Joe Louis Wise
robbed Mecklenburg Correctional Center employee Ricketson in nearby
Boydton in December, 1983. He proceeded to beat Ricketson, shot him
with two guns and dumped him in a hole that had been dug for a
toilet behind an old factory plant in Chase City.
fracture and gunshot wounds would have eventually killed the victim,
but Ricketson died as a result of drowning in water which had
accumulated in the hole. Wise, aged 29, then stole Ricketsons'
Virginia Executes a Man Who
Robbed and Killed
The New York Times
September 16, 1993
An inmate was executed in
Virginia's electric chair on Tuesday night
for bludgeoning, shooting and drowning a
robbery victim in 1983.
The inmate, Joe Louis
Wise Sr., 31, was pronounced dead at 11:12
P.M., said officials at the Greensville
Mr. Wise was sentenced to
death for robbing and killing William H.
Ricketson, a maintenance worker at the
Mecklenburg Correctional Center, in 1983.
Mr. Ricketson, 43, was found covered with
dirt and cinder blocks in a shallow privy
hole in Mecklenburg County. An autopsy
showed he had drowned after being beaten and
shot in the eye and chest.
Mr. Wise was arrested
that day as he was putting oil in Mr.
Ricketson's pickup. He admitted involvement
in the crime.
After exhausting his
appeals, Mr. Wise sought clemency from Gov.
L. Douglas Wilder, saying his trial lawyer
and two other lawyers appointed to represent
him on appeal had failed to handle his case
properly. Governor Wilder rejected Mr.
Wise's request last week.
As Mr. Wise's execution
approached, nearly 20 people gathered
outside the prison, some carrying candles
and praying. Others, like David and Patricia
Gregory of Richmond, said they had come in
search of a sense of finality. Mrs. Gregory
was Mr. Ricketson's sister-in-law.
"It's like you get on
with life," she said. "You start getting
over it and then there's another appeal or
another article. We're not here to celebrate.
We're just here to see justice."
Wise, Sr., Petitioner-appellant,
Attorney General of the Commonwealth Of Virginia,
Court of Appeals, Fourth Circuit.
Argued Oct. 26,
Decided Dec. 16, 1992
Before HALL, WILKINSON, and
LUTTIG, Circuit Judges.
LUTTIG, Circuit Judge:
Wise, Sr., appeals
from a decision of the United States
District Court for the Eastern District of
Virginia denying his petition for a writ of
habeas corpus. We affirm.
November 8, 1984, Wise
was convicted in the Mecklenburg County,
Virginia, Circuit Court of capital murder,
grand larceny, armed robbery, and use of a
firearm in the commission of a felony. On
November 9, 1984, the jury found his conduct
"outrageously or wantonly vile, horrible or
inhuman in that it involved aggravated
battery to the victim, beyond the minimum
necessary to accomplish the act of murder,"
and fixed his punishment at death. See J.A.
at 354-55; Va.Code Ann. § 19.2-264.2.
Virginia Supreme Court affirmed his
convictions and sentence on November 27,
1985, Wise v.
Commonwealth, 230 Va. 322, 337 S.E.2d 715
(1985), and on April 7, 1986, the United
States Supreme Court denied certiorari, 475
U.S. 1112, 106 S.Ct. 1524, 89 L.Ed.2d 921
(1986). After a hearing, the Mecklenburg
County Circuit Court dismissed
Wise's state habeas
petition on December 11, 1989. J.A. at
however, failed to file a notice of appeal
until March 28, 1990, more than two months
after the expiration of the thirty-day time
limit. See Virginia Supreme Court Rule
change in court-appointed counsel and leave
"to pursue an appeal," J.A. at 90,
Wise appealed to
the Virginia Supreme Court, which dismissed
his petition for appeal on April 4, 1991, id.
at 133. Wise then
filed a petition for federal habeas corpus
relief under 28 U.S.C. § 2254. On March 17,
1992, the district court granted the
Commonwealth of Virginia's motion to dismiss
J.A. at 326-37. On October 8, 1992, we
granted a certificate of probable cause to
appeal, see 28 U.S.C. § 2253.
district court concluded that
Wise's claims were
procedurally barred from consideration
because the Virginia Supreme Court's
dismissal of his petition rested on an
adequate and independent state law ground:
his late filing of a notice of appeal. See
Coleman v. Thompson, --- U.S. ----, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991) (affirming
dismissal of habeas corpus petition as
procedurally barred by failure to comply
with Virginia's thirty-day requirement for
filing notice of appeal).
that conclusion on four principal grounds.
First, he argues that the procedural bar was
not adequate because the Virginia Supreme
Court does not strictly or regularly enforce
the mandatory time limit for notice of
appeal. See Johnson v. Mississippi, 486 U.S.
578, 587-89, 108 S.Ct. 1981, 1987-90, 100
L.Ed.2d 575 (1988) (procedural bar not "consistently
or regularly applied" did not represent
adequate and independent state law ground).
In support of this argument, he points to a
number of orders of the Virginia Supreme
Court granting extensions to file an appeal.
J.A. at 274-307.
periodic grant of extensions on motion,
however, does not mean that the rule is not
strictly and regularly enforced. See Meadows
v. Legursky, 904 F.2d 903 (4th Cir.1990) (en
banc ) ("[C]onsistent or regular application
of a state's procedural default rules does
not mean undeviating adherence to such rule
admitting of no exception." (citing Dugger
v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103
L.Ed.2d 435 (1989))), cert. denied, 498 U.S.
986, 111 S.Ct. 523, 112 L.Ed.2d 534 (1990).
Indeed, the conscientious consideration of
motions for extension and the granting of
such motions may well be evidence that the
rule is very strictly enforced; that is,
that the rule's requirement is absolute,
absent express dispensation from the court.
no evidence that Virginia does not strictly
enforce its appellate filing requirement,
and Wise has cited
no authority to suggest that it does not.
The existing authority, in fact, confirms
that the rule is rigorously enforced. See,
e.g., Coleman, --- U.S. at ----, 111 S.Ct.
at 2560 ("The Virginia Supreme Court has
reiterated the unwaivable nature of this
requirement."); Coleman v. Thompson, 895
F.2d 139, 143 (4th Cir.1990) ("The district
court properly concluded that the failure to
comply with Rule 5:9(a) was an adequate
ground to apply the bar of procedural
default."), aff'd, --- U.S. ----, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991); School Bd. v.
Caudill Rowlett Scott, Inc., 237 Va. 550,
379 S.E.2d 319, 323 (1989) (thirty-day time
limit for filing notice of appeal is "mandatory"
and jurisdictional); Vaughn v. Vaughn, 215
Va. 328, 210 S.E.2d 140, 142 (1974) (same);
Carlton v. Paxton, 14 Va.App. 105, 415
S.E.2d 600, 602 (1992) ("[T]he provision for
timely filing of a notice of appeal is
mandatory. This court has interpreted such
timeliness provisions strictly." (citations
omitted)), adopted by the court en banc, ---
Va.App. ----, 422 S.E.2d 423 (Va.Ct.App.1992);
cf. Whitley v. Bair, 802 F.2d 1487, 1502 n.
31 (4th Cir.1986) ("Virginia courts have
consistently applied their procedural
default rules."), cert. denied, 480 U.S.
951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987).2
Wise argues that "the
Virginia Supreme Court must have considered
the merits of [his] appeal and not simply
dismissed it on timeliness grounds."
Appellant's Br. at 35; see Ake v. Oklahoma,
470 U.S. 68, 74-75, 105 S.Ct. 1087, 1091-92,
84 L.Ed.2d 53 (1985) (procedural bar not
independent of federal law if its
application requires consideration of
constitutional claims). We disagree.
Virginia Supreme Court's decision below " 'fairly
appears' to rest primarily on state law."
--- U.S. at ----, 111 S.Ct. at 2559. As in
Coleman, "[t]he Virginia Supreme Court
stated plainly that it was granting the
Commonwealth's motion to dismiss the
petition for appeal," and that "[t]hat
motion was based solely on [the petitioner's]
failure to meet the Supreme Court's time
requirements," id. --- U.S. at ----, 111
S.Ct. at 2559. See J.A. at 130-33. The five
Virginia cases relied upon by
Wise are not to the
contrary. See Appellant's Br. at 34-35 (citing
Tharp v. Commonwealth, 211 Va. 1, 175 S.E.2d
277 (1970); O'Brien v. Socony Mobil Oil Co.,
207 Va. 707, 152 S.E.2d 278 (1967), cert.
denied, 389 U.S. 825, 88 S.Ct. 65, 19 L.Ed.2d
80 (1967); Stokes v. Peyton, 207 Va. 1, 147
S.E.2d 773 (1966); Thacker v. Peyton, 206
Va. 771, 146 S.E.2d 176 (1966); Cabaniss v.
Cunningham, 206 Va. 330, 143 S.E.2d 911
Supreme Court in Coleman explicitly
considered all five of these cases and
concluded that their "natural reading" is
that "the Virginia Supreme Court will extend
its time requirement only in those cases in
which the petitioner has a constitutional
right to have the appeal heard." --- U.S. at
---- - ----, 111 S.Ct. at 2560-61 (emphasis
Wise contends that
he had such a right under the Sixth
Amendment because he had been denied
effective assistance of counsel by the late
filing of his state habeas appeal. Coleman,
however, rejected this argument: "There is
no constitutional right to an attorney in
state post-conviction proceedings.
Consequently, a petitioner cannot claim
constitutionally ineffective assistance of
counsel in such proceedings." Id. --- U.S.
at ----, 111 S.Ct. at 2566 (citations
Wise also claims a
Fourteenth Amendment due process right was
created through the "special relationship"
he developed with Virginia by virtue of its
appointment of counsel for him. Appellant's
Br. at 23-28.4
Supreme Court, however, has rejected such
reasoning and warned that it rests on a
premise that we are unwilling to accept--that
when a State chooses to offer help to those
seeking relief from convictions, the Federal
Constitution dictates the exact form such
assistance must assume. On the contrary, ...
the State has made a valid choice to give
prisoners the assistance of counsel without
requiring the full panoply of procedural
protections that the Constitution requires
be given to defendants who are in a
fundamentally different position--at trial
and on first appeal as of right.
Pennsylvania v. Finley, 481 U.S. 551, 559,
107 S.Ct. 1990, 1995, 95 L.Ed.2d 539 (1987).
Because no constitutional right was
implicated, we reject Wise's
argument that the Virginia Supreme Court
necessarily considered the merits of his
appeal before dismissing it as untimely.
Wise argues that
his counsel's failure to file a timely
notice of appeal constitutes "cause,"
excusing his procedural default. See
Wainwright v. Sykes, 433 U.S. 72, 87, 97
S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).
Under Murray v. Carrier, 477 U.S. 478, 488,
106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1988),
however, his attorney's error will only
constitute "cause" if Wise
was denied his right to effective assistance
explained, supra, Wise
had no such right in his state habeas
appeal. See Coleman, --- U.S. at ----, 111
S.Ct. at 2568 (rejecting existence of "a
constitutional right to counsel on appeal
from the state habeas trial court judgment").
like Coleman, was not deprived by his
attorneys of an opportunity to have the
merits of his constitutional claims reviewed.
The state habeas trial court addressed the
merits of those claims. See id. --- U.S. at
----, 111 S.Ct. at 2567.5
Wise argues that
review of his claims was necessary to
correct a "fundamental miscarriage of
justice." See Carrier, 477 U.S. at 495-96,
106 S.Ct. at 2649-50. If his trial counsel
had presented evidence of his abusive and
criminal family environment, contends
Wise, he "would
have been ineligible for a death sentence."
Appellant's Br. at 46. This argument is
foreclosed by the Supreme Court's decision
in Sawyer v. Whitley, --- U.S. ----, 112
S.Ct. 2514, 120 L.Ed.2d 269 (1992). Sawyer
requires Wise to
show "by clear and convincing evidence that
but for constitutional error, no reasonable
juror would find him eligible for the death
penalty under [Virginia] law." Id. at 2523.
jury sentenced Wise
to death because it found the murder "outrageously
or wantonly vile, horrible or inhuman," an
aggravating factor under Va.Code Ann. §
19.2-264.2. The evidence showed that
Wise shot William
Ricketson at close range through the right
eye with a pistol, smashed Ricketson's skull
with shotgun blows, drowned and buried
Ricketson under cinder blocks in a "hole,
which had been dug for use as an outdoor
toilet, [and which] was filled with water,
mud, and human feces," and finally shot
Ricketson through the chest with a shotgun.
See 337 S.E.2d at 718-20.
juror could have easily found this
despicable murder "outrageously or wantonly
vile, horrible or inhuman" even in the face
of evidence of an abusive childhood. The
evidence of an abusive childhood, like "[t]he
psychological evidence [that] petitioner
allege[d] was kept from the jury due to the
ineffective assistance of counsel" in
Sawyer, "does not relate to petitioner's
guilt or innocence of the crime." --- U.S.
at ---- - ----, 112 S.Ct. at 2523-24.
it constitutes mitigating evidence, the
exclusion of which does not warrant
application of the "fundamental miscarriage
of justice" exception. See id. at 2523 (exception
"must focus on those elements which render a
defendant eligible for the death penalty,
and not on additional mitigating evidence
which was prevented from being introduced as
a result of a claimed constitutional error "
Wise has failed to
show that the procedural default relied upon
by the Virginia Supreme Court was not an
adequate and independent state ground, that
his attorneys' error constitutes cause to
excuse the default, or that federal review
of his claims is necessary to prevent a
fundamental miscarriage of justice.
Accordingly, the judgment of the district
court is affirmed.
Rule 5:9(a) provides: "No
appeal shall be allowed unless, within 30
days after the entry of final judgment or
other appealable order or decree, counsel
for the appellant files with the clerk of
the trial court a notice of appeal...."
The district court and
appellees appear mistaken in their belief
that Wise "never
moved for an extension of time," J.A. at
331, Appellee's Br. at 12.
Wise's "Motion for an Order Directing
the Circuit Court for Mecklenburg County to
Vacate and Reinstate its Order of December
11, 1989" also sought, "in the alternative,"
a thirty-day extension. J.A. at 69. The
Virginia Supreme Court, however, summarily
denied the motion. Id. at 76
attempts to distinguish Coleman by
emphasizing that his attorneys, unlike
Coleman's, were appointed by the court so as
to comply with Giarratano v. Murray, 668
F.Supp. 511 (E.D.Va.1986) (requiring
Virginia to provide appointed counsel to
indigent death row inmates who request it),
aff'd, 847 F.2d 1118 (4th Cir.1988) (en banc
), rev'd, 492 U.S. 1, 109 S.Ct. 2765, 106
L.Ed.2d 1 (1989). Wise's
reliance on this distinction is misplaced,
however. The Supreme Court reversed the
Giarratano decision in June 1989, see Murray
v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765,
106 L.Ed.2d 1 (1989), well before any
decision on his state habeas petition
Of course, the district
court only appointed counsel for
Wise upon his
request. See J.A. at 48, 53. Moreover,
Wise bases his
claim of a "right to be protected" by
Virginia on cases recognizing state duties
to provide safety for institutionalized
mentally retarded patients, Youngberg v.
Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d
28 (1982), to provide medical treatment to
prisoners, Estelle v. Gamble, 429 U.S. 97,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and to
protect foster children whom it places in
foster homes, L.J. ex rel. Darr v. Massinga,
838 F.2d 118 (4th Cir.1988), cert. denied,
488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d
805 (1989). None of these cases establish
the duty that Wise
would have us impose upon Virginia here
Wise failed to show "cause" for the
default, we need not address
Wise's claim of
prejudice. See Smith v. Murray, 477 U.S.
527, 533, 106 S.Ct. 2661, 2665-66, 91 L.Ed.2d
434 (1986) ("We need not determine whether
petitioner has carried his burden of showing
actual prejudice ..., for we think it self-evident
that he has failed to demonstrate cause for
his noncompliance with Virginia's procedures.")