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
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,
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
Mcarthur Buchanan, Jr., Petitioner-appellant,
Ronald J. Angelone, Director, Virginia Department Of
Commonwealth of Virginia, respondents-appellees
United States Court of Appeals,
Argued Oct. 30, 1996.
Decided Dec. 30, 1996
Before HALL and
ERVIN, Circuit Judges, and BUTZNER, Senior Circuit
Senior Judge BUTZNER wrote the
opinion, in which Judge HALL and Judge ERVIN joined.
BUTZNER, Senior Circuit Judge:
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).
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.
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
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).
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
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.
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."
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.
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
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).
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.
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. §
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
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
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.
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.
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)).
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
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."
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.
in this case discloses that the application of
Virginia's hearsay rule did not rise to the
level of a constitutional violation.
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.
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.
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.
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
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.
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.
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
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
Va.App. at 137, 397 S.E.2d at 272.
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).
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.
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.
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
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).
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.
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
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).
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
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
error, we affirm the judgment denying Buchanan's
petition for a writ of habeas corpus.
SUPREME COURT OF THE UNITED STATES
October Term, 1997
Douglas McArthur Buchanan, Jr.,
v..Ronald J. Angelone,
Virginia Department of Corrections, et al.
BRIEF AMICUS CURIAE OF THE CRIMINAL JUSTICE
IN SUPPORT OF RESPONDENTS
INTEREST OF AMICUS
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
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.
SUMMARY OF FACTS AND CASE
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
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.
SUMMARY OF ARGUMENT
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
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.
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.,
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,
United States Court of Appeals,
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.
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.
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.
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.
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.
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.
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
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.
granted by the district court is vacated, and
the preliminary injunction is reversed. The
district court is directed to dismiss this
shall issue forthwith.