Rape - Robbery
Number of victims: 1
Date of murder:
Date of birth: 1946
Victim profile: Phoebe Parsons,
63 (his next door neighbor)
Method of murder: Stabbing
with pocket knife
Location: Fairfax County, Virginia, USA
electrocution in Virginia on July 6, 1987
25, 1980, Whitley went to visit his next door neighbor, 63 year old
Phoebe Parsons in the Pimmit Hills section of the county. Parsons
had previously hired Whitley to do repair work around her three
Whitley began to discuss the recent separation from
his wife with Parsons and then inexplicably choked his neighbor down
to the floor, where he tied a rope around her neck and then cut her
throat with a pocketknife, killing her.
Whitley stripped his
victim naked and then proceeded to ransack the house of valuables.
He then fled in Parsons' car and was arrested several months later
in Tampa, Florida, where he admitted to committing the murder.
Convicted killer is put to death in Virginia
The New York Times
July 7, 1987
A man convicted of
strangling and slashing the throat of an
elderly neighbor and sexually assaulting her
corpse was electrocuted today, the first
execution in Virginia in almost a year.
The man, Richard Lee
Whitley, was pronounced dead at 11:07 P.M.,
five minutes after the first shock was sent
through him. said Wayne Farrar, a spokesman
for the state Department of Corrections.
Mr. Whitley had no last
words and was strapped into the electric
chair by seven guards, witnesses said. High
Court Denies a Stay
Earlier today the United
States Supreme Court voted 6 to 2 to deny a
stay of execution. Gov. Gerald L. Baliles
refused a plea for clemency last Friday.
The execution was the
81st in the United States since the Supreme
Court restored capital punishment in 1976.
It was the first here since July 31.
In a telephone interview
earlier today with a Richmond television
station, Mr. Whitley said he could hear
prison workers test the electric chair just
35 feet from his cell.
''It kind of makes you
feel a little funny, you know,'' he said.
Mr. Whitley's lawyer,
Thomas Kaine, filed the request for a stay
with the Supreme Court on Thursday after the
Virginia Supreme Court and the United States
Court of Appeals for the Fourth Circuit
refused to block the execution. Death
About 30 opponents of the
death penalty waited outside the prison in
downtown Richmond as the hour of Mr.
Whitley's execution approached. They carried
candles and occasionally sang songs.
''We are outraged at the
resumption of the death penalty,'' said the
Rev. Joe Ingle of Nashville, Tenn.,
representing the Southern Coalition on Jails
Mr. Whitley, 41 years old,
was convicted of capital murder for the July
25, 1980 slaying of Phebe Parsons, 63.
In court appeals in the
six years since Mr. Whitley's conviction, he
was depicted as mentally and emotionally
disturbed and the product of a troubled
The only explanation Mr.
Whitley offered for the slaying of Mrs.
Parsons was that his wife had left him and
he had gone on a two-week binge of drugs and
802 F.2d 1487
Toni V. BAIR, Warden, Mecklenburg Correctional Center, Appellee.
United States Court of Appeals,
Argued April 8, 1986.
Decided Oct. 6, 1986.
Before WINTER, Chief Judge, and
WIDENER and SPROUSE, Circuit Judges.
WIDENER, Circuit Judge:
Richard Lee Whitley, under
sentence of death for the murder of Phoebe Parsons on July 25,
1980, appeals from the dismissal of his petition for a writ of
habeas corpus by the United States District Court for the
Eastern District of Virginia. We find no merit in Whitley's
contentions, and we affirm.
In its opinion denying
Whitley's direct appeal, the Virginia Supreme Court fully
summarized the facts, as they were proved at trial, concerning
the brutal murder with which Whitley was charged and convicted.
See Whitley v. Commonwealth, 223 Va. 66, 70-71, 286 S.E.2d 162,
Consequently, we need not
recount those facts in great detail here. Suffice it to say that
Whitley brutally attacked his neighbor, Phoebe Parsons, age 63,
in her home in Fairfax County, Virginia. He first strangled Mrs.
Parsons with his hands, and then with a rope; he next cut her
throat with his pocket knife; and then, while the victim was
near death, or immediately thereafter, Whitley sexually abused
her with two umbrellas. The evidence also showed that Whitley on
that occasion robbed Mrs. Parsons of various items.
In a bifurcated trial in the
Circuit Court of Fairfax County, a jury convicted Whitley of
capital murder in the commission of a robbery, while armed with
a deadly weapon. See VA.CODE Sec. 18.2-31(d) (1982). The jury
fixed Whitley's punishment at death. The Virginia Supreme Court
affirmed both the conviction and the sentence in Whitley v.
Commonwealth, 223 Va. 66, 286 S.E.2d 162 (1982).
The Supreme Court subsequently denied Whitley's petition for a
writ of certiorari. Whitley v. Virginia, 459 U.S. 882, 103 S.Ct.
181, 74 L.Ed.2d 148 (1982).
On May 27, 1983, Whitley filed
a petition for a writ of habeas corpus in the Circuit Court of
The circuit court dismissed the majority of Whitley's claims due
to his failure to raise them at trial or on direct appeal.
On August 27, 1984, following an evidentiary hearing on certain
of the issues,
the circuit court dismissed in its entirety Whitley's petition
for a writ of habeas corpus.
On appeal from this dismissal
of his state habeas corpus petition, Whitley raised only two
issues in the Virginia Supreme Court; (1) whether the circuit
court erred in dismissing Whitley's claim that his trial counsel
had failed to conduct adequate voir dire of the jury; and, (2)
whether the circuit court erred in finding that Whitley's trial
counsel was not ineffective during the sentencing phase of
Whitley's trial in failing to investigate and present available
evidence in mitigation of the death penalty.
On April 16, 1985, the
Virginia Supreme Court, in a brief opinion, refused Whitley's
petition for appeal, finding that the circuit court had
committed no reversible error. See Whitley v. Bass, No. 84-1767
(Va. Apr. 16, 1985) (citing Wainwright v. Witt, 469 U.S. 412,
105 S.Ct. 844, 83 L.Ed.2d 841 (U.S. Jan. 21, 1985), and
Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052,
2066-67, 80 L.Ed. 674 (1984)); see also note 24 infra. The U.S.
Supreme Court subsequently denied Whitley's petition for a writ
of certiorari on November 12, 1985. Whitley v. Bair, --- U.S.
----, 106 S.Ct. 398, 88 L.Ed.2d 350 (1985).
On November 27, 1985, Whitley
filed a petition for a writ of habeas corpus in the U.S.
District Court for the Eastern District of Virginia. In this
petition, Whitley reraised nineteen of the claims that he had
previously raised in his state habeas corpus petition.
The district court concluded
that the majority of Whitley's claims were not cognizable in
federal court because Whitley had procedurally defaulted on the
claims either at the trial level, on direct appeal, or in his
state habeas corpus action. The district court held, therefore,
that under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977), Whitley's procedural defaults in the state
proceedings were a procedural bar to consideration, in the
subsequent federal habeas corpus proceeding, of those claims on
which he had defaulted.
The district court considered
five of Whitley's claims on the merits, primary among them being
Whitley's claim that his court-appointed trial counsel violated
Whitley's right to reasonably effective assistance of counsel by
failing adequately to investigate, prepare, present, and argue
evidence at the sentencing phase of Whitley's trial.
On this claim, the district
court, on the same record as was in the state circuit court and
without another evidentiary hearing, did not accept the state
court finding and ruled that Whitley's trial attorney's
performance during the sentencing phase of Whitley's trial was
outside the range of competence required of attorneys in capital
cases. Nevertheless, applying the two-part test that the Supreme
Court enunciated in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court held that
his attorneys' errors in the case were not sufficiently
prejudicial to Whitley's defense to warrant granting him relief
on this claim.
With regard to Whitley's remaining four claims,
the district court rejected each on their merits and dismissed
Whitley's habeas corpus petition. Upon dismissing Whitley's
habeas corpus petition, the district court denied his
application for a stay of execution and refused to grant him a
certificate of probable cause to appeal.
On December 12, 1985, this
court considered Whitley's application for a certificate of
probable cause to appeal and for a stay of execution, both of
which were granted.
In his appeal from the
district court's dismissal of his habeas corpus petition,
Whitley raises two principal issues: whether Whitley's trial
counsel failed to provide Whitley with constitutionally
effective legal representation at the sentencing phase of
Whitley's trial, and whether the district court properly ruled
that substantive claims that Whitley had not appealed to the
Virginia Supreme Court, either on direct appeal or in his state
habeas corpus appeal, were not cognizable in a federal habeas
corpus action under the doctrine set forth in Wainwright v.
Initially, we consider Whitley's allegation that his trial
counsel ineffectively represented Whitley at the sentencing
phase of Whitley's trial.
Whitley's primary contention
is that the district court erred when it concluded that
Whitley's court-appointed counsel provided Whitley with
constitutionally effective representation during the sentencing
phase of Whitley's trial. Specifically, Whitley contends that
his trial counsel failed adequately to investigate possible
mitigating circumstances to present to the jury during the
sentencing phase of Whitley's trial. As a result, Whitley
contends that he had no defense in this crucial phase of his
During Whitley's state habeas
corpus proceeding, the circuit court held an evidentiary hearing
on certain issues relating to Whitley's representation during
the sentencing phase of his trial.
At that hearing, Whitley
presented evidence of mitigating circumstances that he claimed
his trial counsel could have discovered and presented during the
sentencing phase of Whitley's trial had counsel investigated
Whitley's case adequately.
This evidence included
information that Whitley's trial counsel could have presented to
the sentencing jury through the testimony of Whitley's employer,
Gary Monahan, as to Whitley's alcohol consumption in the days
preceding the murder, the testimony of Patricia Soberg,
Whitley's sister, as to the tragic circumstances of Whitley's
childhood, and psychiatric and like evidence of Whitley's
organic brain dysfunction and his antisocial personality
Because his trial counsel was
unaware of this potentially mitigating information, Whitley
contends that they were unable to prepare or present an
effective defense during the sentencing phase of Whitley's trial.
Thus, Whitley concludes, the district court erred in holding
that, despite the unreasonability of trial counsel's performance,
there was no resulting prejudice to Whitley, and, therefore,
that Whitley's representation during sentencing was not
As noted above, the Supreme
Court has established a two-part test for determining whether an
attorney's performance during trial was so ineffective as to
deprive a criminal defendant of his sixth amendment right to
counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). The first part of the test requires
a defendant to show that his counsel was deficient by
identifying the counsel's acts or omissions that the defendant
alleges were not the result of reasonable professional judgment.
Id. at 690, 104 S.Ct. at 2066.
Indulging a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance, the district court must then determine
whether, in light of all the circumstances, as viewed as of the
time of counsel's conduct and not through hindsight, the
defendant has carried his burden of showing that his counsel's
acts or omissions fell outside the range of reasonably competent
assistance. Id.; see also Darden v. Wainwright, --- U.S. ----,
----, 106 S.Ct. 2464, 2473-75, 91 L.Ed.2d 144 (1986).
If counsel's performance was
outside the range of competence demanded of attorneys in
criminal cases, the defendant must then establish that any
deficiencies in counsel's performance were actually prejudicial
to the defense. See Strickland v. Washington, 466 U.S. 668, at
691, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674: "An error by
counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment."
Such a showing requires the
defendant to establish that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Id. at 694, 104 S.Ct. at
2068. Thus, if a defendant challenges a death sentence such as
the one at issue in this case, the defendant must show that
there is a reasonable probability that absent counsel's errors,
the sentencer, including an appellate court to the extent it may
weigh evidence, would have concluded that the balance of
aggravating and mitigating circumstances did not warrant the
imposition of a death sentence. Id. at 695, 104 S.Ct. at
In this case, the district
court found that Whitley had met the first part of the test set
forth in Strickland. More specifically, the district court found
that defense counsel's failure to investigate potentially
mitigating circumstances in Whitley's background, including
Whitley's psychiatric history and his traumatic childhood,
constituted performance outside the wide range of acceptable
conduct for counsel in criminal cases.
Although the district court
did find Whitley's trial counsel's performance to be
unreasonably deficient, it also found that such deficiency did
not actually prejudice Whitley's defense. Weighing each piece of
additional mitigating evidence that Whitley proffered against
the potentially negative evidence accompanying it, the district
court found that the cumulative effect of this evidence was
simply to add to the weight of aggravating circumstances,
thereby tipping "the scales more drastically in favor of the
sentence of death."
On appeal, Whitley contends
that the district court erred in concluding that his attorneys'
deficiencies at trial did not prejudice his defense, arguing
that competent defense counsel could have minimized the negative
aspects of the testimony of those witnesses who could have been
called in mitigation but whom Whitley's trial counsel failed to
present during the sentencing phase of Whitley's trial.
The Commonwealth, on the other
hand, contends that the district court erred in concluding that
Whitley's trial counsel were constitutionally deficient in their
representation of Whitley during the sentencing phase of his
trial, arguing that the district court's finding of no prejudice
rendered a finding on the performance component of the
Strickland test superfluous.
We agree with the Commonwealth.
Consequently, we affirm the district court's finding that there
was no prejudice to Whitley's defense as a result of his
attorneys' allegedly deficient performance during the sentencing
phase of Whitley's trial. Although we are by no means convinced
that Whitley's attorneys' performance during sentencing was
outside the wide range of competence expected of counsel in
as a result of our affirming the holding of the district court
that there was no prejudice to Whitley's defense, we do not
decide that issue. Strickland v. Washington, 466 U.S. 668, at
697, 104 S.Ct. 2052, 2069-70, 80 L.Ed.2d 674, plainly states
that a court need not determine whether counsel's performance
was deficient before examining prejudice that defendant
allegedly suffered as a result of alleged deficiencies, and, if
it is easier to dispose of an ineffective assistance claim on
the ground of lack of sufficient prejudice, a court should
follow that course.
With respect to the evidence
of Whitley's troubled family history that his trial counsel
allegedly failed to develop or present adequately, a review of
the record indicates that Whitley's sister, Patricia Soberg, was
willing to testify on Whitley's behalf as to the abuse and
neglect that he suffered as a child. This testimony would have
indicated, among other things, that Whitley's father had
abandoned the family while Whitley was an infant, that Whitley's
mother drank heavily, that she beat her children with a belt,
sometimes knotted with a buckle, that she left Whitley in the
care of his sister from the time he was a small child, that
Whitley left school at age 15, that Whitley's family was mired
in poverty, that Whitley had injured his head in a train
accident while a child, and that Whitley's older brother
frequently beat Whitley and exercised an undue criminal
influence on him during his adolescence.
Admittedly, such testimony
could have had a mitigating effect on Whitley's sentencing jury.
In addition to this potentially mitigating information about
Whitley's background, however, Mrs. Soberg's testimony also
included information that was very damaging to Whitley's defense
For example, Mrs. Soberg's
testimony would have disclosed information relating to Whitley's
extensive criminal background of which Whitley's trial counsel
had scrupulously and successfully kept the jury unaware
throughout the course of the entire trial. Mrs. Soberg's
testimony also would have included information about Whitley's
prior abuse of elderly women, as well as information as to
Whitley's alleged rape of his own mother.
Whitley now contends that
although there were negative aspects to the testimony that Mrs.
Soberg could have presented during the sentencing phase of
Whitley's trial, had trial counsel called her to testify, this
court should not consider those negative aspects because they
were predicated on hearsay and thus inadmissible. We do not
conclude that the negative aspects of Mrs. Soberg's testimony
absolutely would have been admitted during the sentencing phase
of Whitley's trial. We do concur with the district court,
however, that there was a strong possibility that the negative
aspects of Mrs. Soberg's testimony would have been admissible (some
of them certainly were), and that, if admitted, the negative
aspects of her testimony would have far outweighed the
mitigating effect on the jury that her testimony might have had.
Whitley also contends that
certain psychiatric and like testimony presented during his
state habeas corpus proceeding would have been persuasive to the
jury in mitigation of his sentence if his trial counsel had
presented it during the sentencing phase of Whitley's trial. Dr.
John D. Follansbee, a psychiatrist, and Dr. T. Richard Saunders,
a clinical psychologist, testified on Whitley's behalf during
Whitley's state habeas corpus proceeding.
Dr. Saunders testified that he
had found evidence that Whitley had an organic brain dysfunction
that impaired Whitley's ability to reason and make judgments.
Dr. Follansbee testified that Whitley had an antisocial
personality disorder and that this disorder, when combined with
Whitley's organic brain dysfunction, accentuated Whitley's
inability to control his extreme impulses.
Once again, the mitigating
aspects of this evidence are markedly outweighed by the negative
information that would have accompanied it. Thus, although Dr.
Saunders testified as to Whitley's mild organic brain
dysfunction during Whitley's state habeas corpus proceeding, in
statements that he made prior to this testimony, Dr. Saunders
made repeated references to Whitley's sadistic behavior patterns.
For example, as the district
court noted, in a report dated April 18, 1984, Dr. Saunders
stated that, "[s]adistic treatment of other people and dealing
with other people in ways which inspire anxiety or guilt are
quite common to [Whitley];" that Whitley "seems to approach
others in an extraordinarily aggressive, uncontrolled affective
state that is exceptionally vicious and hostile;" and that
Whitley exhibits "a pattern of fear-induction and anxiety
induction in other people, both showing a willingness to respond
aggressively and actually doing so when it suits his purpose."
Dr. Saunders also mentioned in
his report Whitley's extensive criminal history, including
Whitley's recent conviction for raping a male hitchhiker, as
well as Whitley's alleged rape of his mother, and his alleged
sexual misconduct with his eleven-year-old stepdaughter. We find
that this negative testimony from Dr. Saunders would have far
outweighed any positive benefit that Whitley would have obtained
in mitigation of his sentence had the jury been informed of
Whitley's organic brain dysfunction.
We further conclude that Dr.
Follansbee's testimony would have been similarly ineffective in
mitigation of Whitley's sentence. Thus, although Dr. Follansbee
discussed in his testimony the effect of Whitley's organic brain
dysfunction on Whitley's ability to control his extreme
impulses, he also made numerous negative comments about
Whitley's personality and background that would inevitably have
come out during the Commonwealth's cross-examination had
Whitley's trial counsel put Dr. Follansbee on the stand during
the sentencing phase of Whitley's trial.
In a report submitted into
evidence in the state habeas corpus proceeding, Dr. Follansbee
noted many of the same negative incidents to which Dr. Saunders
had alluded in his report of April 18, 1984, and also included a
reference to an incident in prison in which Whitley had brutally
beaten another inmate and had ended the assault by wedging a
broom stick in the inmate's rectum. We agree with the district
court that these negative aspects of Dr. Follansbee's testimony
outweigh the mitigating effect that his testimony might have had.
In his argument on appeal,
Whitley relies principally on a recent unpublished opinion of
this court and on a decision from the U.S. Court of Appeals for
the Eighth Circuit, which cases held that a habeas corpus
petitioner had been denied effective assistance of counsel
during the sentencing phase of petitioner's trial. See Clark v.
Townley, 791 F.2d 925 (4th Cir.1986) (unpublished); Pickens v.
Lockhart, 714 F.2d 1455 (8th Cir.1983).
In both cases, the courts
found that the defendants' attorneys' failure adequately to
explore and present mitigating evidence demonstrating defendants'
troubled backgrounds was unreasonable representation and
prejudicial to the defendants' defense at sentencing. Thus, each
court concluded that the defendants' were entitled to
resentencing. Whitley now contends that these two decisions
constitute persuasive authority for a finding that Whitley's
defense at sentencing was prejudiced by his trial attorneys'
failure to develop and use the potentially mitigating evidence
described above. We are not convinced.
The Supreme Court has
recognized that the determination of whether an attorney's
unreasonable performance prejudiced his client's defense is one
that must be judged according to the circumstances of each case.
See Strickland v. Washington, 466 U.S. 668, at 693, 104 S.Ct.
2052, 2067-68, 80 L.Ed.2d 674.
On the facts of this case, in
particular those overwhelming facts relating to the heinous
nature of the crime with which Whitley was charged and convicted,
as well as the fact that any mitigating evidence that Whitley's
trial counsel might have developed and presented would have been
accompanied by additional aggravating evidence, we conclude that
Whitley's trial attorneys' alleged errors in failing to develop
such mitigating evidence did not result in such prejudice to
Whitley's defense at sentencing that there is a reasonable
probability that, but for counsel's alleged unprofessional
errors, the result of the proceeding would have been different.
See Moore v. Maggio, 740 F.2d 308, 318 (5th Cir.1984); Briley v.
Bass, 750 F.2d 1238, 1248 (4th Cir.), cert. denied, --- U.S.
----, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1984).
In sum, we find that the
negative aspects of any testimony that Whitley now contends his
trial counsel failed to present during the sentencing phase of
Whitley's trial far outweighed any positive mitigating effect
that such testimony might have had. Thus, we find that the
district court correctly determined that there was no prejudice
to Whitley as a result of his trial counsel's alleged
deficiencies during the sentencing phase of Whitley's trial.
We affirm the district court's
ruling on that ground. We reiterate that we do not reach the
question of whether or not Whitley's trial counsel actually were
deficient in their representation of Whitley at this phase of
the proceedings, and we emphasize that we do not in any way
adopt the district court's finding in this regard.
As his second point on appeal,
Whitley contends that the district court incorrectly concluded
that the majority of Whitley's claims in his federal habeas
corpus petition were barred from consideration in federal court
under the doctrine of procedural default set forth in Wainwright
v. Sykes. Whitley argues that such error necessitates a remand
to the district court for consideration of these claims on their
merits. We conclude that the district court correctly disposed
of these claims on procedural grounds and affirm the district
court's judgment in this regard as well.
In his federal habeas corpus
petition, Whitley raised numerous issues that he had previously
raised in his state habeas corpus petition, but that he had not
raised at trial or on direct appeal.
Whitley did not appeal to the Virginia Supreme Court, moreover,
the circuit court's adverse ruling on the majority of these
claims in Whitley's state habeas corpus proceeding.
In addition to this large
category of claims, Whitley also reraised in his federal habeas
corpus petition one claim that he had raised at trial, on direct
appeal, and in his state habeas corpus petition, but not in his
appeal from the circuit court's denial of his state habeas
Finally, there were also in Whitley's federal habeas corpus
petition three claims that Whitley had raised on direct appeal
and in his state habeas corpus petition, but not at his trial,
nor in his state habeas appeal.
The federal district court
considered to be procedurally barred under Wainwright v. Sykes
any claim which either had not been presented to the Virginia
Supreme Court or had been held by the state courts to be
Thus, of the nineteen claims that Whitley raised in his federal
habeas corpus petition, the district court considered only five
on the merits,
dismissing each as being without merit.
In this appeal, the only
substantive ruling that Whitley challenges concerns the district
court's disposition of Whitley's claim that his trial counsel
allegedly failed to investigate and present potentially
mitigating evidence during the sentencing phase of Whitley's
trial. We have in this opinion already affirmed the district
court's disposition of this claim. Because Whitley does not
appeal from the district court's disposition on the merits of
his other four claims, we need not, and do not, address them
Whitley does appeal from the
district court's disposition of the majority of his claims on
the ground of procedural default.
In particular, Whitley argues that the district court
erroneously applied the doctrine of procedural default to those
of his claims that he raised in his state habeas corpus petition,
but did not appeal to the Virginia Supreme Court in his state
Whitley raises three separate arguments in this regard.
First, in a footnote in his
brief, Whitley argues that the district court erred in
concluding that the doctrine of procedural default is applicable
to a federal habeas corpus petitioner's failure to raise issues
on appeal in a state postconviction proceeding. Second, Whitley
argues that he did not default on his state habeas corpus claims
by failing to appeal them to the Virginia Supreme Court because
he complied with applicable Virginia procedure, thereby
preserving his claims for federal habeas corpus review. Third,
and finally, Whitley claims that he can show "cause" and "prejudice"
for his failure to appeal any defaulted claim, thereby
preserving for federal review those claims for which he can make
such a showing, see Wainwright v. Sykes, 433 U.S. at 87, 97 S.Ct.
at 2506-07, and that he should be given an opportunity to make
such a showing on remand to the district court.
We consider each of these arguments separately below.
Applicability of Procedural Default Bar to Claims that Whitley
Raised in State Habeas Corpus Petition, but Failed to Raise in
State Habeas Appeal.
In his argument on this point,
Whitley recognizes, as did the district court, that this circuit
has already decided that failure to appeal claims disposed of by
a state habeas trial court constitutes a procedural bar to
further federal review of such claims. See Mason v. Procunier,
748 F.2d 852 (4th Cir.1984). In a brief opinion in Mason,
another Virginia death penalty case, this court affirmed a
federal district court's conclusion that the doctrine of
procedural default barred federal review of any claim that the
petitioner had raised in his state habeas corpus petition, but
had failed to appeal to the Virginia Supreme Court. Id. at 853.
Relying on the brevity of the
court's opinion in Mason, and on dictum in a recent decision
from the U.S. Court of Appeals for the Eleventh Circuit, see
Francis v. Spraggins, 720 F.2d 1190, 1192 n. 3 (11th Cir.1983) (noting
that extension of procedural default doctrine to defaults at
state habeas corpus level was undecided in that circuit and that
court thought the question might raise serious policy questions
perhaps best left to Congress), cert. denied, 470 U.S. 1059, 105
S.Ct. 1776, 84 L.Ed.2d 835 (1984),
Whitley now argues that our decision in Mason is both casual and
inappropriate. We disagree.
In the first place, the
holding of the court in Mason with regard to the procedural
default issue constitutes circuit precedent which we follow. In
the second place, our conclusion in Mason is supported by quite
recent Supreme Court reasoning. A State's procedural rules serve
vital purposes at trial, on appeal, and on state collateral
attack. See Murray v. Carrier, --- U.S. ----, ----, 106 S.Ct.
2639, 2646-48, 91 L.Ed.2d 397 (1986). And, as the Supreme Court
has stated in another context, the concerns of comity and
finality which underpin Wainwright v. Sykes and its progeny are
virtually identical regardless of the timing of a petitioner's
failure to comply with legitimate state rules of procedure. See
Smith v. Murray, --- U.S. ----, ----, 106 S.Ct. 2661, 2665-67,
91 L.Ed.2d 434 (1986). These concerns cause us to conclude, even
apart from our previous decision in Mason, that the doctrine of
procedural default should apply in state postconviction appeals.
B. Whitley's Compliance
with Virginia's Procedural Requirements
In his second argument with
regard to the procedural default issue, Whitley contends that
the district court misinterpreted Virginia's procedural default
requirements for the preservation of issues for appeal. As a
result, Whitley further contends that the district court erred
in holding that Whitley violated state procedural rules by
failing to appeal his defaulted claims in his state habeas
appeal. We disagree.
There are two Virginia
procedural rules that are relevant to Whitley's appeal in this
regard: Virginia Supreme Court Rule 5:21, and the rule of
Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert.
denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).
Virginia Supreme Court Rule 5:21, in effect at the time of
Whitley's trial and state habeas corpus proceeding,
provided, in pertinent part, as follows:
The petition for appeal shall
contain assignments of error.... Error will not be sustained to
any ruling below unless the objection was stated with reasonable
certainty at the time of the ruling, except for good cause shown
or to enable this court to attain the ends of justice. Only
errors assigned in the petition for appeal will be noticed by
this Court and no error not so assigned will be admitted as a
ground for reversal of a decision below. An assignment of error
which merely states that the judgment is contrary to the law and
the evidence is not sufficient.
The Virginia Supreme Court has
held Rule 5:21 to be applicable in both civil and criminal
cases. See Peterson v. Commonwealth, 225 Va. 289, 302 S.E.2d
520, cert. denied, 464 U.S. 1004, 104 S.Ct. 202, 78 L.Ed.2d 176
(1983) (death penalty case); First Charter Land Corp. v. Middle
Atl. Dredging, Inc., 218 Va. 304, 237 S.E.2d 145 (1977). This
court has held that a federal habeas corpus petitioner's failure
to comply with the contemporaneous objection requirement
embodied in Rule 5:21 is a legitimate ground for the application
of the procedural default doctrine to bar a federal court's
consideration of the petitioner's constitutional claims. Frazier
v. Weatherholtz, 572 F.2d 994, 997 (4th Cir.), cert. denied, 439
U.S. 876, 99 S.Ct. 215, 58 L.Ed.2d 191 (1978); see also Murray
v. Carrier, --- U.S. at ----, 106 S.Ct. at 2665-67. We have
previously noted that the Virginia courts have consistently
applied this procedural default rule with little flexibility.
See Conquest v. Mitchell, 618 F.2d 1053, 1056 (4th Cir.1980).
In Slayton v. Parrigan, the
Virginia Supreme Court effectively extended the preclusive
effect of Rule 5:21 to Virginia habeas corpus proceedings. In
Slayton, the defendant was convicted of armed robbery and the
Virginia Supreme Court affirmed his conviction on direct appeal.
Slayton v. Parrigan, 215 Va. at 27-28, 205 S.E.2d at 681. In his
subsequent state habeas corpus petition, the defendant alleged,
among other things, that his pretrial identification was
impermissibly suggestive and that it had tainted his in-court
On appeal from the circuit
court's dismissal of defendant's habeas corpus petition, the
Virginia Supreme Court declared that the defendant's failure to
object to the pretrial identification, either at trial or on
direct appeal, precluded the defendant from raising the issue in
his state habeas corpus proceeding. The Virginia Supreme Court
The trial and appellate
procedures in Virginia are adequate in meeting procedural
requirements to adjudicate State and Federal constitutional
rights and to supply a suitable record for possible habeas
corpus review. A prisoner is not entitled to use habeas corpus
to circumvent the trial and appellate processes for an inquiry
into an alleged non-jurisdictional defect of a judgment of
conviction. Since the issue of the alleged constitutionally
improper pretrial identification could have been raised and
adjudicated at petitioner's trial and upon his appeal to this
court, Parrigan had no standing to attack his final judgment of
conviction by habeas corpus.
Id. 215 Va. at 30, 205 S.E.2d at
Whitley now argues that his
state habeas counsel's failure to appeal claims that the circuit
court had dismissed under the rule of Slayton v. Parrigan did
not violate any Virginia procedural rule. Emphasizing the
Virginia Supreme Court's language in Slayton to the effect that
a state habeas corpus petitioner lacks standing to raise claims
in his state habeas corpus petition that he could have raised at
trial or on direct appeal, Whitley contends that the circuit
court's ruling that the majority of his claims fell within the
rule of Slayton v. Parrigan deprived Whitley of the standing
necessary to appeal the merits of those claims to the Virginia
Thus, Whitley concludes, the
absence of those issues from his petition for appeal in his
state habeas corpus proceeding cannot be deemed an unwarranted
bypass of an available state remedy that would bar a federal
court from considering those same issues in a federal habeas
appealing, Whitley's argument in this regard is ultimately
unpersuasive for it assumes the correctness of the state circuit
court's finding of procedural default at the trial or on direct
appeal, thereby rendering superfluous the question whether
Whitley defaulted a second time by failing to appeal the merits
of his defaulted claims in his state habeas appeal.
Indeed, it is Whitley's
failure to appeal from the circuit court's finding of procedural
default on these claims that exposes the inherent weakness of
Whitley's argument in this regard. If, on appeal, the Virginia
Supreme Court had concluded that the circuit court had
incorrectly found Whitley's claims were barred from
consideration due to his procedural defaults, then Whitley would
have had standing either to have the Virginia Supreme Court
consider those claims on their merits in that appeal, or, more
likely, to have the circuit court consider them on remand.
Whitley's failure to appeal
from the circuit court's ruling on procedural default, therefore,
deprived the Virginia Supreme Court of the opportunity to rule
on the merits of his claims. We consider such failure to
constitute a violation of the requirements of Rule 5:21, which
applies to appeals of all Virginia cases, civil or criminal, and
conclude that such violation constitutes a procedural default
sufficient to preclude federal court review of the merits of
those claims on which the circuit court declared Whitley to have
See Smith v. Murray, --- U.S. at ----, 106 S.Ct. at 2665-67 ("
'[a]llowing criminal defendants to deprive state courts of [the]
opportunity' to reconsider previously rejected constitutional
claims is fundamentally at odds with the principles of comity
that animate Sykes and its progeny") (quoting Engle v. Isaac,
456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982)).
C. Cause for Whitley's
Failure to Raise His Defaulted Claims and Prejudice Resulting
Having concluded that the
district court correctly determined that Whitley did
procedurally default on the majority of his claims in his
federal habeas corpus petition, Whitley may still escape the bar
of procedural default if he can establish a valid cause for his
default and actual prejudice resulting therefrom. See Wainwright
v. Sykes, 466 U.S. at 87, 97 S.Ct. at 2506-07. Thus, as his
third, and final, argument with regard to procedural default,
Whitley contends that the district court erroneously concluded
that Whitley had failed to establish sufficient cause for his
procedural defaults to escape Sykes' procedural bar.
Whitley contends, therefore,
that if this court should find, as we have, that Whitley did
procedurally default on the majority of his claims, then we
should remand the case to the district court for reconsideration
of Whitley's claims of cause for his procedural defaults both at
the trial and on direct appeal, as well as for his procedural
defaults in his state habeas corpus proceeding. Once again, we
The Supreme Court has recently
addressed the definition of cause for purposes of the Wainwright
v. Sykes procedural bar. See Murray v. Carrier, --- U.S. ----,
106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Smith v. Murray,
--- U.S. ----, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). In Carrier,
Clifford Carrier was indicted for rape and abduction. Before
trial, Carrier's court-appointed counsel moved for discovery of
the victim's statements concerning her assailants, the vehicle
her assailants were driving, and the location at which the rape
The circuit court denied the
motion. After Carrier's conviction, his counsel filed a notice
of appeal with the Virginia Supreme Court, which assigned seven
errors as bases for reversing Carrier's conviction. One of these
alleged errors was that the trial court erred in denying
Carrier's motion for discovery of the victim's statements.
Carrier's counsel subsequently failed to include this claim in
Carrier's petition for appeal, however, thereby precluding the
Virginia Supreme Court from considering it pursuant to Virginia
Supreme Court Rule 5:21.
See Id. at ----, 106 S.Ct. at 2642-44.
After exhausting his state
habeas corpus remedies, Carrier filed a habeas corpus petition
in federal district court. Carrier included his procedurally
defaulted discovery claim in his federal habeas corpus petition.
The district court denied the petition, holding that under
Wainwright v. Sykes, Carrier's procedural default precluded
federal review of Carrier's discovery claim. See id.
On appeal, Carrier asserted
that his procedural default should be excused because his
counsel's failure to include the discovery claim in Carrier's
petition for appeal had been the product of the attorney's
ignorance or oversight, and not a deliberate tactical choice. En
banc, this court held that oversight or ignorance that was not
deliberately tactical could constitute cause for purposes of the
Wainwright v. Sykes showing. See Carrier v. Hutto, 754 F.2d 520
(4th Cir.1985) (per curiam) (en banc), adopting the majority
opinion in 724 F.2d 396 (4th Cir.1983), rev'd sub nom, Murray v.
Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
The Supreme Court explicitly rejected this holding.
In broad language, the Court
stated that the question of cause for a procedural default does
not turn on whether a habeas corpus petitioner's counsel erred
or on the kind of error that counsel may have made. Rather, the
Court held that:
[s]o long as a defendant is
represented by counsel whose performance is not constitutionally
ineffective under the standard established in Strickland v.
Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
], we discern no inequity in requiring him to bear the risk of
attorney error that results in a procedural default. Instead, we
think that the existence of cause for a procedural default must
ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel's
efforts to comply with the State's procedural rule.
Murray v. Carrier, --- U.S. at
----, 106 S.Ct. at 2644-46.
The Supreme Court went on to
discuss external objective factors that would constitute cause.
These factors included a showing that the factual or legal basis
for a claim was not reasonably available to counsel, that
government officials interfered with the defense, or that the
procedural default was the result of constitutionally
ineffective assistance of counsel. Id. at 4822-23. Finally, to
prevent manifest miscarriages of justice, the Court recognized
another narrow exception to the procedural default bar, stating
in an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal court may
grant the writ even in the absence of a showing of cause for the
Because the Court was not
certain whether the victim's statements actually established
Carrier's innocence, the Court remanded the case to the district
court for further proceedings consistent with that opinion. See
In the present case, Whitley
has pointed to no objective factor, external to his defense,
either at his trial, on direct appeal, or in his state habeas
corpus proceeding, that would constitute cause under the Supreme
Court's recent definition of that term in Carrier.
Cf. Smith v. Murray, --- U.S. at ----, 106 S.Ct. at 2665-67
(holding that deliberate tactical decision not to pursue
particular claim is very antithesis of kind of circumstance that
would warrant excusing defendant's procedural default).
Moreover, although the Supreme
Court in Carrier remanded that case for a determination of
whether the victim's statements could have established Carrier's
actual innocence, thereby exploring another possible exception
to the requirement of a showing of cause for a procedural
default, we do not believe such a remand is called for in this
case. Given the extensive record below establishing Whitley's
guilt, including, among other things, Whitley's own admissions,
we do not believe that refusal to consider Whitley's defaulted
claims on their merits carries with it the risk of a manifest
miscarriage of justice. See Smith v. Murray, --- U.S. at ----,
106 S.Ct. at 2667-69.
In sum, we hold that the
district court properly found the majority of Whitley's claims
to be barred from federal review as a result of Whitley's
procedural defaults either at the trial level, on direct appeal,
or in his state habeas corpus proceeding.
We further hold that the district court properly found that
Whitley was not denied effective assistance of counsel at the
sentencing phase of his trial.
In affirming the district
court's denial of Whitley's petition for a writ of habeas
corpus, we note that the seriousness of the penalty imposed on
Whitley for his crimes makes us reluctant to dismiss the
majority of his claims on the ground of procedural default.
Nevertheless, the recent
statements of the Supreme Court on the subject persuade us not
only that further discussion of the merits of those defaulted
claims is unnecessary, but also that such discussion is
inappropriate. See Smith v. Murray, --- U.S. at ----, 106 S.Ct.
at 2665-67 (stating that although federal habeas court must at
all times retain power to look beyond state procedural
forfeitures, exercise of that power ordinarily is inappropriate
unless defendant succeeds in showing both cause for his
noncompliance with state rule and actual prejudice resulting
from the alleged constitutional violation); see also id. --- U.S.
at ----, 106 S.Ct. at 2667-69 (explicitly rejecting suggestion
that principles of Wainwright v. Sykes apply differently
depending on nature of penalty that state imposes for violation
of its criminal laws).
Accordingly, the judgment of
the district court is