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Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: July 22, 1983
Date of birth: 1962
Victim profile: John Elliott, 62 (grocer)
Method of murder: Stabbing with a butcher knife
Location: City of Danville, Virginia, USA
Status: Executed by lethal injection in Virginia on January 24, 1995
clemency petition

In July, 1983, Edmonds murdered John Elliott, a grocer in the City of Danville during a robbery. Elliot was first gagged, then stabbed in the neck with a knife and hit in the head with a brick by Edmonds.

The robbery netted $40 for Edmonds and Elliot was left behind the counter by the cash register, where he bled to death from his injuries.


Inmate executed

The New York Times

January 26, 1995

In Jarratt, Va., Dana Ray Edmonds was pronounced dead at 9:14 P.M., hours after the United States Supreme Court denied his request for an appeal and Gov. George F. Allen denied a request for clemency.

On Monday, Judge James C. Turk of Federal District Court in Roanoke refused to halt the execution, although he conceded that Mr. Edmonds had been denied the constitutional right to effective counsel during trial. Judge Turk said the lawyer issue was raised too late to block the execution and would probably not have changed the outcome of the trial.

Before officials administered the drugs on Tuesday night, Mr. Edmonds said softly that he wanted to leave earth "in the grace of God."



17 F.3d 1433

Dana Ray EDMONDS, Petitioner-Appellee,
Charles E. THOMPSON, Warden, Mecklenburg Correctional
Center, Respondent-Appellant.
Charles E. THOMPSON, Warden, Mecklenburg Correctional
Center, Respondent-Appellee.

Nos. 92-4011, 92-4012.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 27, 1993.
Decided Feb. 16, 1994.

Appeal from the United States District Court for the Western District of Virginia, Roanoke. James C. Turk, District Judge. (CA-89-727-R)


Before ERVIN, Chief Judge, and HALL and LUTTIG, Circuit Judges.



The warden of Virginia's state penitentiary appeals an order of the district court holding that Dana Ray Edmonds received ineffective assistance of counsel at the sentencing stage and granting his petition for a writ of habeas corpus to the extent of vacating his death sentence. Edmonds cross-appeals the district court's dismissal of his remaining claims. Because we hold that Edmonds did not assert the claim upon which the district court granted relief, we reverse and deny Edmonds' petition.


Following a bench trial, Edmonds was convicted in 1983 of the robbery and capital murder1 of grocer John Elliott in Danville, Virginia. The court, after finding both statutorily created aggravating factors--"future dangerousness" and "vileness"--to exist in Edmonds' case, sentenced him to death for the murder.2 However, the court failed to order a presentence report prior to entering judgment on the sentence.3

Upon Edmonds' motion, the court vacated his sentence, ordered a presentence report, and scheduled a new sentencing proceeding. Despite having previously sentenced Edmonds to die, the judge did not recuse himself from presiding over the second proceeding, and Edmonds did not request recusal. On resentencing, the court reviewed the evidence that had previously been presented, and, after also considering the presentence report and additional psychiatric evidence, once again found both aggravating factors and imposed the death sentence.

On direct appeal, the Supreme Court of Virginia affirmed Edmonds' conviction and sentence. Edmonds v. Commonwealth, 329 S.E.2d 807 (Va.1985). The United States Supreme Court denied certiorari. Edmonds v. Virginia, 474 U.S. 975 (1985).

In 1986, Edmonds filed a habeas corpus petition in the state trial court, asserting numerous claims. As one ground in support of his claim of ineffective assistance of counsel, Edmonds alleged that "counsel failed to challenge the trial [c]ourt's imposition of the death sentence without finding the existence of an aggravating circumstance beyond a reasonable doubt, and without finding the essential elements of future dangerousness."4

The state trial court dismissed Edmonds' petition, and he appealed to the Supreme Court of Virginia. With regard to the ineffective assistance claim, Edmonds argued before that court as he had argued below, complaining that counsel "inexplicably chose not to challenge the Circuit Court's final sentencing order, which not only applied the wrong burden of proof, but also ignored critical statutory elements of the aggravating circumstance on which it relied to impose the death penalty." Edmonds did not persuade the court; it denied his petition.

Pursuant to 28 U.S.C. Sec. 2254, Edmonds petitioned the district court for relief. There, among his other claims, Edmonds argued once more that he

did not receive effective assistance of counsel because trial counsel failed to object to the trial court's sentencing order which both held the Commonwealth to [a] standard of proof lower than mandated by the Virginia death penalty statute and failed to find the essential elements of the future dangerousness prong.

In a memorandum opinion, the district court "liberally construed" Edmonds' claim that counsel should have objected to the content of the final sentencing order, finding "inherent" within it a claim that counsel should have moved to recuse the trial judge after he had already sentenced Edmonds to death without a presentence report. Holding that Edmonds' "claim" had not been adequately developed during the state habeas proceedings, the district court referred the matter to a magistrate judge for an evidentiary hearing.

The magistrate judge issued a "Report and Recommended Disposition," evaluating counsel's performance under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). In his report-recommendation, the magistrate judge found that counsel's performance was objectively deficient because he failed to move to recuse the trial judge from the resentencing proceedings, and that, but for counsel's unprofessional error, a reasonable probability existed that Edmonds would not have been sentenced to death. The magistrate judge therefore concluded that the habeas petition should be granted.

On August 31, 1992, the district court adopted the findings of the magistrate judge in their entirety, vacated Edmonds' death sentence, and ordered the state to either reduce Edmonds' sentence to life imprisonment or conduct a new sentencing procedure within 180 days. The district court granted the warden's motion staying its order pending this appeal.


It is axiomatic that we cannot grant habeas relief based upon a claim that has not been asserted. The plain, reasonable, and, indeed, only meaning of Edmonds' claim is that counsel was ineffective for failing to object to the content of the sentencing order. To perceive in it a claim that counsel was ineffective for failing to move to recuse the trial judge is to force Edmonds' words to bear more meaning than they are capable of bearing.5 Because the district court granted Edmonds' petition based solely on a claim that was not before it, its judgment must be reversed.


On cross-appeal, Edmonds contends that the district court erred in dismissing his remaining claims. The court found no merit in the other grounds Edmonds has alleged in support of his claim of ineffective assistance of counsel, and likewise found the evidence sufficient to prove that Edmonds murdered Elliott in the commission of a robbery. Edmonds also appeals the district court's refusal, by reason of procedural bar, to consider various other claims contained in his petition. He argues that consideration of these claims is mandated because he is "actually innocent" of the death sentence, see Dugger v. Adams, 489 U.S. 401, 410 n. 6 (1989), and its imposition in his case would therefore be a "fundamental miscarriage of justice." Id. Upon a review of the record, we can ascertain no error committed by the district court with regard to the cross-appeal issues, and we affirm its judgment on the reasoning contained in its memorandum opinion.


The district court's decision to grant Edmonds' petition is reversed. The judgment of the district court is affirmed with respect to the issues contained in Edmonds' cross-appeal, and Edmonds' petition for relief under 28 U.S.C. Sec. 2254 is denied.




Va.Code Ann. Sec. 18.2-31 (Michie 1992) limits the death penalty to defendants convicted of "capital murder," which is a "willful, deliberate, and premeditated killing" committed in certain situations, generally involving the commission of other, specified crimes. Edmonds was convicted of violating Sec. 18.2-31(4), intentionally killing Elliott "in the commission of robbery ... while armed with a deadly weapon."


Virginia law permits the imposition of a capital sentence only upon proof beyond a reasonable doubt that the accused would either "commit criminal acts of violence that would constitute a continuing serious threat to society" (the "future dangerousness" aggravating factor) or "that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman" (the "vileness" aggravating factor). Va.Code Ann. Sec. 19.2-264(4)(C) (Michie 1992). The latter is present if the act of murder involved torture, depravity of mind, or aggravated battery to the victim. Id. The court found that Edmonds committed an aggravated battery, in that he fractured Elliott's skull with a brick, dragged him behind the meat counter of his store, slit his throat, and stabbed him in the neck with a butcher knife, twisting the knife and severing his carotid artery


The purpose of the presentence report, required by Va.Code Ann. Sec. 19.2-264(5) (Michie 1992) to be obtained before imposing a death sentence, is to fully investigate any relevant facts, including the defendant's history, that might justify setting aside the death sentence in favor of imprisonment for life


The court stated in its final sentencing order that "the evidence clearly establishes that the crime was one of violence and that the defendant poses a high probability for future dangerousness." The court may have inadvertently substituted the word "violence" for "vileness." The court also did not state explicitly in its order that it found either vileness or future dangerousness beyond a reasonable doubt. Trial counsel did not object to the order, because, as he testified at the state habeas proceeding, he "had no doubt" that the court had strictly followed the statutory requirements, and "had no question" that it was aware of and applied the correct standard of review. The Supreme Court of Virginia, on direct appeal, held the evidence sufficient to support a finding of both vileness and future dangerousness


Because Edmonds' claim of ineffective assistance based upon his counsel's failing to object to the content of the sentencing order was phrased nearly identically in his state and federal petitions, it follows that he did not raise the "failure to request recusal" ground at his state proceedings. Therefore, even had the district court granted Edmonds leave to amend his petition to include the latter claim, it would have had to dismiss the petition as containing unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982)


46 F.3d 1123

Dana Ray EDMONDS, Petitioner--Appellant,
John JABE, Warden, Greensville Correctional Center,

No. 95-4002.

United States Court of Appeals, Fourth Circuit.

Submitted: Jan. 23, 1995.
Decided: Jan. 23, 1995.

Before ERVIN, Chief Judge, and HALL and LUTTIG, Circuit Judges.


Dana Ray Edmonds is scheduled to be executed in Virginia tomorrow evening for the murder of Danville grocer John Elliott. Edmonds appeals an order of the district court denying his motion for stay of execution and dismissing his second federal habeas corpus petition. We affirm.


Edmonds' sole claim is that he was denied his Sixth Amendment right to effective assistance of counsel because of a conflict of interest on the part of his court-appointed attorney. During the pendency of his trial, Edmonds' attorney accepted another appointment to represent Laverne Coles--Edmonds' former girlfriend and a prosecution witness--in an unrelated criminal proceeding. This claim was contained in a habeas petition filed with the Supreme Court of Virginia on January 11, 1995. That court dismissed the petition on January 18, stating only that

On consideration of this case, the Court is of opinion that the writ of habeas corpus should not issue on grounds that no writ shall be granted on the basis of any allegation the facts of which the petitioner had knowledge at the time of filing any previous petition. Code Sec. 8.01-654(B)(2).1

Edmonds filed the instant petition in the district court the following day. The district court held that the Supreme Court of Virginia's bare denial of Edmonds' most recent state habeas petition, without citation to any facts it had found that would support its evident holding that Edmonds' claim was procedurally barred, did not effectively bar the federal courts from considering the merits of the claim if Edmonds could demonstrate cause for the default and prejudice attributable thereto.2 We will assume, without deciding, that the district court ruled correctly on this narrow issue.



The district court ruled that Edmonds had shown sufficient cause why this latest claim had not been brought at the time his first petition was filed. We disagree. A psychiatric report prepared during the presentencing phase of Edmonds' trial noted that

[Edmonds] indicated that at present, Ms. Cole [sic] is in the Danville City Jail for "beating her kids." [Edmonds] stated that she had beaten three of her four children. [Edmonds' attorney], who is also Ms. Cole's attorney, corrected the story indicating that the altercation occurred only with her oldest boy ...." (emphasis supplied).

Edmonds has offered no reason why we should not hold him and his counsel responsible for information stated plainly in the record, and we can think of none. If Edmonds' present attorneys were capable of reading and understanding the record, then we believe that his counsel at the time he filed his first habeas petition should also have been.


We do, however, agree with the district court that Edmonds has not demonstrated that his trial counsel's alleged ineffectiveness prejudiced him. We entirely agree with the lower court's conclu sion that, even had Edmonds been appointed new counsel, he still would have been found guilty and sentenced to death. Even if substitute counsel had impeached Coles more thoroughly, and that impeachment had somehow prevented the sentencing court from finding that Edmonds posed a future danger to society, the court would still have sentenced Edmonds to death based on the vileness of Edmonds' actions.3

As Edmonds has demonstrated neither cause for bringing this claim at the eleventh hour nor prejudice from our refusal to consider its merits, when he is plainly required to demonstrate both, the claim is procedurally barred and Edmonds is entitled to no relief.

The judgment of the district court is affirmed.




Section 8.01-654(B)(2), the Commonwealth's procedural default statute, provides that "[n]o writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition."


See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (absent cause and prejudice, or a fundamental miscarriage of justice, an adequate and independent finding of procedural default will bar federal habeas review). A habeas petitioner must ordinarily "establish by convincing evidence that the factual determination by the State court was erroneous." 28 U.S.C.A. Sec. 2254(d) (1994)


We also concur in the district court's holding that a mis carriage of justice will not result from our refusal to consider the merits of Edmonds' claim. The same factors that preclude Edmonds from demonstrating prejudice operate to also prevent him from showing by clear and convincing evidence that he is "actually innocent" of the death penalty. See Sawyer v. Whitley, 112 S.Ct. 2514, 2523 (1992). We do not believe that the Supreme Court's decision rendered today in Schlup v. Delo, No. 93-7901, 1995 U.S. LEXIS 701 (Jan. 23, 1995), should cause us to reach a different result. Even applying the more lenient Murray v. Carrier standard, Schlup, at * 30-32, the petitioner would not be entitled to relief


Edmonds' application for stay of execution is hereby denied



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