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Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: December 4, 1980
Date of birth: June 22, 1955
Victim profile: Wayne Shinn (male)
Method of murder: Shooting
Location: Cabarrus County, North Carolina, USA
Status: Executed by asphyxiation-gas in North Carolina on June 15, 1994

In December 1980, Lawson shot Wayne Shinn in the back of the head after being interrupted during a burglary in Shinn's home. Lawson also shot Shinn's father, Buren Shinn, in the back of the head and left him for dead. The elder Shinn survived and later identified Lawson as his son's killer. Wayne Shinn, an electrician, was married with a 10-year-old son and a 3-year-old daughter.


Inmate is Executed in N. Carolina

The New York Times

June 15, 1994

North Carolina today put to death a convicted killer whose execution the talk show host Phil Donahue had wanted to televise.

Shortly after 2 A.M. today, the North Carolina inmate, David Lawson, was pronounced dead in North Carolina's gas chamber.

Earlier yesterday, the United States Court of Appeals for the Fourth District rejected an argument by Mr. Lawson's lawyer that death in the gas chamber is a cruel punishment because it would cause more suffering than if Mr. Lawson were to die by injection. An inmate is awake when the gas is released but is asleep before lethal chemicals are injected.

Mr. Lawson could have chosen to die by lethal injection but declined to do so, saying that to choose his means of death would amount to sanctioning his execution. Five North Carolina inmates have been executed in recent years, all by injection.

The Supreme Court also refused to issue a stay of execution.

Mr. Lawson was convicted of murdering Wayne Shinn of Concord in a break-in at Mr. Shinn's house in 1980.

Earlier, the appeals court denied a request from Mr. Donahue and Mr. Lawson to order prison officials to allow the execution to be videotaped. The two argued that broadcasting the execution would draw attention to the consequences of depression, which Mr. Lawson said he suffered from, and help people decide whether capital punishment is right or wrong.

The Supreme Court upheld that ruling without comment yesterday.


Viewing an Execution From the Sofa

By Walter Woodman - The New York Times

June 13, 1994

So as matters now stand, David Lawson will be executed on Wednesday off camera, to be precise, off Phil Donahue's camera. The talk showman and the murderer have so far failed in their collaborative attempt to persuade the North Carolina courts that they have a constitutional right to videotape the final minutes of Mr. Lawson's life.

This is not the first time television producers have been denied the claimed right to broadcast an execution. In 1991 the San Francisco public station KQED was blocked by a Federal court from showing one at San Quentin. Opponents warned that if public television were to succeed, tabloid television would not be far behind, with gruesome consequences.

One might assume that the anti-camera cadre would be led by softies on the left, troubled at adding final insult to fatal injury by intruding on the penumbra of privacy of the condemned prisoner (even if he demanded to go public, as Mr. Lawson has). And one might assume that the muscular right would rejoice to see a murderer receive the deserts it wants to serve up to many others.

But things seem to be vice versa. Early this month, CNN's "Crossfire," where the world is reduced to a face-off between left and right, offered Patrick J. Buchanan, its resident rightist, and Bruce Herschensohn, a senior fellow at the Claremont Institute, a California think tank, in opposition to the taping. In favor were Mr. Donahue, the liberal hope in an era of Rush Limbaugh and Howard Stern, and Michael Kinsley, playing the program's left-winger, who announced, "David Lawson is dying to be on the Phil Donahue show."

Amid "Crossfire's" usual commotion, a viewer was hard put to locate the real arguments against the Donahue-Lawson initiative. Those that were offered seemed paltry, for example, the charge that Mr. Donahue is out for ratings. Or, in Mr. Buchanan's jolly greeting, "Phil, come on, what's the problem here, the lesbian midgets not pulling anymore?"

Given Mr. Donahue's line of work, no charge of exhibitionism or exploitation can be dismissed. But if motives were taken into account in First Amendment cases, how many pornographers, gangster rappers, television preachers and street-corner ranters could win? Champions of the Bill of Rights pride themselves on defending the speech even of the unspeakable.

Mr. Herschensohn raised a more serious concern of the right when he said that Mr. Donahue, an opponent of capital punishment, hoped that showing a man dying from gas or a lethal injection would draw "empathy and sympathy" for the executee and so add to public aversion to the death penalty. Mr. Herschensohn said he would have no objection to such a show if the crime -- killing a man during a 1980 burglary -- that had led to the sentence were also displayed in excruciating detail.

That point will have to be addressed if the courts ever permit cameras into gas chambers; Mr. Herschensohn can rest assured that tabloid shows will be delighted to make his day by using re-enactments of the crime that match or surpass the execution scene for gore. But for now it is surely a constricted definition of free speech that says you may not show the sentence because you cannot show the crime.

What is really being argued over in this case, as in the San Francisco case, is the power of television and the nature of the television audience. Print reporters are customarily among the observers at executions and have produced painful accounts of the condemned's last moments. No one nowadays argues that reporters be kicked out because of ulterior motives like selling newspapers or their possible influence on the debate over capital punishment.

But those, on the left as well as the right, who would bar television cameras lest the pictures add to the general coarsening of American life know that for the mass audience a picture is worth innumerable words. They are not worried about people who read books. They are worried about the impressionables, the unlettered who compose so much of the television audience: the sorts of folks who once might have picnicked at public hangings, and who nowadays may be tuning into Mr. Donahue.

Maybe the opposition is right; maybe pictures from an execution will further coarsen American society, assuming that is possible. Indeed, instead of distressing voters, such scenes may exhilarate them and lead to even greater support for capital punishment.

In our system, however, decisions about taste or balance on news programs are generally left to journalists, not to judges. Steven Brill, who heads Court TV, says a good legal case can be made for broadcasting executions, but as a matter of taste, "I don't want it on television." O.K. But when the North Carolina Attorney General, Mike Easley, says, "There's too much violence on TV already; the state doesn't need to add to it," he is playing television reviewer.

The argument against the camera, in sum, is that the electorate must be legally prohibited from seeing the consequences of a state action that it has mandated, lest opinions and votes be unduly influenced.

Now the general principles of covering public events in an open society are not complicated: with narrow exceptions for such matters as national security and unfettered decision making, but not in the interests of delicacy, the state's actions should be accessible to its people through their surrogates. And the more explicit, the better. Barring television cameras from courtrooms or death chambers is purposely aimed at depriving viewers of scenes that could contribute to their judgment of how their government should be run.

Serious people may take exception to free-speech principles, but if they do, they should acknowledge they are calling into question a basic rule of this democracy: Let the people know. And these days that means, let the people see. Those who would bar cameras are saying the citizenry is best served by having their betters decide what they may and may not see. Why not go further and pass laws to pretty up television coverage of other events deemed unsuitable for one's fellow Americans?

The argument for legal restraints on television ought not to be lightly dismissed, but to make it effectively demands franker attention to the nature of genus Americanus. Perhaps with television's help our society has become so anarchic that extensions of the First Amendment can only hasten America's unraveling. That uncomfortable possibility, well worth discussing, is usually skirted on camera, both by television personalities who want to stay popular and by political aspirants wooing the votes of people they do not particularly esteem or deeply trust.


3 F.3d 743

David Lawson, Petitioner-Appellant,
Gary Dixon, Warden, Central Prison, Raleigh, North Carolina,
Respondent-Appellee. (Two Cases)

No. 92-4003, 92-4004

Federal Circuits, 4th Cir.

August 26, 1993

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


ERVIN, Chief Judge:

These consolidated appeals arise from the district court's dismissal of David Lawson's petition for the writ of habeas corpus, 28 U.S.C. Sec . 2254, and concomitant denial of his motion for relief from judgment, Fed.R.Civ.P. 60(b). Finding no merit in Lawson's five assignments of error to the judgments below, we affirm.

* A detailed recitation of the facts surrounding the crimes of which Lawson was convicted may be found in the opinion of the Supreme Court of North Carolina on direct appeal. See State v. Lawson, 310 N.C. 632, 634-38, 314 S.E.2d 493, 495-96 (1984). The following paragraphs summarize this factual background and the criminal proceedings it spawned.

In December 1980 Buren Shinn and his son Wayne resided in houses approximately 100 yards apart on Old Salisbury Road some three miles from Concord, North Carolina. Buren and Wayne worked together in a family electrical repair business headquartered at Buren's house.

After driving to work early on the morning of December 4, 1980, Wayne heard the burglar alarm sound in his own house. Buren and Wayne immediately leapt into Wayne's truck and proceeded to Wayne's house, where they observed a dirty, brown Ford automobile parked in the driveway.

Wayne left the truck and ran towards the patio that lay on one side of the house. Buren saw Wayne throw up his hands and walk through a set of sliding glass doors, whereupon Buren heard two or three shots ring out.

Buren ran to the truck, got in, and began backing the truck in an effort to escape. A man ran towards him, waving a pistol. His attention diverted, Buren backed the truck into a ditch. The man approached the truck and ordered Buren to get out and move towards Wayne's house. Buren did so, pleading with the man not to hurt him.

Before Buren reached the patio, he heard another gun shot and felt a sharp blow to his head. He fell to the ground, unconscious. When Buren regained consciousness he found himself lying in a large pool of blood. Fearing that his assailant might still be in the vicinity, he kept silent.

Some twenty or thirty minutes later, Buren heard someone walk toward him and felt a hand reach into his pocket and remove his wallet. Buren remained motionless for twenty more minutes. Hearing no footsteps and seeing no one, he began to crawl from the patio toward the road, hoping to halt a passing car.

When no one stopped, he struggled to his feet and walked home. After telephoning for help, Buren's second son, Jerry, left to check on his brother's condition. Law enforcement officers arrived at Wayne's house and found him lying in a pool of blood in the basement near the patio.

Wayne and Buren were taken to a hospital where Wayne was pronounced dead as the result of a bullet wound to the head. Buren's injuries were not severe, for the bullet which struck him did not penetrate the skull. He recovered after a short hospital stay.

The police found Wayne's house ransacked. They discovered a pillowcase containing several pieces of jewelry and a camera, apparently dropped by the intruder. Marks on the kitchen door indicated that the house had been forcibly entered.

David Lawson was charged in the Superior Court of Cabarrus County with three crimes: (1) the first-degree murder of Wayne Shinn; (2) the assault with a deadly weapon with intent to kill inflicting serious injury on Buren Shinn; and (3) the felonious breaking and entering of the home of Wayne Shinn.

The State's case-in-chief consisted primarily of the testimony of two witnesses: Buren Shinn and Phyllis Soden. When Buren Shinn took the stand, he identified Lawson as his assailant, and related the facts set forth above.

Phyllis Soden, with whom Lawson once had shared a residence, testified that she returned home from work at about 4:00 a.m. on December 4, 1980. Shortly after 9:00 a.m. Lawson arrived at Soden's house and stated that he needed her to "take him someplace immediately." Leaving his brown Ford in her driveway, the two departed in her automobile. Lawson directed Soden to drive on Old Salisbury Road. As they neared Wayne Shinn's residence Lawson told Soden to stop, let him out, drive a short distance farther, turn around, and return to pick him up.

Soden followed Lawson's directions. When she returned to Shinn's house, Lawson ran to the car carrying a crowbar. After they returned to Soden's residence, Lawson explained that he had broken into a house and left the crowbar there. Fearing that the crowbar might have his fingerprints on it, he had been anxious to retrieve it. A little later Lawson showed Soden a wallet and removed the money from it. He told Soden that he had broken into a house after hearing that the residents had gold and jewelry.

According to Soden's testimony, Lawson told her that he had found some items in the house and stuffed them into a pillowcase. As he was preparing to leave, a man entered the patio door. Lawson pointed his gun at the man, who promptly put up his hands. Lawson then ordered the man to turn around, whereupon he shot him in the back of the head. After the man fell, Lawson ran out of the house and spied another man approaching the patio.

The other man turned, ran, and got into a truck. Lawson ordered the man out of the truck. Although the man begged Lawson not to shoot, Lawson forced him to walk toward the patio and shot him in the back of the head. He was confident that both men were dead because he shot them at close range. Lawson killed them, according to Soden, both in order to eliminate witnesses to the robbery and because he did not want to "go back to prison."

Lawson offered no evidence during the guilt-innocence phase of the trial. After the jury returned guilty verdicts on all three charges, the proceedings turned to a consideration of sentence. In open court but outside the presence of the jury, Lawson was examined under oath by his attorney, James C. Johnson. During this examination Lawson testified that Mr. Johnson had fully advised him regarding the nature of the sentencing phase of the proceeding. Lawson also acknowledged that on June 6, 1981 he signed an affidavit in which he acknowledged that he told Mr. Johnson

on at least five occasions ... that I should be found guilty, then in the second trial dealing with punishment, I wished to have my attorney seek and request the death penalty. I do not wish to spend the rest of my life in jail. I had rather have the death penalty than a life term. I understand my right to a second trial at which the jury will consider both mitigating and aggravating circumstances. I have, nevertheless, for some months before the trial told my attorney I do not want a life sentence, but a death sentence and I want him to take such legal steps as may be necessary to see that the sentence is carried out.

The superior court then advised Lawson that, notwithstanding his desire to be sentenced to death, the jury must decide his punishment and that the court was required by law to submit whatever aggravating and mitigating circumstances were supported by the evidence to the jury for consideration. The court stated: "Even though you may ask the jury to recommend the death sentence in this case, the jury is not bound by it and the jury may ... still see fit to recommend life imprisonment."

The jury was then brought back into the courtroom. Lawson testified before the jury that his criminal record consisted of "two cases of breaking and entering some years ago in Stanly County." He had assisted the State "involving some criminal matters in Stanly County some years ago." The following colloquy then took place between Lawson and his attorney:

Q: At this time would you tell the jury what your request is regarding their decision?

A: I'd like the death penalty.

Q: Would you care to tell us why you want the death penalty?

A: To be locked up in prison for something I did not do, is truly cruel and inhuman. I didn't do it. I don't care what anybody says. I'm innocent. That to be put in prison for life, that's not right. You think I done it, gas me.

Q: And you're--you know what you're asking?

A: Yes, sir.

Q: You know it's my responsibility to try to save your life?

A: Yes, sir.

Q: That's all.

A brief cross examination by the state followed, during which Lawson admitted that he owned a .32 calibre pistol in September 1980; that he attempted to purchase a pistol shortly after December 4, 1980; and that on December 4, 1980 he had gone to Salisbury with Phyllis Soden. At the guilt-innocence phase of the trial, a ballistics expert had testified that the bullet which killed Wayne Shinn was a .32 calibre bullet.

The jury found as aggravating circumstances that the murder of Wayne Shinn was "committed for the purpose of avoiding a lawful arrest" and was "part of a course of conduct in which [Lawson] engaged and [which] include[d] the commission by the defendant of other crimes of violence against [another person]." See N.C.Gen.Stat. Sec. 15A-2000(e)(4) & (11) (1988 & Supp.1992).

The jury next found that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty. Two specific mitigating circumstances were submitted: (1) that Lawson had no "significant prior history of criminal activity," and (2) that Lawson "testified truthfully on behalf of the prosecution in another prosecution of a felony." See id. Sec. 15A-2000(f)(1) & (8). The jury also was asked to consider whether any other circumstances existed which it deemed to have mitigating value. See id. Sec. 15A-2000(f)(9).

The jury did not specify which of the mitigating circumstances it found, but it did indicate that it found the existence of "one or more mitigating circumstances." The jury finally found that the aggravating circumstances outweighed the mitigating circumstances and recommended that Lawson be sentenced to death by administration of lethal gas.

Following affirmance of his convictions and death sentence by the Supreme Court of North Carolina, see State v. Lawson, 310 N.C. 632, 634, 314 S.E.2d 493, 495 (1984), and the denial of his petition for the writ of certiorari by the Supreme Court of the United States, see Lawson v. North Carolina, 471 U.S. 1120 , 105 S.Ct. 2368, 86 L.Ed.2d 267 (1985), Lawson filed a motion for appropriate relief pursuant to N.C.Gen.Stat. Sec. 15A-1411 (1988 & Supp.1992) in the Superior Court of Cabarrus County, raising claims of ineffective assistance of counsel at trial and on direct appeal.1

Lawson's motion also challenged the impartiality of the jury empaneled to try his case and the sufficiency of the evidence supporting the aggravating circumstances as found by the jury. Later Lawson amended his motion for appropriate relief to challenge the State's excusal for cause of jurors with scruples against capital punishment.

He then further amended it to allege (1) a claim of ineffective assistance of counsel in failing to present mitigating evidence at the penalty phase of the trial; (2) the absence of a reliable sentencing determination because of the absence of mitigating evidence; (3) the unconstitutionality of a jury instruction imposing on the jury a duty to pronounce the death sentence if aggravating circumstances outweighed mitigating circumstances; and (4) ineffective assistance of counsel in failing to have transcribed and to present the closing arguments of counsel at trial to the Supreme Court of North Carolina for review. Following an evidentiary hearing, the superior court denied the motion for appropriate relief as amended. Both the Supreme Court of North Carolina, see State v. Lawson, 322 N.C. 114, 367 S.E.2d 919 (1988), and the Supreme Court of the United States, see Lawson v. North Carolina, 485 U.S. 1016 , 108 S.Ct. 1494, 99 L.Ed.2d 883 (1988), denied Lawson's petitions for appellate review.

On July 12, 1988, assisted by new counsel, Lawson sought federal collateral relief by filing the instant petition for the writ of habeas corpus pursuant to 28 U.S.C. Sec . 2254 in the United States District Court for the Middle District of North Carolina. Lawson acknowledged that many of the claims raised by his petition had not been presented to the Superior Court of Cabarrus County in his motion for appropriate relief.

The petition assigned multiple claims of constitutional error to the guilt-innocence and sentencing phases of his trial, and set forth in summary form the facts supporting each claim. Rather than await the dismissal of this "mixed" petition as required by Rose v. Lundy, 455 U.S. 509, 520-21, 102 S.Ct. 1198, 1204-05, 71 L.Ed.2d 379 (1982), Lawson expeditiously filed a second motion for appropriate relief in the Superior Court of Cabarrus County, raising the previously unexhausted claims that appeared in the habeas petition. Lawson asked the district court not to consider his habeas petition until the state remedies on claims first raised in the petition had been exhausted.

The respondent,2 objecting to Lawson's motion to hold the habeas petition in abeyance, asked the court to sever the exhausted from the unexhausted claims, adjudicate only the exhausted claims, and consider the unexhausted claims in a subsequent petition after the state courts had been afforded an opportunity to rule upon them. The district court rejected this approach, and referred the petition to a magistrate judge for recommended findings of fact and conclusions of law as permitted by 28 U.S.C. Sec . 636(b)(1)(B).

The magistrate judge recommended that the petition be dismissed as "mixed" under Rose v. Lundy. The district court agreed, dismissed the petition, and dissolved the stay of execution it had entered to permit Lawson to seek federal collateral relief. In a motion to alter or amend judgment and a motion for relief from order brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, the respondent then repeated his request that the court not dismiss the petition but sever the unexhausted claims and adjudicate only the exhausted claims. The respondent filed a written statement specifically indicating that he would unconditionally waive the defense of nonexhaustion of state remedies if his motion to alter or amend was allowed.

On the basis of this promised waiver, the district court granted the respondent's motion, amended its judgment, and vacated its order dismissing the petition for failure to exhaust state remedies completely as to all claims raised in Lawson's habeas petition. The court rejected the respondent's proposal to sever the exhausted from the unexhausted claims and adjudicate only the exhausted claims.

The court also rejected the respondent's alternative proposal that the court consider the exhausted as well as the unexhausted claims only on the record developed before and during direct appeal to the Supreme Court of North Carolina and on Lawson's first Motion for Appropriate Relief in the Superior Court of Cabarrus County.

On April 6, 1989 the magistrate judge heard oral argument on the issues raised by Lawson's petition, and held the litigation in abeyance pending disposition of state-court proceedings for reconsideration in light of McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). On November 19, 1991 the magistrate judge filed an order recommending that Lawson's petition be dismissed and that his motions for discovery, appointment of a psychiatric expert, and an evidentiary hearing be denied. See Lawson v. Dixon, No. C-88-738-S, slip op. at 7 (M.D.N.C. Nov. 19, 1991) (order and recommendation of United States Magistrate Judge).

The district court adopted the magistrate judge's recommendations, and entered a judgment dismissing the petition on January 7, 1992. See Lawson v. Dixon, No. C-88-738-S, slip op. at 1-2 (M.D.N.C. Jan. 7, 1992) (judgment and order). Lawson then moved to alter or amend the judgment, and further moved for relief from the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure based on our decision in Williams v. Dixon, 961 F.2d 448, 451-59 (4th Cir.), cert. denied --- U.S. ----, 113 S.Ct. 510, 121 L.Ed.2d 445 (1992); both motions were denied.

Lawson gave notice of appeal as to both the dismissal of his petition and the denial of his Rule 60(b) motion. The appeals were consolidated for briefing and argument herein.


Certain aspects of the district court's treatment of Lawson's motion for the appointment of a psychiatric expert are relevant to the issues raised by these appeals. In his petition for the writ, Lawson raised four principal claims regarding the effect of his psychological health upon the guilt-innocence and sentencing phases of his trial. Specifically, he alleged (1) that he was not competent to be sentenced; (2) that he lacked sufficient ability to consult with his counsel with a reasonable degree of rational understanding and with a view to preparing his defense; (3) that he was not competent to, and did not, knowingly, intelligently, and voluntarily waive his constitutional right to a reliable sentencing determination; and (4) that his death sentence was rendered in the absence of a reliable sentencing hearing.

On February 1, 1989, after his petition had been laid before the district court, Lawson filed, ex parte, a motion for the appointment of a psychiatric expert to assist in the development and presentation of his mental-health habeas claims, or in the alternative for an ex parte evidentiary hearing in which he would have the opportunity to show that expert psychiatric services were reasonably necessary to the full and fair adjudication of these claims. This motion was predicated upon provisions of the Criminal Justice Act, 18 U.S.C. Sec . 3006A(e), and the Anti-Drug Abuse Act of 1988, 21 U.S.C. Secs . 848(q)(4)(B) and (q)(9).

On April 4, 1989, acting sua sponte,3 the magistrate judge held a hearing at which Lawson was required to reveal to the respondent the basis for his motion to appoint a psychiatric expert. After the hearing, the magistrate judge required Lawson to brief and identify those habeas claims for which he had requested an evidentiary hearing on the appointment motion.

The respondent replied with a motion to dismiss the petition in its entirety, contending that the appointment motion so altered Lawson's habeas petition that it raised a new, unexhausted claim. According to the respondent, this new claim rendered the petition "mixed"--and therefore subject to dismissal--under Rose v. Lundy, 455 U.S. 509, 520-21, 102 S.Ct. 1198, 1204-05, 71 L.Ed.2d 379 (1982).

In his recommended findings of fact and conclusions of law, issued on November 19, 1991, the magistrate judge determined that Lawson's effort to expand his mental competency allegations with a new opinion from a psychiatric expert constituted a "significantly different claim" involving "critical factual evidence which would attempt to markedly improve the posture of [Lawson's] claim." See Lawson v. Dixon, No. C-88-738-S, slip op. at 16 (M.D.N.C. Nov. 19, 1991) (order and recommendation of United States Magistrate Judge).

Because the psychiatrist's testimony would have been the first evidence from any expert indicating possible mental incompetency, the magistrate judge held that Lawson's motion constituted a new (and therefore unexhausted) claim. Id. The magistrate judge further held, however, that the respondent should not be permitted to withdraw his unconditional waiver of exhaustion4 simply because Lawson was attempting to introduce additional proof in support of his factual allegation of incompetency, which had been among the claims directly subject to the respondent's waiver. Id. at 17.

The magistrate judge reasoned, inter alia, that the respondent should have known that the district court would not restrict its review of Lawson's claim to the record before the state courts, as the respondent already had sought unsuccessfully to limit the court's consideration of the petition to the record previously developed before the state tribunals. Id. at 17-18.

Because neither party directly challenges on appeal the validity of the magistrate judge's holding with respect to the respondent's waiver of exhaustion, the question before us involves only the merits of the judge's denial of Lawson's motion. The magistrate judge denied Lawson's request for the appointment of a psychiatric expert because Lawson had "failed to show the necessity" for the appointment. Lawson v. Dixon, No. C-88-738-S, slip op. at 7 (M.D.N.C. Nov. 19, 1991) (order and recommendation of United States Magistrate Judge). After reviewing the supporting affidavit of the psychiatrist Lawson asked the court to appoint, the magistrate judge held that Lawson was not entitled to relief or to an evidentiary hearing on his appointment motion. See Id. III

Lawson now assigns error to three aspects of the district court's denial of his motion for appointment of a psychiatric expert. First, he contends that the magistrate judge erred by failing to hold ex parte proceedings to adjudicate his motion. Second, he urges that the court applied incorrect legal standards in deciding the motion. Third, he argues that the court's conclusions of fact are not fairly supported by the record as a whole. We address these contentions seriatim.

* By far the thorniest issue the instant appeal presents is Lawson's claim that the district court's judgment should be reversed because the magistrate judge failed to hold an ex parte proceeding to adjudicate his appointment motion. The question is one of law; we therefore review the decision below de novo. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501, 508 & n. 27, 104 S.Ct. 1949, 1959, 1964 & n. 27, 80 L.Ed.2d 502 (1984).

Lawson's motion clearly invoked both 18 U.S.C. Sec . 3006A(e) and 21 U.S.C. Secs . 848(q)(4)(B) and (q)(9) as alternative grounds for the appointment of a psychiatric expert. These statutes provide that the district courts may appoint counsel and other experts to assist criminal defendants in judicial proceedings under certain circumstances. The principal difference between the Title 18 and Title 21 provisions lies in the litigative postures under which they afford defendants expert assistance.

18 U.S.C. Sec . 3006A(e) provides in relevant part:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

18 U.S.C. Sec . 3006A(e)(1). Thus, defendants who wish to have the assistance of experts at trial or in collateral-attack proceedings may apply for government funds to pay the cost of employing such experts pursuant to section 3006A(e)(1). If the district court or magistrate judge assigned to the case finds that the defendant cannot obtain the desired services on the strength of his own purse, the court must authorize the defendant's counsel to seek and employ such experts as are "necessary" to the defense. Therefore, appointment of an expert for purposes of mounting a defense at trial is mandatory under Title 18 if the defendant satisfies the statutory prerequisites of indigence and necessity.

By contrast, 21 U.S.C. Sec . 848(q)(4)(B) and (q)(9), read together, provide counsel and expert services only in the context of post-conviction collateral attacks upon the validity of prior federal- and state-court convictions and sentences. Specifically, the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, Sec. 7001(b), 102 Stat. 4181, 4193-94 (1989), amended section 408 of the Controlled Substances Act, 21 U.S.C. Sec . 848, to provide counsel and ancillary support to certain defendants seeking to challenge a sentence of death in post-conviction proceedings under sections 2254 or 2255 of Title 28. The relevant portions of section 848(q)(4)(B) of Title 21 now state that

[i]n any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraph[ ] ... (9).

21 U.S.C. Sec . 848(q)(4)(B). Paragraph (9) of this subsection provides that

[u]pon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore [sic]....

21 U.S.C. Sec . 848(q)(9). By the terms of the statute, Congress mandated the application of federal funds for legal representation of habeas corpus petitioners as well as investigative, expert, and other services, provided the prisoner5 can demonstrate that he is financially unable to secure the assistance on his own and that such assistance is "reasonably necessary" for his representation.

Whether a district court's failure to hold "ex parte proceedings" in order to adjudicate an appointment motion under 21 U.S.C. Sec . 848(q)(9) constitutes reversible error is, so far as we are able to determine, a question of first impression in the federal courts. The few cases that have arisen under the statute since its enactment have dealt exclusively with the merits of such appointments. See, e.g., In re Lindsey, 875 F.2d 1502, 1505-08 (11th Cir.1989) (per curiam). This paucity of authority is hardly surprising; the clear purpose of the statute is to provide counsel and experts for the assistance of habeas corpus petitioners, not to require the holding of ex parte proceedings for their own sake.

Yet it is equally plain that the statute contemplates ex parte proceedings as the proper device for adjudicating appointment motions. We observe that 18 U.S.C. Sec . 3006A(e), the analogous appointment provision of the Criminal Justice Act, has been interpreted as virtually guaranteeing that decisions on expert-appointment motions will be made, as that statute requires, "after appropriate inquiry in an ex parte proceeding." 18 U.S.C. Sec . 3006A(e)(1). See United States v. Chavis, 476 F.2d 1137, 1141-42 (D.C.Cir.1973) (stating that "[a] defendant's indigency [sic] and need for assistance under Sec. 3006A is to be determined by an ex parte proceeding"); United States v. Hamlet, 456 F.2d 1284, 1285 (5th Cir.1972) (per curiam) (holding that "the trial court erred in denying the Sec. 3006A motion without conducting the ex parte inquiry required by the statute"); United States v. Theriault, 440 F.2d 713, 715 (5th Cir.1971) (same).

We agree without hesitation that ex parte proceedings are the only proper means of adjudicating appointment motions contemplated by the language of both the Title 18 and Title 21 statutes. The plain language of section 848(q)(9) should not, therefore, be overlooked simply because (for example) the court prefers all such motions to be handled on the record.

In this case, however, certain countervailing considerations are present. This matter already had assumed an advanced procedural posture when it came before the district court for decision. The respondent had waived the exhaustion requirement unconditionally with respect to all the claims in Lawson's habeas petition.

The court was concerned that Lawson's motion for the appointment of an expert might result in an expansion of his mental-health claims beyond their scope in the habeas petition, and that the respondent would then move to dismiss the petition as "mixed" under Rose v. Lundy. Desiring to avoid the waste of judicial resources such a scenario would entail, the magistrate judge moved sua sponte to hold a hearing at which the effect of the expert's assistance on Lawson's habeas claims could be ascertained.

Under these circumstances, we hold that the magistrate judge's failure to adjudicate Lawson's motion "in an ex parte proceeding," 18 U.S.C. Sec . 3006A(e)(1), or "in ex parte proceedings," 21 U.S.C. Sec . 848(q)(9), was not reversible error. The court's action was a justifiable attempt to ensure that the factual allegations supporting Lawson's petition had been "fairly presented" to the state courts prior to federal habeas corpus review. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Because

it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation[,]

federal courts apply the doctrine of comity, which

teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.

Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950); see also Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982) (same); Duckworth v. Serrano, 454 U.S. 1, 2, 102 S.Ct. 18, 18, 70 L.Ed.2d 1 (1981) (per curiam) (noting that the exhaustion requirement "serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights").

Where petitions for the Great Writ brought pursuant to 28 U.S.C. Sec . 2254 are concerned, the responsibility for "rigorously enforcing [the] total exhaustion rule," Rose, 455 U.S. at 518, 102 S.Ct. at 1203, and thereby preserving comity between the federal and state judicial systems, necessarily falls upon the shoulders of the federal court with jurisdiction of the petition.

Therefore, we conclude that it was proper for the magistrate judge to hold a hearing sua sponte to consider the exhaustion question presented by Lawson's motion. We emphasize that this holding, which effectively creates a narrow exception to the "ex parte proceeding" requirements of 18 U.S.C. Sec . 3006A(e)(1) and 21 U.S.C. Sec . 848(q)(9), is limited to motions made sua sponte by the district court for the purpose of ascertaining whether, and ensuring that, the petitioner's claims have been totally exhausted by a state tribunal when the State has waived exhaustion voluntarily.6

In the alternative, Lawson contends that the magistrate judge erred by failing to hold an ex parte evidentiary hearing at which his appointment motion could be adjudicated. Because the predicate statutes do not require the holding of a hearing, we reject this contention. 21 U.S.C. Sec . 848(q)(9) and 18 U.S.C. Sec . 3006A(e)(1) speak merely of "proceeding(s)" to be conducted ex parte. Following the holding of the sua sponte hearing, the magistrate judge offered Lawson the opportunity to answer the respondent's motion to dismiss his petition with written justifications for his request that a psychiatric expert be appointed.

The magistrate judge's recommended findings of fact and conclusions of law amply reflect the care with which the court considered Lawson's arguments on this point. The purpose of the statute's "proceeding" requirement is to ensure that the petitioner's motion is carefully examined by the court, not to force the holding of formal hearings for their own sake. Therefore, we conclude that the magistrate judge did not err by failing to hold a hearing on the merits of his appointment motion.


We now consider Lawson's contention that the district court erred by applying the incorrect legal standard in adjudicating his appointment motion.

Both 18 U.S.C. Sec . 3006A(e)(1) and 21 U.S.C. Secs . 848(q)(9) require (1) that the habeas petitioner be financially unable to obtain the requested expert services on his own, and (2) that such services be "necessary" (18 U.S.C. Sec . 3006A(e)(1)) or "reasonably necessary" (21 U.S.C. Sec . 848(q)(9)) for the defendant's representation. Neither party contests Lawson's indigence. The only question, therefore, is whether expert services are "necessary" or "reasonably necessary" for Lawson's prosecution of the mental-competency claims in his habeas petition.

Lawson moved for the appointment of an expert psychiatrist after filing his habeas petition. Thus, he cannot assert that the psychiatrist's services were necessary to help prepare the claims in his pleading. Lawson proffered the affidavit of Dr. Billy Royal, the psychiatrist he asked the court to appoint, which stated that Dr. Royal already had formed his opinion on Lawson's alleged lack of competency and inability to waive his right to a sentencing hearing. Dr. Royal apparently requested further study on the issue of the presence of psychological mitigating evidence, although he opined tentatively in that area as well. Thus, it appears that Lawson already had marshalled the evidence he wished Dr. Royal to expound upon.

To determine whether Dr. Royal's appointment was "reasonably necessary," the district court had to decide whether the record, viewed in the light of Dr. Royal's forecasted evidence, required an evidentiary hearing in order to resolve the mental-competency claims in Lawson's habeas petition. Obviously, there was no need to appoint Dr. Royal if Lawson's petition raised no claims entitling him to a hearing at which the psychiatrist could present evidence of Lawson's competence. For the reasons stated in part IV, infra, we conclude that Lawson was not entitled to an evidentiary hearing on the claims presented in his habeas petition. We therefore hold that there was no "reasonable necessity" for Dr. Royal's appointment.


Finally, Lawson argues that the district court's factual analysis of his motion was clearly erroneous and not fairly supported by the record. For the reasons set forth in the magistrate judge's recommended findings of fact and conclusions of law, see Lawson v. Dixon, No. C-88-738-S, slip op. at 35-61 (M.D.N.C. Aug. 19, 1991) (order and recommendation of United States Magistrate Judge), we disagree.

After carefully comparing Lawson's motion and accompanying affidavit with the relevant portions of the state-court record, we are not left with "the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Accordingly, we hold that the district court did not clearly err in analyzing Lawson's factual assertions with respect to his appointment motion.


In his second argument for reversal, Lawson contends that the magistrate judge erred in denying his motion for an evidentiary hearing on the four mental-health claims presented in his petition for the writ because the claims contained allegations not subjected to factual development in the state courts.

A habeas petitioner is not entitled to an evidentiary hearing on mental-competency claims in his habeas petition unless he presents clear and convincing evidence that creates a real, substantial, and legitimate doubt with respect to the petitioner's mental capacity and ability to assist his counsel at trial. Such evidence must be both positive and unequivocal. See, e.g., Adams v. Wainwright, 764 F.2d 1356, 1360 (11th Cir.1985), cert. denied, 474 U.S. 1073 , 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

In order to meet this standard, we agree with the Fifth Circuit Court of Appeals that the petitioner must present "a history of mental illness, [or] substantial evidence of mental incompetence at or near the time of the trial supported by the opinions of qualified physicians and the testimony of laymen." Flugence v. Butler, 848 F.2d 77, 79 (5th Cir.1988). Should the petitioner clear this lofty hurdle, an evidentiary hearing will be convened at which he may prove his incompetence at the time of trial by a preponderance of the evidence.

For the reasons set forth in the magistrate judge's recommended findings of fact and conclusions of law, see Lawson v. Dixon, No. C-88-738-S, slip op. at 35-61 (M.D.N.C. Nov. 19, 1991) (order and recommendation of United States Magistrate Judge), we agree with the district court that Lawson has failed to present clear and convincing evidence of positive and unequivocal facts which generate a substantial and legitimate doubt as to his mental capacity. Accordingly, we affirm the district court's decision not to accord Lawson an evidentiary hearing on the psychological claims presented by his habeas petition.


Lawson also assigns error to three matters arising from the guilt-innocence and penalty phases of his trial. First, he contends that there is a reasonable likelihood that the penalty-phase jury instructions unconstitutionally required the jurors unanimously to find and consider mitigating evidence. Second, he argues that the jury instruction on the offense of first-degree murder created a presumption of malice and thereby denied him due process of law. Third, he urges that prosecutorial misconduct so infected the trial as to deny him due process of law and to render the sentencing determination unreliable. The district court declined to issue the writ on any of these grounds. Because we have rejected precisely these contentions in previous decisions, we find them meritless in the instant case.

* In instructing the jury with respect to the weighing of aggravating circumstances against mitigating circumstances during the penalty phase of Lawson's trial, the superior court stated:

[The issue is] do you find unanimously beyond a reasonable doubt that the aggravating circumstance or circumstances found by you outweigg [sic] any mitigating circumstance or circumstances found by you.

Lawson attacks these jury instructions on the ground that they prevented the jury from considering mitigating evidence unless all twelve jurors agreed on the existence of a particular mitigating circumstance. He claims that the instructions in this respect violated the rules established in Mills v. Maryland, 486 U.S. 367, 384, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990).

In Maynard v. Dixon, 943 F.2d 407 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1211, 117 L.Ed.2d 450 (1992), this court examined a North Carolina jury instruction identical to that under review here. Id. at 419. We held that such an instruction "does not run afoul of Mills/McKoy" because it does not state that jurors must "agree unanimously" on the existence of a mitigating factor. Id. The question having been thus decided by a panel of this tribunal, we reject Lawson's argument without further discussion.


During the jury charge at the guilt-innocence phase of Lawson's trial, the superior court instructed the jury that malice is

that condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict a wound with a deadly weapon upon another which approximately [sic] results in death.

The superior court then instructed the jury with respect to first-degree murder thatif the State proves beyond a reasonable doubt that the defendant intentionally killed ... Wayne Shinn with a deadly weapon that approximately [sic] caused his death, the law implies first, that the killing was unlawful, and second, that it was done with malice.

Lawson contends that this instruction was improper because it informed the jury that the law "implies," rather than allows, the drawing of an inference that malice existed. In Rook v. Rice, 783 F.2d 401 (4th Cir.), cert. denied, 478 U.S. 1022 , 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986), and Davis v. Allsbrooks, 778 F.2d 168 (4th Cir.1985), this court considered North Carolina jury instructions identical to those under review here. In both cases we held that the instruction merely shifted the burden of production on the malice element of the crime to the defendant, but did not shift the ultimate burden of proof to him. See Rook, 783 F.2d at 405; Davis, 778 F.2d at 172-74. In light of our holdings in Rook and Davis, therefore, we reject Lawson's contention without further discussion.


During summation at the guilt phase of Lawson's trial, the prosecutor argued to the jury that the victim's house was not his castle but his "crucifixion block." The prosecutor also argued that it was "sickening to me to think that defendants are tried in the beautiful courtroom like this." The prosecutor further stated that Lawson's constitutional rights should be compared with those of the victims, noting that Buren Shinn "had no attorney sitting next to him."

He also urged that in other countries, after being convicted of first-degree murder, authorities would bring a rope and hang the defendant summarily. Lawson contends that these arguments so infected his trial as to render it fundamentally unfair, and that he therefore is entitled to the writ.

In Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), the Supreme Court reiterated that the standard in habeas cases for assessing improper prosecutorial comment is, as initially enunciated in Donnelly v. De Christoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), whether the proceeding at issue was rendered fundamentally unfair by the improper argument. Darden, 477 U.S. at 181, 106 S.Ct. at 2471; Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873.

This standard is the same for both the prosecution's guilt-innocence and penalty phase arguments. E.g., Adams v. Aiken, 965 F.2d 1306, 1320 (4th Cir.1992), cert. denied sub nom. Adams v. Evatt, --- U.S. ----, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1993); Gaskins v. McKellar, 916 F.2d 941, 951 (4th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 14, 115 L.Ed.2d 1098 (1991).

In determining whether a prosecutor's comments denied the defendant fundamental fairness, the Supreme Court has emphasized the necessity of looking to the nature of the comments, the nature and quantum of the evidence before the jury, the arguments of opposing counsel, the judge's charge, and whether the errors were isolated or repeated. Darden, 477 U.S. at 182, 106 S.Ct. at 2472; Donnelly, 416 U.S. at 647, 94 S.Ct. at 1873.

Here the evidence of Lawson's guilt was overwhelming. The prosecutor's comments, while excessive and needlessly inflammatory, were relatively isolated. Viewing the comments in light of the superior court's accurate instructions to the jury on the elements of the crimes charged and the heavy quantum of proof necessary to convict the defendant of their commission, we hold that the State's closing arguments did not deprive Lawson of due process.


For the foregoing reasons, the judgment of the district court is hereby



1 Specifically, Lawson claimed that James C. Johnson, his counsel in the trial and appellate proceedings before the state courts of North Carolina, had rendered him ineffective assistance of counsel with respect to (1) his motion to change venue; (2) jury selection; (3) the identification procedures employed at trial; (4) his failure adequately to challenge the sufficiency of the evidence to support aggravating factors at the penalty phase on direct appeal; (5) his failure adequately to challenge the sufficiency of the evidence to support the jury's imposition of the death sentence; (6) his failure adequately to challenge the proportionality of the death sentence; (7) the preparation and filing of a petition for the writ of certiorari in the Supreme Court of the United States; and (8) the preparation of the record on appeal and the written brief in the Supreme Court of North Carolina

2 The respondent, Gary T. Dixon, is warden of Central Prison in Raleigh, North Carolina, where Lawson presently is incarcerated

3 At the hearing on Lawson's motion, the magistrate judge made it clear that he had summoned both parties sua sponte to discuss the motion's impact on Lawson's habeas petition generally. See, e.g., J.A. 742 (magistrate judge stating that "[t]he reason why I called you gentlemen is that I received an ex parte motion from the petitioner with respect to requesting the appointment of a psychiatric expert"); id. 744 (magistrate judge stating that "I just thought I'd call a hearing [to resolve Lawson's motion]")

4 The magistrate judge properly recognized that exhaustion is not a jurisdictional requirement, but rather arises from interests of comity between the state and federal courts. Indeed, whether a federal court of appeals should require exhaustion is under some circumstances discretionary. See Granberry v. Greer, 481 U.S. 129, 132-36, 107 S.Ct. 1671, 1674-76, 95 L.Ed.2d 119 (1987). Because exhaustion is not a jurisdictional bar, the state may waive it. Id. Yet the waiver must be unconditional. See Sweezy v. Garrison, 694 F.2d 331, 331 (4th Cir.1982) (per curiam), cert. denied, 461 U.S. 908 , 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983); Harding v. North Carolina, 683 F.2d 850, 852-53 (4th Cir.1982) (holding conditional waiver "flatly incompatible" with the spirit of the comity considerations inherent in the exhaustion requirement)

Although the instant case does not present, and we do not reach, the question of when a state's waiver of exhaustion as to particular issues in a section 2254 petition ought to be accepted or rejected, we agree with the Eighth and Eleventh Circuit Courts of Appeals that district courts have discretion to do either. See Purnell v. Missouri Dep't of Corrections, 753 F.2d 703, 708-10 (8th Cir.1985); Thompson v. Wainwright, 714 F.2d 1495, 1509 (11th Cir.1983), cert. denied, 466 U.S. 962 , 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984).

5 In the absence of any meaningful legislative history of 21 U.S.C. Secs . 848(q)(4)(B) and (q)(9), some might argue that the statute's counsel and expert-services provisions were intended to apply only to those federal death sentences imposed under the Anti-Drug Abuse Act, see 21 U.S.C. Sec . 848(e), and not to state death-penalty cases under federal habeas corpus review. Such an interpretation would, in our view, fly in the face of the statute's plain meaning. Because death sentences imposed under the Act will be handed down by federal courts for federal crimes, only one of the statutory predicates for section 848(q)(4)(B)--28 U.S.C. Sec . 2255--would ever be used. Of course, 28 U.S.C. Sec . 2254 is the primary vehicle by which state prisoners challenge state criminal judgments in federal court. We believe that by referring to section 2254, Congress clearly intended to create a counsel and expert-services guarantee in federal habeas review of state-imposed death sentences as well

6 Thus, we anticipate that, where the State has entered no waiver of exhaustion, district courts will continue to hold the ex parte proceedings required by the appointment statutes, and will, in the concealed venue of such proceedings, inform petitioners deemed to be raising new and unexhausted habeas claims that their petitions will be dismissed pursuant to Rose v. Lundy absent the bringing of additional state-court proceedings to exhaust the new claims


25 F.3d 1040

22 Media L. Rep. 1839

David LAWSON; Phillip J. Donahue; James Arnold, Plaintiffs
Gary DIXON, as an individual and in his capacity as Warden, Central Prison,
a Division of the North Carolina Department of Correction;
Franklin Freeman, as an individual and in his capacity as Secretary of the
Department of Corrections, Defendants Appellees.

No. 94-6640.

United States Court of Appeals, Fourth Circuit.

Submitted: June 8, 1994.
Decided: June 13, 1994.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, District Judge. (CA-94-389-5-BR1)

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

ERVIN, Chief Judge.

David Lawson (Lawson) is scheduled to be executed by the State of North Carolina using lethal gas at 2 a.m. on the morning of Wednesday, June 15, 1994. On April 13, 1994, two days after he received notice of his scheduled execution date, Lawson wrote to the warden of Central Prison, Gary Dixon, and designated the individuals he desired to be present at the time of his execution. Among the individuals named were Phillip Donahue (Donahue) and James Arnold (Arnold).

Donahue is a widely-known television journalist and talk-show host; Arnold is a cameraman who has won two Emmy awards for his work. In the same letter, Lawson requested that Donahue and Arnold be allowed to videotape his execution for inclusion in a documentary that was being prepared on his life. According to Lawson, he desired that his life

serve as an example to others of the effects of child abuse, anxiety disorder, depression and the pitfalls of a life of crime; and that it be used as an educational medium to aid in the prevention of and hopefully as a deterrent to others who might fall into the same lifestyles and patterns of conduct which I followed.

He also stated:

I also feel and am equally committed to do all within my power to inform the public of the true significance of the death penalty and thereby to make a meaningful contribution to the significant public debate over the use of the death penalty.

In a separate letter the same day, Donahue wrote to Dixon requesting that he be allowed to make an audio-visual recording of the execution. He assured Dixon that "we intend to do this program tastefully, in a responsible way, without sensationalism and with no discredit to your institution."

On April 26, 1994, Dixon responded to Donahue and Lawson, indicating that he would not allow them to video record Lawson's execution because of "interests of the orderly operation and security of this institution."1

Subsequently, Lawson, Donahue and Arnold initiated state court proceedings against Dixon and Freeman, the Secretary of the Department of Correction, the defendants-appellees in this case, alleging violations of their rights under the First and Fourteenth Amendments to the United States Constitution and under Article 1, Section 14 of the North Carolina Constitution. As outlined below, after a remarkable series of proceedings, the result of the state litigation was a May 17, 1994 decision by the Supreme Court of North Carolina on the merits, finding that Lawson, Donahue and Arnold do not have a right under either the United States or North Carolina Constitutions to videotape Lawson's execution. Lawson v. Dixon, No. 198P94-2 (May 17, 1994). A subsequent petition for rehearing, filed May 27, was denied on May 31.

On June 1, Lawson, Donahue and Arnold2 initiated this Complaint for Declaratory and Injunctive Relief in the United States District Court for the Eastern District of North Carolina, Raleigh Division. It named the same two defendants as the state litigation, Dixon and Freeman; and it alleged the same federal violations of the freedoms of speech and expression protected by the First and Fourteenth Amendments to the United States Constitution. At the same time, plaintiffs also moved for a preliminary injunction. Two days later, Dixon moved to dismiss for lack of subject matter or personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1),(2) and failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); in addition, he argued that the claim was barred by reason of res judicata.

The district court held hearings on the outstanding motions on June 7, 1994, at which time it issued a bench ruling dismissing the case. As the first ground for dismissal, the court cited District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and its progeny. In the alternative, the court granted summary judgment for the state defendants by holding that the plaintiffs do not have a right to audiotape or videotape an execution. Lawson immediately noted his appeal in district court and filed with this court a motion to stay the judgment and requesting an injunction allowing the videotaping of Lawson's execution. For the reasons stated below, we affirm the judgment of the district court.


The district court relied as its principal holding upon what can be called the Feldman doctrine. That doctrine, which certainly does not originate with that case, involves the question of the power of federal courts to interfere with adjudicatory proceedings in state courts. "Federal courts, with the exception of the United States Supreme Court, do not possess appellate jurisdiction over state court proceedings." Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir.1990); accord Feldman, 460 U.S. at 476; Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296 (1970).

Although Dixon presses upon us a line of cases in support of his argument that we are presented with just such a scenario here, the differences between those cases and the instant scenario convince us that they are not analogous. In the "normal" application of this doctrine, a party that has lost in some way in a state court proceeding seeks refuge in the federal courts by alleging, usually through an action under 42 U.S.C. Sec. 1983, that the state court's actions and/or judgment violated the federal plaintiff's constitutional rights. Also, the relief requested usually is an injunction preventing the implementation of the state court's order, and the defendants usually include the judge by whom the federal plaintiff has been aggrieved. Thus, these elements constitute typical evidence of a classic collateral attack on an otherwise valid state action.

This case, while it has difficulties of its own, does not possess difficulties of that sort. The defendants are not judicial officials; the relief requested does not include a stay of an order of the North Carolina Supreme Court; and the complaint in no way references the prior litigation. The Feldman doctrine is not implicated because we are not requested to sit in appellate review of the actions of our sister state court. The district court erred in finding that it lacked jurisdiction under Feldman.


Before we reach the merits, however, we must address a second affirmative defense that the defendants raise, namely, the preclusive effect of the prior state litigation. For the reasons stated below, we believe that Lawson is precluded from raising this claim in federal court, having already litigated this issue in state court to a final judgment on the merits.

Title 28, Section 1738 of the United States Code states that

Acts, records and judicial proceedings ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.

As we recently explained,

federal courts asked in a Sec. 1983 action to give res judicata effect (in any of the doctrine's aspects) to a state court judgment are bound under the Full Faith and Credit statute, 28 U.S.C. Sec. 1738, to apply the law of the rendering state to determine whether and to what extent the state court judgment should have preclusive effect in the federal action. The question here, then, is whether, if the instant Sec. 1983 action were pending in a North Carolina state court, the North Carolina courts would give the earlier state court judgment ... claim-preclusive effect.

Davenport v. North Carolina Dep't of Transp., 3 F.3d 89, 92-93 (4th Cir.1993) (citations and footnote omitted). We must therefore look to North Carolina law to determine the elements of claim preclusion.3

Under North Carolina law, for claim preclusion to apply, "a party must show that a previous suit has resulted in a final judgment on the merits, that the same cause of action is involved, and that [the current plaintiffs and defendants] were either parties or stand in privity with parties" in the previous suit. Swanson v. State, 441 S.E.2d 537, 548 (N.C.1994). Here, each of these elements has been met. The North Carolina Supreme Court dismissed Lawson's action on the merits in its May 17 order;4 the First and Fourteenth Amendment claim is identical, as is the relief requested; and the plaintiffs and defendants are identical. Thus, every indication is that this claim is barred from being relitigated, having been litigated once to conclusion.

Nevertheless, there is an aspect of the case that we must confess gives us pause. For while it is not a stated element of the North Carolina test to give claim-preclusive effect to a prior judgment, under the holding in Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-81 (1982), only state proceedings that satisfy the minimum procedural requirements of the Fourteenth Amendment's Due Process Clause will be given full faith and credit by a federal court. Accord Lee v. Winston, 717 F.2d 888 (4th Cir.1983); Jones v. City of Alton, 757 F.2d 878 (7th Cir.1985). Thus, since the plaintiffs have challenged the process to which they were subjected in the state proceeding that the defendants now attempt to use to bar this proceeding, we find it necessary to briefly address this question. Although we ultimately hold that sufficient procedural process was made available to the plaintiffs in that case, the extraordinary nature of the course of that case makes this a very difficult question.

On May 2, 1994, Lawson filed a Petition for Writ of Mandamus and Prohibitive Injunctive Relief in Wake County Superior Court. The Superior Court issued an Order to Show Cause to Dixon. In response, Dixon filed a Motion to Bypass the North Carolina Court of Appeals, a Petition for Writ of Supersedeas, a Motion for Temporary Stay and a Petition for Writ of Certiorari with the North Carolina Supreme Court. On May 5, the Supreme Court stayed all orders entered by the trial court. Subsequently, on May 9, Lawson dismissed the case and refiled it as a Complaint in the same court the same day. Once again, the Superior Court, on May 9, ordered Dixon to show cause why the videotaping should not be allowed, and on May 10 it set the depositions of Dixon and Freeman. Dixon and Freeman then turned again to the North Carolina Supreme Court, filing a Petition for Writ of Certiorari and a Motion to Bypass the Court of Appeals, as well as a Petition for Writ of Supersedeas and Motion for a Temporary Stay the same day. On that day, the North Carolina Supreme Court stayed all orders of the Superior Court, pending a response from Lawson. Lawson's response was filed with the Supreme Court on May 11. It explained at length why he thought that Dixon's motions were improper. Although Dixon's brief expended considerable energy arguing the merits of the constitutional issue at the center of the case, Lawson did not address the constitutional issue on the merits except in a limited fashion that cited no cases and was less than a full page in length. The defendants replied on May 12, and the plaintiffs responded to the reply the same day.

On May 17, the North Carolina Supreme Court issued an order in the case. It suspended the requirements of the rules of appellate procedure and, in the exercise of its supervisory powers pursuant to the North Carolina Constitution, it granted the motion to bypass the court of appeals and issued the writ for certiorari. It then reached the merits of the case and decided them against Lawson, as quoted in footnote 4, supra. Subsequently, on May 27, Lawson filed a petition for rehearing in the North Carolina Supreme Court. That petition had two aspects. First, it asserted that the court's handling and disposal of the case, through which it essentially took original jurisdiction of the case and disposed of it without briefs on the merits, was erroneous and violated Lawson's due process rights. Second, it argued in the petition and in an accompanying Brief of Authorities that the decision on the merits was wrongly decided. On May 31, the court denied the petition for rehearing without comment.

The core of the procedural due process rights under the Fourteenth Amendment guarantee a party notice and an opportunity to be heard. Here, the North Carolina Supreme Court reached the case on the merits from a petition for writ of certiorari, without Lawson having had the opportunity to brief the matter on its merits prior to its decision. Given the rapidity with which the entire adjudication took place, and the apparent lack of notice to Lawson that the court would determine the case on the merits without first granting the writ of certiorari (and of course Lawson never having set out the merits of his legal argument at any point in the proceedings), we are highly disquieted by the occurrences that resulted in the May 17 order. However, we must acknowledge that the plaintiffs did, eventually, brief the issue of the constitutionality of the videotaping matter on the merits and that this opportunity to ask for rehearing, under these particular circumstances in this sui generis case, appear to have given the state court a reasonable opportunity to rectify its error in denying notice, and thus satisfied the bare minimum requirements of procedural due process under the Fourteenth Amendment. 18 Wright et al., Federal Practice and Procedure Sec. 4415, at 129 (1981).

We emphasize that, under Kremer, we can examine only those aspects of the previous case that implicate procedural due process in determining whether to give preclusive effect to the prior state adjudication. Thus, other errors that may be disclosed in our review of the state court case must be passed over, for if we were to begin to investigate these, we would bring ourselves back into Feldman territory for certain. This rule is implicit in the Kremer opinion, and it is certainly the law that we must apply in our incarnation as a state court under 28 U.S.C. Sec. 1738. See King v. Grindstaff, 200 S.E.2d 799, 808 (N.C.1973) ("To be valid a judgment need not be free from error. Normally no matter how erroneous a final valid judgment may be on either the facts or the law, it has binding res judicata and collateral estoppel effect in all courts, Federal and State, on the parties and their privies.").5

Thus, given that we hold that, under the particular and peculiar circumstances of this case in the state courts of North Carolina, procedural due process requirements were met, we must also by necessity hold that we are precluded from hearing this decision because of the prior adjudication of the same claim between the same parties in the state courts of North Carolina. For this reason, the judgment below is affirmed.

The mandate shall issue forthwith.



WIDENER, Circuit Judge, concurring:

I concur with most of the panel opinion in this case and with the judgment. I write separately, however, to note that I do not join in any suggestion that the North Carolina Supreme Court's handling of Lawson's1 appeal may have been improper. I also do not join in footnote five of the opinion.

The sequence of filings before the state courts is stated in the majority opinion. Yet, despite Lawson's filing on May 11th of a response to Dixon's motions of May 10th, and then a response on May 12th to Dixon's reply of May 12, the opinion may suggest that the fault for Lawson not responding to Dixon's arguments on the merits lies with the Court and not with the attorneys. I think Lawson had all of the process he was due, and I am not troubled by the procedures used. I need not rely on the petition for rehearing as a basis for concluding that Lawson eventually did have a chance to address the merits of his claim, although that fact adds support to the result we obtain. Lawson had a chance in his responses, and the petition for rehearing provided him with another chance.

Beyond that, I write separately to indicate that I do not join in the substance of footnote five. In 1890, the Supreme Court decided:

Whether a convict, sentenced to death, shall be executed before or after sunrise, or within or outside the walls of a jail, or within or outside of some other inclosure, and whether the inclosure within which he is executed shall be higher than the gallows, thus excluding the view of persons outside, are regulations that do not affect his sustantial [sic] rights. The same observation may be made touching the restriction in section five [of the statute at issue] as to the number and character of those who may witness the execution, and the exclusion altogether of reporters or representatives of newspapers. These are regulations which the Legislature, in its wisdom, and for the public good, could legally prescribe in respect to executions....

Holden v. Minnesota, 137 U.S. 483, 491 (1890). Holden has not been overruled. Applying the principle that the greater power includes the lesser, it is obvious that if the condemned has no substantial rights under the United States Constitution as to who may be allowed to witness his execution, he certainly has no substantial rights in whether one of his invited witnesses may bring a video camera to the execution and film it. The lateness of the hour does not permit me to voice additional concerns I would have if required to accept the argument that Lawson's free speech rights are violated by the inability of someone else to videotape his execution. However, Holden is sufficient authority for me to note my disagreement with any implication that the North Carolina Supreme Court incorrectly decided the merits.

In addition, I note my disagreement with the majority that Holden and Garrett v. Estelle, 556 F.2d 1274 (5th Cir.1977), cert. denied, 438 U.S. 914 (1978), do not control at least part of this case.2 Garrett is on all fours, factually and legally, with the claim of Donahue and Arnold to a right to make a television tape of the execution. As I read the papers before us and the transcript of the hearing before the district court, Lawson's claim is also predicated at least in part on claimed First Amendment rights of Donahue and Arnold as members of the press.3 The holding in Garrett is conclusive on that point. See also Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425, 438 (Pa.1978) (construing Garrett and Holden ), appeal dismissed for want of federal question, 443 U.S. 913 (1979); cf. Halquist v. Department of Corrections, 783 P.2d 1065 (Wash.1989) (per curiam) (finding ban on videotaping executions a proper limit on media right to access under the Constitution of the State of Washington).

I would find no difficult questions implicating due process in the actions of the North Carolina Supreme Court. I would also find that neither Lawson nor Donahue nor Arnold had had violated a First Amendment right of any of them to videotape Lawson's execution.


NIEMEYER, Circuit Judge, concurring:

I concur in the court's opinion and write separately only to note that because of the unusual procedure followed by the North Carolina courts, though perhaps justified by the exigency of time, I would address the merits and conclude that Lawson does not have a First Amendment right to have his death videotaped. Moreover, the demand by Donahue and Arnold to have access to videotape Lawson's death does not, in this case, implicate the First Amendment right to free speech or free press. See Houchins v. KQED, Inc., 438 U.S. 1 (1978). While the right of access to places, events, and information is not guaranteed by the First Amendment, I hasten to note that the right to communicate or publish information actually obtained falls within the amendment's core. Because I believe that North Carolina has the legal right to regulate access to its prisons and to events involving the execution of duly imposed sentences, I rely also on these reasons to affirm.



It is our understanding that North Carolina, in an apparently unusual departure from past practice, has since indicated that it will not allow Lawson to designate Donahue as one of his witnesses to the execution. Because we do not reach the merits of the matter before us on appeal, we need not address the complications to the First Amendment argument this exclusion raises. In addition, there is no claim within the current appeal that Lawson has a constitutional right to select whomever he wishes to attend as his designee; the materials submitted by Lawson et al. indicate that they have proceeded on the assumption that the State would honor Lawson's request regarding the identity of each designated witness present on his behalf. We thus have no occasion to address this matter today


We hereafter refer to these three parties simply as "Lawson." Similarly, Dixon and Freeman will be referred to as "Dixon."


Claim preclusion is the more recent nomenclature for what often is referred to as res judicata. Because that term is sometimes confusingly used to include both issue and claim preclusion, we choose here to use the more precise term for the sake of clarity


The Supreme Court of North Carolina stated:

And the Court, having reviewed the request in plaintiff's complaint and the orders, concludes that only a question of law is raised by plaintiffs' complaint; that plaintiffs David Lawson, Phillip J. Donahue, and James Arnold do not have a right under either the First or Fourteenth Amendments to the United States Constitution or under Article 1, Section 14 of the North Carolina Constitution to audiotape or videotape plaintiff Lawson's scheduled execution, see Houchins v. KQED, Inc., 438 U.S. 1 (1978); Pell v. Procunier, 417 U.S. 817 (1974); Garrett v. Estelle, 556 F.2d 1274 (5th Cir.1977); that under N.C.G.S. Sec. 15-190 the execution is under the supervision and control of Warden Dixon; and that, as a matter of law, neither Secretary Freeman nor Warden Dixon can be mandamused to permit the requested audiotaping or videotaping.

Lawson v. Dixon, No. 198P94-2 (May 17, 1994), at 2.


For example, we note that the North Carolina Supreme Court based its holding on a series of cases dealing more directly with the rights of journalists to have access to prison facilities and executions, which has been the principal theoretical framework under which this claim has been considered in the case law and the literature. See Estelle v. Garrett, 556 F.2d 1274 (5th Cir.1977); Richards & Easter, Televising Executions: The High-Tech Alternative to Public Hangings, 40 U.C.L.A. L.Rev. 381 (1992); Drobny, Death TV: Media Access to Executions under the First Amendment, 70 Wash. U.L.Q. 1179 (1992); Turner & Brinkman, Televising Executions: The First Amendment Issues, 32 Santa Clara L.Rev. 1135. The claim in both the state court and federal court proceeding, by contrast, was leveraged off a claim of Lawson's First Amendment right of freedom of expression, and challenged the restriction of methods of communication of his message by prohibiting cameras to videotape his execution. Whatever the final result, which of course we cannot and do not reach, the usual rule is that a state must proffer some reason justifying its restriction so that a court can balance the individual's right against the state's need. In the state case, no evidence was ever introduced by Dixon offering a reason for its prohibition, raising questions regarding the soundness of the North Carolina Supreme Court's final judgment. However, while Lawson's papers filed below and on appeal attempt to persuade us that we should not accord the judgment preclusive effect for this reason, under the rules by which we are bound in either our federal capacity or our incarnation as a state court, we cannot reach these issues, which are better presented to the Supreme Court in appeal from the state court judgment


My reference to Lawson's appeal should be understood to include the appeals of Donahue and Arnold


Garrett relied on Holden


I would add that there has been no exclusion of the press from this execution. See North Carolina General Statutes 15-190, and Department of Correction Policy Statement, Revised January, 1994. The Policy Statement provides in applicable part, for the press to witness executions as follows:

[F]ive media witnesses and five media alternates are selected by the North Carolina Press Association, the Radio Television News Directors' Association of the Carolinas (RTNDAC) and the Associated Press. The Press Association and RTNDAC each select two witnesses and two alternates. The Associated Press selects one witness and one alternate. The five witnesses will enter the witness chamber and witness the execution. Media alternates will serve when a media witness is not available to enter the prison at 1:00 AM in preparation for the execution at 2:00 AM.

Also, along the same line, at the argument in the district court it was understood by everyone that Donahue would be permitted to witness the execution but not permitted to bring a television camera. Remarkably, in no paper filed with us has Lawson or Donahue complained of any revocation of that invitation, although the current petition to the Supreme Court states the same was revoked on June 8th. As the panel opinion indicates, however, that is not a question before us.


25 F.3d 1040

David Lawson, Petitioner Appellant,
Gary Dixon, Warden, Central Prison, Respondent Appellee

United States Court of Appeals, Fourth Circuit.

Submitted June 11, 1994.
Decided June 13, 1994

Appeal from the United States District Court for the Middle District of North Carolina, at Salisbury. Frank W. Bullock, Jr., Chief District Judge. (CA-94-290-4)

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


David Lawson has appealed from the district court's dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. He also challenges the district court's denial of his requests for leave to conduct discovery, for an evidentiary hearing, and for a stay of execution. We find no merit to any of Lawson's claims, and accordingly, we affirm.


Lawson was tried and convicted in the Superior Court of Cabarrus County, North Carolina, during the June 1981 term of court on charges of first degree murder, felonious assault, and felonious breaking and entering. He was sentenced to death on the murder charge and to substantial terms of imprisonment on the two remaining charges.

He subsequently gave notice of appeal to the Supreme Court of North Carolina, which affirmed his convictions in 1984. State v. Lawson, 310 N.C. 632, 314 S.E.2d 493 (1984). The Supreme Court denied Lawson's petition for certiorari in 1985. Lawson v. North Carolina, 471 U.S. 1120 (1985). The factual circumstances of the case are set forth both in the North Carolina Supreme Court's opinion and in our decision in Lawson v. Dixon, 3 F.3d 743 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 556, reh'g denied, --- U.S. ----, 114 S.Ct. 1391, 128 L.Ed.2d 65 (1994).

Following his direct appeal and unsuccessful application for certiorari, Lawson has filed four (4) motions for appropriate relief in state courts and two federal habeas corpus petitions, including the one addressed in this court's August 26, 1993 opinion. For a detailed analysis of some of his prior filings, and the issues raised therein, see Lawson, 3 F.3d at 747-48.

Following unsuccessful efforts to have the United States Supreme Court review our first decision, see Lawson v. Dixon, --- U.S. ----, 114 S.Ct. 1208, 127 L.Ed.2d 556 (1994), and the North Carolina Supreme Court's order denying Lawson's third motion for appropriate relief, see State v. Lawson, --- N.C. ----, --- S.E.2d ---- (March 3, 1994) (No. 142A81-3), and Lawson v. Dixon, --- U.S. ----, 114 S.Ct. 1391, 128 L.Ed.2d 65 (1994), on April 11, 1994, Lawson's execution date was rescheduled by a North Carolina Superior Court Judge, for Wednesday, June 15, 1994, between the hours of 12:01 AM and 6:00 PM.

The rescheduling and the denial by the North Carolina Supreme Court of Lawson's request to have his execution videotaped by the Phil Donahue Show, led to the filing on May 18, 1994, by Lawson in the North Carolina Supreme Court of a petition for habeas corpus claiming that his execution by gas is cruel and/or unusual punishment under the state and federal constitutions. This petition was denied on May 25, 1994. State v. Lawson, --- N.C. ----, --- S.E.2d ---- (May 25, 1994) (No. 142A81-3).

On May 20, 1994, Lawson then filed his fourth motion for appropriate relief in the Cabarrus County Superior Court raising six additional grounds for relief. Although these claims are couched in slightly different language in his recent filings they are in essence as follows: (1) that his constitutional right to conflict-free counsel was violated during trial and on direct appeal because one of his trial counsel is said to have revealed confidential attorney-client communications and to have had a conflict of interest with Lawson; (2) that the trial court excused prospective jurors for illegal reasons outside Lawson's presence, including one juror on account of religion; (3) that the trial court denied Lawson his right to self-representation on direct appeal; (4) that one of Lawson's jurors, who had lost his driver's license due to an excessive number of speeding tickets, was driven to and from the courthouse on one or more occasions by law enforcement officials from the Concord Police Department and engaged in conversations with these officials outside the courtroom; (5) that the same juror misstated in a juror information questionnaire that he did not have a close friend in law enforcement; and (6) that trial counsel failed to question many of the potential jurors whether they automatically would vote to return a verdict of death for anyone convicted of first degree murder and thus provided ineffective assistance of counsel.

The presiding judge of the Superior Court of Cabarrus County entered an order on May 31, 1994, denying all of Lawson's claims. On June 2, 1994, Lawson filed a petition for writ of certiorari and a motion for stay of execution in the North Carolina Supreme Court, which were denied on the same day. State v. Lawson, --- N.C. ----, --- S.E.2d ---- (June 2, 1994) (No. 142A81-4).

Thereafter on June 7, 1994, Lawson filed his second federal petition for writ of habeas corpus, and motions for stay of execution, discovery, and evidentiary hearings in the United States District Court for the Middle District of North Carolina.

This petition contained in substance, at least four of the six claims listed above, plus an allegation that execution by gas is cruel and unusual punishment in violation of the Eighth Amendment. This later allegation had been unsuccessfully presented directly to the Chief Justice of the North Carolina Supreme Court as a petition for a writ of habeas corpus and the court had denied it on May 25, 1994.

Following oral argument held on June 9, 1994, a United States Magistrate Judge in an Order and Recommendation recommended the rejection of all of Lawson's pending claims, including his challenge to his execution by lethal gas. On June 10, 1994, the Chief District Court Judge for the Middle District of North Carolina, after reviewing Lawson's objections to the Magistrate Judge's report, dismissed Lawson's habeas petition and denied his motions for discovery, for an evidentiary hearing, and for a stay of his execution.

Lawson filed a timely appeal to this court from the district court's judgment dismissing his action.


In the magistrate judge's opinion adopted by the district court, the magistrate judge recommended that Lawson's challenge to execution by lethal gas should be dismissed as an abuse of the writ and as an exercise of the court's equitable powers.1

He was of the further view that the alleged claim of a violation of his right to conflict-free counsel constituted abuse of the writ and was subject to procedural default by Lawson. The magistrate judge made similar proposals concerning the allegations of ineffective assistance of counsel, misstatements by a juror, and contacts by a juror with law enforcement officials, adding that the latter two claims were also frivolous.

The magistrate judge concluded that in no instance had Lawson shown either "cause" or "prejudice" with respect to his procedural defaults and his failure to raise the claims in an earlier petition. Finally, Lawson failed to show either that a fundamental miscarriage of justice would result from a failure to afford federal review of his claims, or "actual innocence."

We find the magistrate judge's reasoning convincing. Since we believe that Lawson's claims should be dismissed as a matter of law, no basis exists for his requests for discovery or for an evidentiary hearing, and those motions are dismissed.


For the reasons articulated by the magistrate judge in his well reasoned Order and Recommendation,2 we hereby affirm the judgment of the district court. Lawson's request for a stay of execution is also denied.




To the extent that the magistrate judge's opinion may be read to infer a failure to exhaust, we believe that the North Carolina Supreme Court ruled on the merits of Lawson's challenge to the execution by lethal gas, and that there was no failure to exhaust as to that issue


We do note an incorrect date on the last page of the Order and Recommendation, where "July" should be "June."


We as individual judges do grant a certificate of probable cause for this appeal



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