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Douglas McArthur BUCHANAN Jr.





Classification: Mass murderer
Characteristics: Parricide
Number of victims: 4
Date of murders: September 15, 1987
Date of arrest: October 2, 1987
Date of birth: 1969
Victims profile: His father, stepmother and two stepbrothers (ages 10 and 13)
Method of murder: Shooting (rifle)
Location: Amherst County, Virginia, USA
Status: Executed by lethal injection in Virginia on March 18, 1998

Supreme Court of the United States
Buchanan v. Angelone
103 F.3d 344, affirmed

syllabus opinion concurrence dissent

United States Court of Appeals
For the Fourth Circuit

opinion 98-6380

Unhappy about his father remarrying shortly after his mother died of cancer, Douglas M. Buchanan Jr. shot and stabbed to death his father, stepmother and two stepbrothers (ages 10 and 13).

According to testimony at his trial in 1989, Buchanan felt left out when his father remarried six months after his mother died of cancer when he was 10.

On September 15, 1987 -- nine years later -- Buchanan showed up at the family home with a rifle and an argument erupted over a remark his father made about Buchanan's mother. Doud proceeded to shoot his father. Then he waited and fatally shot stepbrothers Donnie, 10, and Joel, 13, when they arrived home from school. Later he killed stepmother Geraldine Buchanan with a gun and knife.

Buchanan then fled with his wife, but they were captured 17 days later in New Mexico. His wife, Christianne, is serving four life terms for helping to plan the carnage. Asked why he killed the four, Buchanan told investigators: "They never treated me like a son, they treated me like an outsider all the time. I mean, I don't think they cared... They never talked to me when I was living there."

On March 18, 1998, the jealous stepbrother was executed by lethal injection in a Virgina death chamber. When asked if he had a final statement, Doug, 29, smiled at witnesses and said, "Get the ride started. I'm ready to go."


Victims: Douglas M. Buchanan, Sr. (father), Geraldine Patterson Buchanan (stepmother), Donald and Joel Jerry (stepbrothers)

According to trial testimony, Buchanan killed his family on Sept. 15, 1987, because of pent-up rage. He said he felt ostracized when his father, Douglas M. Buchanan, Sr., remarried shortly after his mother died of cancer.

The other victims were his stepmother, Geraldine Patterson Buchanan, 31, and 2 stepbrothers, Donald, 10 and Joel Jerry, 13.

Asked if he had a final statement, Buchanan smiled at witnesses in a booth adjacent to the death chamber and said that "basically, get the ride started. I'm ready to go."


Douglas Buchanan, Jr.

In August 1988, Douglas Buchanan, Jr. was sentenced to death for the capital murder of his father, Douglas Buchanan, Sr., and the murder of his two half-brothers and his 

Buchanan believes that he deserved a second-degree murder instruction read to the jury because he claims that the murders were carried out in a rage.  He contends that immediately preceding the murder of his father, they had a disagreement over Buchanan’s deceased mother’s alleged infidelities.  

When asked about the murders Buchanan answered, “`They never treated me like a son--they treated me like an outsider all the time.  I mean--I don't think they cared.’ Again Buchanan was asked whether it was any particular thing that `set it off at this particular time.’  He replied:  `there was no one thing that they could of done that--would have done that, it's just that I mean, they never talked to me when I was living there.’” 

While under oath Buchanan stated as he and his father were talking, he “`was getting mad.  I was sweating.  I was getting real hot and I was shaking."  When Buchanan tried to defend his natural mother, his father broke off the conversation saying "that's it, let's go out and look at this car I bought for J.J.’”  It was at that point that Buchanan stated he shot his father. 

Buchanan was granted a stay of execution from the United States Supreme Court on April 8, 1997, pending that Court’s disposition of his writ of certiorari.  His September 19, 1997 motion by the National Association of Criminal Defense Lawyers for a leave to file a brief as amicus curial was also granted by the United States Supreme Court. 

Buchanan entered death row on August 22, 1988 and was executed on March 18, 1998.


Douglas Buchanan, Jr. drove to the home of his father, Douglas M. Buchanan Sr., with a rifle. The two began arguing over something the older man had said about Buchanan's natural mother, who had died of cancer when he was 10. As Douglas Sr. turned to go inside, Buchanan shot him twice in the head and dragged him inside.

Soon after, his stepbrothers Joel, 13, and Donnie, 10, came home from school. He shot Donnie in the face and shot Joel in the back as he tried to flee. Last to return home, and last to die, was his stepmother. Buchanan shot her, stabbed her in the chest and slit her throat.


103 F.3d 344

Douglas Mcarthur Buchanan, Jr., Petitioner-appellant,
Ronald J. Angelone, Director, Virginia Department Of Corrections;
Commonwealth of Virginia, respondents-appellees

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1996.
Decided Dec. 30, 1996

Before HALL and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Senior Judge BUTZNER wrote the opinion, in which Judge HALL and Judge ERVIN joined.

BUTZNER, Senior Circuit Judge:

In 1988, Douglas McArthur Buchanan, Jr., was convicted of capital murder in Virginia and sentenced to death. After exhausting his state remedies, he petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, he alleged numerous constitutional defects in the state court proceedings. The district court denied the petition. On appeal, Buchanan presents five issues for review. After careful consideration of his contentions and the record, we find no reversible error and affirm the district court's disposition.


* On the afternoon of September 15, 1987, Buchanan murdered his father, his stepmother, and his two half brothers. The Virginia Supreme Court's opinion recounts the details of the crime. Buchanan v. Commonwealth, 238 Va. 389, 394-96, 384 S.E.2d 757, 760-61 (1989).

Buchanan was charged with capital murder for the killing of "more than one person as part of the same act or transaction." Va.Code Ann. § 18.2-31(7) (Michie 1996). In four separate indictments, the grand jury also charged him with the first degree murder of each victim. In addition, he was charged with four counts of use of a firearm in the commission of a murder.

Buchanan pleaded not guilty to all charges. He was tried before a jury in the Circuit Court for Amherst County, Virginia. The jury found him guilty of capital murder for killing his father, four first degree murders, and the firearm offenses. Following a separate hearing, the jury sentenced Buchanan to death for the capital murder, to life in prison for each of the first degree murders, and to a term of imprisonment for the firearm offenses. The circuit court imposed the recommended sentences.

Buchanan appealed to the Supreme Court of Virginia. The court vacated the redundant conviction of first degree murder for the killing of Buchanan's father and affirmed the other convictions and the related sentences, including the death penalty. Buchanan, 238 Va. at 418, 384 S.E.2d at 774. The United States Supreme Court denied certiorari. Buchanan v. Virginia, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990).

Buchanan then petitioned for a writ of habeas corpus in the Circuit Court of Amherst County. After the circuit court dismissed his petition, he appealed to the Supreme Court of Virginia, which also denied the petition. The United States Supreme Court again denied certiorari. Buchanan v. Murray, 506 U.S. 988, 113 S.Ct. 501, 121 L.Ed.2d 437 (1992).

Buchanan sought a writ of habeas corpus in federal district court, which denied relief. On appeal, Buchanan now asserts five claims, one relating to the competence of his trial counsel, three alleging errors in his trial, and one challenging the adequacy of the Virginia Supreme Court's appellate review.


Buchanan's first claim is that the sentencing jury was inadequately instructed about mitigating evidence. With regard to mitigation, the court told the jury: "[I]f you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment." In addition, the statutory verdict form required the jury to indicate that it had "considered the evidence in mitigation of the offense."

At trial Buchanan asked the court to give a more detailed instruction on mitigation. Specifically, he asked the court to tell the jury that it should consider as mitigating factors his youth, his clean criminal record, and whether he was "under the influence of extreme mental or emotional disturbance" when he committed the crime. Each of these factors is designated as mitigating evidence by Virginia Code § 19.2-264.4 (Michie 1996). During the sentencing hearing Buchanan submitted evidence supporting each factor, and Buchanan's counsel was permitted to discuss the factors in his closing argument.

Buchanan now argues that the trial court's failure to instruct the jury about the specific mitigating factors supported by his evidence violated his constitutional rights in two ways. His first argument rests on the Eighth Amendment. In his view, the trial court's nonspecific instruction did not appropriately channel the jury's discretion so as to avoid an arbitrary or capricious outcome.

The Eighth Amendment requires that a capital sentencing jury's discretion be "guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition." Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976). To accomplish this purpose, a capital sentencing jury must be properly instructed. Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990). However, the Eighth Amendment does not require states to adopt specific standards for instructing juries on aggravating and mitigating circumstances. Zant v. Stephens, 462 U.S. 862, 890, 103 S.Ct. 2733, 2749-50, 77 L.Ed.2d 235 (1983).

Guided by those constitutional principles, this court has previously analyzed and rejected the argument now asserted by Buchanan. In Clozza v. Murray, we held that Virginia's death penalty scheme survives constitutional scrutiny, despite its "failure to instruct the jury on statutory mitigating factors." 913 F.2d 1092, 1105 (4th Cir.1990). In addition, this court has reviewed and approved the constitutionality of jury instructions, used in other Virginia death penalty cases, that were essentially identical to the instructions contested in this case. Jones v. Murray, 947 F.2d 1106, 1119-20 (4th Cir.1991); Briley v. Bass, 750 F.2d 1238, 1248-49 (4th Cir.1984).

In its verdict, the jury, as required by Virginia Code § 19.2-264.4, certified that it had "considered the evidence in mitigation of the offense." In Jones, we concluded that "[b]y allowing the jury to consider all relevant mitigating evidence, [Virginia's sentencing] procedure ... satisfied the requirement of the Eighth and Fourteenth Amendments of individualized sentencing in capital cases." 947 F.2d at 1120. In light of this precedent, Buchanan's Eighth Amendment claim must fail.

Buchanan's second argument asserts a federal due process violation. According to Buchanan, the trial court's nonspecific mitigation instruction was inconsistent with Virginia's death penalty sentencing statute and, as a result, denied him the benefit of the Commonwealth's statutory sentencing scheme. Buchanan argues that this alleged violation of state law infringed his rights under the Due Process Clause.

It is true, at least in the context of discretionary sentencing by a jury, that denial of a state procedural right may rise to the level of a federal due process violation. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229-30, 65 L.Ed.2d 175 (1980). However, there was no such violation in Buchanan's case because, contrary to his assertion, the trial court's instruction was consistent with the sentencing statute. The statute establishes a capital defendant's right to present mitigating evidence during the sentencing hearing. It neither imposes nor implies an obligation to instruct the jury about specific mitigating factors. Va.Code Ann. § 19.2-264.4.

Our reading of the statute is consistent with the Virginia Supreme Court's interpretation. It is clear from that court's decisions that the statute does not require the trial court to list specific mitigating circumstances. See, e.g., LeVasseur v. Commonwealth, 225 Va. 564, 594-95, 304 S.E.2d 644, 661 (1983). Because the jury instructions in this case were consistent with the sentencing statute, Buchanan's due process argument must also fail.


The second claim advanced by Buchanan is that the trial court impermissibly limited his ability to present mitigating evidence at the sentencing hearing. This claim is based on the trial court's exclusion of hearsay testimony offered by Buchanan's expert witness, Dr. Robert Brown.

Dr. Brown was Buchanan's principal mitigation witness. In preparation for trial, he performed a psychological evaluation of Buchanan and extensively investigated his personal and family history. As part of his investigation, he interviewed many of Buchanan's friends and relatives.

Dr. Brown testified at trial that, in his expert opinion, Buchanan was under extreme emotional stress at the time of the killings. He went on to testify extensively about the evidence that supported his conclusion. However, the trial court did not permit him to repeat some of the statements made to him during the interviews he had conducted. Sustaining the prosecution's hearsay objection, the judge excluded all such statements made by individuals who had not appeared at trial. Although the statements were excluded, the judge offered to stay the proceedings and allow the individuals who had made the statements to testify in person. Buchanan declined the offer.

Buchanan insists that application of the hearsay rule in this case violated his constitutional right to present mitigating evidence. As support for his position, he relies on Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).

Based on the "unique circumstances" present in Green, the Court held that Georgia's admittedly proper application of its hearsay rule during the sentencing phase of a death penalty trial violated the Due Process Clause. 442 U.S. at 95-97, 99 S.Ct. at 2150-52. In that case, the trial court excluded an out-of-court statement of a man who had already been convicted of capital murder for his role in the killing for which the defendant was being tried. The excluded statement, made spontaneously to a close friend, amounted to an admission that the declarant alone was responsible for the killing.

The Court found that "[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, [citation omitted], and substantial reasons existed to assume its reliability." Id. at 97, 99 S.Ct. at 2151. Under those circumstances, the Court held that " 'the hearsay rule may not be applied mechanistically to defeat the ends of justice.' " Id. at 97, 99 S.Ct. at 2151-52 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973)).

The exclusion of the hearsay statements offered by Dr. Brown does not fit within the narrow exception recognized by Green. In Green, the excluded statement strongly tended to show that the defendant was innocent. In this case, the statements were offered only for the purpose of providing additional support for Dr. Brown's conclusion that Buchanan acted under extreme emotional stress.

Even without the proffered statements, Dr. Brown's testimony provided ample evidence to explain his opinion. For this reason, the statements would have had only cumulative probative value. After the trial court offered to continue the case and summon the relatives and friends whom Dr. Brown interviewed, Brown's attorney said: "I don't want to do that Judge. We have enough. I just want to object to your not allowing it in."

The excluded statements also lack the inherent reliability of the statement excluded in Green. The statement in Green was against the declarant's penal interest, made spontaneously to a close friend, and the state itself had relied on the excluded testimony to convict the declarant of capital murder. At Buchanan's trial, these compelling circumstances do not appear.

The evidence in this case discloses that the application of Virginia's hearsay rule did not rise to the level of a constitutional violation.


Buchanan's third claim is that his trial counsel was ineffective because he failed to take advantage of what Buchanan sees in retrospect as a certain opportunity to have avoided a death sentence. Buchanan contends that, if he had pleaded guilty to the four first degree murder indictments, the constitutional guarantee against double jeopardy would have precluded any further prosecution based on the same killings. This means, he argues, that the Commonwealth could not have prosecuted the capital murder indictments. Because Buchanan's sole objective throughout the criminal proceeding was to avoid the death penalty, he claims that his trial counsel's failure to recognize this opportunity deprived him of his Sixth Amendment right to counsel.

Contrary to Buchanan's assertion, pleading guilty to the first degree murder indictments would not have precluded the Commonwealth from prosecuting the capital charges. The Supreme Court addressed a nearly identical issue in Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). In that case, the defendant pleaded not guilty to the murder and aggravated robbery charges against him and, at the same time, pleaded guilty to the lesser included offenses of involuntary manslaughter and grand theft.

The trial court accepted the guilty pleas, sentenced the defendant, and then dismissed the murder and aggravated robbery charges on double jeopardy grounds. Id. at 494, 104 S.Ct. at 2538. On appeal, the Supreme Court of Ohio affirmed. The Supreme Court of the United States reversed, holding that pleading guilty to the lesser included offenses did not bar the state from prosecuting the greater offenses since all of the charges were brought in a single prosecution. Id. at 497-502, 104 S.Ct. at 2539-43.

Buchanan asserts that Johnson is inapplicable. He points out that in Johnson all of the charges were brought in a single indictment. In this case, on the other hand, Buchanan was charged with first degree murder and capital murder in separate indictments.

The distinction drawn by Buchanan would not have made any difference. In Johnson, the Court found that permitting the state to pursue the greater charges, even after the defendant pleaded guilty to the lesser charges, did not implicate any of the interests protected by the Double Jeopardy Clause. The Court noted that, by pleading guilty to the lesser included offenses, the defendant "has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial." 467 U.S. at 501, 104 S.Ct. at 2542.

The Court concluded that a defendant "should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges." Id. at 502, 104 S.Ct. at 2542. While it is true that Johnson involved a single indictment with multiple counts, the Court's reasoning applies equally to a case involving multiple indictments brought in a single prosecution. By itself, the fact that the Commonwealth charged Buchanan in separate indictments does not constitute the type of "governmental overreaching that double jeopardy is supposed to prevent." Id. at 502, 104 S.Ct. at 2542.

Buchanan argues that, under Virginia law, he had an absolute right to plead guilty at any time to the entirety of any indictment against him. He relies on Graham v. Commonwealth, 11 Va.App. 133, 137-40, 397 S.E.2d 270, 273 (1990), but his reliance is misplaced. The Virginia Court of Appeals explained that a plea of guilty to a lesser included offense would not bar prosecution of a greater offense pending in the same prosecution:

The only discretion given to a court by the statute is the right to refuse a plea of guilty to any lesser offense included in the charge upon which the accused is arraigned. Here the defendant wished to plead guilty to the whole of the indictment, not to a lesser included offense.

Graham, 11 Va.App. at 137, 397 S.E.2d at 272.

Although the explanation in Graham is dictum, it was confirmed in a subsequent case. The Virginia Court of Appeals held that pleading guilty to a first degree murder indictment does not preclude the simultaneous prosecution of a capital murder indictment involving the same transaction. Rea v. Commonwealth, 14 Va.App. 940, 943-45, 421 S.E.2d 464, 466-68 (1992) (relying on Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425).

Against this background, it is evident that Buchanan's right to counsel was not violated. The Sixth Amendment right to counsel guarantees effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In order to establish deprivation of this right, a criminal defendant must show both that counsel acted incompetently and that counsel's incompetence was prejudicial. Id. at 687, 104 S.Ct. at 2064.

Because there was no reason to believe that pleading guilty to the first degree indictments would have barred prosecution of the capital charges, the failure of Buchanan's counsel to recommend this course of action cannot be labelled incompetent. Additionally, since Buchanan could not have blocked prosecution of the capital charges by pleading guilty to the lesser included offenses, pleading not guilty did not prejudice him. For these reasons, we reject Buchanan's argument that his counsel was ineffective.


Next, Buchanan asserts that the Virginia Supreme Court's review of his case was constitutionally inadequate in two respects. First, he alleges that the court failed to consider the mitigating evidence he offered. Second, he claims that the court did not conduct the proportionality review required by Virginia statute in a rational manner. He argues the first deficiency violated both his due process and Eighth Amendment rights, while the second violated his due process rights. According to Buchanan, the federal due process violations arise because the Virginia Supreme Court improperly implemented the pertinent state statute.

The Eighth Amendment requires that the death penalty not be imposed in an arbitrary or capricious manner. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980). Meaningful appellate review is an important safeguard against improper imposition of the death penalty. Parker v. Dugger, 498 U.S. 308, 321, 111 S.Ct. 731, 739-40, 112 L.Ed.2d 812 (1991). Consistent with those constitutional requirements, Virginia law directs the Commonwealth's highest court to review the record in every death penalty case to determine whether the sentence was "imposed under the influence of passion, prejudice or any other arbitrary factor." Va.Code Ann. § 17-110.1.C.1 (Michie 1996).

The Virginia Supreme Court conducted the mandatory statutory review in this case. The court engaged in an "independent review of the record." By doing so, the court necessarily became aware of the mitigating evidence Buchanan had presented. Nevertheless, the court's examination "reveal[ed] nothing to suggest that the death penalty was imposed ... as the result of passion, prejudice, or arbitrariness." Buchanan, 238 Va. at 418, 384 S.E.2d at 774.

On collateral review, federal courts are not required to re-examine a state court's good faith findings. Cf. Walton, 497 U.S. at 656, 110 S.Ct. at 3058-59. Moreover, the district court conducted its own independent review of the record and, after specifically taking Buchanan's mitigating evidence into account, concluded that the death penalty had not been imposed arbitrarily. For these reasons, Buchanan cannot prevail on this point.

Also without merit is Buchanan's claim that the Virginia Supreme Court's proportionality review was inadequate. Although the Virginia capital sentencing statute requires a proportionality review, Virginia Code § 17-110.1.C.2, the federal Constitution does not. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 879-80, 79 L.Ed.2d 29 (1984). Buchanan's claims of inadequacy do not provide sufficient constitutional grounds to warrant a writ of habeas corpus. Peterson v. Murray, 904 F.2d 882, 887 (4th Cir.1990); Shaw v. Martin, 733 F.2d 304, 316-17 (4th Cir.1984).


Buchanan's final contention is that the trial court violated his federal due process rights by refusing to instruct the jury on second degree murder. Among the assignments of error in his appeal to the Supreme Court of Virginia, Buchanan argued that the trial court had erred because it did not give an instruction on second degree murder in compliance with Virginia law. After carefully reviewing the record, the Virginia Supreme Court rejected this argument, concluding that a second degree murder instruction was inappropriate because it lacked evidentiary support. Buchanan, 238 Va. at 408-12, 384 S.E.2d at 769-71 (citing Virginia cases).

Buchanan, however, did not contend in his direct appeal to the Virginia Supreme Court that the omitted instruction violated federal due process. As a result, the district court properly concluded that Buchanan had not met the exhaustion requirement found in 28 U.S.C. § 2254. Failure to raise a federal claim in state court bars federal review of the omitted claim. Duncan v. Henry, 513 U.S. 364, ----, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995); Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982).

Finding no error, we affirm the judgment denying Buchanan's petition for a writ of habeas corpus.




October Term, 1997

Douglas McArthur Buchanan, Jr.,
Ronald J. Angelone, Director,
Virginia Department of Corrections, et al.



The Criminal Justice Legal Foundation (CJLF)(1) is a nonprofit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient and reliable determination of guilt and swift execution of punishment.

The present case involves the extended relitigation of the legality of a proceeding conducted many years ago, involving no question of whether petitioner is actually guilty. Such unnecessary relitigation is contrary to the rights of victims and society which CJLF was formed to advance.


The facts of the case are set forth in the opinion of the Supreme Court of Virginia. Buchanan v. Commonwealth, 384 S. E. 2d 757, 760-761 (Va. 1989), J. A. 79-84. Additional facts are stated in the briefs of the parties and the opinion of the federal district court. J. A. 88-92. We summarize them here as necessary to frame the issues discussed in this brief.

Defendant Douglas Buchanan, Jr. was 19 years old at the time of the crime. Brief for Petitioner 5. He was married and lived with his wife separately from his father and stepmother. J. A. 89. Buchanan's mother had died when he was nine, and his father had remarried soon thereafter. Brief for Petitioner 6. The stepparent relationship was a poor one, and defendant demonizes the stepmother. Id., at 6-7. Geraldine Buchanan is not able to tell her side of this story. Defendant has rendered her unavailable as a witness.

"On September 14, 1987, Buchanan and [his wife] talked about killing his parents. The two of them even drove to the Buchanan home that evening, but Buchanan decided not to kill anyone that night and they left." J. A. 89 (footnote omitted).

The next day, he had apparently reconsidered. He went to his father's house carrying a rifle and wearing rubber gloves. J. A. 79. After arguing with his father, Buchanan shot him in the back of the head as he was walking away. J. A. 80. He then shot him point blank between the eyes. Ibid.

When Buchanan's brothers, age 10 and 13, arrived home from school a few minutes later, he killed them both. J. A. 80. When Mrs. Buchanan arrived home, he killed her as well. J. A. 80-81. All four victims suffered multiple gunshots, stabbings, or both. Ibid. The evidence of planning was so clear that Buchanan was not entitled to second-degree murder instructions. Id., at 83. At the penalty phase, a defense psychiatrist testified regarding the psychological effects of Buchanan's childhood difficulties. Brief for Petitioner 8-9. Defense counsel argued for a mitigating circumstance of "extreme mental or emotional disturbance" based on this testimony. J. A. 61-66.

The jury returned the following verdict:

"We, the Jury, on the issue joined, have found the defendant guilty of capital murder by having willfully, deliberately, and with premeditation killed Douglas McArthur Buchanan, Sr., Christopher Donald Buchanan, Joel Jerry Buchanan and Geraldine Patterson Buchanan as part of the same transaction and having found unanimously that his conduct in committing the murders of the above four victims, or any one of them, was outrageously or wantonly vile, horrible, or inhuman, in that it involved torture, depravity of mind or aggravated battery to the above four victims, or to any one of them, and having considered the evidence in mitigation of the offense, we unanimously fix his punishment at death." J. A. 77.

The Supreme Court of Virginia affirmed. Buchanan v. Commonwealth, 384 S. E. 2d, at 760. This Court denied certiorari on January 22, 1990, Buchanan v. Virginia, 493 U. S. 1063, making the decision "final" for retroactivity purposes.

The state trial court denied habeas relief, after an evidentiary hearing on ineffective assistance, in December, 1991. The Virginia Supreme Court denied appeal in June, 1992. This Court denied certiorari. Buchanan v. Murray, 506 U. S. 988 (1992).

Defendant filed a federal habeas petition, making 36 claims. J. A. 94-100. After an exhaustive opinion, see J. A. 100-199, the district court found that all of them were either defaulted or meritless. J. A. 199. The Fourth Circuit affirmed. Buchanan v. Angelone, 103 F. 3d 344, 351 (1996). The panel denied rehearing and no member of that court requested a poll on rehearing en banc. J. A. 215.

On April 28, 1997, this Court granted certiorari limited to Question 1 of the petition, J. A. 216, regarding the Eighth Amendment challenge to the penalty phase jury instructions.


Defendant's attack on Virginia's jury instructions fails to distinguish between the two very different decisions in capital sentencing: the eligibility decision and the selection decision. Attacking the lack of structure in the selection decision, he ignores the substantial guidance and structure in Virginia's eligibility determination, which not only meets but exceeds constitutional requirements.

Once attention is properly focused on this Court's precedents regarding the selection decision, we see that structuring of that decision is permitted but not required. There is no requirement to list mitigating circumstances, and the instruction to consider all the evidence and decide if the death sentence is justified fully complies with the applicable precedents.

The Virginia statute containing a nonexclusive list of "facts in mitigation" raises no federal issue within the scope of the question on which certiorari was granted. The Virginia Supreme Court has reasonably interpreted that statute to not require reading the list to the jury, and its interpretation is binding on federal courts. This Court denied certiorari of the Hicks v. Oklahomaargument, and it is not properly before the Court.

Defendant's argument that juries cannot be trusted to recognize what facts call for a sentence less than death in a particular case is contrary to the premise on which the Lockett line of cases is based. Either that line was wrongly decided and should be overruled, or defendant's argument must be rejected.


Footnote 1.Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as listed on the cover. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.


139 F.3d 982

Douglas Mcarthur Buchanan, Jr., Plaintiff-appellee,
James S. Gilmore, III, Governor, Commonwealth of Virginia, in His Individual and Official Capacities; Ronald J. Angelone, Director, Virginia Department of Corrections, In his Individual and Official Capacities, Defendants-appellants

United States Court of Appeals, Fourth Circuit.

Submitted March 17, 1998.
Decided March 18, 1998

Before ERVIN, Circuit Judge, and BUTZNER and HALL, Senior Circuit Judges.

Vacated and reversed by published per curiam opinion.


Douglas McArthur Buchanan, Jr., is currently incarcerated under sentence of death in the Commonwealth of Virginia. After the Supreme Court denied Buchanan relief, Buchanan v. Angelone, --- U.S. ----, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (No. 96-8400), his execution was scheduled for March 18, 1998. On March 13, 1998, Buchanan filed a petition in the United States District Court for the Eastern District of Virginia against James S. Gilmore, III, Governor, Commonwealth of Virginia, in his individual and official capacities, and Ronald J. Angelone, Director, Virginia Department of Corrections, in his individual and official capacities, pursuant to 42 U.S.C. § 1983.

Buchanan sought a declaratory judgment, a temporary restraining order, and injunctions against his execution until such time as his application for clemency is subject to consideration and resolution by a lawfully empowered official of the Commonwealth who does not suffer a conflict of interest and who can act upon the plaintiff's clemency petition consistent with due process of law. Having examined the merits, we reverse the relief that the district court granted and deny the stay of execution.

The power of clemency is conferred upon the Governor by the Constitution of Virginia. Va. Const. art. V, § 12. The Lieutenant Governor is authorized to act only if the Governor is "unable to discharge the powers and duties of his office." Va. Const. art. V, § 16.

Buchanan alleges that inasmuch as the Governor served as Attorney General of Virginia in prior proceedings concerning his case, he is disqualified by a conflict of interest from considering his clemency application.

After a hearing, the district court found good cause existed for the delay in filing this action and denied the Commonwealth's motion to dismiss. The court granted a preliminary injunction enjoining the defendants from executing Buchanan until further order of the district court.

The Commonwealth filed a motion to vacate the stay of execution and the injunction granted by the district court. Buchanan filed a response at 9:57 a.m. on March 18, 1998.

* Buchanan's § 1983 petition to the district court lacks merit for the following reasons. Although Buchanan's current action is brought under § 1983, the substance of his clemency petition which he has filed in preliminary form is based on trial error. It recounts his unfortunate upbringing and complains about the exclusion of mitigating evidence at the sentencing phase that would depict the story of his youth. In his proposed petition for clemency, he particularly assails the trial court's exclusion of part of the testimony of Dr. Brown, his expert witness. Dr. Brown was allowed to testify that Buchanan was under extreme emotional distress at the time of the killings. He was also allowed to testify about evidence in support of his conclusions. However, the trial court did not permit him to recite interviews that he had conducted among neighbors and members of the Buchanan family. The trial court considered this evidence to be hearsay. Nevertheless, the trial court offered to stay the proceedings to allow the individuals who made the statements to testify in person. Buchanan declined the offer.

In his proposed petition for clemency, Buchanan raises the denial of any instruction with respect to mitigation. This issue was raised and rejected in Buchanan's appeal to the Supreme Court of the United States. --- U.S. ----, 118 S.Ct. 757, 139 L.Ed.2d 702.

In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Court held that habeas corpus was the sole remedy for a prisoner seeking a release from punishment. Buchanan's § 1983 action is in essence a petition for a writ of habeas corpus. He seeks to have the Governor reconsider error attributed to the trial court. He seeks a modification of his punishment from execution to life imprisonment. Arguably, he seeks the invalidation of his death sentence for errors that occurred at trial. In this respect, his present claim for relief is a successive motion that is barred by 28 U.S.C. § 2244.


In Pickens v. Tucker, 851 F.Supp. 363 (E.D.Ark.), aff'd 23 F.3d 1477 (8th Cir.1994), the court held that inasmuch as only the Governor of Arkansas could grant clemency the rule of necessity applied. Pickens' claim of conflict of interest because the Governor had formerly served as Attorney General was dismissed.


The stay granted by the district court is vacated, and the preliminary injunction is reversed. The district court is directed to dismiss this action.

The mandate shall issue forthwith.




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