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Wilbert Lee EVANS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Escape attempt
Number of victims: 1
Date of murder: January 27, 1981
Date of birth: ???
Victim profile: William Truesdale, 47 (Alexandria City sheriff's deputy)
Method of murder: Shooting (Officer's handgun)
Location: Alexandria City, Virginia, USA
Status: Executed by electrocution in Virginia on October 17, 1990
 
 
 
 
 
 
clemency petition
 
 
 
 
 
 

William Truesdale, an Alexandria City sheriff's deputy, was shot with his own gun by Wilbert Evans on January 27, 1981 while leading Evans back to jail after a hearing in the adjacent courthouse.

Evans was on a brief flight of freedom, running around the Old Town area of the city. When an officer in pursuit attempted to arrest Evans, the escapee pointed the gun he had taken from Truesdale at the approaching officer. Evans pulled the trigger -- but the gun jammed and he was quickly arrested thereafter.

 
 

Two who were executed: Wilbert Lee Evans

On the day of his execution in October 1990, Wilbert Lee Evans stuffed into his pocket a copy of a U.S. Supreme Court justice's plea to spare his life, said goodbye to his lawyers and walked to the death chamber.

The execution became known as one of Virginia's worst. When the first 55-second jolt of electricity hit Evans, blood flowed from under the leather death mask, streamed down his chin and soaked his shirt. Bloody froth bubbled on his lower lip. Officials said the chair worked fine - Evans just had a nosebleed when he lunged against the mask.

Perhaps the opinion by Justice Thurgood Marshall gave Evans some solace. Calling the impending execution "dead wrong,'' Marshall said the case showed the fallacy of the Supreme Court's premise ``that given sufficient procedural safeguards, the death penalty may be administered fairly and reliably.''

On his copy, Evans wrote: "Please bury this with me.''

Jonathan Shapiro, Evans' appeals lawyer, still has problems talking about the case. "How could our justice system allow this to happen? I wondered, for a while, whether I would leave the law.''

There was no doubt that Evans killed an Alexandria sheriff's deputy during a 1981 escape attempt. Evans called it an accident. The jury called it murder.

Yet the jury didn't know that the prosecution took an illegal turn. During sentencing, Alexandria Commonwealth's Attorney John Kloch argued for death, saying Evans posed a menace to society. To prove it, he used records showing that Evans had seven prior convictions, including assault on a police officer.

Based on this, the jury recommended death. But most of those convictions never happened. Documents showed Kloch knew all along.

In 1982, Shapiro learned that three of the "convictions'' were actually one, because of computer error. The charge of attacking a police officer had been dropped on appeal. Another charge was not admissible because Evans had not been represented by a lawyer.

Thus, only two of the seven "convictions'' were real. "Wilbert's criminal record looked two times as bad as it really was,'' said William H. Wright Jr., former staff attorney for the Virginia Capital Representation Resource Center. "No wonder the jury thought he was a menace.''

Then, Shapiro found a memo from Kloch's assistant - dated two months before trial - explaining the flaws. "It was the smoking gun,'' Shapiro said.

Shapiro told the attorney general's office and awaited the state's admission of error. He thought Evans' sentence would be dropped to life.

It was not until March 28, 1983 - 10 months after Shapiro first called the records bogus - that the state admitted error. That same day, then-Gov. Charles Robb signed emergency legislation allowing the state to resentence prisoners.

Shapiro challenged the state's right to resentence Evans. Now, in addition to the prosecutor's use of false records, Shapiro accused the state of stalling its admission of error until the new sentencing law took effect.

But in September 1983, a judge ruled that there was no willful misconduct by prosecutors or the attorney general's office.

In February 1984, a new jury resentenced Evans. This time, Kloch introduced evidence not used in the first trial, including charges - never tried - that Evans killed a man in 1978 during an argument over a card game. Once again, the jury sentenced Evans to death.

On May 31, 1984 - fewer than three months later - Evans protected 12 guards and two nurses from a half-dozen knife-wielding inmates during the breakout at Mecklenburg Correctional Center, the largest death row escape in U.S. history.

Several Mecklenburg guards later said they owed their lives to Evans. But the attorney general refused to side with Evans' lawyers, who argued that this showed Evans no longer was a menace to society. His clemency plea went to then-Gov. L. Douglas Wilder.

For Evans, the timing was as bad as it could get. Wilder, who once opposed the death penalty, had campaigned the previous year as a supporter. Also, a national campaign for a retrial for Joe Giarratano, whose execution was scheduled soon after Evans', made it difficult politically for Wilder to consider clemency for Evans, too. Giarratano's defenders included Amnesty International and columnist James J. Kilpatrick. Evans just had his lawyers and family.

In the end, Giarratano got the nod; Evans, the chair.

 
 

Virginia executes killer of deputy

The New York Times

October 18, 1990

The killer of a sheriff's deputy was executed in Virginia tonight after the United States Supreme Court denied a stay and Gov. L. Douglas Wilder declined a request for clemency.

The inmate, Wilbert Lee Evans, died in the electric chair at the State Penitentiary here shortly after 11 P.M.

Mr. Evans's execution was the 141st in the United States since the Supreme Court reinstated the death penalty in 1976, and the 10th in Virginia.

Shooting in Courthouse

Mr. Evans was sentenced to die for shooting Deputy Sheriff William Truesdale to death on Jan. 27, 1981, in the courthouse in Alexandria, N.C.. The deputy was returning him to the jail in Alexandria after a hearing when Mr. Evans grabbed Mr. Truesdale's gun and shot him.

Mr. Evans was in prison on an assault charge in North Carolina and had been brought to Alexandria to testify against another prisoner.

The Court issued its ruling at 7:30 P.M., with only Justice Thurgood Marshall, who opposes capital punishment in all cases, dissenting.

Justice Marshall said, ''A system of capital punishment that would permit Wilbert Evans's execution, notwithstanding as-to-now unrefuted evidence showing that death is an improper sentence, is a system that cannot stand.''

His lawyers based their final efforts to save him on his actions during a breakout by six death row inmates at the Mecklenburg Correctional Center in May 1984. Mr. Evans did not join the escapees, and his lawyers contended he had intervened to save guards and nurses from harm.

In a letter hand-delivered to the Governor's office this afternoon, the lawyers presented evidence from an internal State Police and Corrections Department report on the escape. The letter included excerpts of statements from guards and nurses that Mr. Evans had protected them during the escape. One nurse said he stopped two inmates from molesting her.

None of the inmates who escaped are still at large. Three have been executed; the other three remain on death row.

 
 

October 17, 1990. Virginia. Wilbert Lee Evans. Electrocution.

When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure.

 
 

Bad Prosecutor, No Consequences

May 11, 2005

Several moons ago Blonde Justice asked for stories about prosecutors behaving badly. I promised a story “about a prosecutor who suppressed and lied about evidence, was caught red-handed doing it, but managed to get a guy executed despite these crimes, and now sits as a trial court judge in a nearby U.S. city.” Well, I wasn't kidding. I finally dug out a few of my notes on the incredible case of Wilbert Lee Evans. Justice Marshall summarized the relevant facts pretty well in his dissent from the Supreme Court's denial of certiorari to reconsider Evan's death sentence:

"Petitioner Wilbert Lee Evans was convicted of capital murder in April 1981. At his sentencing hearing, the State urged the jury to recommend the death sentence based on Evans' “future dangerousness.” To prove future dangerousness, the State relied principally upon the records of seven purported out-of-state convictions. The State's prosecutor later admitted that he knew, at the time he introduced the records into evidence, that two of them were false. One of the seven “convictions,” for assault on an officer with a deadly weapon, had been dismissed on appeal. Another, for engaging in an affray with a deadly weapon, had been vacated on appeal, and Evans had been reconvicted in a trial de novo; the conviction for one crime was, however, counted as two convictions. After considering Evans' prior “history,” the jury determined that there was a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, and it recommended the death penalty based solely upon its finding of future dangerousness. 228 Va. 468, 323 S. E.2d 114 (1984). Evans was sentenced to death on June 1, 1981."

Evans v. Virginia, 471 U.S. 1025 (1985) (some internal citations omitted).

That opinion goes on to describe how Virginia law at the time of Evans' original conviction said that “when a capital defendant's right to a fair and impartial jury is violated during the sentencing phase of trial, a death sentence must be commuted to life imprisonment.” This was because the law also said that only the jury that heard the guilt or innocence phase of the trial could impose punishment, but since the jury was tainted by some sort of error in the first phase, it could not effectively change the punishment, and therefore the only fair solution in death penalty cases was to commute the sentence to life. However, the law changed on March 28, 1983 “to allow for resentencing by a different jury after a death sentence was set aside.” Coincidentally, the prosecutor who knew he had committed fraud in the original Evans trial in 1981 decided on that very day—March 28, 1983—to admit to his crime. This means that not only did this prosecutor willfully and knowingly deceive a judge and jury in order to convict Evans, but he then kept his fraud secret until the very day when his admission would no longer be able to save Evans life. Can you say bad, bloodthirsty, evil prosecutor? I can.

Here's how Justice Marshall dispassionately describes this:

"At a hearing to consider the propriety of resentencing Evans, the prosecutor at Evans' trial admitted that he knew the evidence that he introduced at the sentencing hearing was false. The judge then ordered a new sentencing hearing. A new jury recommended the death penalty, and petitioner was again sentenced to death."

Um, why wasn't this prosecutor disbarred?

The story only gets more awful from there. Much of it is summarized in Marshall's 1990 dissent to the Supreme Court's denial of certiorari to consider staying Evans' execution. Evans v. Muncy, 498 U.S. 927 (1990). The short story is that during the nine years Evans was in prison, he was a model inmate and even acted heroically to help stop a prison riot. “According to uncontested affidavits presented by guards taken hostage during the uprising, Evans took decisive steps to calm the riot, saving the lives of several hostages, and preventing the rape of one of the nurses.” This was rather important in light of the fact that his death penalty was based on the jury's finding of “future dangerousness.” A guy who steps in to stop a riot doesn't sound too dangerous, does he?

(Tangent: This pro-death group provides a PDF file of a story about Evans' actions in the riot. The group's point is that Evans can't be a hero because he killed a man. That story is interesting for the added detail it provides about Evans' case, but my point here is just to draw attention to the irony of the pro-death site using an animated image of the scales of justice going up and down constantly. They're right: So long as the state is killing people, those scales of justice will never balance.)

But none of the evidence in Evans' favor mattered. Viriginia killed Evans on October 17, 1990. It apparently did a great job of it, too:

"When Evans was hit with the first burst of electricity, blood spewed from the right side of the mask on Evans's face, drenching Evans's shirt with blood and causing a sizzling sound as blood dripped from his lips. Evans continued to moan before a second jolt of electricity was applied. The autopsy concluded that Evans suffered a bloody nose after the voltage surge elevated his high blood pressure."

But that's not the end of the story. The very best part of this whole horrible tale of American justice in action is that the intentionally fraudulent prosecutor was not disbarred. In fact, I don't think he was disciplined at all. In fact, he now sits as a judge hearing criminal cases in the same jurisdiction where he committed his horrible crimes.

So there you have it: A true and chilling tale of a very very bad prosecutor who suffered no consequences for his egregious behavior. I've seen him in court and I secretly suspect he is an emotionally broken man because he's being devoured from the inside by guilt from what he's done, but that's probably just wishful thinking on my part.

 
 

The victim


Deputy Sheriff William G. Truesdale

Alexandria Sheriff's Office
Virginia

End of Watch: Tuesday, January 27, 1981

Biographical Info
Age: 47

Incident Details
Cause of Death: Gunfire
Date of Incident: Tuesday, January 27, 1981
Weapon Used: Officer's handgun
Suspect Info: Executed

Deputy Truesdale was shot and killed with his own weapon while transporting prisoners from court back to the jail. One of the prisoners overpowered Deputy Truesdale and shot him with his own weapon. The suspect then shot his handcuffs off and attempted to flee but was immediately apprehended.

The suspect was sentenced to death in April 1981 and executed on October 17, 1990.

Deputy Truesdale was survived by his wife and three children.

The Officer Down Memorial Page - ODMP.org

 
 


U.S. Supreme Court

471 U.S. 1025

Wilbert Lee EVANS
v.
VIRGINIA

No. 84-1224

Supreme Court of the United States

April 15, 1985

On petition for writ of certiorari to the Supreme Court of Virginia.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

I continue to adhere to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, and I would vacate the judgment of the Supreme Court of Virginia insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U.S. 153, 231 , 2973 (1976) (MARSHALL, J ., dissenting). However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari to decide the constitutional validity of the death sentence imposed here.

I

Petitioner Wilbert Lee Evans was convicted of capital murder in April 1981. At his sentencing hearing, the State urged the jury to recommend the death sentence based on Evans' "future dangerousness." To prove future dangerousness, the State relied principally upon the records of seven purported out-of-state convictions. The State's prosecutor later admitted that he knew, at the time he introduced the records into evidence, that two of them were false. App. to Pet. for Cert. 50a-52a. One of the seven "convictions," for assault on an officer with a deadly weapon, had been dismissed on appeal. Another, for engaging in an affray with a deadly weapon, had been vacated on appeal, and Evans had been reconvicted in a trial de novo; the conviction for one crime was, however, counted as two convictions. 1 After considering Evans' prior "history," the jury determined that there was a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society, see Va.Code 19.2-264.4 C (1983), and it recommended the death penalty based solely upon its finding of future dangerousness. 228 Va. 468, 323 S. E.2d 114 (1984). Evans was sentenced to death on June 1, 1981.

On October 16, 1981, while Evans' direct appeal was pending, the Supreme Court of Virginia ruled that, when a capital defendant's right to a fair and impartial jury is violated during the sentencing phase of trial, a death sentence must be commuted to life imprisonment. Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212 (1981). The court premised its decision on a construction of the then-existing death-penalty statute under which only the jury that finds a capital defendant guilty can fix his punishment. Because the original jury, tainted by the constitutional error, could not be reconvened to resentence the defendant, the death sentence had to be reduced automatically to life imprisonment. Id., at 660, 283 S.E.2d, at 216.

This ruling was in effect when the Virginia Supreme Court considered Evans' direct appeal. Therefore, had that court known of the error in the sentencing hearing and vacated Evans' death sentence, he would very likely have received a life sentence. 2 But the State not only failed to confess its error, it listed all the purported convictions, including the erroneous ones, in its brief. App. to Pet. for Cert. 42a. In sustaining Evans' death sentence, the State Supreme Court relied, in part, on this inaccurate record. Id., at 31a. When Evans petitioned this Court for a writ of certiorari, the State again relied on the misleading records of convictions in its brief in opposition. Id., at 46a. Certiorari was denied. 455 U.S. 1038 (1982).

The State did not notify Evans that it would confess its error regarding the false evidence until March 28, 1983. App. to Pet. for Cert. 73a. On that day, the Virginia Governor signed into law a bill that amended the state death-penalty statute to allow for resentencing by a different jury after a death sentence was set aside, thus effectively overruling Patterson. See Va.Code 19.2-264.3 C (1983). The State subsequently confessed error to the trial judge on April 12, 1983. At a hearing to consider the propriety of resentencing Evans, the prosecutor at Evans' trial admitted that he knew the evidence that he introduced at the sentencing hearing was false. The judge then ordered a new sentencing hearing. A new jury recommended the death penalty, and petitioner was again sentenced to death.

II

In Napue v. Illinois, 360 U.S. 264 ( 1959), this Court reversed a conviction obtained through the use of false evidence that was known to be false by representatives of the State. Since Napue, this Court has adhered to the principle that a conviction obtained by the knowing use of false evidence is fundamentally unfair. See, e.g., United States v. Agurs, 427 U.S. 97, 103 , 2397 ( 1976); Miller v. Pate, 386 U.S. 1, 7 , 788 ( 1967). The rule of Napue is undoubtedly applicable to the sentencing phase of a capital trial. In this case, the prosecutor admitted that he knowingly introduced false evidence at Evans' sentencing hearing to demonstrate "future dangerousness." Evans was therefore deprived of the fundamental fairness due him under the Fourteenth Amendment.

To remedy this injury, the state court ordered a new sentencing hearing free from the taint of false evidence. This remedy, however, was inadequate to undo the harm suffered by Evans. For the State compounded its original misconduct by concealing the deception during both Evans' direct appeal and his petition for certiorari to this Court. Had the State honestly confessed the error, petitioner's sentence would almost certainly have been commuted to life imprisonment under the then-existing statute. Instead, the State did not confess error until nearly two years after the original death sentence had been imposed, by which time the death-penalty statute had been amended.

The court below ruled that, even assuming that the prosecutor's handling of the sentencing hearing involved serious prosecutorial misconduct, the State was not barred from seeking the death penalty a second time. In doing so, it relied on the holding in United States v. Morrison, 449 U.S. 361 (1981), that drastic remedies should not be used to redress "deliberate" and "egregious" violations of constitutional rights "absent demonstrable prejudice, or substantial threat thereof," to the defendant. Id., at 365. The court concluded that Evans' resentencing hearing removed any prejudice. But the court considered only the prejudice suffered by Evans at the initial sentencing. It failed to account for the harm done to Evans afterwards, during his direct appeal. Had the State not continued to rely on the false evidence, very likely the death sentence would have been commuted to life imprisonment.

The State argues, nevertheless, that this Court cannot consider the harm done to Evans by its conduct during the appeal. It directs our attention to the finding by the trial judge that the State did not delay its confession of error until after the death-penalty statute was amended just to have a second chance to sentence Evans to death. App. to Pet. for Cert. 20a. This argument misses the point. Regardless of its purpose in regard to the amendment, the State's continued, knowing use of false evidence during the direct appeal and petition for certiorari, and its failure to disclose this misconduct, constituted egregious conduct that seriously harmed Evans. 3  

III

To my mind, the only way to remedy the federal constitutional violation Evans has suffered would be for the Virginia courts to consider, nunc pro tunc, how Patterson would have applied to this case. I would grant the petition for certiorari to consider whether the court below was constitutionally obligated to make this inquiry. Accordingly, I dissent from the denial of certiorari.

*****

Footnotes

[ Footnote 1 ] In addition, several of the other convictions had been obtained when Evans was without the benefit of counsel. App. to Pet. for Cert. 3a- 4a.

[ Footnote 2 ] In its brief in opposition, the State urges that the opinion of the Virginia Supreme Court implied that the court would not have applied the Patterson rule to Evans' sentence. A fair reading of the opinion below, however, indicates that the court was not rejecting Evans' contention that Patterson would have controlled his case had it not been legislatively overruled; rather, the court was rejecting Evans' ex post facto argument, which was based on the subsequent overruling of Patterson. See 228 Va. 468, 476-477, 323 S.E.2d 114, 118-119 (1984).

[ Footnote 3 ] Further, whether the delay of nearly two years in confessing error was intentional or merely negligent has no bearing on the degree of prejudice suffered by Evans. "Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is 'purposeful or oppressive,' is unjustifiable. . . . The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin." Dickey v. Florida, 398 U.S. 30, 51 , 1576 (1970) (BRENNAN, J., concurring).

Nor does it matter whether the state attorney who appeared at the sentencing hearing, and who admitted that he knew the evidence on which the State relied was false, took part in preparing the State's briefs in the Virginia Supreme Court or in this Court. The prosecutor's office is an entity, not just a group of isolated individuals, and the prosecutor is responsible for assuring that relevant information is communicated among the lawyers in the office. See Giglio v. United States, 405 U.S. 150, 154 , 766 (1972); Moore v. Illinois, 408 U.S. 786, 810 , 2575 (1972) (MARSHALL, J., concurring in part and dissenting in part).

 
 

881 F.2d 117

Wilbert Lee Evans, Petitioner-appellant,
v.
Charles Thompson, Superintendent, Respondent-appellee

United States Court of Appeals, Fourth Circuit.

Argued March 9, 1989.
Decided Aug. 2, 1989.
Rehearing and Rehearing In Banc Denied Aug. 28, 1989

Before HALL and WILKINSON, Circuit Judges, and DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.

WILKINSON, Circuit Judge:

Petitioner was convicted of capital murder and sentenced to death. Following a confession of error by the prosecution, he was resentenced to death by a new jury. Petitioner contends that his resentencing was barred by the Ex Post Facto Clause, the Equal Protection Clause, and the Due Process Clause. He further argues that during resentencing he was denied his constitutional right to confront and cross-examine witnesses and that the trial judge improperly instructed the jury. Finally, he claims ineffective assistance of counsel both on direct appeal and during his first trial.

The district court rejected petitioner's claims. We affirm.

On January 27, 1981, petitioner Wilbert Lee Evans shot and killed Deputy Sheriff William Truesdale while attempting to escape from state custody. Truesdale was escorting petitioner, at the time a North Carolina prisoner, to Alexandria, Virginia, where he was to testify as a witness for the Commonwealth of Virginia. Petitioner had pretended to be a willing witness for the Commonwealth for the sole purpose of escaping during his transportation from North Carolina to Virginia. He planned to kill anyone who attempted to prevent his escape and acted on this intent when he killed Truesdale.

In June 1981, petitioner was convicted of capital murder and sentenced to death in the Circuit Court of Alexandria, Virginia. The Supreme Court of Virginia affirmed his conviction and death sentence on December 4, 1981, 222 Va. 766, 284 S.E.2d 816. On March 22, 1982, the Supreme Court denied certiorari.

In April 1982, petitioner filed a petition for a writ of habeas corpus in Alexandria Circuit Court. He amended his petition in May 1982 and again in December 1982.

On April 12, 1983, the Commonwealth formally confessed error in petitioner's sentencing proceedings and acknowledged that his death sentence should be vacated because erroneous evidence of his prior convictions had been admitted at trial. The circuit court vacated petitioner's sentence and directed that a hearing be held to determine whether petitioner should be resentenced by a new jury or have his sentence reduced to a life term. Following a determination on October 12, 1983 that resentencing under the amended statute could proceed, the court impaneled a new jury which heard evidence of petitioner's history of violent criminal conduct. That jury recommended the death penalty based upon a finding of petitioner's "future dangerousness." On March 7, 1984, the trial court imposed the death penalty. The Virginia Supreme Court affirmed the sentence and the United States Supreme Court denied certiorari.

In May 1985, petitioner filed a third amended petition for a writ of habeas corpus in Alexandria Circuit Court. The circuit court dismissed his petition on May 19, 1986. The Virginia Supreme Court denied review as did the United States Supreme Court.

On October 5, 1987, petitioner filed for a writ of habeas corpus in the Eastern District of Virginia. In response to petitioner's request for discovery of the Commonwealth's files, the court conducted an in camera review of the files and, finding nothing relevant to petitioner's assertions, denied his request. On August 4, 1988, the court rejected Evans' petition.

Petitioner appeals.

Petitioner contends there are three bars to his resentencing: A) the Ex Post Facto Clause; B) the Equal Protection Clause; and C) the Due Process Clause. We address each argument in turn.

On March 28, 1983, Virginia enacted emergency legislation, amending its procedures for trial by jury in capital cases to permit capital resentencing by a newly impaneled jury where a prior death sentence was vacated due to sentencing errors. Va.Code Ann. Sec. 19.2-264.3C. Prior to this amendment, if the Commonwealth failed to secure a valid death sentence due to errors in the sentencing process it was foreclosed from seeking capital resentencing and the defendant received an automatic sentence of life imprisonment. Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212 (1981). Petitioner contends that to resentence him to death pursuant to the March 1983 legislation, when both his offense and trial occurred before that date, retroactively deprives him of his right to have his death sentence converted to life imprisonment. We hold, however, that no violation of the Ex Post Facto Clause occurred.

The Ex Post Facto Clause exists to assure individuals fair notice of the nature and consequences of criminal behavior and to prevent the alteration of preexisting rules subsequent to the commission of an act. Two elements must exist for a law to fall within the ex post facto prohibition: 1) the law "must be retrospective, that is, it must apply to events occurring before its enactment," and 2) "it must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (footnotes omitted). Central to the ex post facto inquiry is whether the law merely changes " 'modes of procedure which do not affect matters of substance,' " and hence is permissible; or whether it impacts on defendant's " 'substantial personal rights,' " and thus is prohibited. Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 70 L.Ed. 216 (1925). "[N]o ex post facto violation occurs if the change in the law is merely procedural and does 'not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.' " Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987), quoting Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884). See also United States v. Juvenile Male, 819 F.2d 468, 470-71 (4th Cir.1987); United States v. Mest, 789 F.2d 1069,1071 (4th Cir.1986).

The 1983 amendment does no more than change the procedures surrounding the imposition of the death penalty. It provides only that if a capital sentence is set aside, then a resentencing before a new jury can be held. When the offense was committed, the "willful, deliberate and premeditated killing of a law-enforcement officer ... for the purpose of interfering with the performance of his official duties" was an offense for which the death penalty could be imposed. See Va.Code Ann. Secs. 18.2-31(f); 18.2-10(a). Fair warning of punishment was thus afforded petitioner. The change in Sec. 19.2-264.3C was merely an "adjustment[ ] in the method of administering [petitioner's] punishment that [was] collateral to the penalty itself." Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114, 119 (1984).

In a case analogous to the present one, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), a capital sentencing statute in effect when Dobbert committed murder was later held to be invalid. Dobbert, who had been sentenced to death pursuant to a subsequent statute, under which the judge had overruled the jury's recommendation of life imprisonment, argued that application of the new sentencing law violated his substantial rights. The Court concluded that ex post facto concerns were satisfied because the applicable statute when Dobbert committed murder warned him of the penalty Florida prescribed for first-degree murder. Id. at 298, 97 S.Ct. at 2300. The test of whether a change in law ran afoul of the Ex Post Facto Clause was not whether it worked to the detriment of a particular defendant. Rather, it was whether the changes "made criminal a theretofore innocent act," or "aggravated a crime previously committed," or "provided greater punishment," or "changed the proof necessary to convict." Id. The Virginia amendment neither increased the punishment attached to petitioner's crime, nor altered the ingredients of the offense, nor changed the ultimate facts necessary to establish petitioner's guilt. It thus survives petitioner's ex post facto challenge.

Petitioner's reliance on Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), is misplaced. Unlike in Kring, the petitioner here has not been convicted of a lesser offense for which the death penalty was not authorized, nor has he been acquitted of any offense for which the death penalty was authorized. Moreover, unlike Kring, the petitioner was not deprived of a defense available to him when he committed murder. Kring simply provides that if at the time of the offense, a defendant is on notice he can never be subjected to a death sentence, imposition of a death sentence violates the Ex Post Facto lause. Here petitioner was on notice when he murdered Deputy Sheriff Truesdale that the imposition of death was a possible penalty.

Petitioner contends that the new Virginia law abrogated his right to be sentenced by the same jury which decided his guilt. He argues that a juror who sat through both phases of a capital trial might entertain doubts which, though not enough to defeat conviction, might convince him that the ultimate penalty should not be exacted. "Residual doubts" at the penalty stage of a capital trial, however, are constitutionally insignificant. Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2327 n. 6, 101 L.Ed.2d 155 (1988). Moreover, it is possible that a juror less familiar with first-hand evidence of the crime and, having not just found petitioner guilty, may be less inclined to impose the maximum penalty.

The Virginia amendment represents a continuing effort by the Virginia Supreme Court, Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212 (1981), and the Virginia legislature to balance a defendant's right to fair sentencing with society's interest in not alleviating the consequences of criminal acts when a sentencing error occurs. See Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978). It promotes the basic aspiration of criminal justice to achieve results that are error-free. The Virginia Supreme Court has recognized the ameliorative purposes of the enactment:

the new law provides for impanelling a new jury, free of any taint arising from errors during the first trial, to redetermine the defendant's punishment. A defendant convicted of capital murder is entitled to a fair and impartial determination of his punishment: he will not be heard to complain that a change in the law which protects that right is not wholly beneficial to him.

Evans, 323 S.E.2d at 119.

The Ex Post Facto Clause does not confer upon this defendant an unalterable right to be sentenced by the jury which found his guilt or never to be resentenced in any fashion. To confer such a right would have serious implications for the workings of our federal system. That system presupposes that states will routinely undertake to improve their methods of jury selection, their rules of evidence, the availability of appeals and post-conviction proceedings, and other procedures of their criminal justice systems. To hold that every change with an arguable adverse impact upon the outcome of a criminal case has ex post facto implications would seriously inhibit this process of reform, because legislation generally has an effective date of enactment independent of the date of the commission of an act. The elusive nature of the ex post facto prohibition derives from the fact that law does and should evolve. The Supreme Court has long emphasized that "the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offence charged against him." Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061 (1898). We reject petitioner's attempt to create such a right in this instance.

Petitioner also argues that the Equal Protection Clause bars his capital resentencing. He claims that he and the defendant in Patterson v. Commonwealth, 222 Va. 653, 283 S.E.2d 212 (1981), who received an automatic sentence of life imprisonment at his resentencing, were identically situated in all respects, except that Patterson's death sentence was vacated prior to enactment of the amendment. Treating him differently than Patterson, he contends, did not rationally further any legitimate state objective.

We find no merit to this contention. Because capital defendants are not a suspect class for equal protection purposes, Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir.1987), legislative classifications must be presumed valid and sustained if they are "rationally related to a legitimate state interest." City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). In making the rational basis inquiry, we must determine if classifying Patterson and petitioner differently has a " 'fair and substantial relation to the object of the [1983 amendment].' " Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349 (1972), quoting Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971).

The purpose of the 1983 amendment is straightforward: to establish new procedures for resentencing in capital cases where a prior death sentence is vacated. Like Florida in Dobbert, the Commonwealth "had to draw a line at some point," Dobbert, 432 U.S. at 301, 97 S.Ct. at 2302, and to apply the amendment only to those defendants whose sentences were vacated following the amendment's enactment is entirely rational. As the district court recognized, it ties the amendment's application to the event which necessitates resentencing: vacating the original sentence. Accordingly, classifying petitioner and Patterson differently is permissible.

Petitioner further argues that prosecutorial misconduct bars his resentencing. He contends that state prosecutors violated his due process rights when they knowingly proffered false conviction records at his original sentencing hearing and then deliberately delayed confessing error until after the 1983 amendment was enacted.

We disagree. Pursuant to 28 U.S.C. Sec. 2254(d), a federal habeas court is required "to accord a presumption of correctness to state court findings of fact." Sumner v. Mata, 455 U.S. 591, 592, 102 S.Ct. 1303, 1304, 71 L.Ed.2d 480 (1982); Hunt v. Woodson, 800 F.2d 416, 419 (4th Cir.1986). In particular, a state court finding that the government acted in good faith where defendant alleges he has been the victim of intentional or purposeful government misconduct, is entitled to a presumption of correctness. Sanderson v. Rice, 777 F.2d 902, 909 (4th Cir.1985); Rose v. Duckworth, 769 F.2d 402,405 (7th Cir.1985). "This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations." Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). "[I]t must conclude that the state court's findings lacked even 'fair support' in the record." Id.

Here the record supports the state court's findings, upheld by the district court, that the Commonwealth acted in good faith. See Evans, 323 S.E.2d at 119-121. At an evidentiary hearing, conducted by the trial court in response to petitioner's claims of prosecutorial misconduct, the prosecuting attorney testified he never intended to deceive the trial judge, the jury, or the defense concerning the true status of petitioner's record. He also testified that defense counsel had investigated petitioner's prior record, had informed him that they were familiar with petitioner's record, and had been given pretrial access to discovery materials which showed the conviction records were questionable. Moreover, during the sentencing proceeding, the prosecutor advised defense counsel of the discrepancies regarding the convictions and testified that he assumed defense counsel would explain the error to the jury during closing argument. In his own argument to the jury, the prosecutor alluded only to those offenses for which petitioner had actually been convicted.

Likewise, the assistant attorney general who handled petitioner's first appeal and the habeas corpus proceeding testified that he did not purposefully delay confessing error until passage of the amendatory legislation. He noted that he "wanted to be one hundred percent sure" before confessing error in a capital case, already affirmed on direct appeal. Nothing in Sec. 2254(d) "gives federal habeas courts ... license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Marshall, 459 U.S. at 434, 103 S.Ct. at 850. Additionally, the trial court, the Virginia Supreme Court, and the federal district court conducted an in camera review of the original files in the governor's office and the attorney general's office relating to the drafting, introduction, consideration, and approval of the new legislation and found nothing to support petitioner's claim.

To the extent that the prosecutor was guilty of unintentional errors of judgment in his handling of the case, these errors were remedied when petitioner received a new sentencing proceeding free of false or misleading evidence. A defendant must show "demonstrable prejudice," that cannot be cured by a "traditional" remedy, such as resentencing, to obtain the "drastic" remedy that Evans seeks. United States v. Morrison, 449 U.S. 361, 365 & n. 2, 101 S.Ct. 665, 668 & n. 2, 66 L.Ed.2d 564. Petitioner's argument that he was demonstrably prejudiced by resentencing because he was thereby deprived of an automatic sentence of life imprisonment is misplaced. Petitioner's conviction carried the same possible penalty it did when he committed it.1

Petitioner contends that two errors occurred during his resentencing: 1) he was denied his constitutional right to confront and cross-examine adverse witnesses because the prosecution read into the record the 1981 trial transcript testimony of these witnesses, and 2) he was denied his due process rights because the trial judge improperly instructed the jury that a sentence of life imprisonment could be imposed only by a unanimous verdict. We find neither contention persuasive.

Petitioner's cross-examination claim must fail because such a claim implies that the trial court denied a request to confront and cross-examine adverse witnesses. Petitioner relies upon Tichnell v. State, 290 Md. 43, 427 A.2d 991, 993 (1981), which involved a transcript used despite defendant's "vociferous objection." Here the district court expressly found that "[t]he record clearly shows that Evans' counsel agreed to the use of a transcript at resentencing." The trial record amply supports this finding. Moreover, Evans may well have benefited by agreeing to have the trial transcript read to the jurors, as opposed to live testimony.2

Petitioner's contention that the trial judge improperly failed to instruct the jury that under Virginia law a split decision by a capital sentencing jury automatically becomes life is also without merit. In response to the jury's inquiry of whether a life sentence must be unanimous, the trial judge instructed the jury that its "verdict must be unanimous as to either life imprisonment or death." Such instructions accurately state Virginia law, which requires that the verdict in all criminal prosecutions be unanimous. See Va.Rule 3A:17(a). No obligation exists for the trial judge to inform the jury of the ultimate result should they fail to reach a verdict. See Barfield v. Harris, 540 F.Supp. 451, 472 (E.D.N.C.1982), aff'd, 719 F.2d 58 (4th Cir.1983). In addition, the trial judge's response to the jury's inquiry left no doubt that a non-unanimous verdict would not result in death.

No "substantial probability" exists that the trial court's instruction misled the resentencing jury as to unanimity. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988). The jury was simply told that any verdict must be reached unanimously. During voir dire, moreover, each juror was informed that even as a minority of one, he or she could hold out if convinced that a life sentence was appropriate. At closing, defense counsel reminded the jury that their sentence must be unanimous. Finally, when polled individually, each juror affirmed the verdict as his or her own.

Petitioner raises two final claims: 1) that he was denied his right to effective assistance of counsel on direct appeal from his 1981 conviction because his counsel failed to discover and inform the court that his death sentence was based on false evidence, and 2) that he was denied his right to effective assistance of counsel during his 1981 trial when his counsel failed to object to the prosecution's assertion that he was a multiple murderer.3 We reject both claims.

Petitioner's argument of ineffective assistance on direct appeal fails to meet the criteria of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, petitioner must show that counsel's performance fell outside the "wide range of reasonable professional assistance," id. at 689, 104 S.Ct. at 2065, and "that the deficient performance prejudiced the defense" to an extent "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064. See also United States v. Alexander, 789 F.2d 1046, 1051 (4th Cir.1986); Roach v. Martin, 757 F.2d 1463, 1476-77 (4th Cir.1985). This standard applies to claims against both trial and appellate counsel. Smith v. Murray, 477 U.S. 527, 535-36, 106 S.Ct. 2661, 2666-67, 91 L.Ed.2d 434 (1986); Griffin v. Aiken, 775 F.2d 1226, 1235-36 (4th Cir.1985).

Petitioner has failed to overcome the strong presumption that counsel's performance was reasonable. Prior to trial, counsel traveled to North Carolina to investigate petitioner's record of prior convictions and found them in disarray. Accordingly, he objected to some of the records when they were introduced at trial. Following the trial, counsel determined what he believed to be petitioner's most viable arguments and raised them on appeal. Doing so was sound trial strategy. See Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). The errors in the certified conviction records introduced at trial could only be shown by going outside the trial record. Counsel, however, was under no duty to go beyond the trial record because nothing beyond that record would have been cognizable on appeal. See Guthrie v. Commonwealth, 212 Va. 602, 186 S.E.2d 68, 70 (1972). See also O'Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491, 505 n. 8 (1988).

Additionally, petitioner cannot demonstrate that he has been prejudiced by counsel's alleged error. Vacating his original sentence and affording him resentencing free of error mooted any claims of prejudice. Hyman v. Aiken, 777 F.2d 938, 941 (4th Cir.1985), vacated on other grounds 478 U.S. 1016, 106 S.Ct. 3327, 92 L.Ed.2d 734 (1986). Petitioner cannot show a "reasonable probability" that the result of the proceeding would have been different but for his counsel's alleged errors. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Likewise, petitioner's claim that his 1981 trial counsel improperly failed to object to the prosecution's assertion he was a multiple murderer fails Strickland scrutiny. Pursuant to Sec. 2254(d), see Hoots v. Allsbrook, 785 F.2d 1214, 1219 n. 6 (4th Cir.1986), we must accept the state habeas court's express factual finding that petitioner's counsel chose not to object to the prosecutor's argument for tactical reasons. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Jeffers v. Leeke, 835 F.2d 522, 525 (4th Cir.1987). Defense counsel testified that he chose not to object to the prosecutor's argument because he felt an objection would only have emphasized the matter before the jury. As the district court also noted, "[r]ather than draw further attention to the evidence, defense counsel instead chose to attack the credibility of the relevant witnesses during argument." This is a judgment trial attorneys make routinely. It does not give rise to a claim under Strickland.

For all these reasons, the judgment of the district court is

AFFIRMED.

*****

1

Petitioner also argues that his resentencing violates the Double Jeopardy Clause. We disagree. The clause generally does not prohibit resentencing where a verdict has been set aside for trial error. Lockhart v. Nelson, --- U.S. ----, 109 S.Ct. 285, 290-91, 102 L.Ed.2d 265 (1988). The clause would operate here only if the error was the product of deliberate prosecutorial misconduct. Oregon v. Kennedy, 456 U.S. 667, 674-79, 102 S.Ct. 2083, 2088-91, 72 L.Ed.2d 416 (1982)

The state habeas courts found the Commonwealth acted in good faith. Because such findings are subject to the mandate of Sec. 2254, see Rose, 769 F.2d at 405, and no evidence contradicts the findings of these courts, the Double Jeopardy Clause is inapplicable.

2

Petitioner failed to raise his confrontation claim both at trial and on direct appeal. When he raised his claim in the state habeas court, the Commonwealth asserted that the claim had been defaulted. The state habeas court dismissed the claim "for the reasons stated in the [Commonwealth's] answer." The Virginia Supreme Court affirmed this dismissal, finding "no reversible error in the judgment complained of."

Pursuant to Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989), "a procedural default does not bar consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Id., quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985). While we think the Virginia courts did intend to hold petitioner's claim procedurally barred, we address the merits of the claim to remove any question with regard to it.

3

Petitioner also argues that the guilt phase of his trial was flawed because the trial court permitted the Commonwealth to change the crime charged from a non-capital to capital offense. We disagree. Virginia law permits amendments at any time prior to the verdict, Va.Code Ann. Sec. 19.2-231, so long as the amendment does not change the "nature or character of the offense charged." Here the language of the indictment clearly charged a capital offense. The amendment merely corrected an error in citation of the capital murder statute

 
 

916 F.2d 163

Wilbert Lee Evans, Petitioner-appellee,
v.
Raymond Muncy; Edward Murray; Virginia Department Of Corrections; Attorney General
of the Commonwealth of Virginia, Respondents-appellants

United States Court of Appeals, Fourth Circuit.

Argued Oct. 16, 1990.
Decided Oct. 16, 1990.
Certiorari Denied Oct. 17, 1990.

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

PER CURIAM:

Before this court is the Commonwealth of Virginia's motion to vacate a stay of execution entered by the United States District Court for the Eastern District of Virginia. We reverse the judgment of the district court and vacate the stay of execution. 

The facts surrounding the offense have been set forth in our prior opinion. Evans v. Thompson, 881 F.2d 117 (4th Cir.1989). On January 27, 1981, petitioner Wilbert Lee Evans shot and killed Deputy Sheriff William Truesdale while attempting to escape from state custody. Truesdale was escorting petitioner, at the time a North Carolina prisoner, to Alexandria, Virginia where he was to testify as a witness for the Commonwealth of Virginia. Petitioner had pretended to be a willing witness for the Commonwealth, but his sole purpose in agreeing to testify had been to engineer an escape during his transportation from North Carolina to Virginia. He planned to kill anyone who attempted to prevent his escape and he acted on this intent when he killed Deputy Truesdale.

In June 1981, petitioner was convicted of capital murder and sentenced to death in the Circuit Court of Alexandria, Virginia. Evans appealed this judgment to the Supreme Court of Virginia, which affirmed the judgment. On March 22, 1982, the United States Supreme Court denied Evans' petition for a writ of certiorari.

Petitioner then filed a petition for a writ of habeas corpus on April 9, 1982, in Alexandria Circuit Court. Evans amended this petition twice in 1982.

On April 12, 1983, the Commonwealth confessed error in petitioner's sentencing proceedings and acknowledged that his death sentence should be vacated because erroneous evidence of his prior convictions had been admitted at trial. The circuit court vacated petitioner's death sentence and directed that a hearing be held to determine whether he should be resentenced by a jury or have his sentence reduced to a life term. The circuit court determined that Evans could be resentenced and the court impaneled a new jury which heard evidence of petitioner's history of violent criminal conduct. That jury recommended the death penalty based upon a finding of petitioner's "future dangerousness." The jury heard evidence from which it could conclude that Evans would be dangerous in the future: in 1964, he threatened a police officer with a knife; in 1974, he threatened prison officials while demanding transfer to another prison facility; in 1978, he killed a person during an argument; and in 1981, he assaulted and threatened credit union employees during an armed robbery. Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114, 122 (1984). On March 7, 1984, the trial court imposed the death penalty. The Virginia Supreme Court affirmed the sentence and the United States Supreme Court denied certiorari.

In May 1985, petitioner filed a third amended petition for a writ of habeas corpus in Alexandria Circuit Court. The circuit court dismissed his petition on May 19, 1986. The Virginia Supreme Court and the United States Supreme Court denied review.

On October 5, 1987, petitioner filed for a writ of habeas corpus in the Eastern District of Virginia. The district court rejected his petition and this court affirmed the judgment. The United States Supreme Court denied review on June 25, 1990.

On June 26, 1990, Evans filed petitions for a writ of audita querala, for leave to file a bill of review, and for a writ of habeas corpus in the Circuit Court of Alexandria, Virginia. The circuit court dismissed these petitions and entered an order setting Evans' execution for October 17, 1990. On August 23, 1990, Evans filed a petition for appeal with the Virginia Supreme Court. The Virginia Supreme Court denied Evans' petition for appeal.

On October 5, 1990, Evans filed a habeas petition in federal district court for the Eastern District of Virginia. The district court granted a stay of execution. The Commonwealth of Virginia appeals this stay of execution.

The sole aggravating factor the jury found for imposing the death penalty on petitioner was "future dangerousness." On May 31, 1984, when petitioner was an inmate in Mecklenburg Correctional Center, he allegedly played a significant role in quelling a prison uprising and in protecting prison guards and nurses. Petitioner now contends that this behavior calls into question the jury's finding of "future dangerousness."

Petitioner raises two related claims in support of his motion to stay his execution. Petitioner claims that the Eighth and Fourteenth Amendments prohibit the execution of a defendant when his behavior subsequent to sentencing casts doubt on whether the sole aggravating factor supporting the death sentence exists. Petitioner also claims that the Commonwealth of Virginia violated his Eighth and Fourteenth Amendment rights by failing to provide a process to hear and decide his claim that new evidence relating to his conduct while incarcerated demonstrates that he should not be executed. The district court stayed petitioner's execution on the basis of these claims.

We cannot accept these claims for several reasons. First, the claims constitute a "new rule" which federal courts may not use in collateral proceedings to overturn a final state conviction. Second, petitioner's claims are not constitutional violations remediable by a federal court. Any remedy for these claims must lie within the state system and has traditionally been a matter for the executive branch in clemency proceedings.

Initially, we believe that entry of a stay fails to comport with the "new rule" doctrine announced in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Court held that "habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated." 109 S.Ct. at 1078. To determine whether a petitioner advocates a new rule, a federal habeas court must "determine whether a state court considering [the petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [the petitioner] seeks was required by the Constitution." Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990).

On collateral review, petitioner advocates this rule: the Constitution requires a state to reestablish the validity of an error-free sentence because a prisoner desires to present character evidence based on his post-sentencing conduct. Clearly, this is a "new rule" under Supreme Court precedent. The novelty of this position is evidenced by the utter paucity of case law in support of it. If the Virginia courts had been asked to consider Evans's claim at the time his sentence became final, those courts would hardly have "felt compelled by existing precedent to conclude" that the rule Evans is seeking was "required by the Constitution."

Moreover, neither of the two exceptions justifying the adoption of a new rule apply to this case. The first exception is that a new rule should be applied retroactively if it places " 'certain kinds of criminal conduct beyond the power of the criminal law-making authority to proscribe.' " Teague, 109 S.Ct. at 1075 (citation omitted). This exception has nothing to do with the new rule advocated by the petitioner. The second exception limits the adoption of new rules to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Id. at 1076-77. The rule advocated by the petitioner has nothing to do with the accuracy of his conviction. Thus, neither of the exceptions justifying the adoption of a new rule applies here.

The district court attempted to limit the restriction upon the collateral application of "new rules" to trial and sentencing proceedings. We find this limitation contrary to the very purpose of the restriction upon the creation of "new rules," which is to validate "reasonable, good-faith interpretations of existing precedent made by state courts...." Saffle, 110 S.Ct. at 1260. If the "new rule" cases bar a federal court from creating new rules to test the validity of state trial proceedings, then even less authority exists for a federal court to create new rules expanding collateral review to post-trial events. We note that Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989), expanded the "new rule" restriction from the setting of trial proceedings to sentencing proceedings. The Court justified this extension by noting that collateral challenges to sentences " 'delay the enforcement of the judgment at issue and decrease the possibility that there will at some point be the certainty that comes with an end to litigation.' " Id. (citations omitted). We think that this same rationale justifies applying Teague to foreclose this new assault upon the finality of state judgments that would come from recognizing petitioner's claims.

The district court also held that even if Teague is applicable to petitioner's claim, the claim is not new because it stems from Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). While Gregg held that a court must find aggravating circumstances at the time it imposes the death penalty, we do not believe that Gregg comes close to compelling the rule that petitioner seeks. Saffle, 110 S.Ct. at 1261. The Court has cautioned that the test for a new rule "would be meaningless if applied at this level of generality," Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 2828, 111 L.Ed.2d 193 (1990), and we decline to so apply it.1

We note further that the scope of federal habeas corpus review is limited to reviewing state court trial and sentencing procedures for "wrongs of a constitutional dimension." Wainwright v. Goode, 464 U.S. 78, 83, 104 S.Ct. 378, 381, 78 L.Ed.2d 187 (1983). The scope of this review does not encompass petitioner's challenge to his conviction based on his post-conviction conduct.

The Court has generally observed that "the existence merely of newly-discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963). In Clanton v. Muncy, Clanton challenged the state habeas court's refusal in a capital case to hear evidence that Clanton sought to introduce concerning his abused childhood. 845 F.2d 1238, 1243 (4th Cir.1988). In Clanton, we held that "Clanton's argument concerning the refusal to hear new evidence does not state a constitutional claim." Id. The same reasoning applies with equal force here.

Petitioner's claim is in essence not for habeas relief, but for executive clemency. Affixing a constitutional label to a petition for clemency will not suffice to draw the federal courts into reviewing pleas of lenity from state prisoners based upon their post-conviction conduct. Such claims from state inmates would be legion, and the federal courts would lack guidance in law for distinguishing among them. Where a conviction has no constitutional infirmity and where a sentence has been lawfully imposed, a federal habeas court should be loathe to overturn it. We may not freely substitute our own judgment for that of sentencing juries or state executives, nor may we thereby throw into question every capital conviction resting on the aggravating circumstance of future dangerousness. While petitioner has every right in our system to seek clemency, this is not the proper forum for that appeal. "Discharge from conviction through habeas corpus is not an act of judicial clemency, but a protection against illegal conduct." Brown v. Allen, 344 U.S. 443, 465, 73 S.Ct. 397, 411, 97 L.Ed. 469 (1953). The lawfulness of petitioner's conviction and sentence is not in question, and we must accordingly decline to grant him the relief that he seeks.

For the foregoing reasons, the judgment of the district court is reversed and the stay of execution is hereby vacated.

REVERSED.

*****

1

We likewise reject petitioner's reliance on Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). In Johnson, the sole evidence supporting one of the aggravating circumstances consisted of a copy of Johnson's commitment to prison in 1963 following his New York conviction for assault. The prosecutor repeatedly referred to the commitment document at the sentencing hearing. After the Mississippi Supreme Court affirmed petitioner's death sentence, a New York court reversed the 1963 conviction. The Mississippi Supreme Court then refused to reconsider the death sentence but the United States Supreme Court reversed. Here, the Commonwealth did not rely during resentencing on any impermissible evidence in requesting the death penalty for petitioner. Similarly, petitioner's reliance on Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1985), to create a colorable constitutional claim is unavailing. The post-conviction hearings mandated by Ford are limited to the unique circumstances of a petitioner's insanity

 
 


U.S. Supreme Court

498 U.S. 927

Wilbert Lee EVANS, petitioner
v.
Raymond MUNCY, Warden, et al.

No. 90-5958.

Supreme Court of the United States

October 17, 1990

The application for stay of execution of sentence of death presented to THE CHIEF JUSTICE and by him referred to the Court is denied. The petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit is denied.

Justice MARSHALL, dissenting.

This Court's approval of the death penalty has turned on the premise that given sufficient procedural safeguards the death penalty may be administered fairly and reliably. E.g., Gregg v. Georgia, 428 U.S. 153 , 195-196, and n. 47, 2935-36, and n. 47 ( 1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). Wilbert Evans' plea to be spared from execution demonstrates the fallacy of this assumption. Notwithstanding the panoply of procedural protections afforded Evans by this Court's capital jurisprudence, Evans today faces an imminent execution that even the State of Virginia appears to concede is indefensible in light of the undisputed facts proffered by Evans. Because an execution under these circumstances highlights the inherently cruel and unusual character of capital punishment, I dissent. [ Evans v. Muncy 498 U.S. 927 (1990) ][927-Continued.]

I

Evans was convicted of capital murder and sentenced to death. At the sentencing phase, the jury's verdict was predicated on a single aggravating circumstance: that if allowed to live Evans would pose a serious threat of future danger to society. See Va. Code 19.2-264.4(C) ( 1990). Without this finding, Evans could not have been sentenced to death . See e.g., Furman v. Georgia, 408 U.S. 238, 313 , 2764 (1972) (WHITE, J., concurring) (existence of aggravating circumstance "distinguishing the few cases in which [the death penalty] is imposed" from those in which it is not is a constitutional prerequisite to death sentence); Gregg v. Georgia, supra, at 188-189 ( same).1 While Evans was on death row at the Mecklenberg Correctional Facility, an event occurred that casts grave doubt on the jury's prediction of Evans' future dangerousness. On May 31, 1984, six death row inmates at Mecklenberg attempted to engineer an escape. Armed with makeshift knives, these inmates took hostage 12 prison guards and 2 female nurses. The guards were stripped of their clothes and weapons, bound, and blindfolded. The nurses also were stripped of their clothes, and one was bound to an inmate's bed.

According to uncontested affidavits presented by guards taken hostage during the uprising, Evans took decisive steps to calm the riot, saving the lives of several hostages, and preventing the rape of one of the nurses. 2 For instance, Officer Ricardo Holmes, who was bound by the escaping inmates and forced into a closet with other hostages, states that he heard Evans imploring to the escaping inmates, " 'Don't hurt anybody and everything will be allright.' " Officer Holmes continues:

    "It was very clear to me that [Evans] was trying to keep [the escaping inmates] calm and prevent them from getting out of control . . . . Based upon what I saw and heard, it is my firm opinion that if any of the escaping inmates had tried to harm us, Evans would have come to our aid. It is my belief that had it not been for Evans, I might not be here today." See Pet. for Cert., Exh. 14.

Other guards taken hostage during the uprising verify Officer Holmes' judgment that Evans protected them and the other hostages from danger. According to Officer Prince Thomas, Evans interceded to prevent the rape of Nurse Ethyl Barksdale by one of the escaping inmates. Id., Exh. 9. Officer Harold Crutchfield affirms that Evans' appeals to the escapees not to harm anyone may have meant the difference between life and death for the hostages. "It is . . . my firm belief that if Evans had not been present during the escape, things may have blown up and people may have been harmed." Id., Exh. 8. According to Officer Crutchfield, after the escapees had left the area in which they were holding the guards hostage, Evans tried to force open the closet door and free the guards- albeit unsuccessfully. Ibid. Officers Holmes, Thomas, and Crutchfield, and five other prison officials all attest that Evans' conduct during the May 31, 1984, uprising was consistent with his exemplary behavior during his close to 10 years on death row. Id., Exhs. 8-15.

Evans filed a writ of habeas corpus and application for a stay of his execution before the United States District Court for the Eastern District of Virginia. He urged that the jury's prediction of his future dangerousness be reexamined in light of his conduct during the Mecklenberg uprising. Evans proffered that these events would prove that the jury's prediction was unsound and thereby invalidate the sole aggravating circumstance on which the jury based its death sentence. For this reason, Evans argued that his death sentence must be vacated. The District Court stayed the execution and ordered a hearing. Civ. No. 90-00559-R (ED Va. Oct. 13, 1990). The Court of Appeals reversed and vacated the stay. No. 90-4007 (CA4, Oct. 16, 1990) (per curiam).

II

Remarkably, the State of Virginia's opposition to Evans' application to stay the execution barely contests either Evans' depiction of the relevant events or Evans' conclusion that these events reveal the clear error of the jury's prediction of Evans' future dangerousness. 3 In other words, the State concedes that the sole basis for Evans' death sentence-future dangerousness-in fact does not exist.

The only ground asserted by the State for permitting Evans' execution to go forward is its interest in procedural finality. According to the State, permitting a death row inmate to challenge a finding of future dangerousness by reference to facts occurring after the sentence will unleash an endless stream of litigation. Each instance of an inmate's post-sentencing nonviolent conduct, the State argues, will form the basis of a new attack upon a jury's finding of future dangerousness, and with each new claim will come appeals and collateral attacks. By denying Evans' application for a stay, this Court implicitly endorses the State's conclusion that it is entitled to look the other way when late-arriving evidence upsets its determination that a particular defendant can lawfully be executed.

In my view, the Court's decision to let Wilbert Evans be put to death is a compelling statement of the failure of this Court's capital jurisprudence. This Court's approach since Gregg v. Georgia has blithely assumed that strict procedures will satisfy the dictates of the Eighth Amendment's ban on cruel and unusual punishment. As Wilbert Evans' claim makes crystal clear, even the most exacting procedures are fallible. Just as the jury occasionally "gets it wrong" about whether a defendant charged with murder is innocent or guilty, so, too, can the jury "get it wrong" about whether a defendant convicted of murder is deserving of death, notwithstanding the exacting procedures imposed by the Eighth Amendment. The only difference between Wilbert Evans' case and that of many other capital defendants is that the defect in Evans' sentence has been made unmistakably clear for us even before his execution is to be carried out.

The State's interest in "finality" is no answer to this flaw in the capital sentencing system. It may indeed be the case that a State cannot realistically accommodate postsentencing evidence casting doubt on a jury's finding of future dangerousness; but it hardly follows from this that it is Wilbert Evans who should bear the burden of this procedural limitation. In other words, if it is impossible to construct a system capable of accommodating all evidence relevant to a man's entitlement to be spared death-no matter when that evidence is disclosed-then it is the system, not the life of the man sentenced to death, that should be dispatched.

The indifferent shrug of the shoulders with which the Court answers the failure of its procedures in this case reveals the utter bankruptcy of its notion that a system of capital punishment can coexist with the Eighth Amendment. A death sentence that is dead wrong is no less so simply because its deficiency is not uncovered until the eleventh hour. A system of capital punishment that would permit Wilbert Evans' execution notwithstanding as-to-now unrefuted evidence showing that death is an improper sentence is a system that cannot stand.

I would stay Wilbert Evans' execution.

*****

Footnotes

[ Footnote 1 ] Evans initially was sentenced to death in April 1981. At his first sentencing proceeding, the prosecutor proved Evans' future dangerousness principally through reliance upon seven purported out-of- state convictions, two of which the prosecutor later admitted were false. Two years later, after having relied on these bogus convictions in its successful oppositions to both Evans' direct appeal to the Virginia Supreme Court and his petition for a writ of certiorari to this Court, the State confessed error. Evans' death sentence was vacated, and he was granted a new sentencing hearing. See Evans v. Virginia, 471 U.S. 1025 , 1026-1027, 2037-2038 (1985) (MARSHALL, J., dissenting from denial of certiorari). In March 1984, Evans once again was sentenced to death. It is this second death sentence which he now seeks to stay.

[ Footnote 2 ] The affiant prison officials all attest that Evans played no role in instigating the riot.

[ Footnote 3 ] Equally remarkable is the sheer gall of the manner in which the State makes its feeble challenge. For six years, Evans' counsel has tried to pry loose from the State copies of its investigative reports of the uprising. Counsel steadfastly has contended that these reports would support Evans' account of the relevant events and thereby strengthen Evans' claims for both legal relief and executive clemency. The State has refused to release its iron grip on these materials and to this moment has not made them available to him. See Pet. for Cert., Exh. 6.

According to Evans' counsel, late last evening he was contacted by counsel for Willie Lloyd Turner, another Virginia death row inmate involved in the Mecklenberg uprising. Notwithstanding its refusal to cooperate with Evans' request for the investigative reports, the State, without protest, had provided these reports to Turner's counsel. Upon learning of Evans' impending execution, Turner's counsel immediately delivered these materials to Evans' counsel, see id., Exh. 17 and Evans has now been able to make them available to us, see id., Exh. 18.

Now that Evans finally has possession of information the State has so deliberately denied him for six years, the State cites two isolated excerpts from a lengthy set of materials in a mean and deceitful attempt to belittle Evans' claims. See App. to Brief in Opposition 1-2. A more honest and thorough review of these materials, which include numerous interviews with the hostages and reports of the State's investigators, reveals that these materials in no way diminish Evans' account of the relevant events.

 

 

 
 
 
 
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