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Alton WAYE





Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: October 14, 1977
Date of arrest: Same day (surrenders)
Date of birth: 1943
Victim profile: Lavergne B. Marshall (female, 61)
Method of murder: Stabbing 42 times with a butcher knife
Location: Lunenburg County, Virginia, USA
Status: Executed by electrocution in Virginia on August 30, 1989

On October 14, 1977, 34 year old Alton Waye stabbed 61 year old widow Lavergne Marshall 42 times with a butcher knife in her Lunenburg County home. Waye then proceeded to rape her and then poured bleach over her nude body. Her face was beaten beyond recognition.


Virginia executes killer of woman

The New York Times

August 31, 1989

A man convicted of raping and murdering a 61-year-old woman in 1977 was executed tonight in Virginia's electric chair.

Alton Waye, 34 years old, was pronounced dead at 11:05 P.M. after receiving two 55-second jolts of almost 2,500 volts of electricity, said Wayne J. Farrar, a spokesman for the Department of Corrections.

In a final statement, Mr. Waye said: ''I would express that what is about to take place is a murder. I don't hate anyone. I forgive everyone involved.''

Mr. Waye sought a stay of execution earlier in the day from the Supreme Court, but the Court refused, 7 to 2, to postpone the execution and consider his case. Mr. Waye, a former textile worker, was also denied clemency today by Gov. Gerald L. Baliles. John Coble, operations officer at the State Penitentiary, said Mr. Waye was baptized Tuesday night. ''He said to tell the people, 'I am blessed,' '' Mr. Coble said.

Mr. Waye was convicted of raping and killing Lavergne B. Marshall on Oct. 14, 1977. Her nude body was found in a bathtub, her face beaten beyond recognition. She had been stabbed 42 times with a butcher knife, and laundry bleach had been poured on the body.

Shortly after the killing, a man who identified himself as Mr. Waye called the police to tell them he had killed a woman, according to trial testimony.

Mr. Waye was the eighth person to die in Virginia's electric chair since the state reinstituted the death penalty in 1977, and the 117th executed in the United States since the Supreme Court's ruling in 1976 allowing reinstatement of capital punishment.


Two who were executed: Alton Waye

The Virginian Pilot

June 27, 1994

Alton Waye died in August 1989 in Virginia's electric chair, despite documented questions about his role in the murder of an elderly widow, conflicting testimony by witnesses, suppressed evidence and misleading statements by prosecutors.

Waye was convicted of the 1977 murder of 61-year-old Lavergne B. Marshall of Lunenburg County. She was raped, beaten, bitten and stabbed 42 times and doused with bleach.

Soon after the murder, Waye turned himself in and confessed. Police later said he initially would not have been a suspect because there was nothing to link him to the crime.

His lawyers argued there were medical reasons for doubting his confession, including brain damage, borderline retardation, intoxication and drug use. They also discovered new and suppressed evidence casting doubt on the state's case.

"Analyzed in the context of everything that is now known about the case against Mr. Waye, these false impressions form the tips of some very large icebergs - icebergs of doubt, real, reasonable, substantial doubt about whether Alton Waye is actually guilty of the capital murder for which he stands convicted, condemned, and on the brink of execution,'' court papers said.

After Waye's confession, the investigation was one-dimensional, court records show. Waye's cousin, Len Gooden, played a key role in the conviction. He claimed to be at the scene during the murder, but outside asleep in the car after a night of drinking.

Gooden was the state's main witness against Waye, yet police never focused on evidence that could have linked him to the crime. Evidence later showed he probably was inside the house when the rape and murder occurred.

"I think by the time it got to the jury, they were so mad at Alton Waye because they saw the bloody photographs that they wanted to put him away,'' said J. Lloyd Snook III, who represented Waye. "For whatever it's worth, you had a young black man accused of raping and killing an elderly white woman.''

The jury deliberated 10 minutes before rendering Waye guilty and about 25 minutes before sentencing him to die.

But the jury didn't know the whole story. Evidence that could have cast doubt on Waye's guilt did not make it into the courtroom:

Semen removed from the victim's body could have come from either Gooden or Waye, court records show.

Prosecutors said that semen on Waye's clothes proved he raped the woman. But the semen could have been there for a number of reasons not connected to the rape.

Prosecutors said that hairs found at the scene "were similar in all characteristics'' to Waye's. But the actual forensic notes reflect nothing more than that the hairs were from a black person. The hairs could as easily have been Gooden's.

Court papers said that, at some point, Gooden told authorities that Waye drank six pitchers of beer and a quart of moonshine before the murder. But Gooden testified at trial that Waye drank only seven or eight cans of beer. Prosecutors made no effort to correct the inconsistency.

A police officer said in a sworn statement that Gooden never told him about the six pitchers of beer and moonshine. He also testified he did not think Waye was intoxicated. But court papers show that Gooden did tell him about the drinking and that the officer considered Waye to be impaired when he first questioned him. This would be important information at sentencing, but prosecutors never corrected the misstatements.

Waye's lawyers tried to stall his execution to prove Gooden's involvement.

Gooden had a record of breaking and entering, and between the murder and Waye's trial he was arrested for a similar offense. He later was convicted in Michigan of raping a white woman and became a suspect in a series of similar violent rapes there. The rapes ceased once Gooden was jailed, court papers show.

In an August 1989 affidavit - a dozen years after the murder - a Michigan lawyer said he interviewed Gooden and believed he had a role in the crime.

"He came very close to confessing to breaking into the victim's house and to committing the rape,'' said Richard A. Neaton. "I am convinced based on my experience as a prosecutor and as a criminal defense lawyer that Gooden was in the house that evening, and was not in the car asleep as he testified at trial.''


U.S. Supreme Court

469 U.S. 908

Alton WAYE
Edward C. MORRIS, Superintendent, Mecklenburg Correctional Center

No. 84-5303

Supreme Court of the United States

October 9, 1984

On petition for writ of certiorari to the Supreme Court of Virginia.

The petition for a writ of certiorari is denied.

Justice BRENNAN, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 , 2950, 49 L. Ed.2d 859 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice MARSHALL, dissenting.


In state habeas corpus proceedings, petitioner argued that he was denied effective assistance of trial counsel as evidenced by that counsel's failure to object to an instruction that was inconsistent with the decision this Court announced, one year after petitioner's trial, in Sandstrom v. Montana, 442 U.S. 510 (1979). Petitioner's sole defense at his capital trial for murder was lack of premeditation.

The evidence at trial showed that petitioner had consumed a number of beers on the evening of the crime and that, immediately after killing the victim, he telephoned police to report that he "had killed somebody." Petitioner accompanied sheriff's deputies to the victim's house, where he showed them the body. Petitioner was convicted of capital murder on April 7, 1978, and sentenced to death.

The instruction at issue, evidently taken from the Virginia form book of jury instructions, was as follows:

    "The Court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequences [ sic] of his act."

As the State now concedes, there is no doubt that this instruction violates the Constitution, for in Sandstrom we held that a virtually identical instruction violated due process and the principles against burden shifting we had set forth in Mullaney v. Wilbur, 421 U.S. 684 , 95 S. Ct. 1881 (1975), and Patterson v. New York, 432 U.S. 197 (1977). Sandstrom, however, was decided by this Court on June 18, 1979, a little over a year after petitioner's trial.

The question presented by this petition is thus whether the failure of petitioner's counsel, in a capital case in which premeditation was the only issue, to make the very same objection that Sandstrom's trial counsel had made several years earlier indicates that petitioner was denied his Sixth Amendment right to effective counsel.

This question presents the Court with an important opportunity to give content to the generalized standards for constitutionally effective counsel announced last Term in Strickland v. Washington, 466 U.S. 668 (1984). With respect to the prejudice prong of Strickland, the fact that the Court has already seen fit to grant a petition for certiorari on the question whether Sandstrom error can ever be harmless indicates that the prejudice issue is worthy of the Court's attention. Franklin v. Francis, 720 F.2d 1206 (CA11 1983) and 723 F.2d 770, cert. granted, 467 U.S. 1225 (1984); 1 see also Connecticut v. Johnson, 460 U.S. 73 (1983) (four-Justice plurality holding that Sandstrom error is never harmless).

And with respect to the ineffectiveness component of Strickland -the requirement that counsel's performance not fall below the " range of competence demanded of attorneys in criminal cases," Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064-petitioner has marshaled a strong case.

Petitioner's trial took place in April 1979. Nearly two years earlier, in Deer Lodge County, Mont., David Sandstrom's counsel had realized that decisions from this Court made it virtually certain that the instruction used at petitioner's trial was inconsistent with the Constitution, a contention with which we eventually and unanimously agreed . Our decision in Sandstrom, we stated, was a logical outgrowth of Mullaney v. Wilbur, supra -in which the Court invalidated an instruction that malice was to be implied unless the defendant rebutted this presumption-and Patterson v. New York, supra, 432 U.S., at 215 -in which we reaffirmed that "a State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant" by means of any presumption. Both of these decisions, of course, were available to petitioner's counsel at the time of trial.

Mullaney, in particular, should have put petitioner's counsel on notice to make the objection. As petitioner informed the state habeas court, in the wake of Mullaney a spate of Virginia publications, including ones oriented to practitioners, had suggested that the Virginia instruction on implied malice used at petitioner's trial was constitutionally defective. See, e.g., Comment, Has the Burger Court Dealt a Death Blow to the Presumption of Malice in Virginia, 10 U.Rich.L. Rev. 687 (1976); Friend, The Law of Evidence in Virginia 89-93 (1977); see also Note, Reforming the Law of Homicide, 59 Va.L.Rev. 1270 (1973).

In addition, a criminal lawyer of long experience in Virginia testified in petitioner's state habeas proceedings that, after Mullaney and as of 1978, every competent attorney in a Virginia case in which premeditation was at issue would have viewed it as mandatory to object to the burden-shifting instruction. As the attorney said: "[I]f the Commonwealth requests an instruction that says presumption, if that word presumption is in there, the red flag goes up and the defendant ought to be prepared to object to it. Mullaney is one of the grounds." Pet. for Cert. 10.

This is therefore not a case in which "defense counsel [failed to] recognize and raise every conceivable constitutional claim." Engle v. Issac, 456 U.S. 107, 134 , 1575 (1982). Nor is it a case in which either "the defendant's own statements or actions" or an arguably "tactical decision" of counsel can even plausibly justify the failings of petitioner's counsel. Instead, trial counsel in a capital case "simply did not think" 2 to make an objection that every competent attorney in Virginia allegedly would have made and that David Sandstrom's counsel had thought to make a full two years earlier.

The way in which the state courts have treated petitioner's ineffectiveness claim suggests that, at the least, this Court ought to vacate the judgment below and remand for reconsideration in light of Strickland.

The Virginia Supreme Court denied a petition for appeal on the issue, stating simply in one sentence that there was no reversible error in the judgment of the State Circuit Court that had considered the merits of petitioner's claim. To the extent it is possible to decipher the Circuit Court's judgment, however, it seems primarily based on the conclusion that "[i]nstructions given at Petitioner's trial were both adequate and appropriate, and therefore Petitioner's counsel was not ineffective in failing to ask for instructions which Petitioner now claims should have been requested" and the holding that "[a]s a matter of law, no evidence of prejudice has been shown. . . ." App. to Pet. for Cert. 7, 6.

The former is an impermissible conclusion under Sandstrom and indicates that the court simply did not understand the nature of the Sandstrom claim . The latter conclusion, to the extent it is in fact a holding of law, also violates Sandstrom; to the extent the conclusion instead is an evidentiary one based on review of the record as a whole, the decision should still be vacated and remanded once this Court decides Francis, supra, and outlines the standard by which the prejudice prong of Strickland applies to Sandstrom claims. 3  

In light of the substantiality of petitioner's claim and the shoddy treatment it and our precedents have received in the Virginia courts, I would grant the petition and address the application of Strickland to this case. 4

At a minimum, however, the petition should be granted and the judgment below vacated so that the state courts can start this time from the correct premise that a Sandstrom error was committed and then begin to consider petitioner's ineffectiveness claim in light of that error and against the backdrop of our decision in Strickland.


Because I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231 , 2973 (1976), I would in any event grant the petition and vacate the death sentence. In this particular case, I would also grant the petition to address on the merits the questions of whether petitioner's counsel performed with reasonable competence when he failed to object to a constitutionally defective instruction and whether petitioner was sufficiently prejudiced by this failure to warrant a new trial.



[ Footnote 1 ] To the extent there is any question as to whether petitioner was prejudiced by the defective instruction, the petition ought at least to be held for our decision in Francis, in which we will address the effect of Sandstrom error.

[ Footnote 2 ] Pet. for Cert. 3 (citing testimony at plenary hearing on state habeas petition).

[ Footnote 3 ] Again, to assure that similarly situated capital defendants are treated similarly, the Court should also consider holding this petition pending decision in Francis.

[ Footnote 4 ] I note also that, if petitioner's counsel cannot be considered ineffective for failing to have raised this objection, it can only be because the claim was not sufficiently apparent at the time of trial that all reasonably competent attorneys would have raised it. In that case, under our decision last Term in Reed v. Ross, 468 U.S. 1 , 104 S.Ct. at 2901 (1984), petitioner and his counsel would have had cause for the failure to raise it, and the federal habeas court would then be required to consider whether the failure to give the instruction sufficiently prejudiced petitioner as to require that court to consider the merits of petitioner's challenge. Wainwright v. Sykes, 433 U.S. 72 (1977). That issue, of course, must be left in the first instance to the federal habeas court.


884 F.2d 762

Alton WAYE, Petitioner-Appellant,
Sherman L. TOWNLEY, Warden, Respondent-Appellee.

No. 89-4007.

United States Court of Appeals,
Fourth Circuit.

Argued Aug. 30, 1989.
Decided Aug. 30, 1989.

Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.


Alton Waye, a Virginia death row inmate, moves for a stay of execution pending his appeal of the denial by the district court of his motion under Federal Rule of Civil Procedure 60(b) for relief from the judgment previously entered in this case denying his petition for a writ of habeas corpus. Waye was granted a certificate of probable cause to appeal.

Due to the exigent nature of this matter, we began immediate consideration of Waye's contentions upon receipt of the papers simultaneously filed with this court and with the district court beginning on July 18, 1989. We have carefully considered the issues presented and deny the motion for a stay of execution and affirm the denial of Waye's Rule 60(b) motion.


The overwhelming evidence at trial indicated that on October 14, 1977, Waye drove to the residence of a 61-year-old widow in Lunenburg County, Virginia and requested permission to use her telephone.

After gaining entry to the home, Waye forced the victim upstairs where he raped and beat her. He then retrieved a knife from the kitchen downstairs and returned upstairs where he stabbed her 42 times, killing her.

After placing her body in a bathtub and pouring Clorox over her, Waye ransacked the house, took the telephone off the hook, switched on the television, and wiped the knife clean.

Waye turned himself in to the authorities and led them to the victim's house. The police found the victim beaten beyond recognition with bite marks on her body.

Waye provided the authorities with both written and oral statements detailing his involvement in the homicide. Waye was convicted in 1978 of capital murder. In a separate sentencing hearing the jury sentenced him to death.

During the almost 11 years that have elapsed since Waye's conviction, both state and federal courts have repeatedly reviewed the conviction and sentence of death. The Virginia Supreme Court affirmed Waye's conviction and sentence of death on January 12, 1979 and the United States Supreme Court subsequently denied his petition for a writ of certiorari. Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979).

Waye then filed a petition for a writ of habeas corpus in state court contending that the trial judge's instruction regarding intent was a burden-shifting instruction that violated the rule enunciated, after Waye's conviction, in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Waye's trial counsel did not object to the instruction at trial and the issue was not raised on Waye's direct appeal to the Virginia Supreme Court.

The state court specifically held that Waye was not entitled to be heard on the issue because he failed to make a contemporaneous objection at trial or to raise the issue on direct appeal. The Virginia Supreme Court affirmed the denial of the writ of habeas corpus on April 27, 1984. The United States Supreme Court again denied Waye's petition for a writ of certiorari. Waye v. Morris, 469 U.S. 908, 105 S.Ct. 282, 83 L.Ed.2d 218 (1984).

Subsequently, Waye filed a petition for a writ of habeas corpus in federal court. See Waye v. Townley, 871 F.2d 18 (4th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3202, 105 L.Ed.2d 710 (1989) (discussing history of Waye's original federal petition for a writ of habeas corpus). There, we held that, assuming Waye satisfied the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing that counsel was deficient for failing to object to the instruction, Waye could not overcome the procedural bar because he failed to show cause for his noncompliance under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

We further held that assuming Waye could show cause and actual prejudice under Wainwright v. Sykes, it is clear that the presumption instruction was harmless beyond a reasonable doubt under Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The Supreme Court denied certiorari for a third time. Waye v. Townley, --- U.S. ----, 109 S.Ct. 3202, 105 L.Ed.2d 710 (1989).

Waye began this collateral attack on July 18, 1989 by filing a pro se petition for a writ of habeas corpus. On August 25, 1989, Waye filed a habeas petition with the Virginia Supreme Court. He then filed a motion under Rule 60(b) and a motion for a stay of execution in the district court. The Virginia Supreme Court dismissed the state habeas petition on August 28, 1989 for reasons of procedural default.

That same day, two days before his scheduled execution, Waye filed in the district court an amended habeas petition. The district court then denied Waye's motion under Rule 60(b) and his motion for a stay of execution, but granted Waye a certificate of probable cause to appeal. Because of the exigency of the circumstances we consider both the motion for a stay of execution and the merits of the appeal from the denial of the Rule 60(b) motion.


As the Supreme Court stated in vacating a stay entered by a district court for the purpose of considering a last-minute habeas petition in Alabama v. Evans, 461 U.S. 230, 103 S.Ct. 1736, 75 L.Ed.2d 806 (1983), "respondent's 'constitutional challenges ... have been reviewed exhaustively and repetitively by several courts in both the state and federal systems.' " Id. at 231, 103 S.Ct. at 1738.

As this court has recognized, "constitutional litigation is not to be conducted piecemeal, claims should be raised earlier rather than later, and considered resolution by state courts is far preferable to a last minute dash to federal habeas corpus." Clanton v. Muncy, 845 F.2d 1238, 1240 (4th Cir.1988). Nevertheless, we have reviewed each of the claims raised by Waye in his Rule 60(b) motion.III.

Waye originally sought federal habeas corpus review based on a burden shifting instruction that violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Waye v. Townley, 871 F.2d 18 (4th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3202, 105 L.Ed.2d 710 (1989).

The district court denied the petition and we affirmed. Id. Waye now contends that the prior determination made by the district court and affirmed by this court that the claim was procedurally barred because of counsel's failure to lodge a contemporaneous objection is erroneous in light of Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). See Waye, 871 F.2d at 19. Waye contends further that the harmless error analysis as applied by the district court and affirmed by this court has been undermined by the Supreme Court decision in Carella v. United States, --- U.S. ----, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).

The district court ruled that Waye had timely filed his Rule 60(b) motion and that there was no unfair prejudice to the Commonwealth of Virginia. However, the district court found that Waye did not meet the Rule 60(b) requirements of a showing of a meritorious defense. See Werner v. Carbo, 731 F.2d 204 (4th Cir.1984); Compton v. Alton Steamship Co., 608 F.2d 96 (4th Cir.1979). Finally, the district court concluded that alternative grounds exist for denying the motion. First, Waye was barred from federal habeas corpus relief under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because he did not raise the issue in state court, and he failed to demonstrate prejudice in order to lift the bar. Second, even if not foreclosed, the harmless error standard of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), was applicable. Finally, the district court concluded that the majority in Carella reinforced the Rose v. Clark standard, and the facts here may even pass the test proposed by Justice Scalia's concurrence in Carella. See Carella, --- U.S. at ---- - ----, 109 S.Ct. at 2421-24 (Scalia, J., concurring).

We conclude as did the district court that Waye is foreclosed from review because of Virginia's contemporaneous objection rule. We previously held that the Virginia state court specifically held that Waye was not entitled to be heard on the issue because of his failure to lodge a contemporaneous objection at trial. See Waye, 871 F.2d at 19. We further held that Waye could not overcome the procedural default because he failed to show cause and actual prejudice under Wainwright v. Sykes.

Finally, we held that even if Waye could overcome the procedural default, the Sandstrom violation was subject to the harmless error analysis of Rose v. Clark, and the presumption instruction was harmless error beyond a reasonable doubt.

Waye's contention that Carella undermined the harmless error analysis of Rose v. Clark is equally without merit. The majority in Carella reinforced the Rose v. Clark analysis. Carella, --- U.S. at ----, 109 S.Ct. at 2421. As the district court noted, we applied Rose v. Clark by examining the whole record and concluded that the jury could have reached no conclusion other than that Waye possessed the intent required for conviction of capital murder.

As the Court noted in Carella "the erroneous instruction is simply superfluous: the jury has found, in Winship 's words, 'every fact necessary' to establish every element of the offense beyond a reasonable doubt." Carella, --- U.S. at ----, 109 S.Ct. at 2421 (quoting Rose v. Clark, 478 U.S. 570, 581, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986)).

Having concluded that the contentions raised by Waye's Rule 60(b) motion are without merit, we affirm the ruling of the district court denying Waye's motion. Therefore, we also deny Waye's motion for a stay of execution.

While the district court did not enter its formal written order, we treat its oral opinion delivered in open court as such. See Cedar Coal Co. v. UMWA, 560 F.2d 1153, 1161 (4th Cir.1977).

Our mandate will issue forthwith.



884 F.2d 765

Alton Waye, Petitioner-Appellant,
Edward Murray, Director, Virginia Department of Corrections,

Docket number: 89-4008

Federal Circuits, 4th Cir.

August 30, 1989

Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.


As is the present way with most capital cases, at least in this circuit, this case has been litigated line by line and letter by letter for about 12 years. The initial conviction was appealed to the Supreme Court of Virginia and certiorari was denied by the U.S. Supreme Court. A state habeas corpus proceeding took the same course. A federal habeas corpus proceeding was decided adversely to Waye by this court in 871 F.2d 18 (4th Cir.1989), and certiorari was denied by the Supreme Court on June 19, 1989. During the course of all these proceedings, Waye was represented by competent and able attorneys, skilled not only in criminal practice but in the aspects thereof relating to capital punishment. Even now, any claim that counsel has been ineffective is especially denied in Waye's papers presently before the court.

On June 5, 1989, the state trial court set Waye's execution for August 30, 1989, which date remains in effect. It is this date.

On July 18, 1989, Waye filed, pro se, the present petition. Upon the state court's being advised by Waye's then present attorney, J. Lloyd Snook, III, Esq., who had represented Waye for some 10 years, that he intended to file no more papers for he did not know of any stone that had been left unturned, the district court appointed Waye's present counsel on August 17, 1989, who filed the present amended petition for habeas corpus on August 28, 1989, only two days prior to Waye's scheduled execution date. In the meantime, present counsel had filed a motion under Rule 60(b) in the district court, the effect of which was to seek review of our previous decision in this case referred to above and reported as Waye v. Townley, 871 F.2d 18 (4th Cir.1989). The appeal taken in that case was argued this morning orally in a telephone conference call and is affirmed by separate opinion, Waye v. Townley, No. 89-4007, 884 F.2d 762 (4th Cir. August 30, 1989). Consolidated for argument with No. 89-4007 was the present case. The district court heard this case at about 8:00 p.m. on August 29, 1989, and announced its decision at about 8:30 a.m. this date. We received its order some 3 hours later and scheduled oral argument by telephone conference call immediately. We now affirm the judgment of the district court.

The points made by the petitioner in the present petition for habeas corpus are briefly summarized below. For convenience, we follow the order listed by the district court in its opinion which was the order in the federal petition. The state petition filed the same day had the same points, but the order was changed.

A. The Commonwealth fostered false impressions from the evidence.

B. The psychiatrist testifying for Waye at his trial was incompetent in that he did not put enough emphasis on any diminished capacity of Waye, who, it is now claimed, has an I.Q. of about 78.

C. There is an impermissible risk that race was a factor in Waye's sentencing.

D. The sentencing instructions concerning mitigating evidence were erroneous.

E. The sentencing report contains improper material.

F. There was evidence in the case, or remarks were made, regarding the character of the victim.

G. The Commonwealth withheld material evidence that Waye was under the influence of drugs or alcohol at the time of the offense.

These same claims were raised in a petition for habeas corpus filed in the Supreme Court of Virginia the same day the petition in this case was filed, August 28, 1989. That petition in the Virginia Supreme Court was denied by order of the Virginia Supreme Court entered August 28, 1989 for the reason that "all of the claims" were "procedurally barred." The Virginia court also found under Virginia Code Sec. 8.01-654(B)(2) that the petitioner had knowledge of the facts on which his present petition was based at the time he had filed a previous petition. Thus, the Virginia court held that the present allegations were procedurally barred for more than one reason: the facts were previously known to the petitioner; a part of the merits of one of the allegations had been considered previously; and the balance of the allegations had not been raised previously when they should have been.

The district court in this case, as in the other appeal heard this date in Waye v. Townley, did not enter its formal written order denying relief and denying the prayed-for stay of execution; rather, apparently, it relied upon its oral directions delivered in open court. We treat the oral denial as if an order had been entered denying all relief claimed in the petition for habeas corpus and denying the stay of execution, although no written order was formally entered. See Cedar Coal v. United Mine Workers of America, 560 F.2d 1153, 1161 (4th Cir.1977).

The attorney for Waye has filed in this court a motion for stay of execution and has advised us that he relies upon the papers filed in the district court for the merits of his case.

The Virginia court, in its denial of Waye's parallel petition, found that the facts on which the petition was based were known to the petitioner at the time of filing a previous habeas petition. Although that decision is entitled to presumptive validity under 28 U.S.C. Sec . 2254(d), and nothing was brought to the attention of the district court to offset such presumptive finding, the district court, nevertheless, with care, went over each of the present allegations, which we have numbered above A through G, and found that Waye had not shown the cause and prejudice necessary because of the procedural default. We are of similar opinion, that the cause and prejudice required to overcome the procedural default has not been shown for any of the grounds. The district court, additionally, made factual comments with respect to certain of the grounds to the effect that there was no merit to them in fact, in any event, and we agree with its comments.

As the Virginia Supreme Court and the district court have found, all of the facts on which the current petition was based were either known or available to the petitioner years ago. While it is true that the tack the petitioner takes in this case principally is to disclaim inadequate performance of his attorneys on the one hand, and claim inadequate performance of his psychiatrist on the other, we think that no such rule should be inaugurated, even in a capital case. It will nearly always be possible in cases involving the basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural demands of a fair trial and the constitution require. There must be some finality to litigation, and the final stage has been reached in this case.

We are not unaware of the seriousness of the case and of our lack of inclination to decide the same on procedural rather than substantive grounds. Yet, the very lateness of the petition does not serve to add to any possible merit therein. Despite this, we have carefully considered the current petition for habeas corpus, and although we decide the case on the procedural aspects, we are of opinion that it is without substantive merit.

The judgment of the district court appealed from is accordingly affirmed.

The motion for a stay of execution is denied.

The mandate will issue forthwith.



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