Walton v. Angelone ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PERCY LEVAR WALTON, 
Petitioner-Appellant,
v.  No. 02-18
RONALD J. ANGELONE,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-99-940-7)
Argued: December 5, 2002
Decided: February 27, 2003
Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Dismissed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Chief Judge Wilkins and Judge Motz joined.
COUNSEL
ARGUED: Michelle Jill Brace, VIRGINIA CAPITAL REPRESEN-
TATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellant. Robert Quentin Harris, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee. ON BRIEF: Jennifer L. Givens, VIRGINIA CAPITAL
REPRESENTATION RESOURCE CENTER, Charlottesville, Vir-
2 WALTON v. ANGELONE
ginia, for Appellant. Jerry W. Kilgore, Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
On October 7, 1997, in the Circuit Court for the City of Danville,
Virginia, Percy Levar Walton pled guilty to four counts of capital
murder, Va. Code Ann. § 18.2-31, three counts of robbery, id. § 18.2-
58, one count of burglary, id. § 18.2-90, and six counts of using a fire-
arm in the commission of a felony, id. § 18.2-53.1. Following a sen-
tencing hearing in which the state trial court sat as the trier of fact,
the state trial court sentenced Walton to death on three of the capital
murder counts.1 After exhausting his state remedies, Walton filed a
petition for writ of habeas corpus in the United States District Court
for the Eastern District of Virginia, 28 U.S.C. § 2254,2 which, after
the case was transferred to the United States District Court for the
Western District of Virginia, the district court dismissed. Walton
seeks a certificate of appealability granting permission to appeal the
district court’s order dismissing his petition for writ of habeas corpus.
Because Walton has failed to make a substantial showing of the
denial of a constitutional right, 28 U.S.C. § 2253(c)(2), we deny his
application for a certificate of appealability and dismiss the appeal.
I
A
As found by the Virginia Supreme Court on direct appeal, the facts
of this case are as follows:
1
At the time of sentencing, one of the capital murder counts was dis-
missed by the state trial court.
2
Walton named Ronald Angelone, Director of the Virginia Department
of Corrections, as respondent. For ease of reference, we will refer to
respondent as "the Commonwealth" throughout this opinion.
WALTON v. ANGELONE 3
On November 16, 1996, Barbara K. Case, who was in Mis-
sissippi, made a telephone call to her parents, Elizabeth and
Jessie Kendrick, who resided in Danville. Mrs. Case
informed her parents during this telephone conversation that
she planned to visit them during the approaching Thanksgiv-
ing holiday season. Mr. and Mrs. Kendrick agreed to meet
their daughter at an airport in Greensboro, North Carolina,
on November 25, 1996, three days before Thanksgiving, and
return to Danville for the holidays. Mrs. Case made several
attempts to reach her parents by telephone between Novem-
ber 16 and 25, 1996, but no one answered the telephone.
Mrs. Case did not consider her parents’ failure to answer the
telephone unusual because her parents "traveled a lot."
When Mrs. Case arrived at the airport in Greensboro on
November 25, 1996, her parents failed to meet her. She
waited several hours, and then she became alarmed and dis-
turbed. A woman at the airport gave Mrs. Case a ride to
Danville.
When Mrs. Case arrived at her parents’ home in Danville,
their townhouse was dark, and their car was missing. Mrs.
Case then went to her aunt’s home, which is across the street
from her parents’ townhouse. Mrs. Case and her aunt went
to the Kendricks’ residence, but no one answered the door.
Mrs. Case spent the night of November 25, 1996, with her
aunt, and she contacted the Danville Police Department the
next morning. Several police officers arrived at Mr. and
Mrs. Kendricks’ townhouse and eventually entered the resi-
dence. The police officers found the body of Mr. Kendrick,
lying face down on a living room floor. Mr. Kendrick’s
hands were "clasped, and above his head, clinched
together." The police found the body of Mrs. Kendrick on
the floor in the den. A portion of her body was covered with
a sheet, and the upper portion of her body was wrapped in
a "pinkish-orange material." Mrs. Kendrick’s shirt had
"been rolled up, and then taped" and was loosely tied around
her neck with a slipknot. She had on undergarments below
4 WALTON v. ANGELONE
her waist, her pants had been cut from her body, and her
body had been dragged across the floor.
Mr. Kendrick, who was 80 years old at the time of his mur-
der, had been shot in the top of the head at close range. He
suffered a very large explosive type of wound where the
bullet entered his head. A "star-shaped appearance" and the
presence of soot on his head indicated that a muzzle of a gun
was pressed tightly against the top of Mr. Kendrick’s head
when the gun was discharged and that gases emitted from
the muzzle caused the skin around the entry point to "tear
and rip." Mr. Kendrick also suffered superficial non-lethal
cuts on the front of his neck and the palmar side of his left
wrist.
Mrs. Kendrick, who was 81 years old at the time of her
death, also suffered a tight contact gunshot wound to the top
of her head. Her shirt, which was fashioned into a slipknot
and tied around her neck, did not cause or contribute to her
death.
The Kendricks were last seen alive on November 19, 1996,
when Mrs. Kendrick, accompanied by her husband, went to
a hospital in Danville. The police officers found the Kendr-
icks’ car a short distance behind their townhouse.
***
On November 28, 1996, Thanksgiving Day, Roxanne
Moore, who was in Greensboro, North Carolina, placed a
telephone call to the Danville Police Department. Ms.
Moore informed the police personnel that her brother,
Archie Moore, who lived at the Cabin Lake Apartment
Complex in Danville, was supposed to have met her at an
airport in Greensboro on November 27, 1996, but he failed
to appear. Ms. Moore informed the police personnel that
neither she nor her parents in North Carolina were able to
contact Archie Moore by telephone at his Danville apart-
ment.
WALTON v. ANGELONE 5
Danville police officers entered Archie Moore’s apartment
around 8:00 a.m. on November 28. While searching the
apartment, they found Archie Moore’s body in a closet
behind a suitcase. A plastic bag had been placed over Mr.
Moore’s head, and his feet were "propped up" against the
closet wall. There was a strong odor of cologne in the closet
and on the victim’s body. The cause of Mr. Moore’s death
was a gunshot wound to his head, immediately above his
left eye. A bullet was found on the floor in his apartment.
Shortly after Moore’s body was discovered, two witnesses
informed the Danville Police Department that they had
recently observed Walton driving Moore’s Ford Mustang
automobile. Other witnesses had also observed Walton
walking on a sidewalk from the area near Mr. and Mrs. Ken-
dricks’ townhouse toward Cabin Lake on several occasions
between November 19 and November 26, 1996.
Subsequently, the police found Moore’s Mustang, "parked
right across the street from [Walton’s] house." Walton lived
in a condominium with his parents a short distance from
Moore’s apartment and the Kendricks’ townhouse.
Lieutenant Kenneth D. Fitzgerald, a Danville police detec-
tive, went to Walton’s home, spoke with Walton, and asked
him if he knew Moore. Walton denied that he knew Moore,
and he denied "ever [having] been in Archie Moore’s car."
Walton agreed to go to the police department for further
questioning. Detective Fitzgerald left Walton’s home and
later, Walton, accompanied by his father, went to the police
department.
The police obtained a search warrant for Walton’s resi-
dence. During a search of Walton’s bedroom, police person-
nel found a silver metal box inside one of Walton’s boots.
The box contained a diploma and an "ATM card," both
bearing Archie Moore’s name. The police also found a set
of car keys; one key fit Moore’s Mustang and two other
keys fit locks on the doors of Moore’s apartment. The police
also found a ring, which contained a very distinctive letter
6 WALTON v. ANGELONE
"A," which was similar to a ring that Moore had been wear-
ing before his death.
When the police officers searched Moore’s car, they found
a box containing two dozen .32-caliber bullets as well as
keys that fit locks in the Kendricks’ car and home. The
police officers also found a plastic bag which contained a
"plastic sleeve" from a wallet. Jessie Kendrick’s driver’s
license and his "Knights of Columbus" card were inside the
"plastic sleeve." Walton’s fingerprints were identified on the
"plastic sleeve." Walton’s fingerprints were also found on
numerous items at various locations in Moore’s apartment
and car.
When the police searched the Kendricks’ car, they found a
shotgun that had been stolen from the Kendricks’ town-
house. Walton’s fingerprint was found on the shotgun. A
knife, found in a toolbox in the trunk of the Kendricks’ car,
contained blood which matched Mr. Kendrick’s DNA.
The police officers recovered two .32-caliber bullet car-
tridges that had been partially submerged near the shoreline
of Cabin Lake. The lake was drained, and the police officers
recovered a .32-caliber pistol that Mr. Kendrick had pur-
chased in 1970. Ballistic tests conducted on a bullet that had
been removed from Mr. Kendrick’s head revealed that the
bullet "matched" the .32-caliber pistol recovered from the
lake and was consistent with the bullets that had killed
Moore and Mrs. Kendrick. The pistol contained four bullets
and two spent cartridges. The lead contained in the bullets
found in Moore’s car, the bullets recovered from the heads
of the victims, and the bullets in the revolver originated
from the same manufacturing source.
While in jail awaiting trial for the capital murder charges
and related offenses, Walton admitted to several inmates
that "he had killed three people at Cabin Lake." Walton also
described the graphic details of the murders at length to
Lacy H. Johnson, with whom Walton shared a cell in the
Danville City Jail.
WALTON v. ANGELONE 7
Walton v. Commonwealth, 501 S.E.2d 134, 136-38 (Va. 1998).
B
On March 3, 1997, a City of Danville grand jury charged Walton
with the following offenses: (1) the capital murder of Archie Moore
in the commission of a robbery while armed with a deadly weapon,
Va. Code Ann. § 18.2-31(4); (2) the robbery of Moore, id. § 18.2-58;
and (3) the use of a firearm during the commission of the capital mur-
der of Moore, id. § 18.2-53.1. On August 28, 1997, the City of Dan-
ville grand jury returned another indictment charging Walton with the
following eleven additional offenses: (1) the burglary of the Kendr-
icks’ home, id. § 18.2-90; (2) the capital murder of Elizabeth Kendr-
ick in the commission of a robbery while armed with a deadly
weapon, id. § 18.2-31(4); (3) the robbery of Elizabeth Kendrick, id.
§ 18.2-58; (4) the capital murder of Jessie Kendrick in the commis-
sion of a robbery while armed with a deadly weapon, id. § 18.2-31(4);
(5) the robbery of Jessie Kendrick, id. § 18.2-58; (6) capital murder
for the willful, deliberate, and premeditated killing of more than one
person within a three-year period, id. §§ 18.2-31(4), (8); (7) the use
of a firearm during the commission of the capital murder of Elizabeth
Kendrick, id. § 18.2-53.1; (8) the use of a firearm during the commis-
sion of the robbery of Elizabeth Kendrick, id.; (9) the use of a firearm
during the commission of the capital murder of Jessie Kendrick, id.;
(10) the use of a firearm during the commission of the robbery of Jes-
sie Kendrick, id.; and (11) the use of a firearm during the commission
of the robbery of Moore, id.
On October 7, 1997, Walton pled guilty to all counts. At the plea
hearing, the state trial court questioned Walton and found that Wal-
ton’s guilty pleas were made voluntarily, intelligently, and know-
ingly.
At the separate sentencing hearing, the state trial court heard evi-
dence in aggravation and mitigation of the capital murder counts.
After considering the evidence and the arguments of counsel, the state
trial court stated orally that Walton’s conduct in each capital murder
involved depravity of mind and that his conduct associated with each
capital murder indicated that there is a probability that he will commit
criminal acts of violence that would constitute a continuing serious
8 WALTON v. ANGELONE
threat to society. However, the state trial court entered a sentencing
order which did not mention depravity of mind, but stated that there
is a probability that Walton would commit criminal acts of violence
that would constitute a continuing serious threat to society. The state
trial court fixed Walton’s punishment at death for three of the capital
murder counts and imposed three separate life sentences for each of
the three robbery counts, ten years’ imprisonment for the burglary
count, and three years’ imprisonment for each of the six firearms counts.3
On direct appeal, the Virginia Supreme Court affirmed the state
trial court’s judgment. Walton v. Commonwealth, 501 S.E.2d at 141.4
3
At the sentencing hearing, the state trial court dismissed the capital
murder count charging Walton with the willful, deliberate, and premedi-
tated killing of more than one person within a three-year period.
4
On direct appeal, Walton raised the following claims:
I. The Trial Court erred when it admitted the photographs of the
victims as they were discovered at the crime scenes and of their
autopsies over defense objections that such photographs were so
prejudicial and inflammatory as to outweigh any probative value
in violation of Walton’s due process rights under the Fifth and
Fourteenth Amendments of the United States Constitution.
II. The Trial Court erred in finding the stipulated evidence at the
guilt phase sufficient to convict Walton, even on his pleas of
guilty, in violation of his rights under the Fifth and Fourteenth
Amendments to the United States Constitution.
III. The Trial Court erred in finding the Commonwealth’s evi-
dence sufficient to prove, beyond a reasonable doubt, the statu-
tory aggravator of future dangerousness in violation of Walton’s
rights under the Fifth and Fourteenth Amendments of the United
States Constitution, because, prior to these offenses, Walton had
no prior history of significant violent offenses.
IV. The Trial Court erred in finding the Commonwealth’s evi-
dence sufficient to prove, beyond a reasonable doubt, the statu-
tory aggravator of vileness, in violation of Walton’s rights under
the Fifth and Fourteenth Amendments of the United States Con-
stitution because the facts of the offenses do not establish torture,
depravity of mind or aggravated battery to the victims.
V. The sentence of death was under the influence of passion,
prejudice or other arbitrary factor in violation of Walton’s Eighth
WALTON v. ANGELONE 9
With regard to Walton’s challenge to the sufficiency of the evidence
supporting the state trial court’s finding of future dangerousness, the
Virginia Supreme Court held
that the facts and circumstances surrounding these murders
are sufficient to support the trial court’s finding of future
dangerousness. Moreover, Walton’s criminal history also
supports the trial court’s finding of future dangerousness.
Walton had been convicted of statutory burglary and grand
larceny. He had also been convicted of resisting arrest and
assault and battery on a police officer. As a juvenile, Walton
was convicted of two different offenses of possession of a
firearm and one charge of assault and battery.
Walton v. Commonwealth, 501 S.E.2d at 139. On December 7, 1998,
the United States Supreme Court denied Walton’s petition for writ of
certiorari. Walton v. Virginia, 525 U.S. 1046 (1998).
On February 5, 1999, Walton filed a state petition for writ of
habeas corpus in the Virginia Supreme Court.5 Because Walton’s
state habeas petition exceeded the court’s fifty-page limit, on March
9, 1999, the Virginia Supreme Court ordered Walton to file a habeas
petition not to exceed fifty pages. On March 30, 1999, Walton filed
a fifty-page habeas petition.6 Walton subsequently sought to add a
(Text continued on page 11)
and Fourteenth Amendment rights under the United States Con-
stitution.
VI. The sentence of death is excessive or disproportionate to the
penalty imposed in similar cases in violation of Walton’s Eighth
and Fourteenth Amendment rights under the United States Con-
stitution.
5
The Virginia Supreme Court has exclusive jurisdiction over habeas
corpus petitions filed by prisoners "held under the sentence of death."
Va. Code Ann. § 8.01-654(c)(1).
6
Walton’s March 1999 state habeas petition contained the following
claims:
I. Walton was incompetent to stand trial or plead guilty;
II. The state trial court failed to employ adequate procedures to
determine Walton’s competency;
10 WALTON v. ANGELONE
III. Walton’s guilty pleas were not knowing, intelligent, and
voluntary;
IV. Walton was not afforded appropriate expert assistance;
V. Walton’s rights under Brady v. Maryland, 373 U.S. 83(1963), and Kyles v. Whitley, 514 U.S. 419 (1995), were
violated;
VI. Walton’s rights under Massiah v. United States, 377 U.S.
201 (1964), were violated;
VII. Walton’s rights under Napue v. Illinois, 360 U.S. 264(1959), were violated;
VIII. Walton’s counsel rendered ineffective assistance:
(A) Regarding Walton’s mental health:
1. Counsel unreasonably failed to ensure that a proper
competency evaluation was conducted;
2. Counsel unreasonably failed to ensure that a compe-
tency hearing was held;
3. Counsel unreasonably failed to ensure that a compe-
tency finding was made by the state trial court;
4. Counsel unreasonably failed to adequately investigate
and present all information relevant to Walton’s com-
petency;
5. Counsel unreasonably failed to adequately investigate
and present all necessary and relevant information
regarding the knowing, voluntary, and intelligent
nature of Walton’s guilty plea and to ensure that the
state trial court conducted a proper colloquy;
6. Counsel unreasonably failed to adequately investigate
and present all necessary and relevant information
regarding Walton’s mental state at the time of the
crime;
7. Counsel unreasonably failed to adequately investigate
and present all necessary and relevant information
regarding Walton’s mental state during the sentencing
phase;
WALTON v. ANGELONE 11
claim under Ford v. Wainwright, 477 U.S. 399 (1986), that he is
incompetent to be executed.7
The Virginia Supreme Court denied relief in a one-page unpub-
lished order. Applying the rule in Slayton v. Parrigan, 205 S.E.2d 680(Va. 1974) (claims not raised at trial and/or on direct appeal are not
cognizable on state habeas), the Virginia Supreme Court refused to
consider claims I, II, IV, V, VI, VII, and IX. Applying the rule in
Anderson v. Warden, 281 S.E.2d 885 (Va. 1981) (an accused who
enters a guilty plea is bound by his representations at trial), the Vir-
ginia Supreme Court refused to consider claims III, VIII(A) (except
8. Counsel unreasonably failed to ensure that Walton’s
rights to access to a psychiatrist under Ake v. Okla-
homa, 470 U.S. 68 (1985), were appropriately
asserted and afforded;
9. Counsel unreasonably failed to adequately advise
Walton regarding his guilty plea; and
10. Counsel unreasonably failed to move to withdraw
Walton’s guilty pleas;
(B) In other respects at trial:
1. Counsel unreasonably failed to effectively cross-
examine Lacy Johnson;
2. Counsel unreasonably failed to protect Walton’s Sixth
Amendment rights under Massiah;
3. Counsel unreasonably stipulated to evidence in the
Commonwealth’s proffer; and
4. Counsel unreasonably failed to object to the prosecu-
tor’s inappropriate re-direct examination of Lacy
Johnson.
(C) On appeal.
IX. The death penalty is unconstitutional.
7
Walton had raised a Ford claim as claim VIII in his oversized state
habeas petition filed on February 5, 1999. When he filed his fifty-page
state habeas petition on March 30, 1999, Walton abandoned the Ford
claim.
12 WALTON v. ANGELONE
for subpart 10), and VIII(B). The Virginia Supreme Court denied
claims VIII(A)(10) and VIII(C) on the merits. The Virginia Supreme
Court also denied Walton leave to add the Ford claim.
On September 8, 1999, Walton filed a petition for rehearing,
accompanied by two affidavits and a neuropsychological evaluation,
none of which previously had been proffered to the Virginia Supreme
Court. On September 10, 1999, the Commonwealth filed a motion to
strike the factual material attached to the petition for rehearing
because it was untimely. On November 5, 1999, the Virginia Supreme
Court granted the Commonwealth’s motion to strike and denied Wal-
ton’s petition for rehearing.
On November 19, 1999, the state trial court scheduled Walton’s
execution for December 16, 1999, pursuant to the provisions of Vir-
ginia Code § 53.1-232.1. On December 13, 1999, however, the United
States District Court for the Eastern District of Virginia, without
objection by the Commonwealth, stayed Walton’s execution in order
to allow him to file a federal habeas petition. On December 17, 1999,
the case was transferred to the United States District Court for the
Western District of Virginia.
Meanwhile, Walton sought review of the Virginia Supreme Court’s
denial of state habeas relief, asking the Supreme Court of the United
States to determine whether Virginia’s system of habeas corpus
review as applied to death-row inmates such as Walton violates the
Due Process Clause of the Fourteenth Amendment. The petition for
certiorari was denied. Walton v. Taylor, 529 U.S. 1076 (2000).
On March 24, 2000, Walton filed a federal habeas petition. Wal-
ton’s federal habeas petition contained the same claims as Walton’s
state petition, except claim IX was renumbered as claim X. As new
claim IX, Walton alleged that he is incompetent to be executed.
On March 26, 2001, the district court ordered an evidentiary hear-
ing on claim I and four subparts of claim VIII(A). At the hearing on
May 16, 2001, however, the district court announced that it would
hear evidence relating only to the performance prong of the four Sixth
Amendment ineffective assistance of counsel claims. The district
court indicated it would hear evidence on the substantive competency
WALTON v. ANGELONE 13
claim and the prejudice prong of the ineffective assistance claims only
if it first found deficient performance.
The district court issued its opinion on March 27, 2002. The district
court held that all claims barred under Slayton were defaulted and that
Walton failed to establish cause and/or prejudice to excuse those
defaults. Relying on Royal v. Taylor, 188 F.3d 239 (4th Cir. 1999),
and Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000), the district
court declined to give effect to the Anderson procedural bar. Conse-
quently, it addressed claims III, VIII(A), and VIII(B) de novo, ulti-
mately denying them on the merits. The district court further ruled
that the Virginia Supreme Court’s decision on claim VIII(C) was not
contrary to or an unreasonable application of Strickland v. Washing-
ton, 466 U.S. 668 (1984). Finally, based on Stewart v. Martinez-
Villareal, 523 U.S. 637 (1998), it dismissed claim IX without preju-
dice as premature.
On June 24, 2002, the district court denied Walton’s motion for
reconsideration. Walton noted his timely appeal to this court on July
22, 2002. Thereafter, Walton filed a timely application for a certifi-
cate of appealability.
II
To be entitled to a certificate of appealability, a petitioner must
make "a substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the United States
Supreme Court clarified § 2253’s requirements. 529 U.S. 473, 483-84
(2000). To make the required showing, the petitioner must demon-
strate that "reasonable jurists could debate whether (or, for that mat-
ter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encour-
agement to proceed further.’" Id. at 484 (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)).
A
Walton raises two claims related to his competency. The first is a
substantive competency claim, which alleges that Walton was not
14 WALTON v. ANGELONE
competent to plead guilty or stand trial. The second is an ineffective
assistance of counsel claim, wherein Walton argues that his
trial/appellate counsel, Lawrence Gott, was constitutionally ineffec-
tive for failing to raise the issue of competency before the state trial
court and/or on direct appeal.
1
The facts relating to Walton’s competency claims are as follows.
After Walton was arrested on November 28, 1996, Gott, the Public
Defender for the City of Danville since March 1990, was appointed
as counsel for Walton.8 Following his appointment, Gott obtained
extensive background information about Walton, including informa-
tion provided by family members and information provided by Wal-
ton in a thirty-nine page questionnaire. Walton denied any family
history of mental illness or that he had ever been diagnosed or
received any attention for psychological, mental, or emotional prob-
lems. Walton also denied experiencing symptoms of mental or emo-
tional difficulties. In its opinion dismissing Walton’s habeas petition,
the district court found "no hint of irrationality in Walton’s answers."
On January 30, 1997, Gott filed a "Motion for Expert Assistance"
seeking appointment of a mental health expert pursuant to Virginia
Code § 19.2-264.3:1 to assist the defense in the preparation and pre-
sentation of mitigation evidence. Less than one week later, the state
trial court appointed Dr. Stanton E. Samenow, a licensed clinical psy-
chologist.9 The state trial court directed Dr. Samenow to submit a
report to Gott concerning Walton’s "history and character" and "men-
tal condition at the time of the offense."
8
Phyllis Mosby, another attorney with the Danville Public Defender’s
Office, was also appointed to assist Walton. However, Gott essentially
was the lead counsel in the case.
9
Dr. Samenow expressed in this case and in other cases a somewhat
novel theory (in that it is not largely accepted by his colleagues) regard-
ing mental illness and criminals. Although Gott was not pleased with Dr.
Samenow’s appointment, Gott and Samenow had a good working rela-
tionship.
WALTON v. ANGELONE 15
In February 1997, Gott recorded several instances of strange
behavior by Walton. For example, notes written by Gott’s staff indi-
cated that Walton did not appear at times to understand what his attor-
neys told him or that he just did not like what they were saying, and
he sometimes displayed nervous laughter and drumming. In one con-
versation, Gott noted that Walton said he could not be seen if he
closed his eyes and he described groups within the jail which he cal-
led "the mob" and the "one times" that he could move between with
impunity. Walton once called Gott’s office and told Gott’s secretary
that he was Percy Gunn (his father) and the "King of Hearts."10 Wal-
ton also repeatedly told Gott that he wanted a bond hearing and a
speedy trial at which his innocence would be proven.
Gott forwarded his notes concerning Walton’s strange behavior,
along with other information that he and his staff had collected about
Walton, to Dr. Samenow, and informed Dr. Samenow about Walton’s
strange behavior. Dr. Samenow interviewed and evaluated Walton in
Alexandria, Virginia on March 12-14, 1997, and later interviewed
Walton and members of Walton’s family in Danville on April 29, 1997.11
In July 1997, Walton indicated that he wanted to plead guilty
because the "chair is for killers" and because he did not "want to
make [a] bad name for [his] family." Walton expressed to Gott the
belief that, if he was executed, he would be able to return to life
10
During this time frame, Walton repeatedly telephoned the public
defender’s office demanding attention from the attorneys. On one occa-
sion after Walton told the secretary that he was thinking about suicide,
two attorneys showed up at the jail and found Walton in "good spirits"
wanting a bond hearing. When asked about the suicide threat, "Walton
said he just said it to say it."
11
Dr. Samenow’s August 22, 1997 report sets forth in detail Walton’s
upbringing. According to the report, Walton had a normal upbringing up
until his teens when, according to his mother, his personality changed
because he became involved with peers who used drugs and alcohol.
Walton was expelled from school in the tenth grade because he had two
different charges for possession of a firearm. Following his expulsion
from school, Walton spent a month at Natural Bridge Juvenile Correc-
tional Center. Because Walton created no problems and had no institu-
tional offenses at the center, Dr. Samenow observed that Walton, in a
"structured situation," was able to impress others.
16 WALTON v. ANGELONE
immediately and resurrect other dead family members. Walton also
acted out the murders in great detail in Gott’s presence. Because Wal-
ton had admitted his guilt, Gott arranged to have Dr. Samenow see
Walton again to evaluate him for sanity at the time of the offenses.
Dr. Samenow saw Walton again on July 11 and 14, 1997, and
noted a marked change in Walton’s "demeanor and mode of expres-
sion." Walton’s behavior was "different" on Friday, July 11, 1997,
and Dr. Samenow described Walton’s speech as "run-on," "not
responsive" to the subject of discussion, "unintelligible, at least to
me," profane, and violent.
On Monday, July 14, 1997, Walton’s behavior was "a mixture."
Walton was "more responsive to very specific questions, but then he
would again go off the track." For the first time, Walton related a
belief he "read . . . in the Bible," that after he died he would "come
back as a new person." Dr. Samenow described Walton’s belief as
coming back to life within "a day or something" of his execution with
the same name, but with "a different spirit."12
Following his July interviews, Dr. Samenow sent a letter to the
state trial court stating that Walton’s mental state seemed to be "much
different" than when he visited him earlier. According to Dr. Same-
now, Walton seemed "less rational." Dr. Samenow wrote:
This man articulated his thoughts in ways that I simply
could not comprehend. Sometimes I could not understand
his pressured flow of speech. At other times, I could under-
stand the words, but the thoughts did not appear to be logi-
cal or coherent. He simply would go off on a tangent
seemingly irrelevant to what we were discussing.
12
Gott discussed Walton’s post-execution beliefs with Dr. Samenow
before trial, and Dr. Samenow did not voice any concerns to Gott about
delusional behavior or about Walton’s competence at that time. Specifi-
cally, Dr. Samenow told Gott that "somebody could have strongly held
beliefs or opinions that may not be in the mainstream, but that didn’t
make them invalid for that person’s perspective, and they could still be
competent to proceed in a legal process."
WALTON v. ANGELONE 17
Because of Walton’s "apparent decompensation, and his reportedly
being involved in fights in the detention center in Danville," Dr.
Samenow considered Walton "imminently dangerous to himself and
others" and he recommended that Walton "be placed in a secure psy-
chiatric hospital where he can be observed for a further determination
of his mental state and until he is no longer a danger to himself and
others."
Gott immediately petitioned the state trial court to hospitalize Wal-
ton in a state "forensic mental health facility" under Virginia Code
§ 19.2-169.6(1) (authorizing a court to order that an incarcerated
defendant receive emergency pre-trial hospitalization if the court
finds by "clear and convincing evidence" that the defendant "is men-
tally ill and immediately dangerous to self or others in the opinion of
a qualified mental health professional," and "requires treatment in a
hospital rather than a jail in the opinion of a qualified mental health
professional"). Although Gott requested that Dr. Samenow character-
ize Walton as mentally ill, Dr. Samenow refused because, at the time,
Dr. Samenow could not diagnose Walton as mentally ill, but believed
that hospitalization was the best option. Without a supporting diagno-
sis of mental illness, the state trial court declined to commit Walton
to a hospital.
Approximately three weeks later, Gott moved for a competency
evaluation, stating that there was "probable cause" to believe that
Walton lacked "substantial capacity to understand the proceeding
against him or to assist counsel in the preparation of his defense."
Gott requested that the state trial court "direct the evaluation be done
in-patient." Gott attached a copy of the letter Dr. Samenow had sent
to the state trial court in July 1997. Gott viewed his motion as a "back
door way to get him to a hospital."
On August 22, 1997, the state trial court ordered another evaluation
by another mental health expert to determine Walton’s "capacity to
understand the proceedings against him and assist his attorney in his
own defense" and to determine whether Walton "was affected by
mental disease or defect" when he allegedly committed the murders.
On the same day, Dr. Samenow prepared a report detailing his find-
ings and conclusions.13 The report, described by the district court as
13
Dr. Samenow’s conclusions were based on his interviews with Wal-
ton, tests he administered to Walton, including the Wechsler Adult Intel-
18 WALTON v. ANGELONE
"drafted like a running commentary contemporaneous to the various
evaluations," described some of Walton’s strange behavior. Following
a narration of the March and April 1997 interviews, Dr. Samenow
stated that Walton was "competent to stand trial." According to Dr.
Samenow:
[Walton] understood that a capital murder charge can result
in the death penalty "by electric chair or needle." He could
identify his lawyers by name, knew their role, and he under-
stood precisely what he was being charged with. He also
knew that evidence is required to convict him. And he dif-
ferentiated between what he thought he would be charged
with and what he would not be charged with.
Moreover, Dr. Samenow noted that Walton stated that he had a strong
case, a good lawyer, and believed he would be found not guilty.
However, on the final page of his report, Dr. Samenow stated that
Walton, in July 1997, "was quite different in demeanor and mode of
expression from the earlier interviews." Dr. Samenow was uncertain
"what the dramatic change was attributable to." Dr. Samenow rhetori-
cally stated that, "if Mr. Walton were to predicate his responses to his
attorney upon a premise that death would bring him back to earth in
a new and better form, would this not interfere with his being able to
logically assist counsel in his own defense." Nevertheless, Dr. Same-
now did not conclude that Walton was incompetent. At the federal
evidentiary hearing, Dr. Samenow explained that, had he only inter-
viewed Walton in July 1997, he would have concluded that Walton
was not competent. However, he had also interviewed Walton in
March and April 1997 and concluded then that Walton was compe-
ligence Test, the Bender-Gestalt Test, and the Thematic Apperception
Test, interviews with Walton’s mother, grandmother, maternal aunt, little
league coach, principal, friend, paternal grandfather, paternal aunt, pater-
nal stepmother, and a rehabilitation counselor who had counseled Wal-
ton, and a host of documents, including Walton’s school records, records
from the state trial court file, discovery provided by the Commonwealth,
Walton’s detention center records from an earlier detention, and the
questionnaire Walton completed for Gott.
WALTON v. ANGELONE 19
tent. Dr. Samenow explained that, because he had these two "snap-
shots" of Walton, he only could call Walton’s competency into
question.
Pursuant to the state trial court’s August 22, 1997 order, Dr. Miller
Ryans, a board-certified psychiatrist specializing in forensic psychia-
try, conducted a forensic evaluation of Walton on September 10,
1997. The evaluation was conducted in Dr. Ryans’ private office
without restraints. According to Dr. Ryans, Walton "was neat and
clean in appearance, cooperative, friendly and presented no problems
in communication." Walton was "alert," "oriented as to person, time
and place," and "was able to give all data of personal identification
and general information consistent with [a] high school student, with
no evidence of psychosis, or extreme mood swings." Dr. Ryans did
observe, however, that Walton falsely denied his guilt and that,
"throughout the interview, . . . Walton would display an inappropriate
laugh, which was not consistent with the material being discussed."
In his report to the state trial court, dated September 11, 1997, Dr.
Ryans found that Walton was competent to stand trial. In reaching
this conclusion, Dr. Ryans found that Walton had a satisfactory
understanding of the proceedings against him and a "workable level
of ability to assist in his own defense." Dr. Ryans further found that
Walton, not only had an understanding of the charges against him, but
also had an understanding of the roles of the judge, the jury, the Com-
monwealth’s attorney, and the witnesses. Dr. Ryans sent a separate
letter to Gott in which he noted that he found Walton "competent to
plead and assist [Gott]."14
When Gott met with Walton on September 30, 1997, Walton was
"loud" and refused to cooperate. Walton said that he wanted the
"chair" but did not state specifically whether he wanted to plead guilty
or not guilty. When Gott spoke with Walton the next morning, how-
ever, Walton was "calm and collected." After Gott explained the
"time delays built into the system and the number of years it would
14
At the federal evidentiary hearing, Dr. Ryans testified that Walton’s
unusual behavior with Dr. Samenow might have been attributable to
malingering, the long-term effects of cocaine use, his limited intellectual
functioning, and stress.
20 WALTON v. ANGELONE
take before execution [Walton] still wanted to [plead guilty] and get
‘the chair’ and go out like a man." Walton signed a typed statement
in which he professed to understand the charges against him as well
as "all possible defenses" to those charges. In the statement, Walton
made his wishes plain:
My attorney has told me that he wants to try to negotiate
(work out) a Life Sentence instead of a Death Sentence. I
have told my attorney that I want to plead guilty and get a
Death Sentence.
Walton signed a jury trial waiver form and a guilty plea questionnaire.
Gott read the questions on the guilty plea questionnaire to Walton,
recorded Walton’s answers, and Walton signed the questionnaire.
On October 7, 1997, Walton pled guilty to all charges against him.
The state trial court questioned Walton at length. Walton affirmed
that he understood the charges against him, that his attorneys had
explained what the Commonwealth must prove in order to convict
him of those charges, that he had discussed any possible defenses that
he might have, that he decided to plead guilty, that he was pleading
guilty freely and voluntarily, that he was pleading guilty because he
was, in fact, guilty, that he was waiving his right to trial by jury, that
he was waiving his right not to incriminate himself, that he was waiv-
ing his right to confront and cross-examine his accusers, that he was
waiving his right to defend himself, that no one had forced him to
plead guilty or threatened him in any way, that no one had made any
promises of any kind, that he understood that the court could impose
multiple death sentences, that he was satisfied with the services of his
attorneys, that his attorneys had gone over the guilty plea question-
naire with him in advance, that he understood all of the questions, and
that he understood the state trial court’s questions. Following the plea
colloquy the state trial court found as follows:
Let the record show, the Court has inquired of the defen-
dant, Percy Levar Walton, as to his understanding of the
nature of the charges against him . . . the freeness and volun-
tariness of his pleas of guilty to the charges . . . to his under-
standing of his waiver of his right to be tried by a jury
WALTON v. ANGELONE 21
. . . his waiver of his right to appeal decisions of this Court
. . . as to his understanding of the limits of punishment,
which might be imposed upon the convictions of these
offenses. The Court hereby finds, as a matter of fact, that the
defendant has tendered a plea of guilty to each of the
charges . . . has done so freely, voluntarily, intelligently, and
with a full knowledge and understanding of the conse-
quences.
The state trial court then accepted Walton’s guilty pleas.
Despite Walton’s prior statements about wanting to be executed, he
did not stop Gott from presenting arguments and a case for a life sen-
tence. The state trial court conducted the sentencing phase of the case
on October 29-31, 1997, allowing two days of evidence and a day for
argument. Gott’s sentencing phase strategy was to "accurately portray
Walton as a young man who, although he had committed three mur-
ders, nevertheless had taken responsibility for his actions by pleading
guilty and who, in the relatively recent past, had been such a good
young man that upstanding citizens of the community were willing to
speak on his behalf despite what he had done." In furtherance of this
trial strategy, the defense called Walton’s little league coach, some of
his school teachers, two of his aunts, one of his former counselors at
a juvenile correctional center, and his grandmother.15 In general, these
witnesses testified that Walton was a mild-mannered, polite, quiet,
and respectful man. Walton’s former counselor also testified as to
Walton’s progress and good behavior during Walton’s short stay at
Natural Bridge Juvenile Correctional Center. This latter evidence
allowed Gott to argue to the state trial court that Walton responded
well "to the treatment that was there offered to him at the time, so
much so that his stay was relatively short."
For a couple of reasons, Gott chose this trial strategy over a mental
illness strategy. First, "there was no available mental health evidence
that would have been helpful and certainly none that would have
15
According to Gott, he did not call Walton’s mother to the stand
because Walton was once charged with assaulting his mother and
because Walton’s mother recently had been charged and convicted of
embezzlement.
22 WALTON v. ANGELONE
made a difference." Second, through his numerous conversations with
Walton’s family members, Gott never received any information per-
taining to any family history of mental illness. Third, Gott was "un-
aware of anything Dr. Ryans could have testified to that would have
been helpful to Walton, and I certainly did not want to have Dr.
Ryans cross-examined about Walton’s false denials of guilt." Fourth,
Gott did not like the idea of calling Dr. Samenow as a witness, not
only because "his testimony generally would not have been helpful,
but also because I knew from past experience in a capital case (Calvin
Swann) that the prosecutor could elicit much adverse information
from him on cross-examination." Fifth, Gott was aware that Walton
had told at least two fellow inmates that he intended to "play crazy."
Indeed, Walton, following his July 1997 interviews with Dr. Same-
now, told a fellow inmate that he just went to Alexandria for a psychi-
atric evaluation and "played crazy all weekend." Finally, Gott was
aware that, in March 1997, Walton had stood trial in Danville for bur-
glary and grand larceny committed in September 1996 and that nei-
ther his competency to stand trial nor his sanity at the time of the
offenses was an issue in that case. Indeed, Gott consulted with Wal-
ton’s attorney in that case, who informed him that "Walton had done
nothing but ‘blow smoke,’ i.e., lie to him, throughout his representa-
tion of Walton."
During the sentencing phase of the trial, Walton laughed, smiled,
and waved to family members. Gott advised Walton to keep his head
down or focus on a spot. During a victim impact statement made by
one of the Kendrick grandchildren, the victim noted that she hoped
the state trial court had noticed Walton’s smiles and laughter over the
course of the proceedings.
At the end of the second day of evidence, the Commonwealth pre-
sented as rebuttal evidence the testimony of two jail deputies who
described some of Walton’s violent conduct in jail. One of the rebut-
tal witnesses testified that Walton had stated that he wished he had
killed his own mother.
After this rebuttal testimony, the state trial court took a brief recess.
Gott met with Walton in the holding cell to discuss what would hap-
pen the next day and Walton became "very adamant and stubborn"
about refusing to return to the courtroom. Dr. Samenow and Walton’s
WALTON v. ANGELONE 23
family tried to persuade Walton to return, but he adamantly refused
to go back into the courtroom.
The state trial court asked Dr. Samenow to "do something," so Dr.
Samenow met with Walton. Walton stated that he "had been disre-
spected" and simply refused to return. When all attempts failed, depu-
ties maced Walton and returned him to the courtroom in shackles. The
state trial court asked Dr. Samenow what Walton’s behavior meant,
and Dr. Samenow told the state trial court that Walton simply was
scared, "He felt it was everything coming all at once finally, and he
was scared." Dr. Samenow never expressed any concern about Wal-
ton’s competence.
2
Walton contends that he was not competent to plead guilty or stand
trial. More specifically, he argues that he lacked the capacity to
understand the nature and purpose of the proceedings against him, to
consult with counsel, and to assist in preparing his defense. Walton
raised this claim in his state habeas petition. The Virginia Supreme
Court dismissed this claim under Slayton because the claim could
have been raised at trial and/or on direct appeal. In his federal habeas
petition, Walton raised an identical incompetency claim and the dis-
trict court held, following an evidentiary hearing, that this claim was
defaulted under Slayton and went on to reject Walton’s assertions of
cause and prejudice.
As established in Slack, to secure a certificate of appealability on
a claim that the district court denied pursuant to procedural grounds,
Walton must demonstrate both (1) "that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of
a constitutional right" and (2) "that jurists of reason would find it
debatable whether the district court was correct in its procedural rul-
ing." Slack, 529 U.S. at 484. In conducting this two-prong test, we
may proceed first "to resolve the issue whose answer is more apparent
from the record and arguments." Id. at 485.
The Due Process Clause of the Fourteenth Amendment prohibits
states from trying and convicting mentally incompetent defendants.
Pate v. Robinson, 383 U.S. 375, 384-86 (1966). The test for determin-
24 WALTON v. ANGELONE
ing competency is whether a defendant "has sufficient present ability
to consult with his lawyer with a reasonable degree of rational under-
standing . . . and whether he has a rational as well as a factual under-
standing of the proceedings against him." Dusky v. United States, 362
U.S. 402, 402 (1960). Competency claims can raise issues of both
procedural and substantive due process.
For example, a defendant may make a procedural competency
claim by alleging that the trial court failed to hold a competency hear-
ing after the defendant’s mental competency was put in issue. To pre-
vail, the defendant must establish that the trial court ignored facts
raising a "bona fide doubt" regarding the defendant’s competency to
stand trial. Pate, 383 U.S. at 384-86. Even if a defendant is mentally
competent at the beginning of the trial, the trial court must continually
be alert for changes which would suggest that he is no longer compe-
tent. Drope v. Missouri, 420 U.S. 162, 180 (1975). Although there are
"no fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed," proof "of a defen-
dant’s irrational behavior, his demeanor at trial, and any prior medical
opinion on competence to stand trial are all relevant." Id.On the other hand, a defendant may make a substantive compe-
tency claim by alleging that he was, in fact, tried and convicted while
mentally incompetent. Pate, 383 U.S. at 384-86; Dusky, 362 U.S. at
402. In contrast to a procedural competency claim, however, a defen-
dant raising a substantive claim of incompetency is entitled to no pre-
sumption of incompetency and must demonstrate his incompetency
by a preponderance of the evidence. Burket, 208 F.3d at 192. "‘Not
every manifestation of mental illness demonstrates incompetence to
stand trial; rather, the evidence must indicate a present inability to
assist counsel or understand the charges.’" Id. (quoting United States
ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)).
Similarly, "neither low intelligence, mental deficiency, nor bizarre,
volatile, and irrational behavior can be equated with mental incompe-
tence to stand trial." Burket, 208 F.3d at 192.
After carefully reviewing the record, we harbor no doubt that Wal-
ton was competent to appear in court and plead guilty on October 7,
1997 and at the sentencing phase of his case. First, throughout the
trial proceedings, Walton "acted in a manner exhibiting competence."
WALTON v. ANGELONE 25
Id. For example, prior to his pleas of guilty, Walton executed a two-
page guilty plea questionnaire, which outlined the contours of his
plea. At the plea hearing, the state trial court conducted an extensive
colloquy with Walton concerning the voluntariness and intelligence of
his guilty pleas. Walton’s replies to the state trial court’s questions
were clear and responsive. Walton repeatedly demonstrated his under-
standing of the charges and the trial proceedings. Indeed, in the collo-
quy with the state trial court, Walton acknowledged that he had
discussed his guilty pleas with his attorneys, that he understood the
nature of the charges against him, that he had discussed the elements
of each of the offenses with his attorneys, that his counsel had
explained the elements of each of the offenses to him, that he was
pleading guilty because he was, in fact, guilty, that he was waiving
certain constitutional rights, and that he understood the possible sen-
tences he could receive. His responses reflect "a sophisticated under-
standing of the proceeding." Id.Second, although Walton’s behavior in July 1997 and during a por-
tion of the sentencing phase of the case was of concern to Gott and
Dr. Samenow, neither Dr. Samenow nor Dr. Ryans indicated that
Walton was incompetent. The thorough evaluations by the mental
health experts provide powerful evidence that Walton was competent
to appear in court and plead guilty on October 7, 1997 and at the sen-
tencing phase of his case. Id. at 193-94 (that the petitioner and prose-
cution’s mental health experts did not indicate that petitioner was
incompetent was probative of the fact that petitioner was competent).
Indeed, the potent strength of these thorough mental health evalua-
tions understandably led Gott to decline to raise the issue of Walton’s
competency with the state trial court. Id. at 192-93 (that counsel did
not raise the issue of competency provided powerful evidence that
petitioner was competent).
In summary, we have carefully reviewed all of the evidence per-
taining to Walton’s competency at the time of his guilty pleas and at
the sentencing phase of his case. The record reflects that Walton was
competent at the time of his guilty pleas and at the sentencing phase
of his case. Accordingly, because we cannot conclude that "reason-
able jurists" would find the question of whether Walton was compe-
tent at the time of his guilty pleas and/or at the sentencing phase of
the case "debatable," Slack, 529 U.S. at 484, we deny Walton’s
26 WALTON v. ANGELONE
request for a certificate of appealability on his substantive compe-
tency claim.16
3
Walton also argues that Gott was constitutionally ineffective for
failing to raise the issue of competency before the state trial court
and/or on direct appeal. Walton raised this claim in his state habeas
petition and the Virginia Supreme Court held that this claim was pro-
cedurally barred under Anderson. The district court declined to give
effect to the Anderson procedural bar17 and rejected this claim on the
merits.
The Sixth Amendment provides in relevant part: "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assis-
tance of Counsel for his defence." U.S. Const. amend. VI. The
Supreme Court has held that the Sixth Amendment guarantees to all
criminal defendants the right to effective assistance of counsel. Strick-
land, 466 U.S. at 686.
In general, claims of ineffective assistance of counsel are covered
by the familiar two-part test established in Strickland. Under that test,
the petitioner first must show that his counsel’s performance fell
below an objective standard of reasonableness. Id. at 687. Second, the
petitioner must establish prejudice by showing "a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. at 694.
Walton’s claim fails under both prongs of Strickland. With respect
to the reasonableness of counsel’s performance, the record reflects
that counsel’s performance was more than reasonable. First, following
his appointment, Gott, through interviews with Walton and members
of Walton’s family, obtained extensive background information about
Walton, including information Walton provided to Gott in a thirty-
16
Having concluded that Walton has failed to establish the first prong
of the Slack test, we need not address whether the district court was cor-
rect in its procedural bar ruling. Slack, 529 U.S. at 484-85.
17
Of note, before this court, the Commonwealth has waived any reli-
ance on Anderson as a ground for dismissal of any of Walton’s claims.
WALTON v. ANGELONE 27
nine page questionnaire. In the questionnaire, Walton denied any fam-
ily history of mental illness or that he had ever been diagnosed or
received any attention for psychological, mental, or emotional prob-
lems. Walton also denied experiencing symptoms of mental or emo-
tional difficulties.
Second, Gott obtained a court-appointed mental health expert and
documented information for his expert to consider in assessing Wal-
ton’s mental health status. Dr. Samenow found that Walton was com-
petent, but expressed concerns to Gott about a "different" Walton in
July 1997. In light of this information, Gott investigated and pursued
available avenues to obtain additional evaluations. His diligent efforts
paid a dividend when the state trial court ordered a competency evalu-
ation.
Third, once a competency evaluation was ordered, Gott provided
Dr. Ryans with Dr. Samenow’s report, which set out Walton’s prob-
lematic upbringing and lifestyle and his observations of Walton’s
conduct that had precipitated the evaluation. The report also alerted
Dr. Ryans to the odd behavior which had been observed. After a thor-
ough evaluation of Walton, Dr. Ryans unequivocally opined that Wal-
ton was competent to stand trial.
Fourth, despite Walton’s behavior in the courtroom during the sen-
tencing phase of the trial, Dr. Samenow never suggested to Gott, let
alone to anyone else, that Walton was incompetent. Rather, Dr. Same-
now explained that Walton "felt it was everything coming all at once
finally, and he was scared." In short, the record leaves no doubt that
counsel’s performance concerning Walton’s competency was more
than reasonable.
With respect to the prejudice prong, Walton was not prejudiced by
Gott’s decision not to raise the issue of Walton’s competency. The
record in this case indisputably demonstrates that Walton was compe-
tent at the time of his guilty pleas and at the sentencing phase of his
case and, therefore, was not prejudiced by Gott’s decision not to raise
the competency issue. Accordingly, "reasonable jurists" could not dis-
agree with the district court’s determination that Gott was not consti-
tutionally ineffective for failing to raise the issue of competency
before the state trial court. Slack, 529 U.S. at 484. Therefore, we deny
28 WALTON v. ANGELONE
Walton’s request for a certificate of appealability on his claim that
Gott was constitutionally ineffective for failing to raise the issue of
competency before the state trial court.
B
Walton also claims that his guilty pleas were not knowing, intelli-
gent, and voluntary. Walton alleged in his state habeas petition not
only that his guilty pleas were not knowing, intelligent, and voluntary
in light of legal incompetence, but also that they were not knowing,
intelligent, and voluntary in light of his mental illness and his delu-
sions about the consequences of a death sentence. The Virginia
Supreme Court applied the rule in Anderson and refused to consider
Walton’s claim. Walton alleged again in his federal habeas petition
that his guilty pleas were not knowing, intelligent, and voluntary. The
district court declined to give effect to the Anderson procedural bar
and rejected this claim on the merits.
The standard for determining whether a guilty plea is constitution-
ally valid is whether the guilty plea represents a voluntary and intelli-
gent choice among the alternative courses of action open to the
defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). In
applying this standard, courts look to the totality of the circumstances
surrounding the guilty plea, id., granting the defendant’s solemn dec-
laration of guilt a presumption of truthfulness. Henderson v. Morgan,
426 U.S. 637, 648 (1976) (plurality opinion).
In this case, the state trial court conducted an extensive colloquy
with Walton to ensure that Walton’s pleas of guilty were made know-
ingly, intelligently, and voluntarily. Absent clear and convincing evi-
dence to the contrary, Walton is bound by the representations he made
during the plea colloquy. Fields v. Attorney General of State of Mary-
land, 956 F.2d 1290, 1299 (4th Cir. 1992). Walton has presented no
evidence of sufficient evidentiary force, e.g., evidence that he was
forced, coerced, threatened, or improperly induced into pleading
guilty, Brady v. United States, 397 U.S. 742, 755 (1970) (holding that
a guilty plea is made knowingly and intelligently if the defendant is
fully aware of the direct consequences of his guilty plea and was not
induced by threats [or promises to discontinue improper harassment],
misrepresentation, including unfulfilled or unfulfillable promises, or
WALTON v. ANGELONE 29
by promises that are by their nature improper as having no relation-
ship to the prosecutor’s business, e.g., bribes), to demonstrate that his
representations were untruthful or involuntary. Walton is, therefore,
bound by his representations. Fields, 956 F.2d at 1299. Furthermore,
Walton’s familiarity with the criminal justice system provides further
support for the conclusion that he knowingly, intelligently, and volun-
tarily pled guilty. Cf. United States v. DeFusco, 949 F.2d 114, 117
(4th Cir. 1991) (holding that district courts are to be given a wide
degree of discretion in deciding the best method to inform and ensure
a defendant’s understanding of the charges and, to that end, may con-
sider the defendant’s personal characteristics). Finally, there is no evi-
dence in the record to suggest that Walton’s guilty pleas were
rendered involuntary on account of incompetence. Walton’s compe-
tency was fully explored by Dr. Samenow and Dr. Ryans and these
experts never gave any indication that a mental illness or disturbance
impeded Walton’s ability to knowingly, intelligently, and voluntarily
plead guilty. Accordingly, "reasonable jurists" could not disagree with
the district court’s determination that Walton’s guilty pleas were
knowing, intelligent, and voluntary. Slack, 529 U.S. at 484. There-
fore, we deny Walton’s request for a certificate of appealability on his
claim that his guilty pleas were not knowing, intelligent, and volun-
tary.
C
Walton claims that he was denied constitutionally effective assis-
tance of counsel when Gott failed to object to the appointment of Dr.
Samenow. Walton presented this claim in his state habeas petition and
again in his federal habeas petition. Invoking Anderson, the Virginia
Supreme Court refused to consider the claim. The district court
declined to give effect to the Anderson procedural bar and rejected the
claim on the merits.
The gist of Walton’s argument is that, had Gott objected to the
appointment of Dr. Samenow, the state trial court would have
appointed another expert, another more qualified expert would have
determined that Walton was schizophrenic, and this fact, taken
together with other mitigating evidence, would have convinced the
state trial court that life without parole was a sufficient and appropri-
ate punishment. The legal authority supporting Walton’s argument is
30 WALTON v. ANGELONE
Ake and Virginia Code § 19.2-264.3:1. Under Ake, a defendant has
the right to the assistance of a mental health expert if the defendant
makes a showing to the trial court that his mental state is at issue in
his defense of the charges or if, in arguing future dangerousness in the
sentencing phase, the prosecution uses expert psychiatric testimony.
470 U.S. at 82-83 (noting that the need for the assistance of a psychia-
trist is "readily apparent" either when "the defendant is able to make
an ex parte threshold showing to the trial court that his sanity is likely
to be a significant factor in his defense" or "when the State presents
psychiatric evidence of the [capital] defendant’s future dangerous-
ness" during the sentencing phase). Virginia Code § 19.2-264.3:1 pro-
vides the mechanism for extending the services Ake may require and
also provides that expert assistance is available to assist in the investi-
gation and presentation of mitigating evidence.
According to Dr. Samenow’s testimony at the federal evidentiary
hearing, "[c]rime resides with the individual, . . . environmental fac-
tors can make crime easier or more difficult to commit, [but] the ori-
gin of crime is within the individual." Consequently, according to Dr.
Samenow, environmental factors do not cause crime, rather what
causes crime is how a defendant "choose[s] to deal with whatever
life’s circumstances are." Furthermore, Dr. Samenow "downplay[s]
. . . the existence of mental illness as being something that motivates
the defendant." Thus, in Dr. Samenow’s opinion, "a defendant, even
if he otherwise may be diagnosed as mentally ill, is able to make
choices about his conduct."
Because of his professional views, Dr. Samenow understands "why
a defense attorney might not think that I was the best person in terms
of the search for mitigating factors, given the positions that I’ve taken
through what I have written." Dr. Samenow’s novel theory (in that it
is not largely accepted by his colleagues) regarding mental illness and
criminals led Judge Murnaghan to observe that:
Dr. Stanton Samenow’s professed and public views make
him incompetent to aid a defendant in finding and present-
ing mitigating factors at a defendant’s sentencing phase.
. . . He has abandoned sociologic, psychologic, and mental
illness explanations for criminal behavior and holds the
view that most diagnoses of mental illness in criminals
WALTON v. ANGELONE 31
resulted from the criminal’s fabrications. . . . Dr. Samenow’s
published works state that circumstances have nothing to do
with criminal violations and that providing the criminal with
an opportunity to present excuses deferred him and us fur-
ther and further from change. . . . Dr. Samenow’s views
obviate his ability to evaluate mitigating factors relating to
the history or character of a criminal defendant because he
is of the opinion that no mitigating factors exist.
Ramdass v. Angelone, 187 F.3d 396, 411 n.1 (4th Cir. 1999)
(Murnaghan, J., concurring in part and dissenting in part) (internal
quotation marks omitted).
At the federal evidentiary hearing, Gott acknowledged that he
would not have chosen Dr. Samenow as his expert in the case "if he
had his druthers," but he did acknowledge that he had a good working
relationship with Dr. Samenow. Gott had read a treatise written by Dr.
Samenow and recognized that Dr. Samenow held views which were
not, in his (Gott’s) opinion, defendant-friendly.
In this case, Walton was not prejudiced by Gott’s failure to object
to the appointment of Dr. Samenow. To show prejudice, Walton must
demonstrate that the state trial court and/or the Virginia Supreme
Court "would have either removed Dr. Samenow upon objection or
appointed an additional expert upon request." Ramdass, 187 F.3d at
410. As in Ramdass, Walton cannot meet this standard. First, Walton
had no constitutional right to insist on the appointment of any particu-
lar expert. Ake, 470 U.S. at 83; Wilson v. Green, 155 F.3d 396, 401-
02 (4th Cir. 1998) (holding that the Constitution does not entitle a
criminal defendant to the effective assistance of an expert witness).
Second, Dr. Samenow’s August 1997 report demonstrates that his
conclusions concerning the relationship between mental illness and
crime had no effect on his evaluation of Walton. Dr. Samenow’s
views did not prevent him from thoroughly investigating Walton’s
background and conducting psychological testing to assist Gott.
Moreover, Dr. Samenow’s views would not have prevented him from
determining whether Walton was schizophrenic. Indeed, Dr. Same-
now found no indication, and later refused to conclude, that Walton
was mentally ill. This view was never disputed by Dr. Ryans, a psy-
chiatrist who apparently does not share Dr. Samenow’s views on the
32 WALTON v. ANGELONE
relationship between mental illness and crime. Finally, evidence con-
cerning Walton’s mental illness was not logically consistent with
Gott’s defense strategy to "portray Walton as a young man who,
although he had committed three murders, nevertheless had taken
responsibility for his actions by pleading guilty and who, in the rela-
tively recent past, had been such a good young man that upstanding
citizens of the community were willing to speak on his behalf despite
what he had done." Accordingly, "reasonable jurists" could not dis-
agree with the district court’s determination that Walton was not
deprived of constitutionally effective assistance of counsel when Gott
failed to object to the appointment of Dr. Samenow. Slack, 529 U.S.
at 484. Therefore, we deny Walton’s request for a certificate of
appealability on his claim that he was deprived of constitutionally
effective assistance of counsel when Gott failed to object to the
appointment of Dr. Samenow.
D
Walton also claims that Gott unreasonably failed to investigate and
present mitigating mental health evidence. Walton raised this claim
on state habeas and in his federal habeas petition. Invoking Anderson,
the Virginia Supreme Court refused to consider the claim. The district
court declined to give effect to the Anderson procedural bar and
rejected the claim on the merits.
Specifically, Walton asserts that Gott failed to pursue a sentencing
strategy to show that Walton was a schizophrenic who could be
treated with medication to reduce his dangerousness and that it was
his mental illness that accounted for his behavior at sentencing. As
noted above, Gott’s strategy was to "portray Walton as a young man
who, although he had committed three murders, nevertheless had
taken responsibility for his actions by pleading guilty and who, in the
relatively recent past, had been such a good young man that upstand-
ing citizens of the community were willing to speak on his behalf
despite what he had done." In Gott’s opinion, this strategy was Wal-
ton’s best chance for avoiding the death penalty. Gott presented sev-
eral witnesses, including family and community members, who
portrayed Walton in this light. Gott also entered into evidence testi-
mony from one of Walton’s former counselors, who testified as to
Walton’s progress and good behavior during Walton’s short stay at
WALTON v. ANGELONE 33
Natural Bridge Juvenile Correctional Center. This latter evidence
allowed Gott to argue to the state trial court that Walton responded
well "to the treatment that was there offered to him at the time, so
much so that his stay was relatively short."
In this case, Walton cannot show that Gott’s performance fell
below an objective standard of reasonableness. Strickland, 466 U.S.
at 687. First, through his numerous conversations with Walton and his
family members, Gott never received any information pertaining to
any family history of mental illness or that Walton suffered from a
mental illness. Second, neither Dr. Samenow nor Dr. Ryans suggested
that Walton suffered from a mental illness. Third, there were prob-
lems with placing Dr. Ryans on the stand because Walton had falsely
informed Dr. Ryans that he was not guilty. Fourth, a mental health
defense opened up the door to the Commonwealth placing into evi-
dence that Walton had told at least two fellow inmates that he
intended to "play crazy." Indeed, Walton, following his July 1997
interviews with Dr. Samenow, told a fellow inmate that he just went
to Alexandria for a psychiatric evaluation and "played crazy all week-
end." Fifth, Gott was aware that, in March 1997, Walton had stood
trial in Danville for burglary and grand larceny committed in Septem-
ber 1996 and that neither his competency to stand trial nor his sanity
at the time of the offenses was an issue in that case. Indeed, Gott con-
sulted with Walton’s attorney in that case, who informed him that
"Walton had done nothing but ‘blow smoke,’ i.e., lie to him, through-
out his representation of Walton." Finally, the only basis for Walton’s
concrete allegations of mental illness or schizophrenia is found in the
expert opinions he obtained after Walton’s trial and direct appeal and
after the state habeas petition was dismissed. Walton attempted to
offer an affidavit from Dr. Ruben Gur (a neuropsychologist) and a
neuropsychological report from Dr. Jeffrey Kreutzer (a neurologist)
to support his allegations of mental illness. The Virginia Supreme
Court granted the Commonwealth’s motion to strike these materials
because they were presented too late. In the district court, Walton
resubmitted these documents, along with a report from Dr. Anand
Pandurangi (a psychiatrist), to bolster his claim of mental illness.18
18
Drs. Gur and Kreutzer evaluated Walton about two years after the
trial and administered a battery of neuropsychological tests, some
34 WALTON v. ANGELONE
Because the Virginia Supreme Court’s evidentiary ruling was not
so extreme as to result in the denial of a constitutionally fair proceed-
ing, we cannot consider Dr. Gur’s affidavit and Dr. Kreutzer’s report.
Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993). Moreover, 28
U.S.C. § 2254(e)(2) obviously bars our consideration of Dr. Pandu-
rangi’s report.
In any event, Walton’s proffered mental health evidence does not
make Gott’s tactical decision constitutionally unreasonable. First,
Gott was not required to shop for a more favorable expert. Poyner v.
Murray, 964 F.2d 1404, 1419 (4th Cir. 1992). Second, Gott was enti-
tled to rely on the information he obtained from Dr. Samenow and Dr.
Ryans. Pruett v. Thompson, 996 F.2d 1560, 1574 (4th Cir. 1993).
Third, we have repeatedly acknowledged the deference due to the
strategic decisions made by trial counsel. See, e.g., Truesdale v.
Moore, 142 F.3d 749, 755 (4th Cir. 1998) (reasonable strategic deci-
sion to avoid evidence of brain damage which was inconsistent with
defense strategy and a double-edged sword); Bunch v. Thompson, 949
F.2d 1354, 1363-64 (4th Cir. 1991) (strategic decision to avoid nega-
tive psychiatric testimony reasonable). Consequently, even though
Gott’s chosen sentencing strategy (Walton was a young, remorseful
man who was capable of doing well in confinement) had its own pit-
falls (Walton’s criminal history and recent altercations in the Danville
Detention Center), Gott’s decision concerning the sentencing strategy
was an objectively reasonable one, and, therefore, Walton cannot
demonstrate that Gott’s representation was constitutionally deficient.19
Accordingly, "reasonable jurists" could not disagree with the district
designed to diagnose schizophrenia. They also interviewed Walton and
reviewed his medical, psychological, educational, and legal records.
According to these experts, "Percy Walton suffers from severe chronic
schizophrenia, probably of a paranoid or disorganized type. . . . The evi-
dence also indicates that Mr. Walton was suffering from schizophrenia
at the time of the offense." Dr. Pandurangi confirmed this diagnosis.
19
We note that Walton’s behavior during the sentencing phase of the
case made it more difficult for the defense to portray Walton as a young,
remorseful man who was capable of doing well in confinement. How-
ever, we cannot conclude that Gott’s decision to stick with his chosen
sentencing strategy renders his performance constitutionally deficient.
WALTON v. ANGELONE 35
court’s determination that Gott did not unreasonably fail to investi-
gate and present mitigating mental health evidence. Slack, 529 U.S.
at 484. Therefore, we deny Walton’s request for a certificate of
appealability on his claim that Gott unreasonably failed to investigate
and present mitigating mental health evidence.20
III
For the reasons stated herein, we deny Walton’s application for a
certificate of appealability and dismiss the appeal.21
DISMISSED
20
Walton also claims that he was deprived of constitutionally effective
assistance of counsel on direct appeal. Walton alleged in his state habeas
petition and again in his federal habeas petition that Gott was constitu-
tionally ineffective on appeal. The Virginia Supreme Court summarily
denied this Sixth Amendment claim on the merits. The district court held
that this decision was not contrary to and did not involve an unreasonable
application of clearly established federal law. We have reviewed this
claim and conclude that "reasonable jurists" could not disagree with the
district court’s determination that the Virginia Supreme Court’s decision
on this claim was not contrary to and did not involve an unreasonable
application of clearly established federal law. Slack, 529 U.S. at 484.
Therefore, we deny Walton’s request for a certificate of appealability on
this claim.
21
We note that Walton does not, for obvious reasons, press his claim
that he is incompetent to be executed, as that claim, at this time, is pre-
mature. Cf. Martinez-Villareal, 523 U.S. at 644-45 (petitioner’s claim
that he was incompetent to be executed, raised for the second time after
his first claim was dismissed as premature, was not a "second or succes-
sive" petition under the AEDPA).