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Willie Leroy JONES

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery - Arson
Number of victims: 2
Date of murder: May 13, 1983
Date of birth: 1958
Victims profile: Graham and Myra Adkins
Method of murder: Shooting - Kerosene - Fire
Location: Charles City County, Virginia, USA
Status: Executed by electrocution in Virginia on September 11, 1992
 
 
 
 
 
 

Willie Leroy Jones was electrocuted for the murders of Graham and Myra Adkins in their Charles City home. He knew the Adkins couple, who were in their late 70s, through their son.

On May 13, 1983, Jones disguised himself and hitchhiked to Charles City. He knocked on the Adkins' door and identified himself as an undercover police officer who was looking for missing children. Once inside the house, he shot and killed Adkins, then bound and gagged his wife.

Jones stuffed Mrs. Adkins in a closet, shot her in the head and poured kerosene on her while she was still alive. He blasted open a bedroom safe and stole the couple's life savings of more than $30,000, then set the house on fire in an attempt to hide his crimes.

 
 

Virginia Sends Man To the Electric Chair For Couple's Slaying

The New York Times

September 17, 1992

A man who asserted that "killing me is not the answer" was executed in Virginia's electric chair Tuesday night for robbing and killing an elderly couple.

The inmate, Willie Leroy Jones, 34, was pronounced dead at 11:08 P.M. at the Greensville Correctional Center.

Mr. Jones was the 16th inmate put to death in Virginia and the 181st nationwide since 1976, when the Supreme Court let states resume executions.

Less than five hours before the execution, the United States Supreme Court unanimously refused to grant a stay. An hour later, Gov. L. Douglas Wilder rejected Mr. Jones's clemency petition.

Earlier, Mr. Jones had said that he was prepared for his execution but that "killing me is not the answer," adding, "There's a place called prison."

Mr. Jones admitted killing Graham and Myra Adkins in their rural home east of Richmond on May 13, 1983. The couple, both in their late 70's.

Mr. Jones shot and killed Mr. Adkins. He then bound and gagged Mrs. Adkins, shot her in the face and stuffed her into a closet, where he doused her with kerosene and set her on fire.

Mr. Jones took the couple's $30,000 life savings and went on a spending spree that took him to Hawaii, where he was arrested.

Mr. Jones was among six men who escaped from death row at the Mecklenburg Correctional Center in 1984. All were recaptured, and four have since been executed.

Graham Adkins's 78-year-old sister, Irene Jones, said she did not think Mr. Jones should be executed. "I don't believe in capital punishment," she said.

 
 

947 F.2d 1106

Willie Leroy Jones, Petitioner-Appellant,
v.
Edward W. Murray, Director of the Virginia Department of Corrections,
Respondent-Appellee.

No. 90-4004

Federal Circuits, 4th Cir.

October 1, 1991

Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Willie Leroy Jones challenges a Virginia state court judgment sentencing him to death. The United States District Court for the Eastern District of Virginia denied his petition for a writ of habeas corpus. We affirm.

In January 1984, Jones was tried by a jury in York County, Virginia and found guilty of the capital murders of Graham and Myra Adkins.1 Pursuant to Va.Code Ann. 19.2-264.2, the jury on each count found that Jones' "conduct in committing the offense is outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder...."

The jury fixed his penalty at death and the trial court entered judgment accepting the jury's recommendation and confirming the verdicts. Jones unsuccessfully appealed his conviction and sentence to the Virginia Supreme Court. Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984). The United States Supreme Court denied Jones' petition for a writ of certiorari. Jones v. Virginia, 472 U.S. 1012 , 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985).

Jones then filed a petition for a writ of habeas corpus in the Circuit Court of York County. This petition was denied. The Virginia Supreme Court found no error in the denial and refused Jones' petition for appeal. Jones v. Bair, No. 86-1152 (June 15, 1987). The United States Supreme Court subsequently denied Jones' petition for a writ of certiorari. Jones v. Bair, 484 U.S. 959 , 108 S.Ct. 358, 98 L.Ed.2d 383 (1987).

Jones next sought relief in the federal courts and on March 22, 1988 filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The district court referred the matter to a United States Magistrate, who filed a report recommending that the petition be denied and dismissed. In a final order entered on January 4, 1990, the district court denied and dismissed Jones' petition. A motion to alter or amend this judgment was filed by Jones and denied by the district court in an order filed April 9, 1990. This appeal followed.

A brief summary of the facts surrounding the crimes of which Jones was convicted is necessary for an understanding of the issues presented.2 Testimony given at Jones' trial indicated that at approximately 1:00 p.m. on May 13, 1983, smoke was noticed coming from the home of Graham and Myra Adkins, an elderly couple living in Charles City County.

Several persons approached the house and, finding that no one responded to their knocking on the locked front door, broke the door open. They found the body of Mr. Adkins, aged seventy-seven, lying near the door. They succeeded in carrying the body out of the house, but further rescue efforts were prevented by the intensity of the fire and smoke.

When the police and other local authorities later examined the remains of the Adkins' home, they found evidence of petroleum distillates indicating that the fire was of incendiary origin. They found an empty safe in a bedroom and the door of the safe in another room. In addition, the severely burned remains of the seventy-eight year-old Myra Adkins were found in a bedroom closet.

When the authorities examined the bodies of Mr. and Mrs. Adkins, they found that both had been shot in the head at close range. Both bodies had also been doused with accelerant. The medical examiner who performed the autopsies on the bodies testified that Mr. Adkins had died within a short interval after a bullet was fired into his face and penetrated his brain. Mrs. Adkins, on the other hand, received a head wound that would not have brought about death for several hours.

The medical examiner testified that Mrs. Adkins, who had been placed bound and gagged in the closet, had died from carbon monoxide poisoning due to smoke inhalation. Jones had bound and gagged and shot her, set her on fire while she was still living, and left her to die, which she did.

We turn now to the several issues raised on appeal. In asking that we reverse the judgment of the district court, Jones argues that: (I) his trial counsel rendered constitutionally ineffective assistance; (II) the jury instructions given at the penalty phase of his trial contained a constitutionally infirm aggravating factor; and (III) the jury instructions failed to satisfy constitutional requirements concerning mitigating factors.

I.

Jones' allegation of ineffective assistance involves a number of distinct elements. We will consider each of these claims in turn.

Jones first argues that his trial counsel rendered ineffective assistance by failing to advise him properly with regard to an offered plea agreement. The state habeas court found that on the morning of the first day of Jones' trial, the Commonwealth's Attorney offered Jones' counsel a plea bargain, the essence of which was that Jones, in return for guilty pleas to capital murder and arson charges, would receive two consecutive life terms and some additional time on the arson charge.

Counsel communicated this offer to Jones and discussed it with him on at least two occasions. Counsel reviewed with Jones the evidence against him and discussed the strengths and weaknesses of the prosecution's case. He informed Jones that, in his estimation, there was a seventy percent probability of conviction and a forty to fifty percent chance of receiving the death penalty. He advised Jones that he would probably receive eventual parole if he accepted the plea, but cautioned that the estimates were no more than guesses about future outcomes.

The state court found that these estimates were reasonable under the circumstances. Having communicated this information, counsel made no recommendation and left the decision of whether to accept the plea offer to Jones. Jones rejected the offer for the stated reason that he was innocent.

Under 28 U.S.C. 2254(d), written findings of historical fact by the state habeas court are presumed to be correct and entitled to deference unless shown to be erroneous by enumerated statutory conditions. Our review of the record as a whole discloses no evidence of such conditions set forth in 2254(d) and we conclude that the findings of fact by the state court are fairly supported by the record. See Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981).

In considering Jones' claim that his counsel's assistance was so defective as to require reversal of his death sentence, we follow the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Jones must therefore show that his counsel's performance was so deficient "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The first prong of this test requires us to evaluate counsel's performance in light of an "objective standard of 'reasonably effective assistance' under 'prevailing professional norms.' " Briley v. Bass, 750 F.2d 1238, 1247 (4th Cir.1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985).

Jones contends that his counsel acted in what he calls a "professionally unreasonable" manner by neither recommending that he accept the plea bargain nor attempting to persuade him to do so. Jones argues that the district court's rejection of this claim was improper in view of prevailing precedent and professional standards. We cannot agree. Our review of the relevant authorities does not support the contention that Jones' counsel violated prevailing professional norms.

The American Bar Association's standards, recognized by the Supreme Court as "guides to determining what is reasonable," Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, provide the following guidelines concerning the proper relationship between defense counsel and client in the plea agreement context:

  (a) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the defendant.

  (b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the client of the alternatives available and of considerations deemed important by defense counsel or the defendant in reaching a decision.

III American Bar Association Standards for Criminal Justice, Standard 14-3.2 (2d ed. 1986 Supp.).

We are in agreement with the conclusion reached in the district court that counsel's performance did not violate professional standards. In accordance with Standard 14-3.2(a), counsel notified his client when he received the plea bargain offer from the Commonwealth's Attorney and informed him of the terms of the offer. Counsel advised his client concerning the available alternative of proceeding with trial, as suggested by Standard 14-3.2(b), and presented an opinion concerning the probable outcomes of both the guilt and sentencing phases that we have found to have been reasonable under the circumstances. See also II American Bar Association Standards for Criminal Justice, Standard 4-5.1 ("[T]he lawyer should advise the accused with complete candor concerning all aspects of the case, including a candid estimate of the probable outcome.").

As further suggested by Standard 14-3.2(b), counsel advised his client of the important consideration of the strengths and weaknesses of the Commonwealth's case against him. He also responded to his client's questions concerning the potential for parole if he accepted the plea bargain. After offering Jones this advice and assistance, counsel followed Standard 14-3.2(b) by allowing his client to make the ultimate decision. See also II American Bar Association Standards for Criminal Justice, Standard 4-5.2(a)(1).

In this regard, various Standards placed upon counsel an affirmative duty to avoid exerting "undue influence on the accused's decision" and to "ensure that the decision ... is ultimately made by the defendant." American Bar Association Standards for Criminal Justice, Standards 4-5.1(b) & 14-3.2(b). We cannot conclude that counsel's decision, at this point and in the context of his client's rejection of the plea offer for the stated reason that he was innocent, to refrain from a vigorous attempt to change his client's mind was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.3

Jones next argues that his counsel rendered ineffective assistance by failing to investigate available mitigating evidence that could have been introduced at the penalty phase of Jones' trial. Specifically, he contends that his counsel did not seek any psychiatric evaluation to determine why Jones, who had no prior criminal record, would have committed the murders, and did not investigate other sources of character testimony that could have evoked mercy from the jury.

The state habeas court found that prior to his trial, Jones was examined by James C. Dimitris, M.D.; Henry O. Gwaltney, Ed.D., a forensic clinical psychologist; and William M. Lee, Ph.D., a forensic clinical psychologist. Pursuant to a court order, these doctors directly examined Jones at Central State Hospital and had access to information concerning his alleged crimes, including investigative reports of the Virginia State Police, statements made by Jones to the authorities, and information from the office of the Commonwealth's Attorney. Jones was found to be competent to stand trial and legally sane at the time of his alleged crimes.

The state court further found that Dr. Lee and Dr. Gwaltney conducted examinations of Jones focusing on the issue of mitigating mental factors and circumstances. Dr. Lee and Dr. Gwaltney both reported finding no evidence that Jones was under the influence of extreme mental or emotional disturbance at the time of the crimes. Neither doctor found any evidence that Jones, at the relevant time, did not have the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Jones' counsel was fully aware of the doctors' findings prior to trial. The state court, as an additional finding of fact, found that there is no evidence that, at the time Jones committed the murders, any mitigating mental circumstances existed.

Jones disputes the state court's account and, in particular, the factual finding that Dr. Lee and Dr. Gwaltney conducted their examinations with an eye towards sentencing mitigation issues. Jones has not, however, pointed to any evidence to meet his burden of establishing by convincing evidence that the state court's findings were erroneous. See Sumner, 449 U.S. at 550, 101 S.Ct. at 770. Our own review of the record leads us to conclude that the findings of the state court presented above were not erroneous. These findings of historical fact will therefore provide the basis for our consideration of Jones' claims of ineffective assistance in this regard.

Jones argues that his counsel was ineffective in that he "utterly failed to conduct any investigation of appellant's psychiatric makeup" and did not seek any "independent" psychiatric evaluation. The first portion of this claim is rebutted by the fact that Jones, as discussed above, was indeed examined by a physician skilled in the diagnosis of insanity, who was a board certified psychiatrist and the medical director of the forensic unit of the hospital, a mental institution, and as discussed above, two clinical psychologists who testified, at the state habeas court's evidentiary hearing, that they conducted a complete series of psychological tests on Jones and assessed him for possible mitigating mental or emotional factors at the time he committed the murders.

The psychologists testified that they were familiar with Virginia's statutory provisions regarding mitigating mental conditions. They ultimately concluded that there was no evidence of any such mitigating mental factors. Counsel, according to his own testimony corroborated by that of the two psychologists, was in regular communication with the doctors during the course of their examinations of Jones. This communication included written reports, phone conversations, face-to-face meetings, and a conference lasting several hours on the eve of trial. In view of these efforts, we conclude that counsel was not deficient in his investigation of his client's psychiatric make-up.

Jones further argues that counsel should have sought what he calls "independent" evaluation. We note that Jones has pointed to no evidence indicating that counsel did in fact suspect, or should have suspected, that either the physician or the psychologists were biased in the performance of their duties. He simply recites the fact that they were state employees and contends that this alone made it unreasonable for counsel to rely on their objectivity.

Counsel, on the other hand, had the opportunity to work with Dr. Dimitris, Dr. Lee, and Dr. Gwaltney and observed the psychologists, at least, first-hand during the performance of their tasks. There is no indication that he found any reason to doubt their objectivity. To the contrary, he reached the conclusion that their expertise would be helpful to Jones' case and utilized the psychologists in selecting the jury and as witnesses for the defense. We believe that this reliance on their work has not been shown to have been unreasonable.

Similarly, we conclude that counsel's decision, based upon the advice of these psychologists that his client suffered from no mitigating psychiatric conditions at the time of his crimes, not to devote additional time and effort to further evaluation was within the range of reasonable professional judgment. We accordingly find no error in the district court's rejection of Jones' ineffective assistance claim relating to psychiatric evaluation.4

We also agree with the district court's rejection of Jones' claim that his counsel rendered ineffective assistance by failing to investigate "numerous obvious sources of character testimony that could have evoked mercy on the part of the jury." The alleged sources may usefully be broken down into three groups. The first potential witness group includes individuals whose names were suggested to counsel by Jones.

The state habeas court found that counsel pursued all of Jones' suggestions of character witnesses, but found that nearly all of them, including two church deacons and personnel at the high school and community college attended by Jones, were not willing or able to testify. With regard to Michelle Ford, one of the individuals who apparently was willing to testify, the state court found that counsel believed that she would be a hostile witness because she was testifying for the Commonwealth and decided not to contact her.

Although particular objection was not made to the attorney's failure to call Jones' girlfriend, she being grouped in the most general terms with witnesses supposedly favorable to Jones which were not called, no showing has been made of the purport of her proposed testimony; therefore, a finding of ineffective counsel for not calling her may not be sustained. On this factual basis, we conclude that counsel's investigation of these individuals was not deficient and his actions under the circumstances might well "be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

A second group of potential witnesses consists of several people who apparently were not suggested by Jones to his counsel, but who testified in the state habeas court that they would have been willing to testify at trial had they been asked to do so. With regard to these potential witnesses, the state court found that their testimony was merely cumulative of testimony actually presented during Jones' trial by Jones' mother and Jay Scales, a friend of Jones.

Finding nothing in the record to contradict this finding, we conclude that Jones was not prejudiced by not having their testimony presented. A third group of potential witnesses consists of several individuals who, in affidavits submitted to the district court, stated that they would have testified favorably for Jones at the penalty phase of the trial if they had been asked to do so.

One of these affiants was Jones' sister. Jones has done nothing to rebut the state court's finding that counsel made a conscious decision not to call her as a witness because he perceived that she, as had Jones' mother, would display a cool and reserved demeanor before the jury that would be unhelpful to his case. We therefore agree that the decision not to call her was a reasonable exercise of professional judgment.

With regard to the remainder of the affiants, we also agree with the district court that their proffered testimony does not raise a reasonable probability that the result of the proceedings would have been a sentence other than death if they had testified. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Having found this lack of sufficient prejudice, we need not address the other component of the Strickland inquiry and reject this aspect of Jones' ineffective assistance claim.5 466 U.S. at 697, 104 S.Ct. at 2069.

Jones presents one further argument to support the claim that his counsel acted unreasonably in development of the case in mitigation. He points to the Commonwealth's closing argument, during which the following statement was made:

Was [Jones] honorably discharged from the Army? If he had had some valuable characteristics, some valuable acts that he had done there, I think that they would have been in front of you.

Jones argues that he did in fact receive an honorable discharge from the Army and that counsel's failure to present this fact to the jury constituted ineffective assistance. The state court addressed this claim and made a factual finding that Jones' counsel had made a timely attempt to obtain the relevant records from the Army. Through no fault on his part, however, the records were not received until after trial. Jones has not disputed these factual findings and we find no basis for holding that counsel acted outside the range of competence demanded of attorneys in criminal cases.

Another element of Jones' argument on appeal is that the district court erred in rejecting his claim that counsel rendered ineffective assistance by failing to call his client to testify during the sentencing phase of the trial. The state habeas court found that Jones had incriminated himself with a confession made during a custodial interrogation, which the trial court had excluded on Miranda grounds, but ruled that the confession had been made voluntarily and was therefore competent for purposes of impeachment.

Jones' counsel advised him not to take the stand at the penalty phase of his trial. Counsel based this advice on his concern that Jones' suppressed confession might be brought before the jury. He apparently felt that if Jones took the stand to testify, the door might be opened for the prosecution to impeach him through the confession. Counsel did not believe that the court would limit cross-examination to prevent the exposure of Jones to impeachment on this ground. Counsel further believed that if the jury learned about the confession, they would certainly sentence Jones to death.

Jones argues that it was unreasonable for counsel not to put his client on the stand and not to seek a ruling from the court that would have allowed Jones to testify, without denying guilt, about his "character and background." In response to this argument, the magistrate and the district court observed that if Jones had in fact taken the stand at any time without denying that he committed the murders, the effect would have been much the same as airing a confession before the jury. Under this reasoning, even if Jones' counsel acted improperly by not calling his client to the stand in the manner now suggested, the effect would not have been prejudicial to the defense.

Jones urges us to reject the reasoning embodied in the opinion of the district court. But while Jones now insists that he was prepared to testify as to "numerous compelling aspects" of his character and background that "could have had a significant impact" on the jury's sentencing decision, we emphasize that a defendant must do more than show that an alleged error on the part of counsel "conceivably could have influenced the outcome." Strickland, 466 U.S. at 693, 104 S.Ct. at 2067.

Rather, the defendant must affirmatively show that there is a reasonable probability that, if Jones had testified about his character and record, the jury would not have imposed the death penalty.6

On the record before us, we find that Jones has simply not made such a showing. His references to "compelling," "numerous," but unspecified aspects of his character and record provide us with no basis for reversing the decision of the district court. We therefore affirm the district court's rejection of this portion of Jones' ineffective assistance claim.

II.

In addition to his claims concerning ineffectiveness of counsel, Jones argues that the jury instructions given during the penalty phase of his trial were constitutionally defective.7 Because these instructions were drawn from the language of Virginia's death penalty statute, Jones advances several claims concerning the structure and application of Virginia's statutory scheme.

Under Virginia law, the death penalty may be imposed if the jury finds beyond a reasonable doubt that "there is a probability based upon evidence of the prior history of the defendant or of the circumstances surrounding the commission of the offense of which he is accused that he 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. Because the trial court did not instruct the jury on the future dangerousness component of the statute, and the sentence was not based on that aspect of the statute, Jones focuses his attack solely upon the vileness aggravating factor.

We have previously upheld the facial validity of this aggravating factor against constitutional challenge in Clozza v. Murray, 913 F.2d 1092, 1105 (4th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1123, 113 L.Ed.2d 231 (1991) and as applied in Turner v. Bass, 753 F.2d 342, 351 (4th Cir.1985), reversed in part on other grounds, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), based upon the Supreme Court's approval of such language. Godfrey v. Georgia, 446 U.S. 420, 422-23, 100 S.Ct. 1759, 1761-62, 64 L.Ed.2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Jones, however, claims three constitutional deficiencies concerning the vileness aggravating factor as it was applied to him.

His first argument calls attention to the portion of the statute, Va.Code Ann. 19-2-264.2, which states that vileness must involve "torture, depravity of mind or aggravated battery to the victim." He contends that because the jury's instructions and verdict forms contained a disjunctive formulation of these three limiting modifiers, there is no assurance that his sentencing jury reached a unanimous decision as to which component of vileness was presented by his crimes. Jones urges us to hold that this wording is an ambiguity which renders his sentence unconstitutional.

In Coleman v. Thompson, 895 F.2d 139 (4th Cir.1990), aff'd on other grounds, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), we considered a similar argument from a petitioner who claimed that Virginia's death penalty statute had been unconstitutionally applied to him because the record did not indicate that the jury had unanimously found the existence of a statutory aggravating circumstance. Relying upon Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989),

Coleman recognized that "the Constitution does not require a jury for the imposition of the death penalty." 895 F.2d at 146. If authorized by state law, "an appellate court can determine whether an aggravating factor has been proved and can impose the death penalty ... even when the jury may not have found an aggravating factor." Coleman, 895 F.2d at 146.

Based on these principles, Coleman directed that a federal court's inquiry should not be confined to the jury instructions, but should "examine the entire course of the state court proceedings against the defendant in order to determine whether, at some point in the process, the requisite finding as to defendant's culpability has been made." Coleman, 895 F.2d at 146 (quoting Cabana v. Bullock, 474 U.S. at 387, 106 S.Ct. at 697).

In the present case, as in Coleman, the Virginia Supreme Court exercised the broad power conferred upon it by section 17-110.1 of the Virginia Code and conducted its automatic review of Jones' death sentence in a consolidated proceeding that also considered Jones' appeals. Jones v. Commonwealth, 228 Va. at 434-35, 323 S.E.2d at 567.

It compared Jones' case to others "where the jury based a death penalty upon the vileness predicate" and independently determined that the evidence at Jones' trial was sufficient to support findings of aggravated battery and depravity of mind within the definitions established by its prior decisions. Jones v. Commonwealth, 228 Va. at 445-50, 323 S.E.2d at 564-567.

We are of opinion that Jones has not overcome the presumption of correctness to which such state court findings are entitled, see Sumner v. Mata, 449 U.S. at 546-47, 101 S.Ct. at 768-69, and conclude that the Virginia Supreme Court's review of Jones' sentence meets the constitutional requirements that Jones argues were left unsatisfied by the disjunctive phrasing of the jury's verdict. Specific findings authorizing the imposition of the death penalty have been made "in an adequate proceeding before [an] appropriate tribunal." Cabana v. Bullock, 474 U.S. at 392, 106 S.Ct. at 700.

The second argument presented by Jones is that the Virginia Supreme Court failed to adopt any limiting construction of the vileness aggravating factor. The United States Supreme Court has held that aggravating circumstances based on vileness are unconstitutionally vague unless given some limiting construction. Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980).

We note that the Virginia Supreme Court has construed the vileness component so that it must include one of the three separate and distinct statutory elements of torture, depravity of mind, or aggravated battery. Proof of only one of these factors is sufficient to support a death sentence. Bunch v. Commonwealth, 225 Va. 423, 432, 304 S.E.2d 271, 282, cert. denied, 464 U.S. 977 , 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

The Virginia Court has also given additional limiting constructions to two elements of the vileness component. Aggravated battery has been defined as "a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder." Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967 , 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Depravity of mind has been defined to mean "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation." Smith, 219 Va. at 478, 248 S.E.2d at 149.

We have previously recognized that the Virginia Supreme Court has thus provided a constitutionally limited construction of its vileness aggravating factor. Boggs v. Bair, 892 F.2d 1193, 1197 (4th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2193, 109 L.Ed.2d 521 (1990); Turner v. Bass, 753 F.2d at 351-53.

We further hold that the Virginia Supreme Court properly applied this limited construction to the facts of Jones' case. The Court stated as follows:

Mrs. Adkins, an elderly, defenseless lady who had befriended the defendant, was a victim of a series of vicious assaults, only the last of which proved fatal. Her assailant tied her hands behind her back, stuffed a sock down her throat, taped her mouth and neck to hold the gag in place, forced her into a closet, shot her at point-blank range in the face, doused her clothing with an accelerant, struck a match, and left her, still alive and breathing, to die of smoke inhalation.

Although the evidence does not show whether or how long she remained conscious before she expired, it is reasonable to believe that the fire, which ultimately consumed one arm and most of both legs, could have caused her to suffer intense pain and terror for some period of time.

Jones, 228 Va. at 447-48, 323 S.E.2d at 565. The Virginia Court found that evidence of these facts and circumstances supported a jury finding of aggravated battery and depravity of mind with regard to the murder of Mrs. Adkins.8 In reaching this conclusion, the Court relied upon its limiting precedent of Smith v. Commonwealth and its decision in Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 , 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Mason sustained a finding of vileness upon evidence that an elderly victim, following a vicious assault and rape had been "set on fire while still alive, although in extremis." Mason, 219 Va. at 1099, 254 S.E.2d at 121. The Court in Mason found that torture and aggravated battery had been proven.

With regard to the murder of Mr. Adkins, the Virginia Supreme Court recognized that Mr. Adkins had died almost instantaneously, thereby avoiding the agonies of gradual incineration inflicted upon his wife, and noted that it had said in a prior decision following Godfrey, that " '[a] death sentence based upon vileness is not supported by the evidence where the victim dies almost instantaneously from a single gunshot wound.' " Jones, 228 Va. at 448, 323 S.E.2d at 566 (quoting Peterson v. Commonwealth, 225 Va. 289, 296, 302 S.E.2d 520, 525, cert. denied, 464 U.S. 865 , 104 S.Ct. 202, 78 L.Ed.2d 176 (1983)).

Cognizant of these strictures, the Court nonetheless found that the evidence concerning the murder of Mr. Adkins supported a jury finding that Jones' actions displayed depravity of mind. This conclusion was supported by prior decisions establishing that depravity of mind was a discrete underpinning of Virginia's vileness standard capable of existing "independently of the presence of torture or aggravated battery." Jones, 228 Va. at 448-49, 323 S.E.2d at 565 (quoting Bunch, 225 Va. at 442, 304 S.E.2d at 282).

The court then held that "an aggravated battery such as mutilation, gross disfigurement, or sexual assault committed upon a corpse or an unconscious body" evinced depravity of mind within the meaning of Virginia's death penalty statute.9 Jones, 228 Va. at 448, 323 S.E.2d at 565. Reviewing the record before it, the court found that Jones had soaked the clothing of Mr.

Adkins with accelerant and was prevented from burning the body only by "the chance intervention of a stranger." Jones, 228 Va. at 449, 323 S.E.2d at 566. The fact that Jones' effort to mutilate the body was not successful, the court stated, did not undermine its holding that the murder of Mr. Adkins involved conduct evincing depravity of mind.

Having considered the review conducted in this case, we reject Jones' contention that the Virginia Supreme Court was guilty of the practice, condemned in Maynard v. Cartwright, 486 U.S. 356, 363, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988), of deciding that a particularly shocking set of facts were sufficient in themselves, and without applying some narrowing principle, to warrant the imposition of the death penalty. We find that the Virginia Supreme Court has given a constitutionally limited construction to the vileness criterion and applied that limited construction to the facts of Jones' case.

As his third argument concerning the Virginia vileness factor, Jones contends that the instructions given the jury were unconstitutionally vague. As mentioned previously, the trial court instructed the jury concerning vileness by using the statutory language which describes vileness as conduct involving torture, depravity of mind, or aggravated battery. Jones appears to argue that the term "depravity of mind" is facially unconstitutional because of vagueness. This contention is without merit.

The Supreme Court in Gregg scrutinized this identical language within the even broader section which included the phrase and stated that "there is no reason to think that juries will not be able to understand it." Gregg v. Georgia, 428 U.S. at 202 n. 54, 96 S.Ct. at 2939 n. 54. We have specifically reached the same conclusion with regard to the Virginia vileness language. See, e.g., Turner v. Bass, 753 F.2d at 351.

Jones also argues that the trial court's further explanation of depravity of mind as meaning "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation" merely served to exacerbate the vagueness inherent in the term depravity of mind. We have previously recognized the language in question to be a "limiting construction" of the term depravity of mind, Turner v. Bass, 753 F.2d at 351, and do not agree with Jones' argument that it is "utterly unintelligible to the average juror." We therefore reject Jones' vagueness argument.

III.

Jones' final argument on appeal attacks the manner in which the jury instructions given at his trial dealt with mitigating circumstances.

He contends that the instructions at the penalty stage were in conflict with the Supreme Court's opinion in Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 2951, 106 L.Ed.2d 256 (1989), which stated that:

In order to ensure 'reliability in the determination that death is the appropriate punishment in a specific case,' the jury must be able to consider and give effect to any mitigating evidence relevant to the defendant's background and character, or the circumstances of the crime. (citation omitted).

The jury instruction in question told the jury that "[i]f you find from the evidence that the Commonwealth has proven beyond a reasonable doubt that the offense was outrageously or wantonly vile, horrible or inhuman then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment."

Jones argues that this instruction did not tell the jury to consider mitigating circumstances. He contends that from the instruction quoted above, the jury could well have inferred that if it found an aggravating factor, it had no option but to impose the death penalty without considering mitigating factors.

We have previously considered a quite similar claim involving a jury instruction almost identical to that now before us.10 In Briley v. Bass, 750 F.2d 1238 (4th Cir.1984), cert. denied, 470 U.S. 1088 , 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985), we considered the question of whether instructions given at the penalty stage of a trial were constitutionally flawed in that they failed to inform the jury of its option to recommend life imprisonment and its obligation to consider mitigating evidence. We found that the instructions presented no constitutional error.

Jones argues, however, that Briley does not foreclose his claim because the Supreme Court's intervening opinion in Penry requires us to depart from our prior decision. We cannot agree. The instruction given to the jury at the sentencing phase of Jones' trial cannot be said to have left a reasonable juror with the belief that there was no vehicle for expressing the view that Jones did not deserve to be sentenced to death, based upon his mitigating evidence. See Penry, 492 U.S. at 323, 324, 109 S.Ct. at 2948, 2949.

Taken as a whole,11 the instructions leave no doubt that the jury was free to consider mitigating evidence and recommend life imprisonment. The trial court, for example, and to repeat, explicitly charged the jury in the ultimate paragraph of the instruction on the sentence to impose:

If you find from the evidence that the Commonwealth has proven beyond a reasonable doubt that the offense was outrageously or wantonly vile, horrible or inhuman, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment.

And in a separate instruction the trial court charged the jury:

The Court instructs the Jury that even if you believe beyond a reasonable doubt that such facts and circumstances have been proven so as to permit the Death Penalty, it is still the prerogative of the Jury to decide whether death should be the punishment or not, and the Jury is under no obligation or compulsion to find the punishment should be death.

The term "all the evidence" necessarily includes the evidence in mitigation as well as that in aggravation. Furthermore, the statutory jury verdict form used by the jury stated that it had "considered the evidence in mitigation of the offense." We believe that, as in Briley, the instructions given to the jury "leave the definite impression that the jury was to take into account such evidence as was presented in mitigation and to exercise discretion in reaching a verdict on sentencing, rather than automatically imposing the death sentence upon finding an aggravating circumstance." Briley, 750 F.2d at 1244.

This conclusion fully accords with Penry 's requirement that a jury must be able "to consider and give effect to any mitigating evidence relevant to a defendant's background and character, or the circumstances of the crime." 492 U.S. at 328, 109 S.Ct. at 2951; see Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

By allowing the jury to consider all relevant mitigating evidence, the procedure by which Jones was sentenced satisfied the requirement of the Eighth and Fourteenth Amendments of individualized sentencing in capital cases. Blystone v. Pennsylvania, 494 U.S. 299, 306-08, 110 S.Ct. 1078, 1083-84, 108 L.Ed.2d 255 (1990); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978).

While we grant the petitioner's request for a certificate of probable cause, see Fed.R.App.P. 22(b), the judgment of the district court is accordingly

AFFIRMED.

*****

1 Jones was indicted on two indictments, one for Mr. Adkins and one for Mrs. Adkins, on charges of killing during the commission of robbery while armed with a deadly weapon and also on a charge of killing more than one person as part of the same act or transaction. Each indictment was returned pursuant to Virginia Code sections 18.2-31(d) and 18.2-31(g), which now appear substantially unchanged as sections 18.2-31(4) and 18.2-31(7)

2 These facts are taken from Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984), and are not in dispute

3 Our decision in United States v. Jones, 392 F.2d 567 (4th Cir.), cert. denied, 393 U.S. 882 , 89 S.Ct. 186, 21 L.Ed.2d 156 (1968), does not require a different result. Jones presented a situation unrelated to that now before us and involved no claims of ineffective assistance of counsel. At the end of the opinion, a footnote was appended containing the observation that "this is the kind of case which should never have been tried." Jones, 392 F.2d at 569 n. 3. The type of case to which the opinion referred was one where the defendants challenged the competency of various evidence used to convict them of escaping from Lorton Reformatory. The court stated that "[s]ince people are either in or out of prison, and most of them lawfully so, it is difficult for a United States Attorney to fail to secure a valid conviction in a prosecution for escape...." Jones, 392 F.2d at 569 n. 3. In this kind of case, the opinion continued, "nothing is gained for the defendant by pleading not guilty" and a client should "be advised strongly to plead guilty." Jones, 392 F.2d at 569 n. 3

These comments should not be viewed as establishing a per se rule applicable to all circumstances and cases. Indeed, if we accepted petitioner's argument and held that the comment in the Jones footnote constitutes a binding rule of conduct in all cases, we would run afoul of the Supreme Court's explicit warning that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065; see Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 993, 89 L.Ed.2d 123 (1986) ("[A] court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct....") Rather, we merely decide that in this case and under these circumstances, counsel's performance was within the range of reasonable professional assistance.

4 Jones also raises a claim concerning psychiatric evaluation that is apparently distinct from his claims of ineffective assistance. He argues that the district court committed reversible error by denying his motion for expert psychiatric assistance. Under 18 U.S.C. 3006A(e)(1), the district court may grant requests for expert services other than counsel upon a finding that "the services are necessary and that the person is financially unable to obtain them." In this case, the magistrate made a finding that Jones had established no factual basis to support his claim that further psychiatric evaluation was necessary. The district court accepted the magistrate's recommendation and denied Jones' motion.

On the record before us, we see no basis for overturning the district court's ruling. Jones has undergone a complete series of psychological tests by Dr. Lee and Dr. Gwaltney which found no evidence of mitigating mental conditions. Dr. Dimitris' report is a part of the state record. Furthermore, the state habeas court granted Jones' motion to have independent psychiatric evaluation conducted at that stage, but Jones has not seen fit to introduce any information gained during this evaluation. In light of these facts, we find no basis for overruling the district court's determination

5 Jones alleges that the district court was required to grant him an evidentiary hearing in this case. In federal habeas corpus proceedings, an opportunity to offer evidence on an issue of fact is mandatory if the petitioner can show the existence of certain circumstances set out in 28 U.S.C. 2254(d) and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See Roach v. Martin, 757 F.2d 1463, 1469 (4th Cir.), cert. denied, 474 U.S. 865 , 106 S.Ct. 185, 88 L.Ed.2d 154 (1985)

Jones appears to contend that two of these criteria are met in the present case. He first argues that the state habeas court did not make unambiguous findings of historical fact, but merely stated its opinions as legal or mixed factual-legal conclusions. We construe this argument to be based upon the Supreme Court's statement that an evidentiary hearing is required if the state habeas court's opinion "presents a situation in which the 'so-called facts and their constitutional significance [are] ... so blended that they cannot be severed in consideration' " and thereby leaves doubt over whether the court actually reached and decided the issues of fact. Townsend, 372 U.S. at 315, 83 S.Ct. at 758 (quoting Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760 (1961)).

Our review of the order issued by the state habeas court convinces us that Jones' argument is without merit. The state court, after a full hearing, stated in its written opinion explicit findings concerning the "basic, primary, or historical facts ... 'in the sense of a recital of external events' " surrounding the acts which Jones alleges constituted ineffective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) (quoting Townsend, 372 U.S. at 309 n. 6, 83 S.Ct. at 756 n. 6). We therefore conclude that Jones was not entitled to an evidentiary hearing on this basis.

Jones' second argument is that an evidentiary hearing was mandated by the fact that the state habeas court's factual determinations concerning ineffective assistance of counsel were not supported by the record as a whole. We have reviewed the state court record and are convinced that the state court's factual determinations adopted in this opinion are fairly supported by the record as a whole. A further evidentiary hearing in a federal court would therefore not enhance the quality of justice rendered Jones in the state courts. See Roach, 757 F.2d at 1476.

6 By focusing on the prejudice prong of the Strickland test, we do not mean to imply that Jones has carried his burden of showing that counsel's advice that Jones not testify was professionally unreasonable. See 466 U.S. at 697. We note that the burden borne by a petitioner advancing such a claim is a substantial one. See Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th Cir.1983), cert. denied, 464 U.S. 1065 , 104 S.Ct. 750, 79 L.Ed.2d 207 (1984) ("Counsel's advice not to testify is a paradigm of the type of tactical decision that cannot be challenged as evidence of ineffective assistance.")

In this respect, we must add that while the question of admissibility of the confession is not before us and we do not decide it, it is at once apparent that the analysis of Jones' attorney was not unreasonable. In Jones' present brief, he assigns error to his attorney's decision not to call Jones at the sentencing phase of the case so that he "could have testified to numerous compelling aspects of his character and background that could have had a significant impact on the jury's determination."

Under Virginia law, a defendant who takes the stand and puts his character at issue may be cross-examined as to prior specific instances of misconduct. See Thompson v. Commonwealth, 193 Va. 704, 715, 70 S.E.2d 284, 291 (1952); C. Friend, The Law of Evidence in Virginia 49 (2d ed. 1983 & Supp.1987). The Commonwealth is allowed "wide latitude" on cross-examination of character witnesses. Zirkle v. Commonwealth, 189 Va. 862, 872, 55 S.E.2d 24, 30 (1949).

In declining to advise Jones to take the stand and testify as to the "compelling aspects of his character," any concern of Jones' attorney is bound to have been reasonable that in so testifying, Jones would have been testifying as to his own good character and thereby become subject to cross-examination concerning specific instances of misconduct, including those contained in his suppressed confession. Even if the confession might have been considered extrinsic evidence and inadmissible under a similar theory to that expounded in Land v. Commonwealth, 211 Va. 223, 176 S.E.2d 586 (1970), a gamble that the trial court would have considered the confession as extrinsic evidence does not seem well taken.

The Supreme Court has directed that statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) may be used on cross-examination to impeach the defendant who made them. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). The Court stated that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury" and escape "the traditional truth-testing devices of the adversary process." Harris v. New York, 401 U.S. at 224-25, 91 S.Ct. at 645-46.

While this reasoning has generally been applied to permit impeachment as to inconsistent assertions of specific facts, these principles might well embrace situations in which the tenor of testimony or conclusion sought is contrary to a previous inconsistent statement. The attorney's concern that these principles might be applied to his client's attempt to testify as to his own good character and subsequent decision not to risk putting his client on the stand cannot be termed unreasonable, particularly in view of his belief that the jury would certainly impose the death penalty if it knew of Jones' confession.

After Jones' attorney had gained what must be considered a major advantage, both tactical and substantive, in achieving the suppression of the confession, it seems to us that a decision to advise Jones to take the witness stand would have been more subject to criticism than the decision not to, for at the very best, it would have placed in jeopardy the advantage previously gained.

7 The district court held that the remainder of Jones' claims were procedurally barred. The district court found that the state habeas court had dismissed these claims on well-recognized procedural default grounds. It further found that the Virginia Supreme Court had denied the petition for appeal with the statement that "the Court is of opinion that there is no reversible error in the judgment complained of." While we think that the Virginia courts might well have intended to hold Jones' claims procedurally barred, we will address the merits of the claims to remove any question in this regard. See Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Hildwin v. Florida, 490 U.S. 638 n. *, 109 S.Ct. 2055 n. *, 104 L.Ed.2d 728 (1989)

8 We also note that the trial court instructed the jury on the limiting definition of depravity of mind and aggravated battery

9 The Virginia Supreme Court also observed that, under this construction of the term, the evidence would be sufficient to establish depravity of mind with regard to the murder of Mrs. Adkins, even if Mrs. Adkins was unconscious before Jones set the fire. Jones, 228 Va. at 448, 323 S.E.2d at 565

10 In Briley, 750 F.2d at 1242, the court presented to the jury the two aggravating circumstances of future dangerousness and vileness. It then instructed the jury as follows:

If you find from the evidence that the Commonwealth has proven beyond a reasonable doubt either of the two alternatives, then you shall fix the punishment of the defendant at death; or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment.

11 In reviewing jury instructions, we emphasize that "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). We further note that "[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than a showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977)

 
 

976 F.2d 169

Willie LeRoy JONES, Petitioner-Appellant,
v.
Edward W. MURRAY, Director of the Virginia Department of
Corrections, Respondent-Appellee.
Virginia Trial Lawyers Association, Amicus Curiae.*

No. 92-4009.

United States Court of Appeals,
Fourth Circuit.

Argued Sept. 11, 1992.
Decided Sept. 11, 1992.
Certiorari Denied Sept. 15, 1992.
See 113 S.Ct. 27.

Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

Willie LeRoy Jones appeals to this court the decision of the district court denying his motion for a stay of execution and his Rule 60(b) motion to set aside the district court's earlier judgment denying him a writ of habeas corpus. Jones seeks review of the decision denying him a writ of habeas corpus. He argues that as a result of a series of recent Supreme Court cases Virginia's death penalty statute is unconstitutional and attacks the constitutionality of the statute on a number of grounds. He has raised these claims in one form or another throughout his appeals. Jones therefore admits that he is not asserting any new claims. Brief of Appellant at 3. After a careful review of Jones's claims and the cases on which he relies, we hold that Virginia's death penalty statute is constitutional and therefore affirm the district court's denial of Jones's Rule 60(b) motion and his motion for a stay of execution.

I.

In January 1984, Jones was sentenced to death following convictions on two counts of capital murder in Virginia. Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554, 557 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). He was found to have murdered an elderly couple and incinerated them in the course of a robbery. The horrible details are recited in the Virginia report and in our previous decision at 947 F.2d 1106.

Because petitioner had no prior criminal record, the prosecutor did not argue future dangerousness. Jones was sentenced on the basis of the sole aggravating factor that his conduct in each murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim," as provided for in Virginia's capital punishment statute, Va.Code Ann. 19.2-264.2. Jones, 323 S.E.2d at 564.

The conviction and sentences of death were upheld on appeal to the Virginia Supreme Court. Jones, 323 S.E.2d at 554. The United States Supreme Court denied review of that opinion. 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). Jones then filed a Petition for a Writ of Habeas Corpus in the Virginia state courts. A plenary hearing was held by the Circuit Court of York County, Virginia, on April 22, 1986. Final order denying the petition in full was entered on September 9, 1986. An appeal to the Virginia Court was denied on June 15, 1987. Jones v. Bair, No. 86-1152 (June 15, 1987). The United States Supreme Court denied certiorari on November 19, 1987. Jones v. Bair, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987).

Jones then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Virginia. The Commonwealth moved to dismiss the petition and petitioner opposed its motion. The matter was referred to a Magistrate, who issued his Report and Recommendation on April 7, 1989. The parties objected to different portions of that report. The district court issued a final order dismissing the petition on January 4, 1990. Jones filed a motion pursuant to Fed.R.Civ.P. 59(e) to Alter or Amend the Judgment on January 10, 1990. That motion was denied by Order of April 9, 1990.

Jones filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit on May 4, 1990. After briefing and oral argument on December 1, 1990, we affirmed the judgment of the district court on October 1, 1991. Jones v. Murray, 947 F.2d 1106 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992). He then filed a petition for rehearing with suggestion for rehearing en banc. We denied this petition on November 5, 1991. Jones then applied to the United States Supreme Court for a writ of certiorari. That petition was denied on April 6, 1992, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992), and a petition for rehearing was denied on May 26, 1992. --- U.S. ----, 112 S.Ct. 2295, 119 L.Ed.2d 219 (1992).

On June 2, 1992, the York County Circuit Court held a hearing for the setting of an execution date. By an order dated June 9, 1992, the circuit court scheduled Jones's execution for September 15, 1992.

On August 10, 1992, Jones filed a second state habeas petition in the Circuit Court of York County, once again raising his claim that Virginia's vileness aggravating circumstance has been applied to him in an unconstitutionally vague manner. According to Jones, recent decisions of the United States Supreme Court, Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), and Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), justified relitigation of his claim.

The Commonwealth filed a motion to dismiss on August 24, 1992, and the circuit court heard oral argument on August 27, 1992. On that same date, the circuit court dismissed the successive petition, finding that relitigation of the claim was procedurally barred under state law and that Jones, in any event, had failed to show that the Supreme Court cases upon which he relied warranted the extraordinary relief he sought.

Although the circuit court dismissed his successive petition on August 27th, Jones did not file an appeal in the Virginia Supreme Court until September 8, 1992. The Supreme Court of Virginia promptly requested the respondent to reply within three days, and granted Jones's request for oral argument, now scheduled for September 14, 1992.

On August 20, 1992, Jones filed a motion under Rule 60(b), Fed.R.Civ.P., in the United States District Court in Norfolk in which he raised the same claim he raised in state court. He also asked for a stay of execution.

On September 8, 1992, however, the district court denied Jones's motion because he had not exhausted his available state remedies given the pendency of his appeal to the Virginia Supreme Court. The court also denied his request for a stay of execution because it found Jones's constitutional challenge to the vileness criterion to be both procedurally barred and without merit as a matter of law.

II.

Jones's Rule 60(b) motion is rather unusual. It raises exactly the same grounds as his prior federal habeas petition, and the types of relief it seeks are those ordinarily sought in habeas petitions.

A.

We first assume that the papers are a petition for habeas corpus under 28 U.S.C. 2254.

Section 2254(b) requires that a petitioner who seeks habeas corpus relief must first exhaust his state court remedies before applying to the federal courts for relief. Jones has not done so here. He appealed the York County Circuit Court's denial of his habeas petition to the Virginia Supreme Court on September 8, 1992. We have been informed that oral argument is scheduled before the court on September 14, 1992. Thus, petitioner has not exhausted his state court remedies within the meaning of section 2254(b).

Further, we note that there are no extraordinary circumstances in this case that would entitle Jones to be excused from the exhaustion requirement. Although petitioner cites his imminent execution date, he fails to adequately explain his delay in filing his second state habeas petition. Jones's execution date was set by the York County Circuit Court on June 9, 1992. However, Jones did not file his second state habeas petition until August 10, 1992, a delay of two full months. The United States Supreme Court had denied Jones's petition for a writ of certiorari on April 6, 1992. --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992). A principal case on which Jones relies, Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), had been decided on March 9, 1992, before the Supreme Court denied certiorari.1

The second case on which Jones relies, Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), was decided on June 8, 1992, the day before his execution date was set. All of the cases on which Jones relies were decided at least two full months before he filed his second state habeas petition. This is yet another example of a petitioner who has waited until the eve of his execution to file a habeas corpus petition without a justifiable excuse for the delay, and we should not excuse such a petitioner from the section 2254(b) exhaustion requirement. We are of opinion that the district court was correct in denying Jones's motion for failure to exhaust his state remedies. See Jones, slip op. at 4-7.

B.

We next consider the papers as a successive habeas petition. See Jones, slip op. at 8-10. Jones admits in his brief that he is raising exactly the same constitutional challenges that he has raised in his prior habeas petitions. Brief of Appellant at 3. The Supreme Court recently established that before a reviewing court can reach the merits of a successive habeas petition, it must find "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992).

The constitutional error Jones alleges is that the vileness factor in Virginia's death penalty statute, as limited by the trial court judge's instructions, is unconstitutionally vague. Even if true, Jones's argument does not establish that no reasonable juror would have found him eligible for the death penalty. Under any conceivable construction of the statutory terms "aggravated battery" and "depravity of mind," it is apparent that Jones would not be able to prove by clear and convincing evidence that no reasonable juror would find him eligible for the death penalty.

Therefore, we cannot reach the merits of Jones's habeas petition as a successive petition which might be considered on its merits because he has not met the standard set forth in Sawyer. Accordingly, we affirm the district court's denial of Jones's motion because it is a successive habeas petition that cannot be addressed on the merits. See Jones, slip op. at 8-10.

III.

Neither party argues that the new cases on which Jones relies create a new rule that cannot be applied retroactively in a collateral review of Jones's death sentence. Cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (prohibiting retroactive application on collateral review of cases that announce new rules). Both sides agree that these cases are firmly grounded in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion). See Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (holding that application of Godfrey rules to weighing statute was not a new rule). Therefore, there is no procedural bar under Teague to the application of the new cases on which Jones relies.

IV.

We next assume that the papers are a legitimate Rule 60(b)(6) motion addressing the final judgment of the district court in the case we previously reviewed at 947 F.2d at 1106.

Rule 60(b) provides:

[T]he court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.2

Fed.R.Civ.P. 60(b). Jones argues that the reason that justifies relief in his case is that the cases on which he relies effect a change in the law that entitles him to relief.3

In a habeas corpus case in which the State of Maryland petitioned this court for relief under Rule 60(b) because of a change in the law, we held en banc that a change in the law was an insufficient basis for relief under Rule 60(b) under the facts of that case. Hall v. Warden, 364 F.2d 495 (4th Cir.1966) (en banc). We left open the question of whether a prisoner who seeks federal habeas relief can rely on a change in the law as a basis for relief under Rule 60(b)(6).

Without deciding the issue, we will assume for purposes of this case that a prisoner under a sentence of death would be able to use a change in the law as a basis for relief under Rule 60(b)(6). As set forth in detail below, we are of opinion that the cases on which Jones relies do not effect a change in the law, so Hall would not control the outcome in this case in any event. We therefore proceed to the merits of Jones's Rule 60(b) motion.

Vagueness Claim

Jones argues that the vileness factor of Virginia's death penalty statute is unconstitutionally vague as applied to him.4 Section 19.2-264.2 of the Virginia Code prohibits the imposition of the death penalty unless the court or jury finds that the defendant's "conduct for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim." Va.Code Ann. 19.2-264.2.

The Supreme Court of Virginia has construed aggravated battery to mean "a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder." Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 139 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). In Smith the Virginia Supreme Court also construed depravity of mind to mean "a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation." 248 S.E.2d at 149. The jury in Jones's case was given these limiting instructions at Jones's request.

Jones argues that the United States Supreme Court's decision in Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (per curiam), requires that the limiting instructions given in this case be held unconstitutionally vague. We addressed this same argument in our earlier opinion in this matter, but not Shell explicitly, and held that the depravity of mind and aggravated battery limiting instructions were constitutional and rejected counsel's arguments. 947 F.2d at 1118-19.

The Shell decision stands for the proposition that when limiting instructions are used to cure a defect in a facially vague statute, the instructions must meet the specificity requirements of Godfrey. The instructions at issue in Shell consisted of nothing more than paraphrased dictionary definitions of heinous, atrocious, and cruel.5 See Webster's Third New International Dictionary (1971). They did not limit those who might be included as the persons sought to be punished under the statute. See Shell, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); see also Shell, (Justice Marshall concurring) (text in Westlaw). Under the Godfrey standard, for the sentencer to be adequately guided there must be a "principled way to distinguish [a] case[ ] in which the death penalty was imposed[ ] from the many cases in which it [is] not." Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767.

The Virginia limiting instructions for the two factors at issue here, aggravated battery and depravity of mind, make clear that something other than those factors that a juror might expect to find present in an ordinary murder must be present. Thus, the Supreme Court's concern in Godfrey that a juror of ordinary sensibility would find that any murder involved depravity of mind is not present here.

The instructions clearly direct the jury away from that result by requiring that something extra be present, i.e., either force greater "than the minimum necessary to accomplish an act of murder" or "a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation." We therefore conclude again that the limiting instructions given in Jones's trial were specific and provided adequate guidance to the jury. See 947 F.2d at 1119.

Improper Appellate Review Claim

Jones also argues that Virginia's death penalty statute is unconstitutional because it is phrased in the disjunctive. Thus, it is argued, the jury does not unanimously have to find one factor on which to rest its death sentence. However, in Virginia the determination as to which factor or factors the jury used can be made by a reviewing court. See 947 F.2d at 1116-17 (citing Coleman v. Thompson, 895 F.2d 139 (4th Cir.1990), aff'd on other grounds, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Here, the Virginia Supreme Court found that Jones's sentences were based on the depravity of mind factor for the murder of Mr. Adkins and the depravity of mind and aggravated battery factors for Mrs. Adkins. Jones argues that a reviewing court's fact-finding is insufficient and that the determination of which factors the jury used must be made by the jury at sentencing.

The Supreme Court has twice rejected similar arguments. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Court stated that "[a]ny argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court." Clemons, 494 U.S. at 745, 110 S.Ct. at 1446. Similarly, in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Court rejected the petitioner's argument that a system in which the jury determines guilt and the judge imposes the sentence would be constitutional only if the jury decides which aggravating and mitigating factors are present in the case. Walton, 497 U.S. at ----, 110 S.Ct. at 3053. Of like effect are Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam).

Jones argues, however, that Stringer and Sochor implicitly overrule these precedents and require that the jury must unanimously determine at sentencing the aggravating factors on which its sentence is based. We do not find that directive in either Sochor or Stringer. Indeed, the Sochor Court found that a reviewing court could cure errors in the weighing process that result from the weighing of an unconstitutional aggravating factor if the reviewing court undertakes an explicit harmless-error analysis which finds that the error was harmless beyond a reasonable doubt.

The Stringer Court similarly required close appellate review when, under a weighing statutory scheme, there is the possibility that an impermissible aggravating circumstance may have infected the sentencing process. These holdings, however, cannot be said, as Jones contends, to have prohibited the finding by an appellate court of whether an aggravating factor has been proved. Rather, these opinions set forth the standard of review to be followed in States in which there is a weighing scheme, not that the absence of a weighing scheme under Virginia law has any effect one way or the other on our opinion.

A main flaw in each of Jones's arguments is that it assumes the unconstitutionality of Virginia's statute. Jones argues that Virginia's death penalty statute is unconstitutional because he claims that Stringer and Sochor are a flat prohibition on vague aggravating factors.

Similarly, in order to invoke the scrutiny required of a reviewing court's decision under the Stringer and Sochor cases, some unconstitutional factor must have been weighed in the sentencing process. Yet Jones has been unable, first on review of his habeas petition and now on review of his Rule 60(b) motion, to show that Virginia's death penalty statute, given its limiting constructions, contains an unconstitutionally vague aggravating factor. We are thus of opinion that Stringer, Sochor, and Shell do not aid Jones in his cause.

There being no changes in the law with respect to the Virginia instructions, it was not error to refuse relief under Rule 60(b)(6) even if available.

Our mandate will issue forthwith.

The judgment of the district court denying habeas corpus relief to Jones, under Rule 60(b) or otherwise, is accordingly

AFFIRMED.

*****

*

The Amicus Curiae brief is allowed to be filed

1

Petitioner called the case to the attention of the Supreme Court in post-petition correspondence

2

At oral argument counsel stated the reliance was on 60(b)(6)

3

Jones's counsel argued at oral argument that although the cases were a change in the law that entitled him to relief under Rule 60(b)(6), the cases were not a "new rule" within the meaning of Teague. See Part III, supra

4

In his federal habeas petition Jones attacked the depravity of mind factor as unconstitutional on its face. This court rejected that argument, Jones v. Murray, 947 F.2d 1106, 1119 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992), and Jones has not pressed that claim in his Rule 60(b) motion

5

Specifically, the instructions at issue in Shell attempted to limit "especially heinous, atrocious or cruel" as follows:

"[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others."

Shell, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (Marshall, J. concurring) (text in Westlaw).

 

 

 
 
 
 
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