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Derek Rocco BARNABEI





Classification: Murderer
Characteristics: Rape
Number of victims: 1
Date of murder: September 22, 1993
Date of birth: 1967
Victim profile: Sarah Wisnosky (female, 17)
Method of murder: Beating with a ball peen hammer
Location: Norfolk, Virginia, USA
Status: Executed by lethal injection in Virginia on September 14, 2000

photo gallery


United States Court of Appeals
For the Fourth Circuit

opinion 99-16

Commonwealth of Virginia
From the Circuit Court of the City of Norfolk

clemency petition


Derek Barnabei was convicted, sentenced, and executed for the capital murder and rape of 17-year-old Old Dominion University freshman Sarah Wisnosky.

Wisnosky dated Barnabei and was last seen at the apartment he shared with others.

On Sept. 22, 1993, Sarah's nude body was found in the Lafayette River. She had been strangled and suffered 10 blows to the head from what appeared to be a ballpeen hammer. Barnabei fled to Ohio.

Stains matching Sarah's blood type were found in Barnabei's room, and DNA evidence showed that semen matching Barnabei's was present in Sarah's body.

At the Clemency stage, Governor Gilmore ordered further DNA testing of the victim's fingernail scrapings at the urging of Barnabei's lawyers, who claimed innocence. The additional DNA testing showed Barnabei's blood and confirmed guilt.

There were no witnesses to the crime and a murder weapon was never found.


Virginia Governor Gilmore Press Releases

Statement by Governor Gilmore Regarding Execution of Derek Rocco Barnabei and DNA Tests of Victim's Fingernails - DNA Tests Confirm Barnabei's Guilt.

"After a jury trial of 11 days, Derek Rocco Barnabei was convicted of capital murder and rape of 17-year-old Sarah Wisnosky. After hearing additional evidence related to aggravating and mitigating circumstances, the same jury sentenced Barnabei to death and the presiding judge affirmed the sentence.

"The evidence was overwhelming that Barnabei raped and murdered Sarah Wisnosky. Two separate DNA tests performed during the original investigation revealed that Barnabei's semen was present in the victim. DNA tests also showed that no other person's semen was present.

An autopsy confirmed the sexual intercourse was by force. DNA tests also confirmed Ms. Wisnosky's blood was on Barnabei's bed and throughout his room. In addition, Barnabei fled Norfolk in the hours before Ms. Wisnosky's body was found and thereafter lived under an assumed name.

Based on a review of all of this evidence, the U.S. Court of Appeals for the 4th Circuit ruled that the evidence 'admits of no real uncertainty on the question whether Barnabei raped Sarah Wisnosky.'

"Last week, in of an abundance of caution, I directed the Virginia Division of Forensic Science to perform additional DNA tests on fingernail clippings taken from Ms. Wisnosky's hands. Barnabei, through his attorneys, requested this testing on the theory that Ms. Wisnosky scratched her attacker as she was choked.

"Pursuant to an Order of the Norfolk Circuit Court, the evidence envelopes containing Ms. Wisnosky's fingernails were delivered to the Virginia Division of Forensic Science. Dr. Paul Ferrara, Director of the Division of Forensic Science, advised me that the fingernail clippings were received uncompromised, in their original sealed and secured envelopes, one containing clippings from the left hand and one from the right. Dr. Ferrara further advised that the envelope seals displayed the initials of the examiner who originally reviewed the fingernail clippings and secured them in the envelopes.

That seal was secure and unopened. Based on Dr. Ferrara's opinion, I directed DNA tests on the fingernail clippings to proceed. "The Division of Forensic Science has concluded its DNA tests and has presented the test results to me today, September 11, 2000.

The new DNA tests reveal that Ms. Wisnosky's fingernails contained her own DNA and the DNA of one other person. The Division of Forensic Science ran the DNA profile of the second individual through the Commonwealth's DNA data bank.

The search revealed a positive match with one and only one individual -- Derek Rocco Barnabei. "This DNA test result confirms that Derek Rocco Barnabei is guilty of the rape and murder of Sarah Wisnosky and vindicates the jury's verdict, as well as the numerous appellate court rulings upholding the jury. "I extend my heartfelt sympathy to Ms. Wisnosky's family for their loss and for any pain caused by this clemency process.

"Now that the guilt of Barnabei has been confirmed, there remains the generalized assault on capital punishment by many in this country and foreign countries. I believe we are entitled to set a moral standard that violent murder will not be tolerated by a civilized people.

The rule of law requires that at some point the community is likewise entitled to justice. "Based upon a thorough review of the DNA test results confirming Barnabei's guilt, the numerous court decisions in this case, and the circumstances of this matter, I decline to intervene in the case of Derek Rocco Barnabei."

An execution date has been set for Derek R. Barnabei, who was convicted of raping and murdering Old Dominion University student Sarah Wisnosky almost seven years ago.

Circuit Judge Charles E. Poston ordered that Barnabei will be put to death on Sept. 14. Barnabei's lawyers continue to appeal the capital murder conviction. They have called for a new trial based, in part, on incomplete DNA testing of crime-scene evidence before the trial.

Much of Barnabei's efforts have focused on blood discovered under Sarah's fingernails, which was never tested for DNA identification. Prosecutors argued they did not need the additional evidence tested to prove Barnabei's guilt. But Barnabei's attorneys said the testing may well implicate another suspect in the murder.

A request for more DNA testing was also mailed to Gov. Jim Gilmore according to one of Barnabei's attorneys. Barnabei also intends to appeal his case to the U.S. Supreme Court.

On Sept. 22, 1993, Sarah's nude body was found in the Lafayette River. The 17-year-old freshman from Lynchburg had been strangled and suffered 10 blows to the head from what appeared to be a ball-peen hammer. Barnabei, who had been dating Wisnosky, fled to Ohio.

Barnabei, who denied the charges, was convicted of capital murder and rape in 1995. Stains matching Sarah's blood type were found in Barnabei's room, prosecutors said. Prosecutors presented forensics evidence that semen matching Barnabei's was present in Sarah's body. Barnabei's attorneys said the evidence was only consistent with a consensual relationship.

UPDATE: DNA test results on blood under Sarah's fingernails confirmed Barnabei's guilt. The blood belonged to both Sarah and Barnabei.


Fight the Death Penalty USA

Derek Barnabei was executed Thursday night for the rape and murder of a college girl he dated. Hours earlier, the U.S. Supreme Court twice refused to grant a stay in the case that was closely followed in Italy.

Barnabei, 33, was put to death by injection at the Greensville Correctional Center for the 1993 slaying of Sarah J. Wisnosky, a 17-year-old Old Dominion University freshman. He was pronounced dead at 9:05 p.m.

"I am truly innocent of this crime," Barnabei said in a final statement. "Eventually, the truth will come out." Afterwards, he told his mother and brother he loved them, cited a passage from the Bible and thanked several people who had taken an interest in his case.

Barnabei was brought into the execution chamber at 8:54 p.m. He glared at Virginia corrections director Ron Angelone, who was on a red telephone linked to Gov. Jim Gilmore's office.

Barnabei wore a blue shirt, dungarees, white socks and blue shower slippers. The Rev. Jim Gallagher, a Roman Catholic priest, spoke to Barnabei briefly in the execution chamber and then entered the witness booth, where he whispered prayers throughout the execution.

The lethal chemicals began flowing into Barnabei's left arm at 9:02 p.m. Barnabei continued talking until his lip movement suddenly stopped a few seconds later. Barnabei had his final meal at 5:06 p.m., but prison officials, at Barnabei's request, declined to reveal what he ate. No family members of the victim attended the execution, corrections officials said.

About 25 death penalty opponents conducted a candlelight vigil outside the rural prison's main gate as the execution hour approached. Barnabei repeatedly said he was innocent.

The case was closely followed in Italy because he is Italian-American and that country opposes the death penalty. In an interview Wednesday, Barnabei said: "I don't want to die and it's unjust that I die. If this is what God wants, then so be it. I accept it. Who am I to question the ultimate design?"

Barnabei's spiritual adviser, the Rev. Bob West, met with Barnabei for about 90 minutes Thursday and said the condemned man was "ready to die." "He's at peace, in great spirits," West said.

Craig Barnabei, Derek Barnabei's brother, described him as "remarkably calm and at peace with himself." At a final family meeting at the prison, Barnabei told his brother and mother Jane to "to go on with our lives and fight," Craig Barnabei said. "I hope this is not for nothing," Craig Barnabei quoted his brother as saying. "I hope people take a hard look at my case." Barnabei also wanted his body cremated, but his mother talked him out of it, his brother said.

About 2 hours before the execution, Barnabei wrote out a will by hand. Andy Protogyrou, one of Barnabei's attorneys, declined to identify Barnabei's beneficiaries. Earlier Thursday, Barnabei's lawyers filed a clemency petition with Gov. Jim Gilmore, even though the governor had said Monday that he would not grant clemency because new DNA testing confirmed Barnabei was guilty. "Serious doubts still surround this case," lawyer Seth A. Tucker said in the petition filed Wednesday.

He argued that Barnabei should not be executed while a state police investigation continues into a temporary disappearance of evidence in the case. "It would do a disservice not only to Derek Barnabei, but also to the people of the Commonwealth of Virginia, to continue with an execution when there is still no conclusion as to who moved the evidence, what they did with it, and why," Tucker wrote.

Gilmore said Thursday that he is sure nobody tampered with the evidence that was tested -- Wisnosky's fingernail clippings, which were in a sealed envelope that had not been opened. He also said plenty of other evidence was considered at trial and in Barnabei's appeals. "We can't retry cases in the governor's office," Gilmore told reporters.

The Supreme Court's denial of two stay requests followed rulings against Barnabei by the 4th U.S. Circuit Court of Appeals and U.S. District Judge James Spencer in Richmond.

The courts dismissed defense arguments that the state tampered with evidence and that more DNA testing should be done because some evidence disappeared from Aug. 29 to Sept. 1 at the Norfolk Circuit Court clerk's office. Barnabei had asked for DNA tests on some of that evidence -- genetic material on Wisnosky's fingernail clippings -- in effort to prove someone else committed the crime.

Instead, the DNA tests matched Barnabei. Wisnosky was last seen alive in Barnabei's room in a house he shared with other young men in Norfolk. Her nude and beaten body was found floating in the Lafayette River. Barnabei becomes the 6th condemned inmate to be put to death this year in Virginia and the 79th overall since the state resumed capital punishment in 1982.

Only Texas has put more condemned inmates (231) to death since the death penalty was re-legalized in the USA on July 2, 1976. Barnabei becomes the 68th condemned inmate to be put to death in America this year and the 666th overall since executions were resumed on January 17, 1977.

(sources: The Virginian-Pilot & Rick Halperin)


Virginia Execution Carried Out, Italy Outraged

JARRATT, Virginia -- Despite protests in Italy and a plea for clemency from the Vatican, Italian-American Derek Rocco Barnabei was executed by injection Thursday in Virginia for killing his teen-age girlfriend seven years ago.

The execution was carried out days after DNA tests further implicated the 33-year-old Barnabei in the rape and murder of Sarah J. Wisnosky, a 17-year-old Old Dominion University freshman he had been dating. "I am truly innocent of this crime," Barnabei said in a final statement. "Eventually, the truth will come out."

He was the fifth person put to death this year in Virginia, which trails only Texas in the number of executions carried out since 1976, when the U.S. Supreme Court reinstated capital punishment. Barnabei's case has generated widespread outrage in Italy, his nation of ancestry.

The pope appealed for the sentence not to be carried out and Italian athletes at the Olympics in Sydney, Australia, vowed to lower the Italian flag during the opening ceremonies in protest. The State Department has warned U.S. citizens in Italy to be especially careful after the execution, citing threats of retribution from unknown persons.

Governor: DNA Confirmed Guilt

Barnabei's lawyer had filed a petition asking Gov. Jim Gilmore to grant clemency, even though the governor said Monday he would not do so because the DNA tests confirmed Barnabei's guilt. "Serious doubts still surround this case," wrote the lawyer, Seth A. Tucker, whose claims of evidence tampering by the state are under investigation.

Some evidence in the case disappeared from a secure holding area in the Norfolk Circuit Court Clerk's office late last month. It was later found in the office. Gilmore said he is sure no one tampered with the evidence that was tested -- Wisnosky's fingernail clippings, which were in a sealed envelope that had not been opened. He also said other evidence was considered at trial and in Barnabei's appeals. "We can't retry cases in the governor's office," Gilmore said. 'I don't want to die'

Wisnosky, a 17-year-old undergraduate at Old Dominion University, Norfolk, Virginia, was last seen alive in Barnabei's room in a house he shared with other young men in Norfolk. Her blood was splattered on the bed, walls and carpet of the room, and on a surf board in another room in the house.

Wisnosky's nude body was found floating in the Lafayette River. She had been strangled and struck repeatedly with a blunt instrument. Barnabei, alleging that police and prosecutors were conspiring to protect the real killer, had asked for DNA tests to prove someone else committed the crime. Instead, the DNA tests matched Barnabei.

"I don't want to die and it's unjust that I die," he said in an interview Wednesday. "If this is what God wants, then so be it. I accept it. Who am I to question the ultimate design?" In Italy, which is largely opposed to capital punishment, protesters gathered in vigils earlier this week. Walter Veltroni, secretary of one of Italy's main political parties, told the crowd that capital punishment was uncivilised, even for murderers. His sentiment was echoed by Lamberto Dini, the Italian foreign minister, who told a press conference in New York that capital punishment is "immoral and uncivilised."


Save Derek Rocco Barnabei

Derek Rocco Barnabei (1967-2000)
Innocent Man Murdered by the State of Virginia

"I am truly innocent of this crime. Eventually the truth will come out. I love you Mom, I love you Craig, I Love you Fabrizio, I Love you Patrizia, I love you Tony."

"The Sea"

I am the sea, so bold and strong
I laugh and play all day long
Nothing can worry me
Because I'm completely free.

"The Sea" is by Derek Rocco Barnabei at age 5.

"The Barnabei case represents one of the most egregious miscarriages of justice and one of the most compelling cases of innocence I have ever seen in all my years of practicing law." (Alan Dershowitz, Professor of Law, Harvard University)

"You have a better chance in America to receive justice if you are rich and guilty than if you are poor and innocent" (Barry Scheck, Innocence Project, Cardozo School of Law)

Derek Rocco Barnabei grew up in the loving family of Jane and Serafino Barnabei as a regular child of remarkable intelligence, in a New Jersey town. In school, he won honors and praise for his writing on topics such as patriotism and received a personal letter of congratulations from U.S. Senator Edward Kennedy.

In grade school Derek could easily be found writing poetry such as: "Big Dad"

Big Dad's the greatest.
He never turns you down.
And when you have
Peace and tranquillity,
You'll know Big Dad's in town.

On the back of the same ruled sheet of paper, Derek would also give us his philosophy:

"The Day"

The day's almost gone,
And the year will go on,
And listen here lad
It doesn't help to be so sad.

At the age of 8 Derek also manages to get a Green Belt in The Korean Tang Soo Do (Karate) Association. The long list of achievements continues throughout his life. He plays soccer and basketball when he is 10 years old, and wins awards in both categories. At 12 he wins "The Fire Prevention Award" gets certified on Boatman's Safety Course, and Somers Point Public School is only pleased to announce, year after year, that Derek is on the High Honor Roll. Citations of Merit are given to Derek on topics such as: "Why I Think America Is Great" and "Mental Gymnastics II." When Derek is only 13, he is very active in Young Art, and as versatile as he is, his hard questions prompt Congressman William J. Hughes, to write back:

"Dear Derek: Thank you for writing in order to express your views on a subject of mutual interest and concern. I certainly understand your fears about not being able to afford a college education, especially if you have aspirations about becoming a doctor. Tuition is very costly, and, with inflation, the cost of college education is increasing every year..."

The Veterans Of Foreign Wars Of The United States, award Derek, when he is 17, for having placed first in both local and district levels contest for his "Voice Of Democracy" Speech Writing Essay. Proudly Derek gets published in "The Press" of Atlantic City. On that occasion Derek's Dad humbly tells that "Derek is more than qualified to write on patriotism.

A brother is a West Point graduate. An uncle was a survivor of the Bataan death march during World War II. And a cousin holds the Silver Star." "Derek has received numerous honors, - continues The Press - including the Rotary Club award, an honor accorded the junior high school graduate with the highest scholastic grades."

Derek went on to college for for 1˝-years after he graduated from High School. Derek was a brilliant mind with a brilliant future, but was extinguished in Virginia on September 14, 2000, injected with a combination of lethal chemicals at 9:02 p.m. and was pronounced dead at 9:05 p.m.


Barnabei Case Detective Breaks Silence

CNN Europe

During the past seven years, Officer Shaun Squyres has weathered insults and accusations from Barnabei supporters that were sent around the globe by foreign media and the Internet. NewsChannel 3's Mike Mather sat down with him today for an exclusive interview as he shared his perspective on the case.

Squyres was the senior homicide investigator in 1993 when a jogger spotted a body floating in the Lafayette river. He says he never imagined the attention the case would eventually receive.

Seven years later, he is certain of one thing -- he got the right man. "I am absolutely, 100 percent confident that Derek Barnabei killed Sarah Wisnosky and disposed of her body. And he is 100 percent guilty," Squyers said.

Squyres was then Norfolk's senior homicide investigator seven years ago when he stood on the shores of the Lafayette River as the murder case unfolded. Last night, he watched the execution of the killer he pursued across the country.

During those years, he bore the brunt of defense attacks and conspiracy theories. He never responded. "When my son was convicted, it wasn't just circumstantial evidence. It was evidence planted by Shaun Squyres," Derek Barnabei's mother, Jane Barnabei, said.

For a man who has grown up here and is now raising a family here, the attacks were sometimes uncomfortable. "It hurt, sure. This is my hometown. My family is here. My children go to school here. My children go to ODU," Squyres said. "If the people who don't like me, or attack me professionally are murderers, drug dealers, and the attorneys that are on their payroll -- OK, I can live with that. I'm happy about that. I am almost proud of that." Squyers said. Squyres is now a police sergeant, working in Norfolk's second precinct.

He says seven years of attacks on his character have made him a better officer and a better person. And, they helped him find out who his true friends are.


Final Hours: Covington partner Seth Tucker puts everything on the line as his client nears execution

By Jake Richardson. Legal Times

September 20, 2000

At 8:45 on Thursday night, the two guards at Greensville Correctional Center told Derek Rocco Barnabei it was time. They asked Barnabei's attorneys -- including Covington & Burling partner Seth Tucker -- to step into the viewing room.

In a few minutes, a Roman Catholic priest would walk Barnabei to the gurney where he would be strapped down and executed by lethal injection. Tucker looked dismayed. He thought he would make the walk, too, but the guards told him that was not allowed.

Before the quarrel escalated, Barnabei told his attorneys he would be all right. Afterward, Tucker found out the two guards were trainees, and that he should have been permitted to escort Barnabei to the injection chamber. "They could not even get that right," Tucker said later.

Tucker, a commercial litigator in Washington, had spent the previous weeks in a steadily escalating frenzy to stave off the execution of his client.

But the last two days in particular had been a whirlwind of activity, the likes of which most lawyers never experience: litigation running simultaneously on several tracks; a growing storm of international media interest; the presence and pressure from the condemned man's family and friends; and the very real possibility that his client -- a man convicted of the rape and murder of a 17-year-old college student in 1993 -- would be the 79th man executed by Virginia authorities since 1976.


The clock shows 9:12 when Tucker, who has already been working for two hours, walks into the Virginia Capital Representation Resource Center in downtown Richmond on Sept. 13. For the past two days, Tucker has lived out of a nearby hotel and worked mostly out of the center, located opposite the courthouse for the Eastern District and the 4th U.S. Circuit Court of Appeals, on East Main Street, near the state capitol.

The first thing he does as he walks into the fifth-floor office is look on the fax machine for the attorney general's reply to his appeal to the 4th Circuit, asking the court to allow Barnabei to block the proceedings on the grounds that the state had mishandled biological evidence it had tested the week before. At 9:48, Barnabei calls.

Tucker scribbles away, rarely finishing a sentence as they talk. "I hope I don't see you tomorrow," Tucker says, just before hanging up. Tucker's next order of business is sifting through the rumors of the day: A journalist may have discovered a vial of Barnabei's blood missing from the state's evidence room.

There's another report that the government is concealing test results from some of the genetic material examined by state forensic scientists over the weekend, and a third rumor about inconsistencies with the evidence envelope that state authorities had temporarily misplaced a week earlier.

Covington associates Amy Levine and Gerard Magliocca call from Washington to tell Tucker that, contrary to what they had been told before, the DNA recently tested by the state was not from blood.

At 9:55, Tucker calls state forensic pathologist Dr. Paul Ferrara to find out if any of the rumors are true. Minutes later, Frank Slaton, Barnabei's private investigator, calls about the evidence envelope. Slaton is followed by Tony DiPiazza, a Barnabei supporter from New York, demanding that Tucker hold a press conference immediately to raise new questions about the tests. Tucker, who has not yet scheduled a press conference, tells DiPiazza in a frustrated voice: "We have to confirm these facts. A press conference can be done only once today. Nobody is coming back" for a second one.

At 10:54, the attorney general's brief arrives. It says the results of the DNA test of victim Sarah Wisnosky's fingernail clippings show "that the DNA profiles of Wisnosky and Barnabei were the only two found. ... Under these circumstances, it is nothing short of impossible for Barnabei to make the clear and convincing showing of the innocence required" to have the habeas petition granted. Ferrara calls at 11:30, giving Tucker hope.

The material collected from the two fingernail clippings doesn't help his case, but it doesn't hurt. One fingernail reveals only Barnabei's skin tissue. The other has only traces of Wisnosky's own blood. "It just proves what everybody knew, and that is that they were intimate," Tucker says to a reporter on the phone. "Nothing more." He hangs up the phone and sits, pensive. "We have to figure out what to do," he says to resource center attorney Michele Brace. "Do we respond to the state? Do we hold a press conference? Do we file something to the 4th Circuit?"


At 12:17, Tucker faxes a supplement to his appeal from the denial of the first habeas petition to the U.S. Supreme Court, arguing that the newly tested DNA evidence is inconclusive and leaves unanswered questions about the case.

At 12:33, Barnabei calls, asking Tucker to call the governor about the rumors regarding the new evidence. "It's important the governor knows the press is on this," Tucker tells Barnabei. "But I don't think the governor is going to do anything." A television news team from the ABC affiliate walks through the door at 12:44. "Is Seth here?" the reporter asks, believing Tucker, working from the front desk, to be the receptionist. Tucker identifies himself. The reporter confirms that Gov. Gilmore has said that Barnabei's blood was found under the fingernails, when in fact it wasn't.

"Now we have a story," Tucker says. He then asks the reporters in the office, "What's the latest I can hold a press conference?" One answers, "Two o'clock." The constant media attention as Tucker occupies himself with phone calls and drafting, reading, and faxing documents takes him by surprise. "I thought this would be boring for the press," he says. He heads for the press conference at the steps of the federal courthouse, where he assails the state's evidence. Tucker's press conferences are aggressive. It's a skill he developed out of necessity, not enjoyment. He returns to the office at 2:40 and begins the second petition for certiorari to the Supreme Court.

At 3:14, he calls Linda Goldstein, a New York partner at Covington who has worked on the case with Tucker. They decide to file a clemency petition even though the governor said in a press release on Monday that he would not consider clemency.

At 3:22, a Fox News station calls for a statement. At 3:39, Channel 8 calls, wanting to profile the Italian journalists following the case. Then DiPiazza calls, wanting to know how the press conference went. Tucker says it went well, adding, "It may have been our last attempt to embarrass the governor into doing the right thing."

At 3:53, a fax comes over, revealing that the 4th Circuit affirmed a lower court's dismissal of Barnabei's claims. The ruling is based on procedural grounds. "It could have been worse," Tucker says. "If we lost on the merits, we would have no grounds to seek cert in the Supreme Court." Barnabei calls again at 4:57, and Tucker delivers the bad news but says the press conference was successful. "You'd have been proud of me," Tucker says to Barnabei.

At 5:12, Levine calls Tucker to tell him that Barnabei's ex-wife Paula Barto, who testified against Barnabei during the sentencing phase of his 1995 trial, is hoping their 11-year-old son might speak to his father before he dies.

Later, Tucker calls Magliocca and Levine back, asking them to help get Barnabei on the phone with his son. Levine can't get past the man answering the phone at Barto's house, who threatens to sue if they call again. "We need to organize this so she can pull the kid out of school tomorrow," Tucker says to Levine. "It may be the boy's last chance." Barnabei never spoke to his son again.

At 6:27, Tucker faxes a round of edits of his latest Supreme Court petition to his associates in Washington. For the first time, Tucker makes small talk with his colleagues on the phone. For them, the case has been a crash course in legal writing. "I saw the time on your e-mail last night. You must be beat," Tucker says to Magliocca. "The petition looks good. This should capture their attention."

At 7:00, Tucker and Brace leave for an hour. They nurse a beer over dinner, and cathartically talk about other cases. At 9:08, Tucker begins reading the petition before sending it back to Magliocca. He leaves for the hotel, where he stays awake until 2 a.m. waiting for Magliocca to fax the final version. Unbeknownst to Tucker, the hotel desk received a copy at 11:30, but didn't notify him.


Brace gets to the office before Tucker, fielding Barnabei's call. Tucker arrives moments later. "I'm going to write a letter to the governor, requesting that DNA testing be done after the execution, if there is one," he says.

He doesn't get far composing the letter before the fax arrives from the Supreme Court, denying Barnabei's first petition for cert. Later, Tucker describes the moment as a punch to the stomach. Tucker looks to Brace and asks, "Should I call Derek now or wait -- " She cuts him off. "Call now," Brace says. Tucker closes the door behind him. The conversation doesn't last long. "It was the toughest call I've ever made," Tucker says.

At 10:24, he calls Barry Scheck, hoping the high-profile lawyer will continue to fight for the cause, to keep the evidence from being destroyed. Court TV calls Tucker at 11:07 to ask about doing a package before the execution. Tucker suggests a replacement: "What about Alan Dershowitz. If he'll do it. ... Before the execution, I just don't think I'll be up to it." It's the first time he doesn't add, "If there is an execution." Moments later, Tucker is on the phone with Dershowitz, who agrees to go on Court TV. Tucker runs down the facts of the case and adds that Barnabei is a charming and articulate man, which is one reason why the case has garnered so much attention.


At 12:19, the resource center is notified that Walter Mickens Jr., another death row client, has been granted a new trial by the 4th Circuit. It's a bittersweet victory. The lawyers at the center keep a bottle of champagne in the refrigerator for such occasions. It's been there for several years, but will have to be drunk another day. Tucker calls Levine at 1:59 to file the response to the attorney general's Supreme Court brief in favor of going forward with the execution.

Knowing the brief will not be successful, Tucker does not wait for the court's response. "I wanted to get down to the prison," he says later. "I felt like I was wasting time because I wanted to spend time with Derek. But I had to do it for Derek and myself, so that I knew that I did everything I could to increase his odds." An hour later, Tucker walks over to the governor's office, delivering the letter requesting post-execution DNA testing. At 4:15, Tucker leaves for Jarratt, where the Virginia death house is located. He doesn't wait for the Supreme Court ruling on the second petition.


The ride to the Greensville Correctional Facility from Richmond takes about an hour. The guards tower over Tucker as he enters the prison. It takes 30 minutes for guards to process Tucker and pat him down before he sees Barnabei.

Shortly after Tucker joins Barnabei, Tucker learns on the six o'clock news that the governor has denied the clemency petition. Around 7, the prison operations manager pulls Tucker aside and tells him the Supreme Court has denied the second cert petition. "It didn't even phase me," Tucker says later. "I knew it was over when they denied the first request."

On the drive home from Jarratt, at about 10 p.m., Tucker describes his last few minutes with Barnabei as being alternately humorous and philosophical. "It was a good time together," Tucker says. "Not a good time, but good time."

Barnabei held a phone the entire time, his mother on the other end. Barnabei wrote out a will in front of Tucker and prepared his final statement for Tucker to read after the execution. He selected a passage from Psalm 55, verse 18.

Tucker told him he would say the Shema, a Jewish prayer, during the execution. Barnabei asked him if he wouldn't mind saying it in front of him, too.

After Tucker was led to the execution viewing room, the drapes were drawn and he could hear Barnabei, through the glass, saying the psalm: "He hath delivered my soul in peace from the battle that was against me: for many were with me." At the same time, Tucker quietly recited the Shema. Tucker says it will be a while before he takes another capital case and will likely never take another one in Virginia.



The execution of Derek Rocco Barnabei

By Bill Kelly

I believe we are entitled to set a moral standard that violent murder will not be tolerated by civilized people. The rule of the law requires that at some point the community is likewise entitled to justice ---- Virginia Gov. Jim Gilmore

With no witnesses and little physical evidence, Norfolk, Virginia investigators concentrated their efforts on attempting to learn what motivated the slaying of lovely, brown haired, Sarah Wisnosky. By all accounts, the 17-year-old freshman at Old Dominion University, was deliriously happy living with her roommate in a pleasant dormitory on the third floor of Rogers Hall, located on 49th Street overlooking Colley Bay, a tributary of the Lafayette River. Sarah had established a superb relationship with several students at the university, police learned. But the hazel-eyed teenager often broke the cardinal rule of the college by staying out all night, away from campus. That's why Sarah's roommate wasn't worried when she wasn't home by dawn on September 21, 1993. How was anyone to know that particular Wednesday, was Sarah Wisnosky's last day on earth.

Sarah's roomie became troubled when she didn't show up for classes on Thursday. Police were called and detectives immediately began questioning everyone on campus to determine if anyone had seen or heard anything that might give them a clue to her whereabouts. This avenue quickly proved futile, and another squad of sleuths began questioning students on the third floor of Rogers Hall to determine if anything had been taken from her room which might indicate that she had ran away. Her clothing, and other valuables were still there. So the run-away theory was ruled out.

Detectives covered all the bases in their probe. They checked and rechecked for physical evidence. If they found anything, they weren't releasing any data to the press. They interviewed everyone at Rogers Hall on multiple occasions and talked with family members of the missing girl over again. But after a solid week of investigation, the trail was cold.

Certain that she had become a victim of foul play, more than 500 volunteers and officers launched a massive search for Sarah Wisnosky. The day dawned grey and rain threatened the area as the determined search parties divided into small groups and fanned out like lions on the hunt. Volunteers were given road maps with their search area marked in yellow.

Two weeks shy of Sarah's 18th birthday, the intensive search came to an end at the shores of the Lafayette River. When police arrived they were told that a woman walking her dog saw what appeared to be a mannequin floating face-down in the muddy river. The only clues on the naked corpse were a high school ring bearing the initials, "SW," a moccasin on a nearby bank, and a discarded bloodied towel.

After photographing the crime scene and searching the river bank for a mile in each direction, the officers summoned an ambulance to take the blue-bloated corpse to a Norfolk forensic laboratory for an autopsy and positive identification. There had been little question in the minds of crime flouters about the identity of "SW," but positive identification of Sarah Wisnosky came several hours later from the forensic laboratory.

Services were conducted for the murdered student three days later in the college auditorium. In various churches throughout the vicinity, mourners from surrounding regions attended services for Wisnosky. Numerous businesses in town closed down for the day out of respect for the slain college girl.

An autopsy, performed by a state deputy medical examiner. revealed that she had sustained some 10 vicious blows to the back and right side of her head, fracturing her skull. The blows had been inflicted by a blunt weapon, possibly a ball-peen hammer. The autopsy further revealed that the disheveled victim had sustained numerous bruises to her abdomen, which, the coroner said, could have been caused by a blow to Wisnosky's abdomen or by the assailant's kneeling on his victim to hold her in place while he raped her. Bruises to her head, face and Larynx and petechiae, the medical examiner said, were "a manifestation of mechanical asphyxia." Her cause of death was listed as "manual strangling." Samples of public hairs and semen were taken for further analysis and sent to the Virginia State Crime Lab in Richmond. Mranwhile, the hunt for Sarah's killer demanded every ounce of concentration.

Naturally, female students were frightened and walked in groups or pairs while on campus. Security was beefed-up and vehicle patrols became more active. All eyes were suspicious of wily strangers. Public opinion polls on campus indicated that most of the community believed the killer was an outsider, and not anyone connected the university. This was not only the opinion of the students but police and university administrators as well. Local citizens, outside the university, were also concerned about their peaceful community being terrorized. Turmoil erupted. Nobody in the city felt safe. The killer-rapist could strike anywhere, anytime, and the police were helpless to prevent another crime of this sort from happening again.

With the community in a clamor over the slaying of the young college student, officers continued to work around-the-clock to gather evidence, still maintaining a silence about their findings. Terrifying happenings can not long be kept secret, and police finally admitted that they had a suspect. Acting on information from several sources, law officers issued a warrant through the state's attorney general's office for Derek Rocco Barnabei, who had fled the area the day after the murder.

As investigators pored over Derek Barnabei's life, they became more and more convinced that he could be involved in her murder. A nationwide manhunt was launched for Derek in connection with the rape/slaying of Sarah Wisnosky. City police vowed that his apprehension would remain top priority and the governor ordered the chief of police to assign as many probers as necessary to bring him in.

Lawmakers printed and circulated hundreds of pamphlets with a description and composite sketch of the 24-year-old suspect. The results, however, were negative. A coordinated effort to locate Derek continued, but he evaded capture. Meantime, his family insisted that he was not in hiding, but constantly on the move. In questioning the suspect's kindred and friends, police kept a list of Derek's regular hunting grounds and made regular routine checks of these places. They followed his seemingly endless list of girlfriends and talked to every snitch they came across.

The hunt for the suspect was stone-walled until three months later. Reports had been circulating in Cuyahoga Falls, Ohio, that a man answering the description of the fugitive, Derek Barnabei, was living in the area under a pseudonym. Arrested, Derek steadfastly denied he had anything to do with the murder of the college freshman from Lynchburg.

The more investigators learned about Derek Barnabei the better he looked as a suspect in the shocking murder of Sarah Wisnosky. For one thing, she was last seen alive in a house he shared with several other young men in Norfolk. Also, DNA tests revealed Sarah's bloodstains on the walls and mattress of his room. The clincher: his spermatozoa was found in Sarah's vagina. Upon his return to Norfolk by two armed detectives, Derek was asked by a bee-hive of reporters if he killed Sarah. He returned waspishly, "No, I did not. I stand on the firm foundation of a consciousness of innocence. I know ultimately the truth will come out. I am truly innocent."

With that short statement, Barnabei was taken in for questioning and reporters gained no further information, until the following morning, when they were told police had enough evidence to indict him for murder.

Authorities refused to give any specifics of the case against Derek except that he had admitted that he had intercourse with Sarah the day she vanished. Derek emphasized time and again that any sex he had with Sarah was consensual. Everyone in Norfolk embraced themselves for a long-drawn-out courtroom battle.

In his opening statement to the jury, the prosecutor regaled his listeners with a lurid version of the murder, based, he declared, on the sworn testimony of eye witnesses and homicide detectives who had worked the case from day one.

A gaping audience sucked in every word. Derek's protestations of innocence reached the shores of Italy. Now Derek was not alone. His inner transformation had earned him new friends, distinguished Italians offered their help. Journalists from the Italian News Wire began arriving in Norfolk in droves. The Italian press clamored for a not guilty verdict.

Gradually, in the Norfolk County Courthouse, public opinion turned against the defendant . That feeling was put into action as the prosecutor took his spectators back to to beginning -- weeks before Sarah had suffered what he called, "the lengthiest and cruellest torture he could imagine."

Derek Barnabei arrived in the Norfolk vicinity in 1993, settling in Virginia Beach. He identified himself as "Serafino." His street name was "Serf." He saw himself as a "womanizer," and wooed his seemingly unlimited supply of "small-town girlfriends" with his smooth talk and fabricated tales about himself. He saw himself as somewhat of a martyr to gullible people in his circle while claiming to be a Rutgers University graduate and Tau Kappa Epsilon fraternity member. His fellow members at TKE and ODU, described him as "the completest fool, charlatan, rattle-pate, windbag and pretender."

Derek rented a room in a house occupied by four other young men, all past or present students at ODU. He met, and wooed Sarah Wisnosky. It wasn't unusual for Sarah to spend the night with Derek. One night Sarah went to Derek's rooming house to attend a "toga party," tossed by the TKE fraternity. Sarah got soused and became obnoxious. Derek avoided her the rest of the evening. He told a friend to "keep that bitch away from me" because he was trying to hook up with another girl at the party. Two other boys kept Sarah company on the front porch of the house. When one of the students asked Sarah about her relationship with Derek, she replied, "He's all right, but I have had better,"

A five o'clock in the morning, Sarah fell asleep in Derek's bed. She woke up and returned to her dormitory room unharmed. The following day, while Derek was bragging about his sexual conquests over a few beers with his fraternity cronies, one of his beer buddies blurted out Sarah's remark. Everyone present laughed and teased him. Infuriated, Derek denied ever having intercourse with Sarah, only oral sex.

The jury heard that on September 22, 1993, a little after 1 a.m., a fraternity brother named Gee drove Derek from a TKE pledge rendezvous to his rooming house, where Sarah was waiting for him. When Gee left, Sarah was still alive.

Around 45 minutes later, a student who lived in the bedroom directly above Derek's, began hearing loud music emanating from Derek's room. He stomped on the floor in an effort to get Derek to reduce the volume of the music. Derek turned the music up louder. Two roomers proceeded to go downstairs. They pounded on Derek's door for five minutes. No one answered. They tried to open the door. It was latched from the inside.

Meanwhile, another occupant was awakened when Derek rushed into his room. In a forceful tone, he demanded this roomer to move his car because it was blocking Derek's car in the driveway next to the house. The lodger grumbled, but moved his car, and Derek backed out of the driveway in a frantic state, striking the side of the house next door and nearly colliding with another vehicle. The court heard that later that same morning another lodger returned to his room to find his dog missing. In the course of looking for his dog, he rapped on Derek's door. When Derek opened his door, "very slightly," he noticed that Derek was "stark naked" and he appeared "wide-eyed, open-mouthed," and he wasn't paying attention to the man in front of him.

Unable to find his dog, the lodger left the house about 7:30 that morning, Derek was asleep on the couch in the living room. He shook him, and asked him why he wasn't sleeping in his own bed. Derek responded, "it was a long, f-----ed up story." As the lodger walked to his pickup truck he noticed a moccasin near the rear of Derek's vehicle. He tossed the moccasin and it landed on the back porch. The moccasin was later identified as one Sarah was wearing the night she vanished.

In the early afternoon of September 22, Derek was seen carrying a duffel bag and a surfboard from his bedroom. About 2:45 p.m., while giving a friend a lift home, Derek asked his passenger if he would take the surfboard to his room because he was tired of lugging it around in his car. Derek's friend obligingly took the surfboard to his room for safekeeping.

Upon leaving Derek's car, the witness said, he detected a sickening reek that seemed to be emanating from the trunk of Derek's Chevy. Derek started babbling wildly, chattering about "dirty laundry" or anything to divert his passenger's attention to the stench.

About 6 p.m. that evening, Derek called this friend and asked him if he had heard anything. "Like what?" his friend asked quizzically. "Derek replied, "Like, er, oh, nothing." Derek then told him he was going out of town for a few days to work with his dad. Derek drove to Towson, Maryland, and later to Ohio, where he was arrested in December 1993.

A police investigator testified that on September 23, after obtaining a search warrant, a contingent of lawmen went to Derek's abandoned room, where they found Sarah's other moccasin. It had blood on it. Further probing uncovered a pair of white socks in a trash can beside the house and a towel from the rear of the house next door. The towel had blood on it.

Moreover, they found what appeared to be bloodstains on his waterbed. More stains were found on a bedroom wall. A damp, red stain was discovered beneath the carpet. Bloodstains were found on the surfboard, later retrieved from Derek's friend's house. Even more astonishing to the detectives was a handwritten note which stated, "Women just don't get it."

A state forensic serologist testified that she lifted sperm from Sarah's vaginal swabs. She said she found blood beneath Sarah's fingernails, on one of her moccasins, on the surfboard, and on a washcloth and towel. She found hairs and fibers on the white socks, towel, and washcloth.

A state DNA analyst told the court that she conducted an RFLP DNA analysis of these, and other samples. She testified that blood recovered from the waterbed frame came from Sarah and that the chances were one in 202,000 that the blood came from a Caucasian other than Sarah. She testified that the chances were one in 972 billion that the sperm found on the vaginal swabs wasn't Derek's. The analyst also determined that the bloodstains found under the carpet in Derek's bedroom belonged to Wisnosky.

The suspense was excruciating all during the trial and had reached a high pitch by the time Sarah's roommate took the stand. She testified that the night before her death, Sarah called to say she was staying with Barnabei. She said Sarah had consensual sexual relations with Derek in the past. Derek's housemates testified that the last time they saw Sarah alive she was in the bedroom with Derek.

Prosecutor's told jurors that Derek began acting strangely the night before Sarah's "cold-blooded murder." Courtroom spectators heard that around 2 a.m, he began playing the song "Head Like a Hole" by the group ine Inich Nails. It woke up one of his housemates, who protested. Additionally, he asked another housemate to move the Jeep that was blocking his Chevrolet Impala. He was in such a hurry to get away that he hit the side of the house as he left, the court was told.

The court was told that Derek also called a TKE pledge in the early morning and asked for a blanket because he was cold. When the pledge arrived, he saw no linens on Derek's bed. The prosecutor's blunt assumption was that Derek murdered Sarah, borrowed $200 from his fraternity brothers, and fled. The Commonwealth introduced further evidence which tended to show that on the night of the murder Sarah went to the defendant's room to have sexual intercourse and was slain shortly thereafter. The sole witness to offer any evidence of rape -- on which the capital murder charge hung -- was the Commonwealth's Medical Examiner. His testimony that a "violent penetration" had occurred caused excited chattering throughout the courtroom and considerable damage to the defenses' case.

Barnabei requested that he be provided an expert of his own to show that the Commonwealth's Medical Examiner could not possibly know whether a rape occurred because, as Commonwealth's Medical Examiner himself said, the Commonwealth's Medical Examiner could not know whether a person would consent to force being used. Judge William F. Rutherford refused his request to appoint an expert.

During his closing arguments, the prosecutor told the jury that Derek Barnabei was a hardened sociopath and sexual deviate as well as a remorseless killer. He recapped the medical examiner's evidence; bruises on the introits of Wisnosky's vagina and a half-inch tear of her anal opening.

The pathologist opined that the blemishes had been sustained prior to Wisnosky's death and that the anal tear had been inflicted "very close to the time of her death." Although some water was found in her lungs, he could not completely rule out the possibility that the victim may not have been dead when her body was thrown into the water. Additionally, the pathologist opined that such a tear is usually caused by "forcible stretching."

The primary cause of death, the coroner ruled, was the head injuries, with the mechanical asphyxia a contributing factor. "If there ever was a crime that the death penalty was specifically designed for, this is it," the prosecutor thundered. The Virginia jury must have agreed with the prosecutor because on June 14, 1995 they found Barnabei guilty of throttling Sarah Wisnosky into unconsciousness and then raping her before administering the final death blows. They recommended a 13-year sentence for the rape.

In a separate murder sentencing, the prosecutors introduced a final, devastating witness, while precariously pushing for the death penalty. Barnabei's ex-wife and mother of his now-13-year-old son was called to the witness stand. She described in painful detail how their marriage deteriorated to verbal, physical, and finally sexual abuse. She took the courtroom back to the summer of 1985, when they met. She had just finished her freshman year at the University of Hartford in Connecticut. After a brief split-up, they resumed their relationship as lovers. She became pregnant in May 1986.

Only 19, and with child, she married Derek and they moved in with his family, she testified. Shortly after Serafino was born, Derek became physically abusive, slapping her around. "His anger was rather frequent," she told the court. "It progressed from hitting walls to throwing me against the walls." Through tears, she gloomily testified how her clothes were ripped almost to shreds and how co-workers questioned her about the welts and bruises on her neck and face.

During one incident, she said, Derek told her, "If you ever leave me, maybe a year will pass, maybe two, but someday I'll find you and I'll kill you!" The witness further testified that another time Derek tried to force her to have anal sex. She said Derek forced her to have vaginal and oral sex on several occasions. A Commonwealth Medical Examiner testified that his autopsy revealed that Sarah Wisnosky had suffered similar contact.

In an attempt to knock the props from under the prosecution's case, Barnabei's defense attorneys told jurors not to take this witness' testimony "of a continuing course of threatening and assuasive conduct" serious because she could not remember each and every specific date and occasion.

Although the Commonwealth had painted Derek a bloodthirsty maniac who deserved to die for his crime, his brother, called by the defense to testify in his behalf, painted a Norman Rockwell picture of his brother for jurors. A Rutgers University graduate, this witness testified that Derek was a straight-A student. "He was nothing but kind and considerate. He got along with everybody." Asked by the defense attorney if he thought his brother was capable of murder, the witness, calm and magisterial, replied, "Certainly not."

There was subdued chatter in the courtroom as Barnabei's girlfriend, with whom he was living at the time of his arrest, was called by the defense to testify. Warmed to the task, she told the jury in Judge William F. Rutherford's courtroom, "He was very sweet, very tender and always oving."

The sounds of the crowd outside the building, chanting in support of Barnabei, could be heard through the courtroom windows. It was a perfect cue for the jury foreman to announce on that June 15, 1995, the first death sentence handed down in Norfolk in 16 years.

On appeal, Derek raised five challenges to his conviction and death sentence. First, he contended his lawyer failed to contest the prosecution's forensic evidence of rape. Secondly, he said his attorney failed to object to the verdict with which the jury sentenced him to death. Third, he maintained that the "vileness" aggravating factor for which a Virginia jury can impose a sentence of death is unconstitutionally vague. Lastly, he argued that the trial court was constitutionally required to inform jurors that a life sentence would have kept him behind bars for at least twenty-five years. He also argued that testimony by his ex-wife violated his right to due process.

After exhausting his state remedies, Barnabei filed a petition for federal habeas relief, which the district court ousted. The condemned man lost his death-row appeal before the U.S. Court of Appeals in June, 2000, setting the stage for his execution. His execution date was set for September 14th. Gov. Jim Gilmore said he would not stay Barnabei's execution, adding that DNA tests proved his guilt.

As the execution neared, the case received widespread attention. Strangely, the Italian News Wire suddenly came alive. Every newspaper in Italy ran front page articles proclaiming Barnabei's innocence. Italian columnists tetchily focused on the assumption that he did not receive a fair trial. Paul II pleaded his case and Italian parliaments voiced their objections to the execution. By 8:30, 50 media members toting cameras and microphones - many from various Italian news services - descended on the Greensville Correctional Center, where executions are carried out.

Dressed in a blue shirt, dungarees, white socks and blue shower slippers, Derek was ushered into the execution chambers at approximately 8:54 p.m. He glared at corrections director Ron Angelone, who had fought strenuously for his execution. "I am truly innocent of this crime," Derek muttered as they strapped him to a gurney. "Eventually, the truth will come out." That same day, the U.S. Supreme court twice refused to grant a stay.

The lethal chemicals began flowing into the condemned killer's left arm at 9:02 p.m. He continued chanting Psalm, 55, verse 18, from the Bible, until his lip movement became paralyzed. He was pronounced dead at 9:05 p.m.

No family members attended the execution. His mother and brother visited him earlier in the day, but left before the execution. His last words to his mother were, "Mom, I can deal with it, but I'm a little afraid."

Following the execution, Barnabei's body was transported to the family's home in Somers Point, New Jersey, for burial. Derek Barnabei was the sixth person executed in Virginia since January 1, 2000, and the 79th since the death penalty was allowed to resume by the U.S. Supreme Court in 1979.



214 F.3d 463

DEREK ROCCO BARNABEI, Petitioner-Appellant,
RONALD J. ANGELONE, Director, Virginia Department of Corrections,
Respondent Appellee.

United States Court of Appeals for the Fourth Circuit

Argued: April 6, 2000.
Decided: June 5, 2000

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Chief Judge Wilkinson and Senior Judge Hamilton joined.



On June 14, 1995, a Virginia jury convicted Derek R. Barnabei of raping and murdering Sarah Wisnosky, a 17-year-old student at Old Dominion University. The following day, the same jury sentenced Barnabei to death. After exhausting his state remedies, Barnabei filed a petition for federal habeas relief, which the district court dismissed. We deny Barnabei's request for a certificate of appealability and affirm the dismissal of the petition.


On Barnabei's direct appeal from his conviction, the Supreme Court of Virginia described the facts of this case:

On September 22, 1993, shortly after 6:00 p.m., Wisnosky's nude body was discovered floating in the Lafayette River, in the City of Norfolk. Nearby, the police found a leather shoe, later identified as Wisnosky's, on one of the steps leading down to the river. The police also found a washcloth, which appeared to be bloodstained.

An autopsy, performed by a state deputy medical examiner, revealed that Wisnosky had sustained at least 10 severe blows to the back and right side of her head, fracturing her skull. The blows had been inflicted by a heavy, blunt object, such as a ball peen hammer.

The autopsy further revealed that Wisnosky had sustained bruising to her abdomen, which the examiner testified could have been caused by a blow to Wisnosky's abdomen or by the assailant's kneeling on her "to hold [her] in place." Wisnosky also had sustained bruises to her neck and larynx, and petechiae were found on her face which, according to the medical examiner, were "a manifestation of mechanical asphyxia." These findings suggested to the examiner that Wisnosky had been "manually strangled."

Additionally, the medical examiner found bruising on the introitus of Wisnosky's vagina and a half-inch tear of her anal opening. The examiner opined that the bruising had been sustained prior to Wisnosky's death and that the anal tear had been inflicted "very close to the time of her death." The examiner also opined that such a tear is usually caused by "forcible stretching."

The examiner further opined that Wisnosky's death was not caused by drowning although a "little fluid" was found in her lungs. He, however, could not rule out the possibility that Wisnosky may not have been dead when her body was put into the water. The "primary cause" of Wisnosky's death, according to the medical examiner, was the head injuries. The mechanical asphyxia was a contributing factor. Wisnosky was a 17-year-old Caucasian and a student in her first year at Old Dominion University (ODU). Nicki Vanbelkum, Wisnosky's dormitory roommate, last saw Wisnosky alive on the afternoon of September 21, 1993.

Vanbelkum and Wisnosky had planned to meet later that day, but Wisnosky did not appear.

Barnabei, also a Caucasian, first arrived in the Norfolk Virginia Beach area in August 1993. He identified himself to others as "Serafino" or "Serf" Barnabei and claimed to have been a member of the Tau Kappa Epsilon (TKE) fraternity at Rutgers University. Soon thereafter, Barnabei began to associate with members of TKE at ODU. He rented a room in a house that was occupied by four other young men, who were either past or present students at ODU.

Barnabei became acquainted with Wisnosky, and the two attended a number of functions at the rooming house. On several occasions, Wisnosky spent the night with Barnabei. On one of those occasions, Wisnosky and Vanbelkum went to Barnabei's rooming house for a "toga party," conducted by the TKE fraternity.

Wisnosky became intoxicated and refused to leave the party with Vanbelkum. Barnabei appeared to shun Wisnosky throughout the party, and he told Thomas Walton, a TKE member, to "keep [Wisnosky] away from him because he was trying to hook up with someone else." Walton and Daniel Paul Wilson, another student, kept Wisnosky company on the front porch of the house. When Walton and Wilson asked Wisnosky about her relationship with Barnabei, she remarked, "He is all right, but I have had better." About 5:00 a.m., Walton left Wisnosky asleep in Barnabei's bed, and, later that morning, Wisnosky returned to her dormitory room without incident.

The following day at a fraternity meeting, when Barnabei "was bragging about his sex life" and Walton told those in attendance about Wisnosky's remark, Barnabei became agitated. When those present began to laugh and tease him, he denied that he had had sexual intercourse with Wisnosky, stating that they had had only oral sex.

On September 22, 1993, about 1:00 a.m., William Rolland Gee, III, a TKE pledge, drove Barnabei from a TKE pledge meeting to Barnabei's rooming house. Wisnosky was in Barnabei's room when Gee departed about 45 minutes later. Sometime in the early hours of September 22, Michael Christopher Bain, who lived in the bedroom directly above Barnabei's, began hearing very loud music emanating from Barnabei's room. Bain first stomped on the floor in an unsuccessful effort to get Barnabei to reduce the volume of the music. Bain and David Wirth, another roomer in the house, then went downstairs. They pounded on Barnabei's door for about five minutes, but no one answered, and they tried to open the door, but it was locked.

Meanwhile, Troy Manglicmot, another occupant of the house, was suddenly awakened when Barnabei rushed into his room. Speaking in a "strong, forceful tone," Barnabei demanded that Manglicmot move his vehicle because it was blocking Barnabei's car in the driveway next to the house. Barnabei took Manglicmot's car keys, but he could not start the vehicle. Manglicmot then moved his vehicle, and Barnabei began to back his car out of the driveway. After striking the side of the house next door and nearly colliding with Manglicmot's vehicle and Wirth's truck, Barnabei"pulled out real fast" onto the street and drove away.

That same morning, about 2:30 a.m., Justin Dewall, another roomer in the house, returned to the house and was unable to find his dog. In the course of looking through the house for the dog, he knocked on Barnabei's door. When Barnabei opened the door slightly, Dewall observed that Barnabei was "stark naked" and that Barnabei's face was expressionless. Barnabei appeared "wide-eyed, open-mouthed, and he wasn't focusing on [Dewall] when he was looking at [him]."

When Wirth left the house about 7:30 that morning, he saw Barnabei asleep on a couch in the living room. Wirth asked Barnabei why he was not sleeping in his room, and Barnabei responded that "it was a long, f___ed-up story." As Wirth walked to his truck, he found a shoe near the rear of Barnabei's car. Wirth threw the shoe, which was later identified as belonging to Wisnosky, toward the back porch.

About 9:30 a.m., Barnabei telephoned Eric Scott Anderson, another TKE pledge, and asked Anderson to bring him a blanket. When Anderson arrived at Barnabei's door, he noticed that Barnabei's waterbed, unlike on a past occasion, had no bed sheets.

In the early afternoon of September 22, Barnabei was seen by Dewall's girlfriend carrying a duffle bag and a surfboard from his bedroom. About 2:45 that afternoon, Barnabei offered Richard Patton, a TKE pledge, a ride to a fraternity sporting event. Before departing, Barnabei told Patton that he had been carrying a surfboard in his car and asked if Patton could take it to his room "because he was tired of carrying it around in his car." Patton took the surfboard to his room and put it in a closet.

Upon leaving in Barnabei's car, Patton noticed "a really bad smell." Barnabei told him that the smell probably came from his "bag of laundry," a large, closed duffle bag, in the backseat of the car. Also during that afternoon, Barnabei borrowed, or tried to borrow, money from Patton and others.

About 5:30 or 6:00 p.m., he called Anderson and asked if Anderson had "heard anything." When Anderson inquired as to what Barnabei was referring, Barnabei replied,"[L]ike, oh, nothing." Barnabei then stated that he was"going away for a couple days to work with [his] dad." Barnabei went to Towson, Maryland and later to Ohio, where he was arrested in December 1993.

On September 23, several police officers went to Barnabei's rooming house, where they recovered Wisnosky's other shoe, which appeared to be bloodstained. They also recovered a pair of white socks from atop a trash can beside the house and a towel from the rear of the house next door. The towel exhibited dark red stains.

After interviewing the occupants of the house, the police obtained a search warrant and proceeded to search Barnabei's room, which "appeared to have been abandoned." The police found stains on Barnabei's waterbed and on one of the bedroom walls, and a damp, red stain was discovered beneath a carpet. Stains also were found on the surfboard which was retrieved from Patton's bedroom. In addition, the police recovered a handwritten note which stated,"Women just don't get it."

A state forensic serologist found sperm on Wisnosky's vaginal swabs. She also found blood underneath Wisnosky's fingernails, on one of her shoes, on the surfboard, and on the washcloth and towel, and hairs and fibers on the socks, towel, and washcloth.

A state DNA analyst conducted an RFLP DNA analysis of various samples. She testified that blood recovered from the waterbed frame matched that of Wisnosky and that the chances were one in 202,000 that the blood came from a Caucasian other than Wisnosky. She also stated that the chances were one in 972 million that Barnabei did not contribute the sperm found on the vaginal swabs.

The analyst also determined that the stain found under the carpet in Barnabei's room was human blood. Another DNA analyst conducted a PCR DNA analysis of various samples. She determined that the blood recovered from the surfboard, shoe, wall, and waterbed was consistent with Wisnosky's blood type. She testified that only 3.9 percent of the Caucasian population has the "HLA DQ type" found in these samples.

She also stated that the sperm fraction recovered from the vaginal swabs was consistent with Barnabei's blood type and that only 1.9 percent of the Caucasian population has the HLA DQ type found in this sample. An expert on hair and fiber analysis determined that the socks recovered contained four pubic hairs. These hairs were similar to samples taken from Wisnosky and dissimilar to Barnabei's samples "in all identifiable microscopic characteristics."

Barnabei v. Commonwealth, 477 S.E.2d 270, 272-75 (Va. 1996) (footnotes omitted).

The Supreme Court of Virginia upheld Barnabei's conviction and sentence on direct appeal and denied Barnabei's petition for rehearing. After the Supreme Court of the United States denied Barnabei's petition for a writ of certiorari, Barnabei v. Virginia, 520 U.S. 1224 (1997), Barnabei filed for state habeas relief. In a summary order, the Supreme Court of Virginia dismissed that petition, finding certain of Barnabei's claims to be procedurally defaulted and others to be without merit.

Barnabei then petitioned the district court for federal habeas relief, challenging his conviction and sentence on numerous grounds. The district court considered most of Barnabei's claims on the merits, including those that the Supreme Court of Virginia had found to be procedurally barred under the rule of Hawks v. Cox, 175 S.E.2d 271 (Va. 1970) (previous determination on an issue by either state or federal court will be considered conclusive when issue is raised on state habeas).

The district court deemed the remainder of Barnabei's claims to be procedurally defaulted under the rule of Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974) (arguments not raised at trial and on direct appeal cannot be raised for first time on habeas review). Finding that Barnabei could not show cause for these defaults, and rejecting his other challenges on the merits, the district court dismissed the petition.

On appeal, Barnabei raises five challenges to his conviction and sentence in state court. First, Barnabei contends that he was denied effective assistance at trial by his counsel's failure to contest thoroughly the Commonwealth's forensic evidence of rape. Second, he maintains that he was denied effective assistance by his counsel's failure to object to the verdict form with which the jury sentenced him to death. Third, he argues that the "vileness" aggravating factor for which a Virginia jury can impose a sentence of death is unconstitutionally vague. Fourth, he asserts that the admission of testimony by his ex-wife during the penalty phase violated his right to due process. Fifth, Barnabei contends that the trial court was constitutionally required to inform the jury that a life sentence would have rendered him ineligible for parole for twenty-five years. Barnabei also argues that the district court abused its discretion in refusing to order forensic testing of certain evidence, and that the district court applied an incorrect standard of review in evaluating his claims. We consider each argument in turn, beginning with the challenge to the standard of review.


Under 28 U.S.C. § 2254(d) (1994 & Supp. IV 1998), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may grant an application for habeas relief on a claim that was previously adjudicated on the merits in state court only if that adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

The Supreme Court recently explained that the requirement that the state court's application of federal law have been"unreasonable" means that it must have been more than merely "incorrect" in the estimation of the federal habeas court. See Williams v. Taylor, 120 S. Ct. 1495, 1521-22 (2000).*

The Court emphasized, however, that the "unreasonable application" inquiry is an analysis of the objective reasonableness of the state court's application of clearly established federal law. See id. at 1521. "The federal habeas court should not transform the inquiry into a subjective one by resting its determination instead on the simple fact that at least one of the Nation's jurists has applied the relevant federal law in the same manner the state court did in the habeas petitioner's case." Id. at 1521-22.

Barnabei argues that, because the Supreme Court of Virginia cited little federal law in its rejection of his claims on direct appeal and no federal law in its summary order on state habeas, the district court should have reviewed his federal habeas claims under a de novo standard of review. We have previously recognized that the deferential standard of review mandated by § 2254(d), as amended, cannot easily be applied when, as for many of the claims raised by Barnabei here, "`there is no indication of how the state court applied federal law to the facts of a case.'" Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1999) (quoting Cardwell v. Netherland, 971 F. Supp. 997, 1015 (E.D. Va. 1997)). On such claims, we have held, the federal habeas court "must independently ascertain whether the record reveals a violation" of the petitioner's constitutional rights. Id.

Nonetheless, we have consistently recognized that even a perfunctory state court decision constitutes an adjudication "on the merits" for purposes of federal habeas review. See, e.g. , Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998). Thus, in such instances, de novo review by a federal habeas court remains inappropriate under § 2254(d). See, e.g., Weeks v. Angelone, 176 F.3d 249, 259 (4th Cir. 1999).

Here, we find that the district court, by carefully reviewing each of Barnabei's claims, fulfilled its obligation under Cardwell and our other precedents. The district court "independently ascertain[ed] whether the record reveals a violation" of Barnabei's rights. Cardwell, 152 F.3d at 339. Although the district court misquoted Cardwell when it described the difference between de novo review and the "reasonableness" standard mandated by § 2254(d) as"less significant," rather than "insignificant," when "there is no indication of how the state court applied federal law," id., we have no hesitation in concluding that the district court struck the proper balance--recognizing the legal effect of the prior state court adjudication while independently reviewing the issues raised. The district court carefully considered both the factual and legal bases for Barnabei's claims while recognizing the constraints on its authority imposed by§ 2254(d).


In his principal argument to this court, Barnabei maintains that he was denied his Sixth Amendment right to effective assistance of counsel by his trial counsel's failure to present medical evidence that assertedly would have rendered the Commonwealth's evidence of rape significantly less compelling. Specifically, Barnabei argues that his trial counsel should have presented evidence that a vaginal bruise, like that apparently sustained by Ms. Wisnosky prior to her death, can occur as a result of consensual sex and other, non-sexual, activities.

Barnabei also argues that his trial counsel should have presented evidence contesting the finding of a vaginal bruise in the Commonwealth's forensic examination. The evidence surrounding the vaginal bruise holds special significance here, because Barnabei's capital murder conviction, and thus his eligibility for the death penalty, is predicated on the jury's finding that he murdered Sarah Wisnosky during the commission of rape. See Va. Code Ann. § 18.2-31(5) (Michie Supp. 1999).

We review a claim of ineffective assistance of counsel under the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, Barnabei must show that"(1) his counsel's performance fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2)`there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Bell v. Evatt, 72 F.3d 421, 427 (4th Cir. 1995) (quoting Strickland, 466 U.S. at 694).

Barnabei cites two medical texts, several studies, and the affidavits of two physicians, all indicating that the occurrence of a vaginal contusion may be as consistent with consensual sex as with rape, and that such contusions can be caused by other activities as well. See Brief of Appellant at 21-24. One of these physicians opines in his affidavit that even the existence of a contusion could not be presumed from the Commonwealth's evidence without further forensic testing. See id. at 24.

Barnabei argues that trial counsel's failure to consult medical texts and experts was both objectively unreasonable and prejudicial under Strickland. According to Barnabei, if counsel had reviewed the medical literature, he would have conducted a more effective crossexamination of the Commonwealth's principal witness on the forensic evidence, Dr. Faruk Presswalla; he would have decided to present independent evidence rebutting Dr. Presswalla's conclusions; and he might have been able to formulate a proffer sufficient to convince the trial court to appoint a defense expert.

The district court found that trial counsel's decision not to investigate Dr. Presswalla's medical findings was "unreasonable" under Strickland. The court concluded, however, that Barnabei could not demonstrate that he was prejudiced by counsel's deficient performance and therefore could not make the required showing under Strickland's second prong. Assuming, without deciding, that the district court correctly found that trial counsel's performance was unreasonable, we agree with the district court that Barnabei cannot show prejudice under the second prong of Strickland.

The evidence presented at trial, taken as a whole, admits of no real uncertainty on the question of whether Barnabei raped Sarah Wisnosky. This evidence included not only the vaginal bruise, but the anal tear incurred by Ms. Wisnosky, expert testimony that the anal tear occurred close to the time of her death, testimony that Ms. Wisnosky was seen in Barnabei's room shortly before 2:00 a.m. on the night of her murder, forensic evidence that Ms. Winosky's blood matched that found on Barnabei's waterbed frame, the presence of Barnabei's semen in vaginal swabs taken from Ms. Wisnosky's body, and Barnabei's own admission that he had had sex with Ms. Wisnosky on the night of her death.

Furthermore, as the Commonwealth argues, the jury could well view Ms. Wisnosky's murder and the brutality of that murder as fatally undermining Barnabei's claim that his sexual contact with Ms. Wisnosky shortly before her murder was consensual. Although Barnabei apparently maintains his complete innocence, he raises no challenge here to the jury's determination that he committed the brutal murder.

Barnabei essentially asks us to view each piece of evidence in isolation. Placing special emphasis on the vaginal bruise, Barnabei contends that each item of evidence, considered independently, could plausibly be consistent with consensual sex, rather than rape.

The evidence cannot be approached in this way. It is possible that a woman could incur a vaginal bruise during consensual sex, or from some other cause. It is possible that a woman could incur an anal tear shortly before she was brutally murdered but not have been vaginally raped around the same time. It is possible, too, that she could have consensual sex with a partner who, all the evidence indicates, brutally murdered her shortly thereafter. And it is possible that the victim's blood could be found on the convicted murderer's bed, and that the murderer's semen could appear in a vaginal swab taken from her dead body, without a rape having occurred. However, we cannot accept Barnabei's contention that all of these extraordinarily unlikely circumstances converged in this case. Taken together, the evidence points overwhelmingly to Barnabei's guilt on both rape and murder charges.

We also note, as did the district court, that Barnabei's trial counsel was able to elicit on cross-examination a concession from Dr. Presswalla that a vaginal bruise could be consistent with other causes aside from nonconsensual sex. This further weakens Barnabei's claim that he was prejudiced by counsel's failure to conduct an adequate crossexamination.

In view of all of the above, we conclude that Barnabei was not prejudiced by trial counsel's performance in contesting the Commonwealth's forensic and DNA evidence of rape.


Barnabei next argues that he was denied effective assistance at trial by his counsel's failure to object to the verdict form with which the jury sentenced him to death.

In Virginia, a defendant may be sentenced to death if the Commonwealth proves beyond a reasonable doubt the existence of one of two aggravating factors--either "a probability . . . that he [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 was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim." Va. Code Ann. § 19.2-264.4(C) (Michie Supp. 1999). In Barnabei's trial, the jury submitted its verdict in the penalty phase using a verdict form stating that it had unanimously found the first aggravating factor (future dangerousness) "and/or" the second aggravating factor (vileness). Barnabei contends that the use of the conjunction "and/or" permitted the jury to sentence him to death without unanimity on either one of the two aggravating factors. He maintains that his counsel was prejudicially ineffective for failing to object to the wording of the "and/or" verdict form.

Barnabei's underlying contention, that he is entitled to juror unanimity on a specific aggravating factor before being sentenced to death, appears to be based entirely on state law. See Reply Brief at 22-25 (citing the Virginia Constitution and Virginia cases). The Supreme Court of Virginia, on state habeas review, found "no merit" in Barnabei's contention that counsel's failure to object to the verdict form amounted to ineffective assistance of counsel. Thus, Barnabei's argument here essentially asks this court to reverse the Supreme Court of Virginia on the question of whether it was objectively unreasonable for an attorney in Virginia to fail to make an objection based purely on Virginia law. We think that this is an issue on which our deference to the state court should be at its zenith.

Moreover, even if we were permitted to consider the question de novo, and as a federal habeas court we are not, Virginia precedent does not appear to support Barnabei's claim. Rather, it appears that the Supreme Court of Virginia has previously condoned the use of an "and/or" verdict form like the one in this case and declined to overturn a death sentence when it could not be determined with certainty whether the jury unanimously agreed on either of the two aggravating factors. See Turner v. Commonwealth, 273 S.E.2d 36, 45 n.12 (Va. 1980) (finding no prejudicial error, but noting that"it would accord with better practice to determine with certainty the basis for the jury's sentence").

Thus we can only conclude that Barnabei's trial counsel was not ineffective under Strickland for failing to object to the "and/or" verdict form under Virginia law.


Barnabei contends that the second of the above-quoted aggravating factors under which a death sentence may be imposed--the "vileness" aggravator--is unconstitutionally vague. We have rejected constitutional challenges to Virginia's "vileness" aggravator on several occasions. See Breard v. Pruett, 134 F.3d 615, 621 (4th Cir. 1998); Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996); Tuggle v. Thompson, 57 F.3d 1356, 1371-74 (4th Cir.), rev'd on other grounds, 516 U.S. 10 (1995). These recent precedents require rejection of Barnabei's similar challenge.


Barnabei asserts that he was denied due process during the penalty phase of his trial when his ex-wife Paula Barto testified that, on one occasion, Barnabei attempted to force her to have anal sex with him. Barnabei had asked the prosecution to provide notice of any evidence of unadjudicated criminal conduct that it might offer, and the prosecution, in providing that notice three weeks before trial, described "a continuous course of threatening and assaultive conduct against the former Paula Argenio Barnabei." Barnabei's claim appears to be based in part on unfair surprise, and in part on a theory of misrepresentation by the prosecution. See Gray v. Netherland, 518 U.S. 152, 162 (1996).

We do not agree with the Commonwealth that Barnabei procedurally defaulted this claim. Barnabei's trial counsel lodged a strenuous and contemporaneous objection to Barto's testimony, noting with skepticism that Barto's account of attempted forcible anal intercourse "just happens to fit neatly into the proof they produced at the time of the trial." Barnabei's counsel asked the trial judge to strike the testimony and to declare a mistrial. The Commonwealth urges us to view the objection as having been based solely on state law, but the transcript indicates an objection going to the fundamental fairness of the admission of Barto's testimony.

We are not barred from considering this argument simply because trial counsel, acting on the spur of the moment, did not cite a particular constitutional provision. We note that in assigning error on direct appeal, Barnabei explicitly linked the admission of Barto's testimony to a violation of his federal constitutional rights, and the Supreme Court of Virginia rejected the argument on the merits, albeit without citing federal law. Under these circumstances, it is appropriate to consider Barnabei's argument on the merits.

Having done so, however, we must conclude that Barnabei cannot prevail. On his claim of unfair surprise, Gray controls. In that case, the habeas petitioner, who had been convicted and sentenced to death for capital murder, asked that his sentence be vacated because, during the penalty phase, the prosecution had introduced crime scene and medical evidence linking the defendant to an earlier, unsolved double murder. Gray, 518 U.S. at 156-57. The prosecution had previously assured petitioner's counsel that it would introduce only testimony, but not other sorts of evidence, regarding the earlier murders. Id.

The Supreme Court held that the petitioner's claim was barred by the "new rule" doctrine enunciated in the plurality opinion in Teague v. Lane, 489 U.S. 288, 309-10 (1989). Under this doctrine, "habeas relief is appropriate only if `a state court considering [the petitioner'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.'" Gray, 518 U.S. at 166 (quoting Saffle v. Parks, 494 U.S. 484, 488 (1990)). The Court viewed Gray's argument as a claim "that due process requires that he receive more than a day's notice of the Commonwealth's evidence" and that "due process required a continuance whether or not [the defendant] sought one, or that, if he chose not to seek a continuance, exclusion was the only appropriate remedy for the inadequate notice." Gray, 518 U.S. at 167. The Court concluded that "only the adoption of a new constitutional rule could establish these propositions." Id.

In so holding, the Court distinguished the principal case upon which Barnabei relies, Gardner v. Florida, 430 U.S. 349 (1977). In Gardner, the Court vacated a death sentence that had been imposed, in part, on the basis of information in a presentence investigation report to which the petitioner had been wholly denied access. The Gray Court observed that, in Gardner, the petitioner "literally had no opportunity to even see the confidential information, let alone contest it. Petitioner in the present case, on the other hand, had the opportunity to hear the testimony . . . in open court, and to cross-examine" the witnesses who offered it. Gray, 518 U.S. at 168.

The Court explicitly rejected as overly general the constitutional rule that the dissent would have derived from Gardner and other cases--"that `a capital defendant must be afforded a meaningful opportunity to explain or deny the evidence introduced against him at sentencing.'" Id. at 169 (quoting id. at 180 (Ginsburg, J., dissenting)).

We recognize that there are certain factual differences between Barnabei's situation and that of the petitioner in Gray. If we were to accept Barnabei's contention that the Commonwealth's description of "a continuous course of threatening and assaultive conduct" was insufficient to put Barnabei on notice of Barto's testimony (despite being offered three weeks before trial), then Barnabei effectively got no notice at all, as opposed to the one day's notice afforded to the petitioner in Gray. On the other hand, the evidence introduced in Gray--that the petitioner had committed a notorious and brutal double murder--was significantly more explosive than the evidence introduced here.

Ultimately, we do not think these differences are sufficient to permit us to disregard Gray. Barnabei asks us to vacate his sentence on the basis of essentially the same constitutional rule urged upon the Court in Gray. The Supreme Court clearly and unequivocally (albeit by a narrow vote) refused to adopt such a rule in Gray. Barnabei points to no intervening precedent that would allow us to ignore Gray's holding or that establishes that due process requires advance notice of the specific evidence of unadjudicated conduct that the prosecution intends to introduce during the penalty phase of trial proceedings.

On Barnabei's misrepresentation claim, even if the record supported his suggestion of deliberate vagueness by the prosecution, we would not vacate his sentence on these facts. Here, the Commonwealth did provide Barnabei with notice that it would introduce evidence of "a continuous course of threatening and assaultive conduct against the former Paula Argenio Barnabei." We are aware of no established constitutional rule that the prosecutor would have violated had he known the specifics of Paula Barto's testimony and failed to disclose them, however troubling such a practice might be. Such deliberate vagueness would not be equivalent to the conduct of the prosecutor in Mooney v. Holohan, 294 U.S. 103 (1935) (per curiam), cited by Barnabei.

In that case, the prosecutor engaged in "deliberate deception of court and jury" by knowingly introducing perjured testimony at trial, and the Court found that the defendant's rights had been infringed. Id. at 112. Mooney, therefore, does not provide a foundation for Barnabei's argument. The facts, even as alleged by Barnabei, do not support a finding of a constitutional violation based on prosecutorial misrepresentation.


Barnabei argues, based on Simmons v. South Carolina, 512 U.S. 154 (1994), that his due process and Eighth Amendment rights were violated when the judge refused to instruct the jury that, if sentenced to life imprisonment, Barnabei would not be eligible for parole for twenty-five years. Under circuit precedent, a Simmons jury instruction is required only when the defendant is parole ineligible. We have read Simmons to apply only when the prosecution argued for the death penalty on the basis of the defendant's "future dangerousness" and, under state law, a life sentence for the defendant would be without possibility of parole. See, e.g., Wilson v. Greene, 155 F.3d 396, 40708 (4th Cir. 1998). Because Barnabei would have been eligible for parole in twenty-five years, circuit precedent dictates that the Simmons rule does not apply in this case.


Barnabei contends that the district court abused its discretion by refusing to order additional DNA and forensic testing. He also contends that trial counsel was ineffective under Strickland for failing to seek additional testing. Barnabei focuses particularly on the Commonwealth's failure to test the blood on the fingernail clippings taken from Sarah Wisnosky--presumably the blood of her attacker. In various pro se filings, Barnabei also maintains that "twenty some odd hairs," a bloody pair of men's moccasins, and two bloody towels should have been tested for DNA evidence and were not.

Under Rule 6(a) of the Rules Governing § 2254 Cases, a district court has the discretion to order additional discovery in a § 2254 case "for good cause shown." The district court did not abuse its discretion in refusing to order the discovery requested here because Barnabei has not met this required "good cause" standard. In the cases cited by Barnabei, additional discovery would have offered compelling support for a credible alternative theory of the crime for which the petitioner had been convicted. See Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997) (reversing denial of discovery of forensic evidence when there was specific evidence linking another suspect to the murder); Toney v. Gammon, 79 F.3d 693 (8th Cir. 1996) (reversing denial of discovery of DNA evidence in rape case in which both the victim and a nearby witness offered consistent physical descriptions of the attacker that did not match the habeas petitioner). Barnabei can make no such similar "good cause" showing.

We also find that Barnabei's trial counsel was not ineffective in failing to seek additional forensic testing. The Commonwealth offered a significant amount of forensic and DNA evidence at trial--all of it, at least arguably, implicating Barnabei. We cannot conclude, under these circumstances, that trial counsel's failure to seek additional testing met the standard of ineffectiveness under Strickland. Thus Barnabei has stated no constitutional claim requiring additional DNA testing.


For the foregoing reasons, we deny the request for a certificate of appealability and affirm the judgment of the district court dismissing the petition for a writ of habeas corpus.





The parties have moved to file various supplemental memoranda to address Williams, which was issued after oral argument in this case, and other matters. We grant their motions and have considered all of their supplemental memoranda.



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