was convicted of murdering convenience store clerks Betty Barker and
Carl Buchanan in an eight day crime spree in Pittsylvania County and
the City of Danville in November, 1983.
and murder of Barker occurred first. Watkins entered the
Pittsylvania County store, bought some cigarettes and then shot her
twice over the counter. He then stole $89.89 from the cash register.
The robbery of
Buchanan little over a week later in Danville netted $34.74 from the
cash register. Bullets from the crimes matched Watkins' pistol and
his brother Darnell Watkins testified as a state witness at the
trials, admitting that he and his brother planned the robberies.
brother, Ronald Watkins, was executed in 1998, for seperate crimes
committed in Danville.
259th Electrocution Could Be
Last One In Virginia History
The New York Times
March 5, 1994
Using its electric chair
for the 259th and possibly last time,
Virginia on Thursday night executed a man
convicted of killing two convenience store
clerks in a pair of small-time robberies.
The condemned man, Johnny
Watkins Jr., 33, was pronounced dead at
11:11 P.M., said Wayne Brown, operations
officer at the Greensville Correctional
Center, where the state's electric chair is
Mr. Watkins made no final
statement. Two days earlier, he told a
reporter, "I've made peace, and I'm about as
ready as I'm going to get, I expect."
Mr. Watkins, who is black,
had asked Gov. George Allen to grant
clemency, arguing that racism played a part
in his sentencing. Governor Allen rejected
the request on Thursday morning. Adopting
Virginia has executed 259
people in the electric chair in the last 86
years. But starting July 1, the state will
allow death-row inmates to die by lethal
injection. Most condemned killers choose
that option in the states where it is
offered. In that procedure, an inmate is
first injected with a sleep-inducing drug
before the lethal fluids are administered.
Mr. Watkins was convicted
of killing Betty Jean Barker, 22, at a
Danville convenience store on Nov. 14, 1983.
Eight days later, he used the same .22-caliber
pistol to shoot Carl Buchanan, 41, at
Each of the robberies
netted him less than $100. In both cases, he
shot the victim four times.
The police arrested Mr.
Watkins after his brother, Donnell, spent a
$2 bill from the second robbery at a
U.S. Supreme Court
475 U.S. 1099
Johnny WATKINS, Jr.
Supreme Court of the United States
March 31, 1986
On petition for writ of certiorari
to the Supreme Court of Virginia.
The petition for a writ of certiorari is denied.
Opinion of Justice STEVENS respecting the denial
of the petition for certiorari.
As Justice MARSHALL explains in his dissenting
opinion, the violation of petitioner's Fifth Amendment right to
counsel requires that the sentence of death for the shooting of
Betty Jean Barker be set aside. However, in view of the fact that,
as petitioner has presented the issue, this error would not appear
to have affected the validity of the conviction or the death
sentence for the murder of Carl Douglas Buchanan, I agree with the
Court's decision to deny certiorari and allow the error to be
corrected in collateral proceedings.
Justice MARSHALL, with whom Justice BRENNAN joins,
In the landmark case of Miranda v. Arizona, 384
U.S. 436 (1966), this Court held that before police institute
custodial interrogation of an individual, they must inform him of
his right to consult with counsel. Miranda further required that the
police respect the individual's decision to exercise that right. We
stated, in clear and mandatory language:
"If the individual states that
he wants an attorney, the interrogation must cease until an
attorney is present. At that time, the individual must have an
opportunity to confer with the attorney and to have him present
during any subsequent questioning. If the individual cannot
obtain an attorney and he indicates that he wants one before
speaking to police, they must respect his decision to remain
silent." Id., at 474.
We reaffirmed that rule in Fare v. Michael C.,
442 U.S. 707, 719 , 2568 (1979) ("[T]he Court fashioned in Miranda
the rigid rule that an accused's request for an attorney is per se
an invocation of his Fifth Amendment rights, requiring that all
interrogation cease"); see also Rhode Island v. Innis, 446 U.S. 291,
298 , 1688 (1980); Michigan v. Mosley, 423 U.S. 96 , 104, n. 10,
326, n. 10 (1975); id., at 109-111-330 (WHITE, J., concurring in
result). We refined the rule in Edwards v. Arizona, 451 U.S. 477,
485 , 1885, 68 L. Ed.2d 378 (1981), explaining that the right to
counsel, once asserted, cannot be waived "unless the accused himself
initiates further communication, exchanges, or conversations with
the police." We emphasized: "[I]t is inconsistent with Miranda and
its progeny for the authorities, at their instance, to reinterrogate
an accused in custody if he has clearly asserted his right to
In this case, the Court acquiesces in a blatant
denial of that Fifth Amendment right by the police and the courts of
the State of Virginia. Unwilling to ignore that violation, I dissent
from the denial of certiorari.
Petitioner Johnny Watkins, Jr. was
charged with the murder of Betty Jean Barker. The State announced
its intention to introduce at the penalty phase of that trial a
statement made by Watkins in connection with an unrelated murder.
During the pretrial suppression hearing, the following facts
Watkins was arrested in the evening of November
22, 1983, as a suspect in the murder of Carl Douglas Buchanan. He
was questioned about 11 p.m. and signed a waiver-of-rights form, but
then told the interrogating officer that he wanted to see a lawyer.
Interrogation ceased temporarily.
About two hours later, Watkins was informed that
he was being charged with the murder of Buchanan. He asked why he
was being charged, and was given a second waiver-of-rights form to
execute. The police then told Watkins that his brother Darnell had
implicated him in the murder, played for him a portion of Darnell's
recorded statement, and took him to see Darnell. Watkins refused to
talk to police about the shooting.
The police did not supply Watkins with a lawyer.
They instead transferred him to the county jail, held him there
until November 28, and then reinterrogated him. Testimony was
conflicting as to what happened at the November 28 meeting. The
parties agreed that a police officer went to the jail to interrogate
Watkins, and had him sign a waiver-of-rights form.
Watkins testified that he again asked for a
lawyer but that the officer ignored his request, and that the
officer "nagg[ed]" him until he admitted to the shooting of
Buchanan. The officer testified that Watkins never stated on
November 28 that he wanted to stop the questioning or consult with a
lawyer, and that he gave his statement without apparent hesitation.
The Barker trial court apparently credited the officer's testimony.
There was no dispute, however, that Watkins had requested a lawyer
five days earlier, had not received one, had not himself reinitiated
questioning, and had been questioned again nonetheless.
Watkins' statement implicating himself in the
Buchanan killing, along with extensive other evidence of that crime,
was admitted over objection in the penalty phase of Watkins' trial
for the shooting of Barker. The jury sentenced Watkins to death.
Some months later, Watkins was convicted of the murder of Buchanan,
and was given a second death sentence.
The facts of this case constitute
a plain violation of petitioner's Fifth Amendment right to counsel.
Our law sets out a bright-line rule that all questioning must cease
after an accused requests counsel, so that repeated police
questioning does not "wear down the accused and persuade him to
incriminate himself notwithstanding his earlier request for
counsel's assistance." Smith v. Illinois, 469 U.S. 91, 98 , 494
(1984) (per curiam ). The accused may not be found to have waived
that right, once he asserts it, unless he himself reinitiates
In this case, Watkins made an undisputed and
unequivocal request for counsel on November 22, and refused to talk
to the authorities in counsel's absence. The response of the police
was to hold Watkins without a lawyer for five days and then to
interrogate him again. Even if the trial court credited the police
officer with respect to the events of November 28, that
interrogation was impermissible under Miranda and its progeny, and
any statement so elicited should not have been admitted in the
penalty phase of a capital proceeding. See Estelle v. Smith, 451 U.S.
454 , 462-463, 1872-1873 (1981); see also Del Vecchio v. Illinois,
474 U.S. 883 (1985 ) (MARSHALL, J., dissenting from denial of
Respondent State of Virginia
contends that petitioner did not adequately present his Fifth
Amendment claim to the Supreme Court of Virginia. It focuses on the
fact that Watkins did not include the magic words "Edwards v.
Arizona" in his brief to that court. This contention has no merit.
Edwards merely set out an elaboration of the basic rule of Miranda,
and Watkins cited expressly to Miranda below.
He argued to the trial court that
the statement had been taken in violation of his Fifth Amendment
right to counsel. He argued to the appellate court that his
statement had been taken in violation of his Fifth Amendment rights
and was involuntary, focusing on his claim that police had ignored
an express request for counsel on November 28.
While Watkins did not present his
argument below as proficiently as he now does in his petition for
certiorari, he unmistakably raised below and reasserts here a claim
that the November 28 statement was taken in violation of his Fifth
Amendment right to counsel. The denial of
his November 22 request for counsel is part
and parcel of that claim. See Eddings v. Oklahoma, 455 U.S. 104 ,
113-114, n. 9, 876, n. 9 (1982).
The Court today allows Watkins'
death sentence to stand notwithstanding the illegality of the
evidence introduced before the jury in its sentencing deliberations.
The denial of his petition adds to a long line of cases in which the
Court has declined to review capital sentences marred by the sort of
violation described here. E.g., Henderson v. Florida, 473 U.S. 916
(1985) (MARSHALL, J., dissenting from denial of certiorari); James
v. Arizona, 469 U.S. 990 (1984) (BRENNAN, J., dissenting from denial
of certiorari); Johnson v. Virginia, 454 U.S. 920 d 231 (1981) (MARSHALL,
J., dissenting from denial of certiorari). I dissent.
998 F.2d 1011
Johnny WATKINS, Jr., Petitioner-Appellant,
Edward W. MURRAY, Respondent-Appellee.
United States Court of Appeals,
Argued: March 30, 1993.
Decided: July 7, 1993.
Appeal from the United States
District Court for the Western District of Virginia, at Roanoke.
James C. Turk, Chief District Judge. (CA-90-248-R)
Before ERVIN, Chief Judge, and WIDENER and
HAMILTON, Circuit Judges.
Petitioner, Johnny Watkins Jr., appeals the
district court's dismissal of his petition for writ of habeas
corpus. Finding no error, we affirm.
* A detailed
recitation of the facts surrounding the murders which Watkins
committed and the procedural history of his trials may be found
in the opinion of the Virginia Supreme Court on direct appeal.
Watkins v. Commonwealth, 229 S.E.2d 422, 427-29 (1985). We
briefly summarize the factual background and subsequent
In an effort to obtain money,
at about 3:00 a.m. on November 14, 1983, Watkins shot and killed
Betty Jean Barker, a clerk at a Kwik Stop market in Danville,
Virginia, and absconded with $89.89.
In yet another effort to
obtain money, in the early morning hours of November 22, 1983,
Watkins shot and killed Carl Douglas Buchanan, an employee of a
Fast Fare convenience store in Danville, Virginia, and ran off
with $34.73, including a $2.00 bill whose serial number was
Later that day around 4:00
p.m., Watkins' brother, Darnell Watkins, was identified as the
individual who passed the bill to a local merchant. A search
warrant was then obtained for Darnell's apartment. During the
search of the apartment, the police discovered that Watkins
shared a bedroom with Darnell.
In the bedroom, the police
recovered items belonging to Carl Buchanan and a 22-caliber
pistol that later proved to be the pistol employed in the murder
of Betty Jean Barker.
Watkins and Darnell were taken
to Danville Police headquarters. At about 11:00 p.m on November
22, the police questioned Watkins. Watkins was advised of his
and signed a written waiver of those rights. During questioning,
Watkins stated he wanted to consult with an attorney. At that
point, the questioning ceased.
At 1:00 a.m., the police
advised Watkins he was being charged with the capital murder of
Buchanan. Watkins inquired why he was being charged. Before
giving an explanation, the officer advised Watkins of his
Miranda rights and obtained a second written waiver of rights.
Watkins was then informed that his brother had implicated him.
Watkins was then permitted to
see Darnell and asked him whether he "snitch[ed]." When Darnell
responded in the affirmative, Watkins declined to take a
polygraph or discuss the shooting of Buchanan.
On November 28, another
officer questioned Watkins. Watkins was advised of his Miranda
rights and signed a third waiver of rights form. In his
statement, Watkins admitted that he shot Buchanan, but claimed
it was in self defense.
At the Barker trial, Quentin
Nash was the principal witness for the Commonwealth. He
testified that he and Watkins left a poker game about 1:30 a.m.
on November 14 in Watkins' car. Watkins indicated to Nash that
he was going to rob the Kwik Stop. Nash agreed to be a lookout.
Nash testified Watkins entered the Kwik Stop while he remained
in the car. Nash had second thoughts and entered the store in an
attempt to persuade Watkins not to rob the place. Watkins had
already purchased cigarettes.
When Barker opened the cash
drawer, Watkins fired twice, causing Barker to fall to the floor.
Acting upon Watkins' orders, Nash ran from the store with the
cash drawer. As he left the store, Nash observed Watkins leaning
over the counter with the firearm in his hand. Watkins' defense
strategy at the Barker trial was that Nash committed the crime.
As to the Barker murder, a
jury found Watkins guilty of capital murder in the commission of
robbery while armed with a deadly weapon. The jury also found
Watkins guilty of robbery and use of a firearm in the commission
of a felony. The jury fixed Watkins' punishment for robbery at
life imprisonment and for use of a firearm in the commission of
a felony at two years.
In the bifurcated proceeding
mandated by Va. Code Ann. §§ 19.2-264.3 and -264.4, the jury
heard evidence in aggravation and mitigation of the capital
murder charge. Based upon findings of Watkins' "future
dangerousness" and the "vileness" of the crime, Va. Code Ann. §
the jury fixed Watkins' punishment at death. On July 13, 1984,
the trial court sentenced Watkins in accordance with the jury
At the Buchanan trial, Darnell
Watkins, Watkins' brother, was the principal witness for the
Commonwealth. He testified that around midnight on November 21,
Watkins drove him to a store to purchase some cigarettes. Along
the way, Watkins indicated that he may want to "rob some place."
Watkins v. Commonwealth, 331 S.E.2d 422, 428 (Va. 1985).
Thereafter, Watkins entered a Fast Fare store and shot Buchanan.
Darnell Watkins testified that Watkins left with the cash drawer
and a wallet.
With respect to the Buchanan
murder, another jury found Watkins guilty of capital murder in
the commission of robbery while armed with a deadly weapon. The
jury also found Watkins guilty of robbery and use of a firearm
in the commission of a felony. The jury fixed Watkins'
punishment for robbery at life imprisonment and for use of a
firearm in the commission of a felony at two years.
Based upon findings of Watkins'
"future dangerousness" and the "vileness" of the crime, the jury
fixed Watkins' punishment at death. On September 28, 1984, the
trial court sentenced Watkins in accordance with the jury
Watkins appealed both of his
capital murder convictions to the Virginia Supreme Court. After
consolidating the appeals, the Virginia Supreme Court affirmed
both capital murder convictions and the sentences imposed.
Watkins v. Commonwealth, 331 S.E.2d at 440.
Watkins then appealed his convictions and sentences to the
United States Supreme Court. That Court denied certiorari.
Watkins v. Virginia, 475 U.S. 1099 (1986).
Watkins sought state
collateral relief in Danville Circuit Court by filing two
petitions for writ of habeas corpus. The circuit court held an
evidentiary hearing and heard the testimony of Watkins; Watkins'
two trial attorneys, Henry Crider and E. L. Motley, Jr.; Darnell
Watkins; Thelma Stewart, Watkins' godmother; William Fuller, III,
the prosecutor for the Commonwealth; Sherman Lee, a probation
and parole officer at the time of Watkins' trials; and Dr.
William Lee, a clinical psychologist.
After the evidentiary hearing,
the circuit court dismissed Watkins' petitions. Watkins then
sought permission to appeal in the Virginia Supreme Court. On
April 13, 1989, the Virginia Supreme Court refused Watkins'
petition to appeal. Watkins v. Murray, No. 890124 (Va. April 13,
1989). The Supreme Court of the United States denied certiorari.
Watkins v. Murray, 493 U.S. 907 (1989).
Watkins then sought federal
collateral relief in the United States District Court for the
Eastern District of Virginia by filing a petition for writ of
habeas corpus pursuant to 28 U.S.C.s 2254. On March 2, 1992, the
district court dismissed all but two of Watkins' claims. Watkins
v. Murray, CV-90-0248-R (W.D. Va. March 3, 1992).
The district court referred
the two remaining claims to a magistrate judge for an
evidentiary hearing. Respondent moved the district court to
reconsider its decision to grant an evidentiary hearing on the
two remaining claims. The district court granted respondent's
motion and dismissed the petition. Watkins v. Murray,
CV-90-0248-R (W.D. Va. June 2, 1992). Pursuant to Fed. R. Civ.
P. 59, Watkins moved the district court to reconsider. On
September 2, 1992, the district court denied the motion.
After dismissing Watkins'
habeas petition, the district court denied his application for a
certificate of probable cause to appeal. On March 17, 1993, we
granted Watkins' application for a certificate of probable cause
For numerous reasons, Watkins
contends that Virginia's death penalty scheme is
unconstitutional. The district court held that these claims
lacked substantive merit and, therefore, should be dismissed.
Only one of these claims merits brief discussion.
Watkins argues that the jury
instructions in both of his trials were constitutionally infirm
because the trial courts gave no instruction on the meaning,
purpose, and application of mitigating evidence. As his argument
goes, "The lack of instruction as to mitigating circumstances
merely leaves the jury without any indication as to its meaning
or application and unable to rationally discern those cases
which are truly deserving of the death penalty." Petitioner's
Brief at 16 (citations omitted).
The jury in each of Watkins'
trials was instructed:
[Y]ou have convicted the
defendant of an offense which may be punished by death. You must
decide whether the defendant shall be sentenced to death or life
imprisonment. Before the penalty can be fixed at death, the
Commonwealth must prove beyond a reasonable doubt at least one
of the following two alternatives:
(1) That, after consideration of the
circumstances surrounding this offense or the prior history and
background of the defendant, there is probability that he would
commit criminal acts of violence that would constitute a
continuing serious threat to society; or
(2) That the defendant's conduct in
committing the offense was outrageously or wantonly vile,
horrible or inhuman, in that it involved an aggravated battery
to the victim beyond the minimum necessary to accomplish the act
If you find from the evidence that the
Commonwealth has proven beyond a reasonable doubt either of the
two alternatives, then you may fix the punishment of the
defendant at death or if you believe from all the evidence that
the death penalty is not justified then you shall fix the
punishment of the defendant at life imprisonment.
If the Commonwealth has failed to prove
either alternative beyond a reasonable doubt, then you shall fix
the punishment of the defendant at life imprisonment.
(Joint Appendix (J.A.) 407).
The district court held the instructions were not
constitutionally infirm. We agree.
We have consistently rejected
attacks to the Virginia system of instructing juries in capital
cases. See, e.g., Briley v. Bass, 750 F.2d 1238, 1244-45 (4th
Cir. 1984), cert. denied, 470 U.S. 1088 (1985); Jones v. Murray,
947 F.2d 1106, 1119-20 (4th Cir. 1991), cert. denied, 112 S. Ct.
1591 (1992). Jones involved a similar, if not the identical,
allegation to the claim presently before us. In Jones, we held
the jury instructions, virtually identical to the ones used in
this case, satisfied the requirement of the Eighth and
Fourteenth Amendments of individualized sentencing in capital
cases. Id. at 1120.
the following instruction did not admonish the jury to consider
If you find from the evidence
that the Commonwealth has proven beyond a reasonable doubt that
the offense was outrageously or wantonly vile, horrible or
inhuman then you may fix the punishment of the defendant at
death or if you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment of
the defendant at life imprisonment.
Id. at 1119. Jones also
contended that the jury could infer from that instruction that
if it found an aggravating factor, it had no option but to
impose the sentence of death without the consideration of
mitigating evidence. Id.
We rejected Jones' claims,
noting the instructions in that case left "no doubt that the
jury was free to consider mitigating evidence and recommend life
imprisonment." Id. at 1120. We construed the term "all the
evidence" as necessarily including evidence in mitigation as
well as evidence in aggravation. Id.
Finally, we concluded the
instructions to the jury in Jones left " 'the definite
impression that the jury was to take into account such evidence
as was presented in mitigation and to exercise discretion in
reaching a verdict on sentencing, rather than automatically
imposing the death sentence upon finding an aggravating
circumstance.' " Id. (quoting Briley, 750 F.2d at 1244). Our
decision in Jones fully supports the district court's decision
to deny Watkins' claim that the jury instructions in his trials
did not pass constitutional muster. See also Briley, 750 F.2d at
1242-44 (sustaining almost identical instructions).
Watkins also contends that the
November 28 confession to the Buchanan murder was improperly
admitted into evidence during the penalty phase of the Barker
trial under Edwards v. Arizona, 451 U.S. 477 (1981). The
district court rejected this claim as lacking merit. The
district court did not address whether the claim was foreclosed
from federal review under the doctrine of procedural default.
On November 22, Watkins and
his brother Darnell were taken to Danville Police headquarters
for the purpose of questioning. Watkins was advised of his
Miranda rights, and executed a waiver. During the questioning,
Watkins indicated he wanted to see a lawyer. At that point, the
interrogation ceased. Watkins, 331 S.E.2d at 429. At about 1:00
a.m. on November 23, Watkins was charged with the capital murder
of Buchanan. Watkins asked why, was again advised of his rights,
executed a second waiver, and was told by the police that his
brother had implicated him. Id.
When Watkins expressed
disbelief, the police played a portion of his brother's recorded
statement, and Watkins asked to see his brother. Id. While
meeting with his brother, Watkins said: "Did you really snitch
on me?" Darnell responded in the affirmative. Watkins then
declined to discuss the shooting and said he wanted to "think
about it." Id. On November 28, another officer went to question
Watkins, advised him again of his Miranda rights, and Watkins
executed a third waiver. Watkins then confessed to the Buchanan
murder and signed each page of a written statement.
At trial, Watkins contested
the voluntariness of the November 28 confession. The trial court
held that it was voluntary and the Virginia Supreme Court
affirmed this finding on direct appeal. When Watkins filed his
petition for certiorari in the United States Supreme Court from
direct appeal, he argued for the first time that because he had
requested counsel on November 22, further questioning after that
date was in violation of Edwards. Before the Supreme Court, the
Commonwealth argued that the Court was precluded from reviewing
an issue not raised below. The Supreme Court denied certiorari.
Watkins v. Virginia, 475 U.S. 1099 (1986).
When Watkins presented his
Edwards claim for the first time to the Virginia Supreme Court
on appeal from the denial of state habeas relief, the Virginia
Supreme Court expressly found that claim was barred from review
under the rule in Slayton v. Parrigan, 205 S.E.2d 680 (1974) (nonjurisdictional
challenges to a conviction may not be raised in a habeas
proceeding if they were not asserted at trial and upon direct
appeal). Consequently, Watkins' Edwards claim is procedurally
barred absent a showing of cause and prejudice or actual
innocence. Murray v. Carrier, 477 U.S. 478, 496 (1986); Sawyer
v. Whitley, 112 S. Ct. 2514, 2517 (1992). Because Watkins has
demonstrated neither cause and prejudice nor actual innocence,
we cannot reach the merits of his defaulted Edwards claim.
The district court awarded
Watkins an evidentiary hearing on his two claims under Swain v.
Alabama, 380 U.S. 202 (1965). Watkins asserts a substantive
Swain claim and another on the basis of ineffective assistance
of counsel. In his Swain claim, Watkins contends that the
prosecutor at his trials, William Fuller III, historically and
systematically struck black veniremembers, resulting in two
juries without a black person serving, and that his counsel had
been ineffective for failing to object to those strikes.
After the district court
awarded an evidentiary hearing, the respondent moved the
district court to reconsider. The respondent asserted Watkins'
Swain claims were procedurally barred because they were never
raised in state court.
The respondent further
asserted that the district court could not award an evidentiary
hearing because of Watkins' failure to develop sufficient facts
to support this claim in state court. The respondent rested this
argument on a decision of the Supreme Court, Keeney v.
Tamayo-Reyes, 112 S. Ct. 1715 (1992), decided after the district
court awarded Watkins an evidentiary hearing.
In Keeney, the Court extended
the cause and prejudice standard to a petitioner's failure to
develop facts in state court and held that a petitioner is "entitled
to a federal evidentiary hearing if he can show cause for his
failure to develop the facts in state-court proceedings and
actual prejudice resulting from that failure." Id. at 1719-20.
The Court further held that a
petitioner's failure to develop a claim in state court will be
excused if he can show that a fundamental miscarriage of justice
would result from the failure to hold an evidentiary hearing. Id.
at 1720. A fundamental miscarriage of justice occurs when a
petitioner can demonstrate that he is actually innocent of the
crime for which the death penalty was imposed. Sawyer, 112 S. Ct.
2517 ("[T]o show 'actual innocence' one must show by clear and
convincing evidence that but for a constitutional error, no
reasonable juror would have found the petitioner eligible for
the death penalty under the applicable state law.").
It is clear that Watkins
failed to establish an evidentiary record in state court that
jurors were systematically excluded on the basis of race.
Consequently, an award of an evidentiary hearing was only
appropriate if Watkins could establish cause for his failure to
develop the factual record and prejudice, or that a fundamental
miscarriage of justice would result from a failure to hold an
Because Watkins has
demonstrated neither cause and prejudice, nor that a miscarriage
of justice would result from a failure to hold an evidentiary
hearing, we decline to entertain his Swain claims. Consequently,
Watkins' Swain claims were properly dismissed.
A juror may be excluded for
cause based on views on capital punishment if those views would
" 'prevent or substantially impair the performance of his duties
as a juror in accord with his instructions and his oath.' "
Wainwright v. Witt, 469 U.S. 412, 424 (1985) (citation omitted);
Witherspoon v. Illinois, 391 U.S. 510, 522 (1968).
Watkins contends that
potential jurors were excluded improperly from his jury panels
under Witherspoon. Watkins also asserts that his two trial
attorneys were ineffective because they failed to object to the
exclusion of the allegedly improperly excluded veniremen.
We agree with the district
court that these claims are procedurally barred under Slayton
and Va. Code. Ann.s 8.01-654(B)(2)
because neither the substantive Witherspoon claim nor the
collateral ineffectiveness claim was ever presented to any state
court. See Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.
1990), cert. denied, 111 S. Ct. 1639 (1991) (If "it is clear
that state law would bar state review, exhaustion is not
required, and federal review is precluded."). Because Watkins
has demonstrated neither cause and prejudice, nor actual
innocence, we decline to reach the merits of his defaulted
Watkins also raises additional
claims of ineffective assistance of counsel. The test for
reviewing claims of ineffective assistance of counsel is well
established. First, petitioner must demonstrate counsel's
performance fell below an objective standard of reasonableness.
Strickland v. Washington, 466 U.S. 668, 687-91 (1984). Second,
"[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome." Id. at 694.
* Watkins asserts that his two
trial attorneys performed ineffectively because they did not
move for the appointment of an additional psychiatrist under Ake
v. Oklahoma, 470 U.S. 68 (1985). Prior to Watkins' trials,
counsel for Watkins requested that Watkins be examined by a
psychiatrist for the purpose of determining his competency to
stand trial, his state of mind on the nights of the crimes, and
any possible mitigating evidence should he be convicted of the
offenses. The trial court granted the motion. Dr. William Lee, a
psychiatrist employed by the Commonwealth, conducted an
extensive examination of Watkins.
In his evaluation, Dr. Lee
concluded Watkins was competent to stand trial and sane at the
time the offenses were committed. As far as mitigating evidence,
Dr. Lee recommended that Watkins' trial attorneys investigate
whether there was any evidence of significant impairment in
terms of slurred speech or staggering on the night of the
offense. Dr. Lee also opined that Watkins was not suffering from
any form of mental illness or history of any type of episodic
Watkins contends that an
independent examination would have revealed, among other things,
a history of substance abuse, potential brain dysfunction, and
that he suffered from very high levels of anxiety and depression.
At the state habeas evidentiary hearing, Henry Crider, one of
Watkins' trial counsel, explained why they did not seek an
independent psychiatric evaluation:
Quite frankly, I didn't see
the necessity for the motion for an independent psychiatric
Also, in light of the report
we got back from Dr. Lee, I felt like based on what I could see
from Dr. Lee's report, even though he was a state examiner, he
had given about as an objective evaluation as I could look for
under the circumstances...."
The district court held that
Watkins' trial counsels' performance did not fall below an
objective standard of reasonableness because Watkins was "not
entitled to 'shop around' at state expense for a psychiatrist
who would adduce evidence favorable to him." (J.A. 105354) (citations
omitted). We believe the district court properly dismissed this
In Ake, the Supreme Court held
that due process requires that an indigent defendant be provided
with the services of a competent psychiatrist at state expense
when the defendant's mental condition is in issue. 470 U.S. at
83. The Court went on to reject the notion that a defendant had
a constitutional right to select a psychiatrist of his "personal
liking." Id. at 79, 83.
In this case, Watkins enjoyed
the benefit of a complete psychiatric evaluation in conjunction
with the preparation of his defense. That is all that Ake
requires. See Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir.)
("The mere fact [Poyner's] counsel did not shop around for a
psychiatrist willing to testify to the presence of more
elaborate or grave psychological disorders simply does not
constitute ineffective assistance."), cert. denied, 113 S. Ct.
419 (1992). Under the circumstances, we cannot conclude that the
performance of Watkins' counsel fell below an objective standard
of reasonableness. Accordingly, the district court properly
dismissed this claim.
Watkins also argues his trial
counsel were ineffective because they improperly conceded to the
jury in his trials that the death sentence was appropriate. The
district court held that this claim was procedurally barred. We
agree. Although presented in the state habeas proceeding, this
claim was abandoned on direct appeal from the denial of state
habeas relief, and is, therefore, procedurally barred. See
Whitely v. Bair, 802 F.2d 1487, 1500-02 (4th Cir. 1986), cert.
denied, 480 U.S. 951 (1987); Bassette, 915 F.2d at 937.
Under the circumstances, the
only permissible justification for federal courts to hear this
claim is if Watkins demonstrates cause and prejudice or actual
innocence. Our review of the record demonstrates that Watkins
failed to meet either prong of the cause and prejudice standard,
and has certainly not presented a colorable claim of actual
innocence. In any event, the claim lacks substantive merit as
well. See, e.g., Clozza v. Murray, 913 F.2d 1092, 1098-1101 (4th
Cir. 1990) (rejecting similar attack where counsel for
petitioner acknowledged atrocious nature of the crimes and that
he would probably want to kill petitioner), cert. denied, 111 S.
Ct. 1123 (1991).
We are also
unpersuaded by Watkins' claim of ineffective assistance of
counsel because his attorney failed to utilize evidence of his
alleged habitual drug use. The evidence of alleged habitual drug
use was tenuous at best. In fact, on state court collateral
review, the court found that the evidence of habitual drug use
was inconclusive and that Watkins had failed to demonstrate that
he was under the influence of alcohol or other drugs when the
crimes were committed.
Under 28 U.S.C.
§ 2254(d), these findings are presumed to be correct unless
Watkins can demonstrate the presence of one or more enumerated
factors necessitating a finding that he did not receive a fair
and adequate hearing on his claims. See Bassette, 915 F.2d at
940. Watkins has presented nothing to call these findings into
With respect to the Buchanan
trial, Watkins presented evidence during sentencing that
supported Watkins' claimed drug use and its effect on him. (J.A.
548-53). In addition, at the Buchanan sentencing, Dr. Lee
testified that Watkins was not an addict but used drugs and
alcohol in an episodic fashion. This evidence was consistent
with his November 28 statement to the police that he ingested
whiskey and his theory of the case. Under the circumstances, we
cannot conclude that the performance of Watkins' counsel fell
below an objective standard of reasonableness.
With respect to the Barker
trial, Watkins' trial counsel explained their decision not to
present any evidence of drug use:
[I]f I had attempted to go
into evidence relating to [Watkins'] use of drugs or alcohol,
particularly in the Barker case because we had taken the
position, of course, that he had nothing to do with that and
that was all Quinton[sic] Nash, I felt it would have made for a
most volatile situation. I felt it would have hurt his case even
At that time we didn't know what the Jury was
going to do with the case, but we had a murder of a young girl
for less than $100, four shots. I think had we tried to put on
evidence that our client was a drug crazed fiend, I just don't
believe a Danville Jury would have had any sympathy whatsoever
I, also, didn't really have, I felt,
sufficient evidence to back that position up. So I feel like we
would have basically been dangling him out on a limb by not
really having anything to back it up in great detail.
As to the Barker trial, the
performance of Watkins' counsel similarly did not fall below an
objective standard of reasonableness. Evidence of drug use would
have been inconsistent with Watkins' theory offered in the
Barker trial that Nash committed the crime. Under the
circumstances, it was an eminently reasonable trial strategy to
offer a theory at sentencing consistent with the theory offered
at the guilt phase of the trial.
For the reasons stated herein,
the judgment of the district court is affirmed.