JARRATT, Virginia (CNN) -- A man who abducted a
15-year-old drug courier, slashed his throat and shot him twice in
the back of the head was executed Thursday.
Kevin DeWayne Cardwell, 29, was put to death by
injection. In his final words, he referred to execution witnesses
and said, "Why was all them sick people looking at me through that
glass?"
Cardwell was convicted in the 1991 murder,
robbery and abduction of Anthony Brown of Hempstead, New York.
Cardwell and several friends learned that Brown
was arriving at a Richmond bus station with drugs. They met him and
took his luggage.
When they discovered no drugs in the bags, a
friend of Cardwell's lured Brown to Cardwell's apartment, where they
found cocaine taped to Brown's leg. The men then took Brown into the
woods, where Cardwell killed him.
In August, the 4th U.S. Circuit Court of Appeals
rejected Cardwell's claim that he received ineffective counsel
regarding his mental health. The U.S. Supreme Court rejected his
appeal hours before the execution.
His lawyer said Cardwell declined to make a final
appeal for clemency because he thought it would be futile.
"Mr. Cardwell instructed me not to pursue a
clemency request, frankly believing that it would not succeed and
that, as he put it, (he) wanted to depart with a sense of dignity,"
lawyer Dennis Dohnal said before the execution.
Outside the prison in Jarratt, about 55 miles
south of the state capital Richmond, activists opposed to capital
punishment held a candlelight vigil to protest the quickening pace
of U.S. executions.
Thirty-eight of the 50 states have the death
penalty on the books.
With Cardwell's execution, 491 death row inmates
have been put to death since 1976 when the U.S. Supreme Court
reinstated capital punishment. With five more executions set in
Texas and four scheduled in South Carolina this month, the United
States likely will surpass the benchmark 500th execution by year's
end.
Cardwell became the 13th person executed in
Virginia this year and 59th since capital punishment resumed in the
state. Virginia trails only Texas in the number of executions
carried out in modern times.
UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
KEVIN DEWAYNE CARDWELL, Petitioner-Appellant,
v.
FRED W. GREENE, Warden, Mecklenburg Correctional Center, Respondent-Appellee.
No. 97-20
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.T. S. Ellis, III, District Judge.(CA-96-1516-AM)
Argued: April 8, 1998
Decided: August 11, 1998
Before WIDENER, MURNAGHAN, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Murnaghan wrote the opinion, in
which Judge Widener and Judge Michael joined.
COUNSELARGUED: Dennis William Dohnal, BRENNER, DOHNAL,EVANS & YOFFY,
Richmond, Virginia, for Appellant. RobertQuentin Harris, Assistant
Attorney General, OFFICE OF
THEATTORNEY GENERAL, Richmond, Virginia, for Appellee.
ON BRIEF: Mark L. Earley,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.
OPINION
MURNAGHAN,
Circuit Judge:
Kevin DeWayne
Cardwell appeals the district court's dismissal ofhis petition for a
writ of habeas corpus. The appeal presents three questions. First,
we are called upon to determine whether the district court erred in
denying Cardwell an evidentiary hearing on his claim of ineffective
assistance of counsel. Because we find that Cardwell has failed to
demonstrate entitlement to an evidentiary hearing, we consider
whether his death sentence was rendered constitutionally infirm by
trial counsel's failure to develop and present expert testimony
regarding Cardwell's mental health. In assessing the merits of
Cardwell's claim, we must also decide whether the Virginia Supreme
Court's summary disposition of Cardwell's ineffective assistance
claim constitutes an "adjudicat[ion] on the merits" within the
meaningof 28 U.S.C. § 2254(d)(1), and, if so, how the absence of a
statement of reasons affects our review of the state court decision.
I.-
The facts relating to
Cardwell's murder of fifteen-year-old Anthony Brown have been fully
set forth by the Virginia Supreme Court in Cardwell v. Commonwealth,
450 S.E.2d 146, 149-50 (Va.1994). Because our analysis of Cardwell's
ineffective assistance claim requires some understanding of those
facts, we provide a brief summary here.
On November 20, 1991, Tina Poindexter alerted Cardwell to Brown's
impending arrival in Richmond, Virginia. Poindexter informed
Cardwell that Brown would be carrying drugs, and that she intended
to meet Brown upon his arrival at the bus station. Armed with
handguns, Cardwell and three friends intercepted Brown and
Poindexter at the bus station. They stole Brown's duffel bag and
repaired to Cardwell's apartment. A search of the duffel bag however,
failed to yield any drugs.
The
traitorous Poindexter then called Cardwell to advise him that the
drugs were strapped to the inside of Brown's leg. At Cardwell's
suggestion, Poindexter agreed to tell Brown that she had friends who
could help retrieve his stolen belongings and bring him to
Cardwell's apartment. When Cardwell announced to his friends that he
planned to rob Brown again and then either to knock him unconscious
or kill him, two of the confederates departed. It remained to
Cardwell and Richard Claiborne to implement the scheme.
Shortly after Poindexter and Brown arrived, Cardwell pointed a gun
at Brown and demanded the drugs. Claiborne pulled down Brown's pants
and took the drugs from Brown's inner thigh. Brown was then forced
at gunpoint to lie face down on the floor in the
backseat of Poindexter's car. Brown repeatedly begged that his life
bespared, to which Cardwell responded "shut up."
After driving to the back of a shopping center, Cardwell demanded
Claiborne's .380 caliber automatic pistol and marched Brown into the
woods. Claiborne, who followed at a distance of approximately ten
feet, heard Brown plead for his life and Cardwell answer "shut up."
Claiborne then heard a "gargling noise" which he recognized "from
the movies" as the sound of Cardwell cutting Brown's throat.
Noticing Claiborne's presence, Cardwell said "I'm going to shoot him
and he's going to die." Claiborne said "No" and turned to walk back
to the car. Two gunshots were fired, and Cardwell returned to
Poindexter's car.
The trio drove to Cardwell's apartment, where
Cardwell threw Claiborne's pistol and a six-inch steak knife into a
dumpster. Brown's decomposed body was discovered in the woods
approximately two months later. An autopsy revealed that Brown had
sustained knife injuries to the wrist and neck, and two gunshot
wounds to the back of the head.
On May 10, 1993, Cardwell was indicted in the Circuit Court for
Henrico County, Virginia, on three counts of capital murder.
Cardwell was further charged with abduction, robbery, and three
counts ofusing a firearm in the commission of a felony. The court
appointed Robert Geary to represent Cardwell on May 20, 1993, and
trial was scheduled to commence on July 19, 1993. The trial court
subsequently appointed John McGarvey to act as co-counsel for the
defense.
On June 24, 1993, the
court granted a defense motion for a continuance and rescheduled the
trial to commence on September 7, 1993.
The court cautioned the parties to bring any matters that would
occasion additional delay promptly to the court's attention, and
strongly implied that it would be unreceptive to further requests
for continuance.
On August 3,
1993, the trial court granted Cardwell's motion to appoint Dr. Randy
Thomas, a mental health expert selected by the defense, to assist in
the development of evidence for possible use in the penalty phase of
the capital murder proceedings. Defense counsel immediately
telephoned Dr. Thomas, only to discover that he was on vacation and
would not return until August 25. Upon his return, Dr.Thomas advised
Cardwell's attorneys that he would need approximately one and a half
months to complete his evaluation of Cardwell.
Cardwell's counsel moved for a second continuance on August 23,1993,
explaining that Dr. Thomas had been unavailable and that additional
time was required to obtain an evaluation. The trial court summarily
denied Cardwell's motion on August 24, and trial commencedas
scheduled on September 7.
Following a two-day trial, a jury convicted Cardwell of two counts
of capital murder, 1 and all other counts as charged. When the
capital sentencing phase of Cardwell's trial began on September 9,
1993, Cardwell's request for a continuance was renewed.
Counsel
proffered a preliminary report in which Dr. Thomas opined that
further investigation was warranted with respect to Cardwell's
family history, the possibility of severe abuse of drugs and
alcohol, and the possibility that Cardwell had suffered brain
dysfunction or a learning disability as a consequence of a childhood
head injury.
The court received Dr.Thomas'
preliminary evaluation into the record, but refused to granta
continuance of the sentencing proceedings.
In the penalty phase, the Commonwealth sought the imposition of the
death penalty on the ground that Cardwell's conduct in murdering
Brown had been "outrageously or wantonly vile," or, in the
alternative, because there was a probability that Cardwell was
likely to commit criminal acts of violence in the future. See Va.
Code § 19.2-264.2. Cardwell called only his grandmother, Donzell
Cardwell, to provide evidence in mitigation. On September 9, 1993,
the jury unanimously recommended a sentence of death on the basis of
vileness.
The trial court
reviewed the jury's recommendation pursuant to Va.Code § 19.2-264.5,
which provides:
When the
punishment of any person has been fixed at death, the court shall,
before imposing sentence, direct a probation officer of the court to
thoroughly investigate the history ofthe defendant and any and all
other relevant facts, to the end that the court may be fully advised
as to whether the sentence of death is appropriate and just. . . .
After consideration of the report, and upon good cause shown, the
court may set aside the sentence of death and impose a sentence of
imprisonment for life.
At a
hearing on November 10, 1993, the trial judge inquired whether
defense counsel had any additional evidence to submit in connection
with sentencing. Counsel declined. McGarvey explained later that
heelected for strategic reasons not to complete and submit an
evaluation of Cardwell's mental health to the trial court during its
final review of Cardwell's death sentence. In an affidavit submitted
to the Virginia Supreme Court during state habeas proceedings,
McGarvey stated:
I made a
strategic decision not to continue with the evaluation by Dr.
Thomas. Based on my experience, I did not believe that the trial
judge would have overturned the jury's sentencing decision on Dr.
Thomas' findings. Had I continued with the evaluations, and
submitted the information to the court at final sentencing, I ran
the real risk that the trial court would have found that the
information would not have made a difference, thereby undercutting
my claim when I took the issue up on appeal.
The trial court imposed a sentence of death in accordance with the
recommendation of the jury.
On
direct appeal, the Virginia Supreme Court affirmed Cardwell's
convictions and sentences. Cardwell v. Commonwealth, 250 S.E.2d146
(Va. 1994). The United States Supreme Court denied certiorari on May
1, 1995. Cardwell v. Virginia, 514 U.S. 1097 (1995).
On July 7, 1995, the state trial court appointed counsel to
represent Cardwell in state postconviction proceedings. Cardwell
filed an "Incomplete Original Petition" in August 1995, and filed
several motions for the appointment of experts to assist in the
preparation of his petition. On December 15, 1995, the Supreme Court
of Virginia granted Cardwell thirty days to amend the August 1995
petition, but denied his motions for the appointment of experts.
Cardwell filed an amended petition on January 23, 1996. Included
among his claims for relief was an argument that he had been denied
the effective assistance of counsel by virtue of his trial counsel's
failure to develop and present evidence concerning Cardwell's mental
health.
The Virginia Supreme
Court denied Cardwell's amended petitionin its entirety on May 3,
1996. No evidentiary hearing was provided. After concluding that one
of Cardwell's claims had been procedurally defaulted, the court
tersely stated: "finding no merit in other complaints raised by
petitioner, the Court is of the opinion that the writ of habeas
corpus should not issue as prayed for."
Cardwell again sought the assistance of experts in preparing his
federal habeas petition. On February 24, 1997, the district court
granted Cardwell's motion to appoint Dr. Robert Hart, a
neuropsychiatrist, and Dr. Leigh Hagan, a clinical psychologist, to
evaluate Cardwell's mental condition. Cardwell filed Drs. Hart's and
Hagan's reports with his habeas corpus petition on March 17, 1997,
and requested an evidentiary hearing. The Commonwealth opposed an
evidentiary hearing, and moved to dismiss Cardwell's petition.
The district court permitted expansion of the record to include the
expert reports of Drs. Hart and Hagan, but denied Cardwell an
evidentiary hearing. Cardwell v. Netherland, 971 F. Supp. 997, 1012(E.D.
Va. 1997). After a careful review of the expanded record, the
district court concluded that Cardwell had failed to establish
entitlement to federal habeas relief, and granted the Commonwealth's
motion to dismiss the petition. Id. at 1022.
Cardwell appealed, and simultaneously filed an application for a
certificate of appealability ("COA") with the district court. On
October 7, 1997, the district court granted the COA with respect to:
(1) Cardwell's claim of ineffective assistance of counsel, and (2)
Cardwell's request for an evidentiary hearing on his ineffective
assistance claim.
....
We, therefore, affirm the district court's denial of an evidentiary
hearing, and of the writ of habeas corpus.The judgment is
accordingly AFFIRMED.
