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
Virginia executes killer of
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
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
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
Two who were executed: Alton
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
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
Edward C. MORRIS, Superintendent, Mecklenburg Correctional
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
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
[ Footnote 2 ] Pet.
for Cert. 3 (citing testimony at plenary hearing on state habeas
[ 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
Sherman L. TOWNLEY, Warden, Respondent-Appellee.
United States Court of Appeals,
Argued Aug. 30, 1989.
Decided Aug. 30, 1989.
Before WIDENER, WILKINSON, and WILKINS, Circuit
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
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
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)
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
884 F.2d 765
Alton Waye, Petitioner-Appellant,
Edward Murray, Director, Virginia Department of Corrections,
Federal Circuits, 4th Cir.
August 30, 1989
Before WIDENER, WILKINSON, and WILKINS,
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
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
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
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
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.