On 11/28/93, Mark
Arlo Sheppard and his companion Andre Graham shot and killed Richard
and Rebecca Rosenbluth.
Their bodies were
found two days later. Richard, 40, had been shot twice in the face
and Rebecca, 34, had been shot four times in the head and neck.
Sheppard was 22 at
the time of the murders and had a history of violence reaching back
to when he was nine years old.
to being at the scene of the murders (his fingerprints were found in
61 spots) but says that Graham killed the couple. Sheppard is also
a suspect in about ten other murders.
In December 1994,
Sheppard was sentenced to death.
Sheppard had known each other for some time before the murder.
Sheppard said he had sold cocaine to the victim on numerous
occasions and Rosenbluth owed him a lot of money.
that he and 2 partners, Andre Graham and Benji Vaughan, went to the
Rosenbluth home early in the morning of the murders.
evidence alluded to Sheppard's possession of the gun. A few weeks
prior to the murder, Sheppard had accidentally shot Vaughan with the
gun that was used to kill Rosenbluth and his father had seen it in
his room a few days before the crime. The jury convicted Sheppard
and sentenced him to death.
The appellate court
denied Sheppard's appeal stating that the conflicting testimony on
whether he was the actual perpetrator of the murders presented a
credibility question for the jury to resolve. Obviously, the jury in
weighing the evidence refused to accept defendant's denial of guilt.
While attempting to
prove future dangerousness, the prosecution brought out a maimed
witness from a previous unadjudicated crime of Sheppard's.
convicted of killing Mrs. Rosenbluth and was given a life sentence.
The bodies of the couple were found in the den of their suburban
Chesterfield County home.
40, had been shot twice in the head; his wife, Rebecca Rosenbluth,
35, hit 4 times in the head and neck from close range.
Witnessing will be
Stanley and Phyllis Rosenbluth of Arlington County. "People have
asked me, 'Why do you want to go? Why do you want to witness?'" said
Mr. Rosenbluth, a plump, avuncular man, 72 years old with a white
mustache and a New York accent.
die is not about retribution, he said. "You (take) someone's life,
and you pay the consequences. It's not as if you didn't know what
you were doing. There's no revenge. There's no vengeance," he said.
die is not about forgiveness. His wife, 68, asked, "Why would I
forgive someone who, first of all never asked to be forgiven? At no
time during the trial did I hear anyone ever say that they were
sorry...or asked for forgiveness."
die is not some vain attempt at closure. "Don't use that word with
me. I hate that word. I don't know who made that word up," she said.
"There is no closure. So many people don't seem to understand that:
There is no closure," she said.
asked, "How can there be closure on a life sentence? We're both
serving a life sentence."
Sheppard die is a duty, of sorts, they said. To people who ask why
he wants to watch the execution, "I say, 'I really don't. But when
somebody wrongs your child you're going to do everything to right
that wrong as much as you can do,'" he said.
"I feel this way,
I've done, up to this point, everything that I can humanly do to
right the wrong for my child. The last act is coming up. "What it is,
is my obligation...as a parent to my child," he said. "This is the
last thing I can do for him to right that wrong."
said, "You have to understand, it's not a big thing in my life to go
to this execution. It's just that sometimes you have to stand up for
what you believe in."
Richard and Rebecca
Rosenbluth died in their Chesterfield County home on Nov. 28, 1993,
gunned down by Sheppard and Andre Graham who had been selling them
The 2 killers stole
the couple's vehicles and some personal items before fleeing the
sentenced to death for the crime. Andre Graham got life plus 23
years. Graham is also facing the death penalty for another capital
murder he committed.
The bodies were
discovered several days later by police when Rebecca's employer,
alerted by a concerned Rosenbluth, went to check on the couple at
Richard grew up in
Northern Virginia. He was a bright child. He started college at East
Carolina University and then attended the Berklee College of Music
in Boston. He was a musician, a percussionist, his parents said.
Richard met Rebecca
when he was playing with a band in Myrtle Beach, S.C., and they
married in 1987. "This was the daughter I never had. I can't really
describe it," Mr. Rosenbluth said.
"She was a very
loving girl, and a very beautiful girl. She fit right into the
family." Rebecca's mother, Louise Dillon of Montgomery, W.Va., said
without explanation that she will not be attending the execution.
However, she said,
"I just hope that this goes through on the 20th." Dillon said she
still misses her daughter very much. "She was a beautiful young
lady....She was just a joy to be around. A beautiful smile. She was
just a lovely young lady."
Rebecca went to
high school in West Virginia and was living in Myrtle Beach when she
met Richard, her mother said.
Mr. Rosenbluth said
his son tried his hand at making a living through music, but "he
finally decided that, hey, it's time I have to do something else."
He went into the
coffee service business. He started out working sweeping floors in a
warehouse for The Coffee Butler, moving his way up management and
eventually winding up in Richmond as regional manager.
Rebecca was a
secretary at Air Distribution Sales Inc. "Richard was a very good
young man," Mrs. Rosenbluth said. "He was a very caring person up
until the day he was taken away."
maintained frequent contact, the Rosenbluths lived 100 miles from
their son and his wife. They said they had no hint either had a drug
Finding out about
it and having it aired publicly in the trial was difficult. "It was
horrible. Horrible," Mrs. Rosenbluth said.
According to a
Virginia Supreme Court summary of the trial evidence, "The victims'
personal records showed that, during the several months immediately
preceding their deaths, the couple made substantial cash withdrawals
and credit card charges averaging hundreds of dollars per day,
apparently to support their addiction to the drug."
Stanley said, "There
was no reason for it. They were starting to make it, the typical
American couple. What would make you think? There were no signs,
there were no signs."
She said, "I still
find it hard to believe about the drugs. I'm not disputing it, but I
can't find a reason. Why? They had everything they wanted, except a
said their son and his wife were trying to have a baby. "I think
they would have made great parents," he said.
They last saw
Richard and Rebecca on Thanksgiving. The couple had to return to
Richmond on Friday, and they spoke on the phone.
remembered chatting over the phone with Rebecca that Saturday
morning. It was the last contact they had.
could not get an answer at their son's house on Sunday or Monday, so
on Tuesday morning he called Rebecca's employer.
Then, "It's like a
quarter to one and the doorbell rings. There are 3 Arlington County
police officers and...they came in and they told us," Mr. Rosenbluth
said, "You're in a state of shock... You don't even have the time to
mourn" because there are funeral arrangements to make, police
investigators to meet with and media questions to answer.
When asked what it
was like those first few days, she said, "I try and answer honestly.
Looking back, everything is a blur, it's one big blur. You've got a
big ache in your heart. That's all you can feel."
Mr. Rosenbluth said
that at "The 1st trial, Andre Graham, when he was given life
imprisonment, I flipped. I flipped out, because the jury wasn't told
that life imprisonment meant you were eligible for parole."
"I didn't do
anything then because we had the other trial coming up. Sheppard's
trial. After Sheppard got the death penalty, I said, 'How do we
correct this?...I didn't feel it was right that the jury didn't have
all the information in order to come back with a proper sentence" in
the Graham case.
He contacted then-Virginia
Secretary of Public Safety Jerry W. Kilgore, who suggested he speak
at a town hall meeting scheduled that week on then-Gov. George
Allen's plan for abolishing parole and establishing truth in
"They asked me if
I'd like to go to that meeting" and speak. "I said, 'Yes.'" "After
the meeting, 25 homicide victims (family members) got together, this
was in November '94, to discuss whether there was a need for an
umbrella organization" for several crime victims organizations in
As a result, they
formed Virginians United Against Crime, a victims' advocacy group.
Mr. Rosenbluth, the group's president, said he threw himself in the
organization's work as a form of therapy.
Among other things,
the group supported Allen's parole abolition and truth in sentencing
reforms and supported the crime victim's rights bill. Among the many
reforms the effort led to were true life sentences.
have kept busy as the final act in their son's murder approaches. "The
fact of the matter is, the execution of this animal does not bring
my children back, my son and his wife back," Mrs. Rosenbluth said.
"Nothing will ever
bring them back. "The only thing that I feel that this will do is,
it will stop this animal from ever doing this again to somebody else.
"It's the final deterrent, that's all there is to it." It will not
stop the pain.
Mr. Rosembluth said,
"If you talk to victims, and they're honest with you, they'll tell
you it doesn't matter how many years go by. "You're walking down the
street, you're sitting in a room, you hear a voice. You say, 'My God,
there's (his) voice.' Or you look around, you see somebody looks
like him. This never goes away." This never goes away."
said, "I can't even come to terms with myself that I'm never going
to see Richard again. "Every time the damn phone rings I still think
it might be them calling."
Mark Arlo Sheppard, 27,
In Jarratt, a drug dealer convicted in the shooting deaths of a
couple was executed by injection Wednesday night.
Mark Arlo Sheppard, 27, was found guilty in the shootings of Richard
and Rebecca Rosenbluth in their suburban Richmond home. Sheppard
insisted he was not the trigger man.
Sheppard, asked for a final statement by Warden David Garraghty,
mumbled 4 dates and, after each one, said, "I love you."
Sheppard's attorney, Chris Collins, said he believes the dates were
birthdays of family members or close friends.
Prosecutors said Sheppard and an accomplice, Andre Graham, were
cocaine dealers who killed the Rosenbluths when their finances began
to dwindle. Autopsies detected cocaine in the Rosenbluths' bodies,
and drug paraphernalia was found in their home.
Rosenbluth, 40, was shot twice in the head and his wife, 35, was
shot 4 times in the head and neck.
Graham received a life term in the Rosenbluths' slayings and is on
death row for another murder.
Sheppard becomes the 1st condemned inmate to be put to death in
Virginia this year and the 60th overall since the state resumed
executions in 1982. Only Texas, with 166 executions, also since
1982, has executed more condemned prisoners than Virginia.
(sources: Associated Press and Rick
168 F.3d 689
Mark A. SHEPPARD, Plaintiff-Appellant,
Mark L. EARLY, individually and in his capacity as Attorney
General of Virginia, Defendant-Appellee,
Commonwealth of Virginia, Defendant.
United States Court of Appeals,
Submitted Jan. 12, 1999.
Decided Jan. 19, 1999.
Chief Judge, and WILKINS and NIEMEYER, Circuit Judges.
Affirmed by unpublished opinion.
Judge WILKINS wrote the opinion, in which Chief Judge WILKINSON and
Judge NIEMEYER joined.
WILKINS, Circuit Judge:
Mark A. Sheppard, a Virginia
inmate sentenced to death for the 1993 murders of Richard A. and
Rebecca W. Rosenbluth, brought this action pursuant to 42
U.S.C.A. § 1983 (West Supp.1998). Sheppard argues that Va.Code
Ann. § 53.1-232.1 (Michie 1998) violates his right to equal
protection guaranteed by the Fourteenth Amendment. U.S. Const.
amend. XIV, § 1.
The basis of his claim is that
the statute requires the Commonwealth to set an execution date
within approximately 60 to 70 days after receiving written
notice that this court has denied habeas corpus relief. This, he
maintains, truncates the time normally permitted for a
petitioner to request certiorari and places limitations on the
amount of time the Supreme Court has to consider that request.
The district court granted the
Commonwealth's motion to dismiss and denied Sheppard's motion
for preliminary injunction. Sheppard now moves this court for
expedited appeal and seeks reversal of the decision of the
district court dismissing his action. We grant Sheppard's motion
for expedited appeal and affirm.
I. Procedural Background
1. Sheppard was convicted of
capital murder and sentenced to death before a Virginia jury.
His convictions and sentences were affirmed on direct appeal
before the Supreme Court of Virginia, and the Supreme Court
denied certiorari. See Sheppard v. Commonwealth, 250 Va. 379,
464 S.E.2d 131, 141 (1995), cert. denied, 517 U.S. 1110, 116
S.Ct. 1332, 134 L.Ed.2d 483 (1996).
2. In 1996, Sheppard sought
and was denied postconviction relief from the Supreme Court of
3. In 1997, Sheppard filed a
petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Virginia. See 28
U.S.C.A. § 2254 (West 1994 & Supp.1998). The district court
denied relief on February 11, 1998 and denied Sheppard's motion
to alter or amend judgment in April 1998.
4. Following oral argument,
this court affirmed the denial of habeas relief on October 23,
1998; and on November 17, 1998, this court denied rehearing and
rehearing en banc.
5. The same day, the Attorney
General of Virginia sent a letter to the state trial court
notifying it of our denial of habeas corpus relief and seeking a
hearing to set an execution date for Sheppard. Relying on §
53.1-232.1, the Commonwealth requested that the hearing be
conducted within 10 days and that the execution be set within 60
6. The state trial court
conducted a telephonic hearing on November 23, 1998. During this
proceeding, the state trial court set an execution date of
January 20, 1999.
7. This court subsequently
denied a motion by Sheppard for a stay of execution and mandate
on November 25, 1998.
8. On December 22, 1998,
Sheppard filed the present § 1983 action and a motion for a
preliminary injunction in district court. The Commonwealth filed
a motion to dismiss on January 7, 1999. The district court
conducted a hearing on January 11, 1999. And, the following day,
it entered an order granting the Commonwealth's motion to
dismiss and denying Sheppard's motion for preliminary injunction.
9. Sheppard filed a notice of
appeal and a motion for expedited appeal on January 12, 1999.
The Commonwealth filed its response to the motion on January 13,
Va.Code Ann. § 53.1-232.1
provides in pertinent part:
In a criminal case where a
sentence of death has been imposed, the trial court shall set an
execution date when it is notified in writing by the Attorney
General or the attorney for the Commonwealth, and the court
finds that: ... (iii) the United States Court of Appeals has
affirmed the denial of federal habeas corpus relief or the time
for filing a timely appeal in that court has passed without such
an appeal being filed, or (iv) the Supreme Court of the United
States has issued a final order after granting a stay in order
to dispose of the petition for a writ of certiorari to review
the judgment of the United States Court of Appeals.
The trial court shall conduct
a proceeding to set the date within ten days after receiving the
written notice from the Attorney General or the attorney for the
Commonwealth. The execution date shall be set by the trial court
... shall be no later than sixty days after the date of the
In sum, § 53.1-232.1 requires
that an execution date be set within 60 to 70 days following the
notification by the Attorney General or the attorney for the
Commonwealth of the decision of this court denying habeas corpus
relief. Because Rule 13 of the Rules of the Supreme Court of the
United States provides for a 90-day period following a decision
of a court of appeals in which to file a timely petition for
certiorari, Sheppard maintains that § 53.1-232.1 violates his
Fourteenth Amendment right to equal protection by truncating the
time otherwise afforded to file a petition for certiorari.
Further, Sheppard argues that
he is deprived of equal protection because the execution date
places time limitations on consideration by the Supreme Court of
a petition for certiorari not applicable to petitions by
The Equal Protection Clause
guarantees that no State shall "deny to any person within its
jurisdiction the equal protection of the laws." U.S. Const.
amend. XIV, § 1. In a broad sense, "[t]he Equal Protection
Clause requires every State to govern impartially." Karcher v.
Daggett, 462 U.S. 725, 748, 103 S.Ct. 2653, 77 L.Ed.2d 133
(1983) (Stevens, J., concurring). The Clause "does not take from
the States all power of classification." Personnel Adm'r of
Mass. v. Feeney, 442 U.S. 256, 271, 99 S.Ct. 2282, 60 L.Ed.2d
870 (1979). Instead, "[i]t simply keeps governmental
decisionmakers from treating differently persons who are in all
relevant respects alike." Nordlinger v. Hahn, 505 U.S. 1, 10,
112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).
In considering an equal
protection challenge, we generally will presume the legislation
at issue to be valid and will uphold the statute if the
classification it draws is rationally related to a legitimate
purpose. See City of Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). If,
however, the statute employs a suspect class or burdens the
exercise of a constitutional right, we exercise strict scrutiny
review, upholding the statute only if it is narrowly tailored to
serve a compelling state interest. See id. As Sheppard
recognizes, § 53.1-232.1 does not classify on the basis of a
suspect class. See Evans v. Thompson, 881 F.2d 117, 121 (4th
Cir.1989) (noting that death row prisoners "are not a suspect
class for equal protection purposes"). Furthermore, defendants
possess no constitutional right to file a petition for
certiorari from the decision of this court denying habeas relief.
See Netherland v. Tuggle, 515 U.S. 951, 952, 116 S.Ct. 4, 132
L.Ed.2d 879 (1995) (per curiam); Barefoot v. Estelle, 463 U.S.
880, 887-88, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Therefore,s
53.1-232.1 is presumed to be valid if it is rationally related
to a legitimate state interest.
In assessing whether §
53.1-232.1 is rationally related to a legitimate state interest,
we must determine whether the goal the Commonwealth sought to
advance was legitimate and "whether it was 'reasonable for the
lawmakers to believe that use of the challenged classification
would promote that purpose.' " Smith Setzer & Sons, Inc. v.
South Carolina Procurement Review Panel, 20 F.3d 1311, 1320 (4th
Cir.1994), (quoting Western & S. Life Ins. Co. v. State Bd. of
Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 68 L.Ed.2d 514
The Commonwealth undoubtedly
possesses a legitimate state interest in the finality of its
criminal judgments and in executing sentence on those determined
by state law to be the most serious offenders. See Wood v.
Bartholomew, 516 U.S. 1, 8, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (per
curiam). And, § 53.1-232.1 obviously furthers that interest by
requiring that an execution date be set soon after the denial of
habeas corpus relief by this court.
contends that § 53.1-232.1 is not rationally related to a
legitimate state interest because the statute applies only to
death row inmates and not to individuals who have been convicted
of non-capital crimes. Further, Sheppard maintains that because
capital punishment is a uniquely absolute punishment, any
distinction to be drawn between capital and non-capital
defendants should provide a greater opportunity for counsel
carefully to prepare a capital defendant's petition for
certiorari and for the Supreme Court fully to consider that
petition. These arguments, however, are insufficient to sustain
Sheppard's equal protection argument.
Capital and non-capital
inmates are not similarly situated. Individuals who have been
sentenced to serve a term of years in prison are in the process
of serving their sentences during the direct and collateral
review of their convictions and sentences. See Barefoot, 463
U.S. at 888, 103 S.Ct. 3383. It is in their best interest to
pursue relief as quickly as possible. But, the Commonwealth
cannot impose the death sentence on those condemned to that
punishment until, at the earliest, the conviction and sentence
have been upheld at the completion of the direct review process.
For capital defendants, delay
in pursuing each step of the direct and collateral review
process works to their benefit, and to the detriment of the
Commonwealth, by postponing imposition of sentence. See id. The
Commonwealth reasonably could conclude that after the denial of
habeas corpus relief by this court, further delay in imposition
of sentence is unwarranted and that the time for imposition of
sentence has come. See Calderon v. Thompson, 523 U.S. 538, 118
S.Ct. 1489, 1501, 140 L.Ed.2d 728 (1998), (explaining that when
federal appeals court has denied habeas relief, "[a] States
interests in finality are compelling," "the State is entitled to
the assurance of finality," and the concept of "finality
acquires an added moral dimension").
Additionally, the Supreme
Court has recognized that capital defendants are not entitled to
a stay of execution to permit them the full time in which to
file a petition for certiorari or for Supreme Court review of
that petition. See Tuggle, 515 U.S. at 951-52, 116 S.Ct. 4;
Barefoot, 463 U.S. at 888-89, 103 S.Ct. 3383. For these reasons,
Sheppard's claim of a constitutional deprivation is without
For the reasons set forth
above, we conclude that Va.Code Ann. § 53.1-232.1 does not
violate Sheppard's right to equal protection. We grant the
motion for expedited appeal and affirm the dismissal of