Walton v. Johnson, CIV.A. 7:03CV00347.

• Decision Date: 02 July 2003
• Docket Number: No. CIV.A. 7:03CV00347.,CIV.A. 7:03CV00347.
• Parties: Percy Levar WALTON, Petitioner, v. Gene JOHNSON, Director Virginia Department of Corrections, Respondent.
• Court: U.S. District Court — Western District of Virginia

269 F.Supp.2d 692

Percy Levar WALTON, Petitioner, v. Gene JOHNSON, Director Virginia Department of Corrections, Respondent.

No. CIV.A. 7:03CV00347.

United States District Court, W.D. Virginia, Roanoke Division.

July 2, 2003.

Jennifer L. Givens, Virginia Capital Representation Resource Center, Charlottesville, VA, for Petitioner.

Robert Q. Harris, Office of Attorney General, Richmond, VA, for Respondent.

MEMORANDUM OPINION

WILSON, Chief Judge.

This is an authorized successive petition by Percy Levar Walton for a writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in which Walton maintains that his sentence of death for three counts of capital murder would be cruel and unusual punishment because he is mentally retarded and because he is incompetent. The court finds that Walton is not mentally retarded under Virginia's definition of mental retardation which, like the American Psychiatric Association and the American Association of Mental Retardation's definition of mental retardation, requires an onset before age 18, and that Virginia's statute does not constitutionally under-define mental retardation. The court also finds, however, sufficiently conflicting evidence to warrant an evidentiary hearing on the question of whether Walton has become incompetent to be executed. Accordingly, the court will dismiss his mental retardation claim and hold a hearing on his incompetency claim.

I.

A. Factual History

In November of 1996, Walton murdered three of his neighbors in Danville, Virginia. He was arrested shortly after and charged with three counts of capital murder. Throughout the criminal proceedings, Walton's mental state was an issue. The trial court appointed Dr. Stanton Samenow, a mental health expert, to assist Walton in his defense. Dr. Samenow initially reported that Walton was competent to stand trial, but several months later he became concerned about Walton's mental health and recommended hospitalization. The trial court ordered another mental health expert, Dr. Miller Ryans, to determine whether Walton was competent to stand trial. Dr. Ryans examined Walton and concluded that he was competent to stand trial. Walton later pleaded guilty to all counts and was sentenced to death. During presentation of mitigating evidence at sentencing, Walton did not argue that he was mentally retarded.

Questions about Walton's mental health were also raised in Walton's state habeas petition and in his first habeas petition before this court. However, Walton's experts attributed his mental and behavioral problems to a mental illness-schizophreniaand not to mental retardation. In fact, the record indicates that of all the mental health experts that have submitted affidavits or testimony about Walton's mental health in his earlier proceedings-including at trial, on direct appeal, in Walton's state habeas and in his first federal habeas-no expert ever suggested that Walton was mentally retarded.

In terms of Walton's childhood and school history, the record shows that Walton reached the tenth grade in the same academic program as other students, although he initially failed first grade and fourth grade and was required to repeat those grades. There is no evidence that Walton was ever enrolled in a special education program or other remedial class for mentally retarded students. Walton received a number of failing grades in elementary school and high school, but he also received many passing grades including at least one "B" grade in a reading and writing course. Walton did not advance to eleventh grade because in the summer following his tenth grade year he was adjudicated as a juvenile offender and placed in a juvenile detention facility. An examination of Walton by a state psychologist after his arrival in juvenile detention attributed Walton's poor school performance to a lack of motivation. (Resp't ex. B at 3)

In June 1996, when Walton was 17 years and 8 months old, the Commonwealth's Juvenile Reception and Diagnostic Center evaluated Walton and administered the Wechsler Adult Intelligence Scale—Revised (WAIS-R)¹ IQ test. The WAIS-R test is considered the "gold standard" IQ test. Walton achieved a verbal IQ of 86, a performance IQ of 96 and a full-scale IQ of 90. Walton's full-scale IQ score of 90 placed him in the "average" range of intelligence. (Resp't. ex. B at 3)

On March 14, 1997, when Walton was 18 years and 5 months old, Dr. Stanton Samenow, Walton's court-appointed defense psychologist, again gave Walton the WAIS-R intelligence test. Walton achieved a verbal IQ of 71, a performance IQ of 89 and a full-scale IQ of 77. (Resp't ex. C) This court heard testimony from Dr. Samenow at Walton's first federal habeas proceeding on May 16, 2001. When asked about Walton's IQ test results, Dr. Samenow testified:

[H]e's definitely not retarded. He's not dull normal. Low, very low average. But then again, for a person who rejected academic endeavors in school, which he largely did, that too can affect an IQ score. So in other words, what I'm saying here is that this full scale IQ of 77 most likely is an underestimate of his intelligence.

(Habeas Tr. at 118).

Since Walton's eighteenth birthday, he has been given at least two other intelligence tests. On August 9, 1999, Walton was again given the WAIS-R test through the Medical College of Virginia as part of a neuropsychological evaluation. Walton achieved a verbal IQ of 66, a performance IQ of 74 and a full-scale IQ of 69. The evaluation report attributed Walton's poor scores to "a psychotic disorder and dementia." The report did not mention mental retardation as a source of the poor test results. (Pet.app.27)

In May 2003, after his execution had been scheduled, Dr. Patricia General, a prison psychiatrist, gave Walton a "GAMA" test. Walton scored a 66 on the GAMA test-a result considered "well below average." Dr. General noted that, based solely on the results of the GAMA test, Walton appeared mentally retarded. Later, however, Dr. General further noted that the GAMA test is not considered the "gold standard" of IQ tests, and that the GAMA test cannot be relied on to determine whether Walton is mentally retarded. After reviewing Walton's previous "gold standard" WAIS-R tests, Dr. General opined "with a reasonable degree of medical certainty that [Walton] is not mentally retarded." (Resp't ex. H) Dr. General also noted that the "GAMA" test is the only intelligence test available to prison staff at Sussex I State Prison, where Walton was housed at the time. The test is used only for screening purposes. (Resp't ex. H)

B. Procedural History

On October 7, 1997, in the Circuit Court for the City of Danville, Virginia, Walton pled guilty to three counts of capital murder. The Circuit Court found Walton to be a continuing threat to society and imposed three death sentences.

On November 25, 1997, Walton appealed the convictions to the Supreme Court of Virginia. That court denied his appeal on all grounds. Walton v. Virginia, 256 Va. 85, 501 S.E.2d 134 (1998) The Supreme Court of the United States denied Walton's petition for writ of certiorari. Walton v. Virginia, 525 U.S. 1046, 119 S.Ct. 602, 142 L.Ed.2d 544 (1998).

On February 5, 1999, Walton filed a petition for writ of habeas corpus in the Supreme Court of Virginia. After filing his petition, Walton filed a motion asking the court to hear his claim that he was incompetent to be executed under Ford v. Wainwright-a claim that he neglected to include in his written submissions. Walton also asked the court to appoint a mental health expert to examine him. The court denied Walton's motions and dismissed his habeas petition. Walton filed a petition for rehearing, attaching affidavits from mental health experts. On November 5, 1999, the Supreme Court of Virginia denied rehearing.

On March 24, 2000, Walton filed a habeas petition in this court. Among other claims, Walton claimed that he was not competent to plead guilty, that his trial counsel was ineffective, and that he was not competent to be executed. The court granted an evidentiary hearing on the questions of Walton's competency to plead guilty and the adequacy of his representation at trial. After hearing evidence from Walton and the Commonwealth, the court found that Walton's trial counsel was not ineffective and that Walton had procedurally defaulted his claim that he was not competent to plead guilty. The court declined to address Walton's claim that he was not competent to be executed because Walton's execution was not yet imminent. Walton v. Angelone, No. 7:99CV00940, 2002 WL 467142 (W.D.Va. Mar 27, 2002)

On February 27, 2003, the United States Court of Appeals for the Fourth Circuit affirmed the court's ruling. Walton v. Angelone, 321 F.3d 442 (4th Cir.2003). The Supreme Court denied Walton's petition for writ of certiorari. Walton v. Johnson, ___ U.S. ____, 123 S.Ct. 2626, 156 L.Ed.2d 642 (2003).

On May 23, 2003, the Fourth Circuit authorized Walton to file a successive petition on the question of whether Walton's execution was barred because he is mentally retarded. On June 2, 2003, Walton filed this petition for writ of habeas corpus, alleging three claims: (1) that his execution is barred because he is mentally retarded (2) that his execution is barred because he is incompetent, and (3) that he is not competent to choose his method of execution.

Walton's first claim is authorized as a successive habeas claim by the Fourth Circuit. Additionally, although this claim has not been raised in a state habeas proceeding, there is no issue of exhaustion because there is no available state process for raising the claim. A recently-enacted Virginia statute provides that, when a defendant has already completed both direct state appeal and a state habeas corpus proceeding, the defendant is not entitled to further state habeas proceedings on the question of mental retardation and "his sole remedy shall lie in federal court." 2003 Va. Acts ch. 1040 (May 1, 2003) (en...