting Remmer, 347 U.S. at 229, 74 S.Ct. 450).

Our recent decision in Robinson v. Polk, 438 F.3d 350 (4th Cir.2006), compels the conclusion that petitioner's claim does not merit relief. In Robinson, we considered the claim of a habeas petitioner who alleged that a bailiff had provided the jury with a Bible during the sentencing phase of his trial, and that a juror read aloud an “eye for an eye” passage before a final vote in an effort to persuade fellow jurors to opt for a death sentence. Id. at 358-59. The state court had denied his Sixth Amendment claim without an evidentiary hearing, determining that even if the allegations were true, the defendant's rights had not been violated. Id. at 358. After surveying Remmer, Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), and other relevant precedents, we concluded that-though we might reach a different result if we were to consider the issue de novo, Robinson, 438 F.3d at 363-the state court's decision was not an “unreasonable application of” clearly established federal law, id. at 366. We based this conclusion on three alternative grounds. First, “it would have been reasonable for the [state] court to conclude that the Bible had no bearing on any fact relevant to sentencing,” because “no Biblical passage ··· had any evidentiary relevance to the jury's determination of the existence of ··· aggravating and mitigating circumstances.” Id. at 363 (footnote and emphasis omitted). Second, we found nothing in Supreme Court caselaw that would require the conclusion that the Bible is the type of “external influence” that permits the inner workings of the jury to be probed in a post-trial inquiry. Id. at 363-64. Third, we determined that the state court “reasonably could have concluded that the safeguards of the trial process ··· provide an adequate protection of a defendant's right to be sentenced by a jury free of improper influences such that a post-verdict examination into Bible reading is unnecessary.” Id. at 364.

The logic and holding of Robinson dictate the result here, as we can find no distinction between the two cases that would merit a different outcome. Indeed, to the extent that there are distinctions, they cut against petitioner's claim for relief. Unlike the petitioner in Robinson, petitioner here has received a full evidentiary hearing from the state court. With respect to that hearing, we agree with the district court that the state court's factual findings were not unreasonable and that we should not overturn the trial court's exclusion of the affidavits. See 370 F.Supp.2d at 462; see also 28 U.S.C. § 2254(d)(2). The findings at the hearing reveal circumstances less helpful to petitioner than those alleged in Robinson: a juror rather than a bailiff brought the Bible into the jury room, the juror did not appear to use the Bible to advance a pro-death penalty agenda, and there was no evidence that any passages were read that would relate to the sentencing decision. We consequently cannot find that petitioner's Bible claim merits habeas relief.

For the foregoing reasons, the judgment of the district court denying a writ of habeas corpus is AFFIRMED.