Walton v. Johnson, 04-19.

• Decision Date: 09 March 2006
• Docket Number: No. 04-19.,04-19.
• Parties: Percy Levar WALTON, Petitioner-Appellant, v. Gene M. JOHNSON, Director, Virginia Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

440 F.3d 160

Percy Levar WALTON, Petitioner-Appellant, v. Gene M. JOHNSON, Director, Virginia Department of Corrections, Respondent-Appellee.

No. 04-19.

United States Court of Appeals, Fourth Circuit.

Argued October 27, 2005.

Decided March 9, 2006.

ARGUED:

Jennifer & Givens, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Robert Quentin Harris, Assistant Attorney General, Office of the Attorney General of

Virginia, Richmond, Virginia, for Appellee.

ON BRIEF:

F. Nash Bilisoly, Vandeventer Black, L.L.P., Norfolk, Virginia, for Appellant. Jerry W. Kilgore, Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before WILKINS, Chief Judge, and WIDENER, WILKINSON, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, KING, GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion, in which Judge WIDENER, Judge WILKINSON, Judge NIEMEYER, Judge LUTTIG, Judge WILLIAMS, and Judge DUNCAN joined. Judge WILKINSON wrote a separate concurring opinion. Judge WILLIAMS wrote a separate concurring opinion. Chief Judge WILKINS wrote a dissenting opinion, in which Judge MICHAEL, Judge MOTZ, Judge TRAXLER, Judge KING, and Judge GREGORY joined.

OPINION

SHEDD, Circuit Judge:

In 1996, Percy Levar Walton murdered three people in Danville, Virginia. Walton pled guilty to the crimes and was sentenced to death in Virginia state court. Over the next several years, Walton directly appealed his conviction and then filed both state and federal habeas petitions, all of which were unsuccessful. In 2003, after the state court scheduled his execution date for the second time, Walton filed his second federal habeas petition wherein he asserted that he is both mentally incompetent and mentally retarded and, therefore, his execution is precluded under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (prohibiting the execution of insane inmates), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting the execution of mentally retarded inmates). The district court denied Walton's habeas petition, and we now affirm.

We hold that the district court applied the proper legal standard in deciding that Walton is mentally competent to be executed, and its findings of fact are not clearly erroneous. We further hold that the district court properly dismissed Walton's mental retardation claim because his habeas petition fails to state sufficient facts demonstrating that he is mentally retarded under Virginia law.

I.

Walton murdered three people, an elderly couple and a younger man, in their homes in two separate incidents during November 1996.

Although the physical evidence alone overwhelmingly established Walton's guilt, Walton also admitted to several other jail inmates that he committed the murders, and he described the graphic details of the murders to his cellmate. We previously recounted the facts of Walton's crimes in greater detail in our opinion deciding Walton's first federal habeas petition. See Walton v. Angelone, 321 F.3d 442, 446-49 (4th Cir.2003).

With the assistance of counsel, Walton pled guilty to all three murders, three counts of robbery, one count of burglary, and six counts of using a firearm in the commission of a felony. Walton indicated that he wanted to plead guilty because the "chair is for killers." Id. at 454. After determining that Walton would likely commit additional criminal acts that would constitute a continuing serious threat to society, the Circuit Court for the City of Danville sentenced Walton to death.

Walton then began the long process of challenging his conviction and sentence on both direct and collateral review in state and federal court. Our first federal habeas opinion exhaustively details the extensive procedural history and the claims made in Walton's numerous prior proceedings. See Id. at 450-52. In both his state and federal habeas petitions, Walton challenged his conviction and sentence on the ground, among many others, that he was not mentally competent to plead guilty.

After the district court denied Walton relief in his first habeas petition, Walton sought a certificate of appealability from this court. As to Walton's claims that he was not competent to plead guilty and that his counsel was ineffective for failing to adequately raise the issue during the state trial court proceedings, we reviewed the extensive evidence regarding what Walton's counsel knew about Walton's mental condition during the trial court proceedings. Id. at 453-57. As we explained, shortly after Walton was indicted, the state court appointed a psychiatrist to assess Walton. Walton told the psychiatrist that he would be able to come back to life shortly after his execution with the same name but a new spirit. Walton also said that he would be able to resurrect his dead family members upon his return. Id. at 454 n. 12. This psychiatrist opined that Walton was competent to stand trial because Walton understood the proceedings against him and understood that, if convicted of capital murder, he could be executed in the electric chair or by lethal injection. Id. at 455-56. The state court appointed a second psychiatrist to assess Walton. The second psychiatrist also opined that Walton was competent because he understood the nature of the proceedings against him and could assist his counsel. Id. at 456.

After conferring with these psychiatrists, Walton's trial counsel decided against using a mental incompetence strategy at trial because, among other reasons, the testimony of the two psychiatrists would not have been helpful, Walton had told at least two of his fellow inmates that he intended to "play crazy," and just a few months earlier Walton had stood trial for burglary and grand larceny and his competence to stand trial was not at issue then. Id. at 458.

After reviewing this evidence, we denied Walton's certificate of appealability, concluding that "we harbor no doubt" that Walton was competent to plead guilty and that the assistance provided by Walton's counsel was "more than reasonable." Id. at 460-61. The United States Supreme Court denied Walton's petition for a writ of certiorari. Walton v. Johnson, 539 U.S. 950, 123 S.Ct. 2626, 156 L.Ed.2d 642 (2003).

Thereafter, the Danville Circuit Court rescheduled Walton's execution date for May 28, 2003.¹ Walton chose electrocution as the form of execution. Just three days before this execution date, the district court granted Walton's request for a stay of execution. A panel of this court granted Walton's request to file a second habeas petition to allow him to claim (for the first time in any proceeding) that he cannot be executed because he is mentally retarded. In this second federal petition, Walton makes no further attack on his conviction. Walton's only remaining claims are that he cannot be executed because (1) he is mentally retarded;² and (2) he is mentally incompetent.³

The district court dismissed Walton's mental retardation claim without an evidentiary hearing, concluding that Walton failed to forecast evidence that his alleged mental retardation originated before the age of 18 — a required element under Virginia law. Walton v. Johnson, 269 F.Supp.2d 692, 700 (W.D.Va.2003). On the issue of mental competence, however, the district court determined that an evidentiary hearing was warranted. Id. at 694.

The district court heard extensive evidence regarding Walton's mental competence during two days of testimony. On the first day, vastly conflicting testimony was presented. Walton's retained experts, Drs. Anand Pandurangi and Reuben Gur, testified that Walton is suffering from schizophrenia and has borderline delusional ideas about his ability to come back to life after his execution.⁴ For instance, Walton told Dr. Pandurangi, chairman of the Division of Inpatient Psychiatry at the Medical College of Virginia, that, despite his impending death sentence, he wanted a motorcycle, a telephone, and to look good at the mall. In their discussion about death, Walton told him that "[p]eople who die go to the graveyard . . . but everybody comes back." J.A. 425. Despite Walton's responses acknowledging that death does occur, Dr. Pandurangi ultimately opined that Walton does not comprehend that he is going to be executed and will die for murdering three people.

When Dr. Gur, the director of neuropsychology at the University of Pennsylvania, asked Walton what death meant, Walton responded, "It means you're dead." J.A. 441. Walton proceeded to explain, however, that after his execution he would "come back as a better person" and would "get a Burger King." J.A. 441. Walton also told Dr. Gur that he had received a letter informing him of his May 28, 2003, execution date: "Yes, I have the letter, and I have an execution date." J.A. 442. Dr. Gur testified that Walton said that execution means dying, but Walton's main concern is that after his death he will come back as a woman. Based on his interviews with Walton, Dr. Gur concluded that although Walton "was able to discuss the method of execution in a seemingly rational fashion, [he] . . . failed to comprehend that at the end of the procedure he will no longer be alive." J.A. 466.

Walton also presented the testimony of Dr. Patricia General, a psychiatrist employed to assess Virginia inmates, who assessed Walton shortly before his scheduled 2003 execution date. Dr. General testified that Walton never exhibited any type of delusional behavior in her presence during their three interviews, but he was confused and largely unable to answer any of her questions during their first session. Dr. General's initial impression was that Walton appeared floridly psychotic, but she did not believe she had a sufficient basis to prescribe him any medication. In their second interview, Dr. General asked Walton why he was going to be put to death. Walton responded that "some people had told him...