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Classification: Murderer
Characteristics: Robbery - Drugs
Number of victims: 2 +
Date of murder: November 28, 1993
Date of birth: 1971
Victims profile: Richard, 40, and Rebecca Rosenbluth, 34
Method of murder: Shooting
Location: Chesterfield County, Virginia, USA
Status: Executed by lethal injection in Virginia on January 20, 1999

clemency petition


On 11/28/93, Mark Arlo Sheppard and his companion Andre Graham shot and killed Richard and Rebecca Rosenbluth. 

Their bodies were found two days later. Richard, 40, had been shot twice in the face and Rebecca, 34, had been shot four times in the head and neck. 

Sheppard was 22 at the time of the murders and had a history of violence reaching back to when he was nine years old. 

Sheppard admitted to being at the scene of the murders (his fingerprints were found in 61 spots) but says that Graham killed the couple.  Sheppard is also a suspect in about ten other murders. 

In December 1994, Sheppard was sentenced to death. 

Rosenbluth and Sheppard had known each other for some time before the murder. Sheppard said he had sold cocaine to the victim on numerous occasions and Rosenbluth owed him a lot of money.

Sheppard testified that he and 2 partners, Andre Graham and Benji Vaughan, went to the Rosenbluth home early in the morning of the murders.

Circumstantial evidence alluded to Sheppard's possession of the gun. A few weeks prior to the murder, Sheppard had accidentally shot Vaughan with the gun that was used to kill Rosenbluth and his father had seen it in his room a few days before the crime. The jury convicted Sheppard and sentenced him to death. 

The appellate court denied Sheppard's appeal stating that the conflicting testimony on whether he was the actual perpetrator of the murders presented a credibility question for the jury to resolve. Obviously, the jury in weighing the evidence refused to accept defendant's denial of guilt.

While attempting to prove future dangerousness, the prosecution brought out a maimed witness from a previous unadjudicated crime of Sheppard's.

Graham was convicted of killing Mrs. Rosenbluth and was given a life sentence.  The bodies of the couple were found in the den of their suburban Chesterfield County home.

Richard Rosenbluth, 40, had been shot twice in the head; his wife, Rebecca Rosenbluth, 35, hit 4 times in the head and neck from close range. 

Witnessing will be Stanley and Phyllis Rosenbluth of Arlington County. "People have asked me, 'Why do you want to go? Why do you want to witness?'" said Mr. Rosenbluth, a plump, avuncular man, 72 years old with a white mustache and a New York accent.

Watching Sheppard die is not about retribution, he said. "You (take) someone's life, and you pay the consequences. It's not as if you didn't know what you were doing. There's no revenge. There's no vengeance," he said.

Watching Sheppard die is not about forgiveness. His wife, 68, asked, "Why would I forgive someone who, first of all never asked to be forgiven? At no time during the trial did I hear anyone ever say that they were sorry...or asked for forgiveness."

Watching Sheppard die is not some vain attempt at closure. "Don't use that word with me. I hate that word. I don't know who made that word up," she said. "There is no closure. So many people don't seem to understand that: There is no closure," she said.

Mr. Rosenbluth asked, "How can there be closure on a life sentence? We're both serving a life sentence."

Instead, watching Sheppard die is a duty, of sorts, they said. To people who ask why he wants to watch the execution, "I say, 'I really don't. But when somebody wrongs your child you're going to do everything to right that wrong as much as you can do,'" he said.

"I feel this way, I've done, up to this point, everything that I can humanly do to right the wrong for my child. The last act is coming up. "What it is, is my a parent to my child," he said. "This is the last thing I can do for him to right that wrong."

Mrs. Rosenbluth said, "You have to understand, it's not a big thing in my life to go to this execution. It's just that sometimes you have to stand up for what you believe in."

Richard and Rebecca Rosenbluth died in their Chesterfield County home on Nov. 28, 1993, gunned down by Sheppard and Andre Graham who had been selling them cocaine.

The 2 killers stole the couple's vehicles and some personal items before fleeing the house.

Sheppard was sentenced to death for the crime. Andre Graham got life plus 23 years. Graham is also facing the death penalty for another capital murder he committed.

The bodies were discovered several days later by police when Rebecca's employer, alerted by a concerned Rosenbluth, went to check on the couple at their home.

Richard grew up in Northern Virginia. He was a bright child. He started college at East Carolina University and then attended the Berklee College of Music in Boston. He was a musician, a percussionist, his parents said.

Richard met Rebecca when he was playing with a band in Myrtle Beach, S.C., and they married in 1987. "This was the daughter I never had. I can't really describe it," Mr. Rosenbluth said.

"She was a very loving girl, and a very beautiful girl. She fit right into the family." Rebecca's mother, Louise Dillon of Montgomery, W.Va., said without explanation that she will not be attending the execution.

However, she said, "I just hope that this goes through on the 20th." Dillon said she still misses her daughter very much. "She was a beautiful young lady....She was just a joy to be around. A beautiful smile. She was just a lovely young lady."

Rebecca went to high school in West Virginia and was living in Myrtle Beach when she met Richard, her mother said.

Mr. Rosenbluth said his son tried his hand at making a living through music, but "he finally decided that, hey, it's time I have to do something else."

He went into the coffee service business. He started out working sweeping floors in a warehouse for The Coffee Butler, moving his way up management and eventually winding up in Richmond as regional manager.

Rebecca was a secretary at Air Distribution Sales Inc. "Richard was a very good young man," Mrs. Rosenbluth said. "He was a very caring person up until the day he was taken away."

Though they maintained frequent contact, the Rosenbluths lived 100 miles from their son and his wife. They said they had no hint either had a drug habit.

Finding out about it and having it aired publicly in the trial was difficult. "It was horrible. Horrible," Mrs. Rosenbluth said.

According to a Virginia Supreme Court summary of the trial evidence, "The victims' personal records showed that, during the several months immediately preceding their deaths, the couple made substantial cash withdrawals and credit card charges averaging hundreds of dollars per day, apparently to support their addiction to the drug."

Stanley said, "There was no reason for it. They were starting to make it, the typical American couple. What would make you think? There were no signs, there were no signs."

She said, "I still find it hard to believe about the drugs. I'm not disputing it, but I can't find a reason. Why? They had everything they wanted, except a child."

The Rosenbluths said their son and his wife were trying to have a baby. "I think they would have made great parents," he said.

They last saw Richard and Rebecca on Thanksgiving. The couple had to return to Richmond on Friday, and they spoke on the phone.

Mrs. Rosenbluth remembered chatting over the phone with Rebecca that Saturday morning. It was the last contact they had.

The Rosenbluths could not get an answer at their son's house on Sunday or Monday, so on Tuesday morning he called Rebecca's employer.

Then, "It's like a quarter to one and the doorbell rings. There are 3 Arlington County police officers and...they came in and they told us," Mr. Rosenbluth said.

Mrs. Rosenbluth said, "You're in a state of shock... You don't even have the time to mourn" because there are funeral arrangements to make, police investigators to meet with and media questions to answer.

When asked what it was like those first few days, she said, "I try and answer honestly. Looking back, everything is a blur, it's one big blur. You've got a big ache in your heart. That's all you can feel."

Mr. Rosenbluth said that at "The 1st trial, Andre Graham, when he was given life imprisonment, I flipped. I flipped out, because the jury wasn't told that life imprisonment meant you were eligible for parole."

"I didn't do anything then because we had the other trial coming up. Sheppard's trial. After Sheppard got the death penalty, I said, 'How do we correct this?...I didn't feel it was right that the jury didn't have all the information in order to come back with a proper sentence" in the Graham case.

He contacted then-Virginia Secretary of Public Safety Jerry W. Kilgore, who suggested he speak at a town hall meeting scheduled that week on then-Gov. George Allen's plan for abolishing parole and establishing truth in sentencing.

"They asked me if I'd like to go to that meeting" and speak. "I said, 'Yes.'" "After the meeting, 25 homicide victims (family members) got together, this was in November '94, to discuss whether there was a need for an umbrella organization" for several crime victims organizations in the state.

As a result, they formed Virginians United Against Crime, a victims' advocacy group. Mr. Rosenbluth, the group's president, said he threw himself in the organization's work as a form of therapy.

Among other things, the group supported Allen's parole abolition and truth in sentencing reforms and supported the crime victim's rights bill. Among the many reforms the effort led to were true life sentences.

The Rosenbluths have kept busy as the final act in their son's murder approaches. "The fact of the matter is, the execution of this animal does not bring my children back, my son and his wife back," Mrs. Rosenbluth said.

"Nothing will ever bring them back. "The only thing that I feel that this will do is, it will stop this animal from ever doing this again to somebody else. "It's the final deterrent, that's all there is to it." It will not stop the pain.

Mr. Rosembluth said, "If you talk to victims, and they're honest with you, they'll tell you it doesn't matter how many years go by. "You're walking down the street, you're sitting in a room, you hear a voice. You say, 'My God, there's (his) voice.' Or you look around, you see somebody looks like him. This never goes away." This never goes away."

Mrs. Rosenbluth said, "I can't even come to terms with myself that I'm never going to see Richard again. "Every time the damn phone rings I still think it might be them calling."


Mark Arlo Sheppard, 27, 99-01-20, Virginia

In Jarratt, a drug dealer convicted in the shooting deaths of a couple was executed by injection Wednesday night.

Mark Arlo Sheppard, 27, was found guilty in the shootings of Richard and Rebecca Rosenbluth in their suburban Richmond home. Sheppard insisted he was not the trigger man.

Sheppard, asked for a final statement by Warden David Garraghty, mumbled 4 dates and, after each one, said, "I love you."

Sheppard's attorney, Chris Collins, said he believes the dates were birthdays of family members or close friends.

Prosecutors said Sheppard and an accomplice, Andre Graham, were cocaine dealers who killed the Rosenbluths when their finances began to dwindle. Autopsies detected cocaine in the Rosenbluths' bodies, and drug paraphernalia was found in their home.

Rosenbluth, 40, was shot twice in the head and his wife, 35, was shot 4 times in the head and neck.

Graham received a life term in the Rosenbluths' slayings and is on death row for another murder.

Sheppard becomes the 1st condemned inmate to be put to death in Virginia this year and the 60th overall since the state resumed executions in 1982. Only Texas, with 166 executions, also since 1982, has executed more condemned prisoners than Virginia.

(sources: Associated Press and Rick Halperin)



168 F.3d 689

Mark A. SHEPPARD, Plaintiff-Appellant,
Mark L. EARLY, individually and in his capacity as Attorney
General of Virginia, Defendant-Appellee,
Commonwealth of Virginia, Defendant.

No. 99-6048.

United States Court of Appeals,
Fourth Circuit.

Submitted Jan. 12, 1999.
Decided Jan. 19, 1999.

Before WILKINSON, Chief Judge, and WILKINS and NIEMEYER, Circuit Judges.

Affirmed by unpublished opinion. Judge WILKINS wrote the opinion, in which Chief Judge WILKINSON and Judge NIEMEYER joined.


WILKINS, Circuit Judge:

Mark A. Sheppard, a Virginia inmate sentenced to death for the 1993 murders of Richard A. and Rebecca W. Rosenbluth, brought this action pursuant to 42 U.S.C.A. 1983 (West Supp.1998). Sheppard argues that Va.Code Ann. 53.1-232.1 (Michie 1998) violates his right to equal protection guaranteed by the Fourteenth Amendment. U.S. Const. amend. XIV, 1.

The basis of his claim is that the statute requires the Commonwealth to set an execution date within approximately 60 to 70 days after receiving written notice that this court has denied habeas corpus relief. This, he maintains, truncates the time normally permitted for a petitioner to request certiorari and places limitations on the amount of time the Supreme Court has to consider that request.

The district court granted the Commonwealth's motion to dismiss and denied Sheppard's motion for preliminary injunction. Sheppard now moves this court for expedited appeal and seeks reversal of the decision of the district court dismissing his action. We grant Sheppard's motion for expedited appeal and affirm.

I. Procedural Background

1. Sheppard was convicted of capital murder and sentenced to death before a Virginia jury. His convictions and sentences were affirmed on direct appeal before the Supreme Court of Virginia, and the Supreme Court denied certiorari. See Sheppard v. Commonwealth, 250 Va. 379, 464 S.E.2d 131, 141 (1995), cert. denied, 517 U.S. 1110, 116 S.Ct. 1332, 134 L.Ed.2d 483 (1996).

2. In 1996, Sheppard sought and was denied postconviction relief from the Supreme Court of Virginia.

3. In 1997, Sheppard filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. See 28 U.S.C.A. 2254 (West 1994 & Supp.1998). The district court denied relief on February 11, 1998 and denied Sheppard's motion to alter or amend judgment in April 1998.

4. Following oral argument, this court affirmed the denial of habeas relief on October 23, 1998; and on November 17, 1998, this court denied rehearing and rehearing en banc.

5. The same day, the Attorney General of Virginia sent a letter to the state trial court notifying it of our denial of habeas corpus relief and seeking a hearing to set an execution date for Sheppard. Relying on 53.1-232.1, the Commonwealth requested that the hearing be conducted within 10 days and that the execution be set within 60 days thereafter.

6. The state trial court conducted a telephonic hearing on November 23, 1998. During this proceeding, the state trial court set an execution date of January 20, 1999.

7. This court subsequently denied a motion by Sheppard for a stay of execution and mandate on November 25, 1998.

8. On December 22, 1998, Sheppard filed the present 1983 action and a motion for a preliminary injunction in district court. The Commonwealth filed a motion to dismiss on January 7, 1999. The district court conducted a hearing on January 11, 1999. And, the following day, it entered an order granting the Commonwealth's motion to dismiss and denying Sheppard's motion for preliminary injunction.

9. Sheppard filed a notice of appeal and a motion for expedited appeal on January 12, 1999. The Commonwealth filed its response to the motion on January 13, 1999.

II. Analysis

Va.Code Ann. 53.1-232.1 provides in pertinent part:

In a criminal case where a sentence of death has been imposed, the trial court shall set an execution date when it is notified in writing by the Attorney General or the attorney for the Commonwealth, and the court finds that: ... (iii) the United States Court of Appeals has affirmed the denial of federal habeas corpus relief or the time for filing a timely appeal in that court has passed without such an appeal being filed, or (iv) the Supreme Court of the United States has issued a final order after granting a stay in order to dispose of the petition for a writ of certiorari to review the judgment of the United States Court of Appeals.

The trial court shall conduct a proceeding to set the date within ten days after receiving the written notice from the Attorney General or the attorney for the Commonwealth. The execution date shall be set by the trial court ... shall be no later than sixty days after the date of the proceeding.

In sum, 53.1-232.1 requires that an execution date be set within 60 to 70 days following the notification by the Attorney General or the attorney for the Commonwealth of the decision of this court denying habeas corpus relief. Because Rule 13 of the Rules of the Supreme Court of the United States provides for a 90-day period following a decision of a court of appeals in which to file a timely petition for certiorari, Sheppard maintains that 53.1-232.1 violates his Fourteenth Amendment right to equal protection by truncating the time otherwise afforded to file a petition for certiorari.

Further, Sheppard argues that he is deprived of equal protection because the execution date places time limitations on consideration by the Supreme Court of a petition for certiorari not applicable to petitions by non-capital petitioners.

The Equal Protection Clause guarantees that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, 1. In a broad sense, "[t]he Equal Protection Clause requires every State to govern impartially." Karcher v. Daggett, 462 U.S. 725, 748, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983) (Stevens, J., concurring). The Clause "does not take from the States all power of classification." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 271, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). Instead, "[i]t simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).

In considering an equal protection challenge, we generally will presume the legislation at issue to be valid and will uphold the statute if the classification it draws is rationally related to a legitimate purpose. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). If, however, the statute employs a suspect class or burdens the exercise of a constitutional right, we exercise strict scrutiny review, upholding the statute only if it is narrowly tailored to serve a compelling state interest. See id. As Sheppard recognizes, 53.1-232.1 does not classify on the basis of a suspect class. See Evans v. Thompson, 881 F.2d 117, 121 (4th Cir.1989) (noting that death row prisoners "are not a suspect class for equal protection purposes"). Furthermore, defendants possess no constitutional right to file a petition for certiorari from the decision of this court denying habeas relief. See Netherland v. Tuggle, 515 U.S. 951, 952, 116 S.Ct. 4, 132 L.Ed.2d 879 (1995) (per curiam); Barefoot v. Estelle, 463 U.S. 880, 887-88, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Therefore,s 53.1-232.1 is presumed to be valid if it is rationally related to a legitimate state interest.

In assessing whether 53.1-232.1 is rationally related to a legitimate state interest, we must determine whether the goal the Commonwealth sought to advance was legitimate and "whether it was 'reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose.' " Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 1320 (4th Cir.1994), (quoting Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981)).

The Commonwealth undoubtedly possesses a legitimate state interest in the finality of its criminal judgments and in executing sentence on those determined by state law to be the most serious offenders. See Wood v. Bartholomew, 516 U.S. 1, 8, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (per curiam). And, 53.1-232.1 obviously furthers that interest by requiring that an execution date be set soon after the denial of habeas corpus relief by this court.

Nevertheless, Sheppard contends that 53.1-232.1 is not rationally related to a legitimate state interest because the statute applies only to death row inmates and not to individuals who have been convicted of non-capital crimes. Further, Sheppard maintains that because capital punishment is a uniquely absolute punishment, any distinction to be drawn between capital and non-capital defendants should provide a greater opportunity for counsel carefully to prepare a capital defendant's petition for certiorari and for the Supreme Court fully to consider that petition. These arguments, however, are insufficient to sustain Sheppard's equal protection argument.

Capital and non-capital inmates are not similarly situated. Individuals who have been sentenced to serve a term of years in prison are in the process of serving their sentences during the direct and collateral review of their convictions and sentences. See Barefoot, 463 U.S. at 888, 103 S.Ct. 3383. It is in their best interest to pursue relief as quickly as possible. But, the Commonwealth cannot impose the death sentence on those condemned to that punishment until, at the earliest, the conviction and sentence have been upheld at the completion of the direct review process. See id.

For capital defendants, delay in pursuing each step of the direct and collateral review process works to their benefit, and to the detriment of the Commonwealth, by postponing imposition of sentence. See id. The Commonwealth reasonably could conclude that after the denial of habeas corpus relief by this court, further delay in imposition of sentence is unwarranted and that the time for imposition of sentence has come. See Calderon v. Thompson, 523 U.S. 538, 118 S.Ct. 1489, 1501, 140 L.Ed.2d 728 (1998), (explaining that when federal appeals court has denied habeas relief, "[a] States interests in finality are compelling," "the State is entitled to the assurance of finality," and the concept of "finality acquires an added moral dimension").

Additionally, the Supreme Court has recognized that capital defendants are not entitled to a stay of execution to permit them the full time in which to file a petition for certiorari or for Supreme Court review of that petition. See Tuggle, 515 U.S. at 951-52, 116 S.Ct. 4; Barefoot, 463 U.S. at 888-89, 103 S.Ct. 3383. For these reasons, Sheppard's claim of a constitutional deprivation is without merit.*


For the reasons set forth above, we conclude that Va.Code Ann. 53.1-232.1 does not violate Sheppard's right to equal protection. We grant the motion for expedited appeal and affirm the dismissal of Sheppard's action.



In addition, the Commonwealth raises procedural bases to support its position that the district court should be affirmed. All three are without merit. First, Sheppard's action is not barred by the Eleventh Amendment, see U.S. Const. amend. XI, or, second, by the Rooker-Feldman doctrine,see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482, 103 S.Ct. 1303, 75 L.Ed.2d 206(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923).

Lastly, because the constitutionality of 53.1-232.1 was not relevant to whether Sheppard was entitled to a stay of execution or mandate under the standards set forth by the Supreme Court in Barefoot, we neither expressly nor impliedly rejected Sheppard's equal protection claim on the merits in ruling on Sheppard's November 1998 motion for a stay of execution and mandate pending certiorari. See United States v. Bell, 5 F.3d 64, 66 (4th Cir.1993) (stating that the law of the case doctrine "compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court")



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