Percy Levar Walton v. Gene M. Johnson, Director, Virginia Department of Corrections
Docket: 04-19
Court: Court of Appeals for the Fourth Circuit; April 28, 2005; Federal Appellate Court
Percy Levar Walton appeals the denial of his second federal habeas petition, asserting that executing him would violate the Eighth Amendment due to his mental state. He cites the Supreme Court cases Ford v. Wainwright, which prohibits the execution of the insane, and Atkins v. Virginia, which prohibits the execution of the mentally retarded. Walton previously challenged his convictions and death sentences in a first federal habeas petition, which was denied and affirmed by the Fourth Circuit. Following the Supreme Court's decision in Atkins, he sought authorization to file a successive petition to address his Atkins and Ford claims, which had been premature in his initial petition.
Walton pleaded guilty to three murders in 1997 and was sentenced to death, with subsequent appeals and denials of certiorari from the Virginia Supreme Court and the U.S. Supreme Court. In March 2000, he filed his first federal habeas petition, which was denied, and he was also denied a certificate of appealability. However, the Fourth Circuit noted that Walton's Ford claim was premature at that time, allowing for its future presentation.
In 2003, as his execution was scheduled for May 28, the Fourth Circuit authorized Walton to file a successive habeas petition regarding his Atkins claim, leading to a stay of execution. The district court later dismissed the Atkins claim, stating Walton did not meet Virginia's definition of mental retardation, but it found sufficient conflicting evidence regarding his competence for execution, thereby scheduling an evidentiary hearing on the Ford claim. The Fourth Circuit vacated the district court's judgment and remanded for further proceedings.
The district court held two evidentiary hearings regarding Walton's Ford claim, ultimately denying it on March 4, 2004, finding that Walton is aware he is sentenced to death for the murder of three individuals. During the July 2003 Ford hearing, six witnesses, including four mental health professionals, testified that Walton does not comprehend the reality of his impending execution. Psychologist Sherri Ann Hopkins asserted Walton lacks understanding of his execution, stating he has made no preparations for it. Dr. Patricia General described Walton as "floridly psychotic," indicating he does not grasp the significance of his death sentence. Dr. Anand Pandurangi noted Walton's delusional thoughts regarding death, citing his desire for mundane activities post-execution, and opined that Walton is incompetent to aid in his defense. Dr. Ruben Gur supported these views, stating Walton does not understand the implications of his execution. Walton's own testimony reflected confusion about his sentence, revealing a lack of awareness and an inability to articulate his situation, as he repeatedly expressed uncertainty and ignorance about the nature of his death sentence and its consequences.
Dr. Alan J. Arikian, a prison psychiatrist, testified at the July 2003 Ford hearing, stating that Walton is a "mature young man" whose chosen lifestyle has led to disappointment, but he understands his situation. The district court, unable to determine Walton's competence to be executed based solely on this testimony, scheduled a second hearing on March 3, 2004. At this hearing, Dr. Mark Mills, selected as a neutral forensic psychiatrist, addressed two specific questions regarding Walton's understanding of his execution and the reasons behind it. Dr. Mills concluded that, based on the limited standard set by the court, Walton is competent to be executed, acknowledging that Walton meets the necessary criteria but also noting that Walton's condition would likely prevent him from preparing for his death. Subsequently, the district court ruled that Walton is competent for execution, understanding he has been sentenced to die for murdering three individuals.
The excerpt references the Supreme Court's decision in Ford, which prohibits the execution of the insane under the Eighth Amendment but does not define insanity or establish procedural mandates, leaving states to determine their own standards. Virginia has not yet defined or enacted procedures regarding this issue. Walton argues that the district court misapplied Ford by not requiring an assessment of Walton's ability to assist in his defense and failing to determine if he could prepare for his own death. He claims that competence under Ford involves the ability to assist counsel, a position he supports through inferred reasoning from the Ford plurality opinion, despite not directly citing the opinion.
The Court's opinion on Ford does not address whether a defendant must assist counsel to be deemed competent for execution. Justice Powell, in his concurring opinion, dismissed this requirement, stating that modern defendants have constitutional access to counsel, which mitigates the need for them to assist in their own defense. He emphasized that a defendant must be competent to stand trial, suggesting that this inherently covers the ability to assist counsel. Walton argues that a defendant should possess the ability to assist counsel as a condition of Ford competence, citing various judicial dissents and the American Bar Association standard that defines incompetence in relation to mental illness or retardation. Despite some states supporting Walton’s position, the Court declines to adopt this view, pointing out the Ford Court's silence on the matter and Powell's rejection of the necessity for defendants to assist their counsel. Additionally, the majority of circuits have also rejected Walton's argument. In contrast, Walton’s second argument, which posits that Ford requires an inquiry into a defendant's ability to prepare for death, aligns with the Court's opinion and Powell's concurrence, highlighting the moral implications of executing someone who cannot comprehend the reasons for their execution.
Justice Powell's concurrence in Ford emphasizes that a defendant must be aware of the connection between their crime and the punishment to satisfy retributive goals of law. The Eighth Amendment prohibits executing individuals who do not understand their impending punishment or the reasons for it. In evaluating a defendant's sanity regarding execution, courts must assess whether the individual can comprehend why they have been chosen for death and prepare for it, not just recognize the cause and effect of their actions.
The district court ruled Walton competent for execution, but limited its inquiry to whether he understood his punishment and its rationale, dismissing the necessity for assessing his ability to prepare for his death. Expert testimony indicated that the court's narrow focus constrained the evaluation, leading to a finding that Walton met the court’s limited criteria. However, the Ford standard necessitates a broader inquiry, recognizing that mere acknowledgment of facts does not suffice for competence. The district court's approach did not align with the comprehensive assessment required by Ford, which aims to protect both the condemned and societal dignity from arbitrary punishment.
The judgment of the district court regarding Walton's Ford claim is vacated and the case is remanded for further proceedings. In addressing Walton's Atkins claim, it is noted that the Supreme Court in Atkins I determined that the Eighth Amendment prohibits the execution of mentally retarded individuals. The responsibility for implementing this constitutional restriction was left to the states. Following Atkins I, Virginia swiftly established legal procedures for determining mental retardation, defining it as a condition characterized by significantly subaverage intellectual functioning and significant limitations in adaptive behavior, both originating before the age of 18. The Virginia Supreme Court has clarified that an IQ score of 70 or below aligns with the statutory definition of mental retardation. The burden of proof lies with the defendant to establish mental retardation by a preponderance of evidence. Walton's procedural situation mirrors that of Walker v. True, where both individuals' convictions became final before Atkins I, and their claims can only be pursued in federal court after state proceedings. The district court, similar to Walker's case, failed to assume the truth of all facts pleaded by Walton when considering his habeas petition.
The district court dismissed Walton's Atkins claim, asserting he failed to demonstrate that his subaverage intellectual functioning began before age 18. On appeal, the Commonwealth acknowledged this dismissal functioned as a summary judgment. Despite this, the ruling is deemed flawed because it resolved a factual dispute in favor of the Government. The district court based its decision on two IQ tests taken by Walton around his eighteenth birthday: one yielding a score of 90 and the other a score of 77. Walton argues that the first test's validity is questionable due to a lack of raw data and details about administration, which, under Virginia law, could invalidate its use against his claim of mental retardation. Regarding the second test, Walton contends that, when adjusted for the Flynn Effect and accounting for a standard margin of error, his score of 77 translates to a score of 74, which could indicate mental retardation when factoring in measurement error. The district court failed to consider Walton's challenges to the first test's adequacy and the implications of the Flynn Effect on the second test. Consequently, the decision is vacated and remanded for further proceedings to evaluate these issues.
Walton presented evidence from two recent IQ tests indicating scores below the threshold for mental retardation: a WAIS-R score of 69 from August 1999 and a GAMA score of 66 from May 2003. Under Virginia law, assessments of developmental origin should incorporate various sources of information, including educational and medical records, which the district court can consider on remand despite the tests being conducted after Walton turned eighteen. The court must also evaluate Walton's limitations in adaptive behavior prior to age eighteen, a critical aspect of his claim. Although Walton typically wouldn't qualify for an evidentiary hearing due to his failure to build a factual basis in state court, he is excused from this requirement since the Atkins ruling came after his state appeals concluded. During the remand hearing, both parties can present evidence regarding the reliability of Walton's initial IQ test and other relevant factors concerning mental retardation. The court's prior judgment is vacated, and the case is remanded for further proceedings. Additionally, Virginia's claim that Walton defaulted his Ford claim is challenged, as the state acknowledged a lack of procedural avenues for such claims. The opinion clarifies that the dissent mischaracterizes the nature of the Ford decision by mislabeling it as a plurality opinion.
The holding is consistent with Justice Powell's concurrence and Florida law, which mandates that an inmate must understand the death penalty to be executed. Justice Powell emphasized the importance of an inmate's awareness of their impending death for mental and spiritual preparation. The dissent's assertion that the ruling could prevent execution for any inmate claiming incompetence is unfounded, as mental health professionals are expected to discern genuine claims of incompetence. Under Virginia law, the Commissioner of Mental Health is required to maintain a standardized list of psychological testing measures, which has included the Wechsler Adult Intelligence Scale, now updated to the third edition. During the June 16, 2003 hearing, Walton claimed that his adjusted IQ score of 77 could indicate significantly subaverage intellectual functioning, arguing that factors like standard error and test norming dates should be considered. The dissent challenges the sufficiency of Walton's claims, particularly regarding the measurement error, but the established authority on IQ assessment supports Walton's position. The district court did not resolve Walton's argument about the reliability of his first IQ test and its implications for his mental retardation claim, merely noting that applying the Flynn Effect to his first test would still yield a score above the mental retardation threshold.
Walton's habeas petition is contrasted with Walker's, noting that Walton's lacks an expert assessment. However, the precedent established in Walker is deemed applicable, which asserts that the Flynn Effect and standard error of measurement could suggest an IQ score potentially qualifying for mental retardation under Virginia law, thereby warranting an evidentiary hearing. Virginia law does not mandate expert testimony at this stage; Walton only needs to allege sufficient facts to potentially establish one of the six factors outlined in Townsend v. Sain.
Circuit Judge Shedd dissents, asserting that the district court correctly denied Walton's claims of mental retardation and insanity. Walton's mental retardation claim is dismissed for lacking sufficient factual basis under Virginia law, and the court's determination of Walton's competency for execution is upheld as legally sound and factually accurate.
The background includes Walton's conviction for murdering three individuals in Danville, Virginia, and his admissions of guilt to inmates. After pleading guilty to multiple charges, including robbery and firearms offenses, he received a death sentence due to being considered a serious threat to society. Walton's direct appeal, contesting the admission of gruesome photographs and the proportionality of his sentence, was rejected by the Virginia Supreme Court, with subsequent denials from the U.S. Supreme Court.
Walton later filed a state habeas petition raising issues of incompetency and ineffective assistance of counsel, which were denied by the Virginia Supreme Court. A scheduled execution in December 1999 was stayed by the district court to permit Walton to file a federal habeas petition, which included claims regarding ineffective trial counsel related to his competency.
The district court denied Walton's habeas petition in full, concluding that Walton's claim of ineffective counsel regarding his mental competency was unfounded. Evidence indicated that Walton's counsel had sought mental health evaluations, leading to the appointment of Dr. Stanton Samenow and a forensic psychiatrist, both of whom determined Walton was competent to stand trial and aware of the proceedings against him. Despite Walton's claims of intent to "play crazy," his counsel chose not to pursue the incompetency argument further. The appeals court also denied Walton's certificate of appealability, stating that reasonable jurists would not find his competency during plea and sentencing phases debatable. Walton's subsequent petition to the U.S. Supreme Court for a writ of certiorari was denied. Following a rescheduled execution date, Walton was granted a stay and permission to file a successive habeas petition, asserting for the first time that he was mentally retarded and insane, which he claimed would prevent his execution. The district court dismissed the mental retardation claim and denied the insanity claim after a hearing. Walton appealed the dismissal of the mental retardation claim; the majority vacated the dismissal, arguing the lower court did not assume all pleaded facts were true. In contrast, one dissenting opinion maintained that Walton did not provide sufficient facts to demonstrate mental retardation under Virginia law, referencing the Supreme Court's ruling in Atkins v. Virginia that left it to states to enforce restrictions on executing mentally retarded individuals.
Virginia law defines "mental retardation" for capital defendants as requiring that the disability originate before age 18, characterized by "significantly subaverage intellectual functioning," specifically an IQ score of 70 or less, consistent with standards from the American Psychiatric Association. Walton's claim of mental retardation under Virginia law fails because he does not provide sufficient facts demonstrating his intellectual functioning met this criterion prior to age 18. His IQ score was recorded as 90 shortly before he turned 18, and although he questions the reliability of this test, he does not assert that it indicates he is mentally retarded. Additionally, an IQ score of 77 obtained shortly after he turned 18 does not meet the legal standard, even when he speculates that the "Flynn Effect" could adjust this score down to 72. This speculation was not backed by a clear explanation of how the "standard error of measurement" could lower his score to the required level. Consequently, the court dismissed Walton's claim, as he failed to allege concrete facts proving his mental retardation under the established legal framework. The majority opinion, however, suggests that Walton's appellate briefs contain sufficient allegations to potentially entitle him to relief, relying on assertions not included in his original habeas filings.
Walton did not assert in district court that his IQ measurement error was five points. Even accepting his assertions in appellate briefs, they fail to meet the burden of proving mental retardation under Virginia law. Walton claims that individuals with IQs between 70 and 75 can be diagnosed with mental retardation and emphasizes the need for expert analysis in determining score adjustments. However, this implies that an individual scoring between 70 and 75 is equally likely to not be mentally retarded, and Walton's claim that his score should be adjusted downward lacks expert backing and is speculative.
The comparison to Walker v. True highlights significant differences; unlike Walker, who had expert affidavits supporting a claim that his score should be adjusted downwards, Walton does not allege that his score of 77 should be reduced to 70 or less. Walton's post-petition claims are speculative and unsupported by expert opinions, despite having retained qualified mental health professionals. Notably, Walton's trial expert indicated that his score of 77 likely underestimates his intelligence and stated that Walton is "certainly not retarded." Without expert verification of mental retardation, Walton's assertions are insufficient, leading to the proper dismissal of his claim by the district court.
The district court's dismissal of Walton's insanity claim was vacated by the majority, which introduced a new constitutional standard for assessing competence to be executed. The dissenting opinion argues for affirmation of the district court's ruling, asserting that it adhered to established legal standards and that its factual findings were not erroneous. The district court conducted two hearings on Walton's claim, during which extensive testimony was provided. Initially, Dr. Mark Mills, a forensic psychiatrist, was appointed to evaluate Walton, who initially appeared cooperative and aware of his situation, acknowledging his conviction for killing three individuals and expressing a preference for life in prison over execution. However, Walton's responses became evasive when questioned further, which Dr. Mills attributed to Walton's defensive behavior when feeling overwhelmed. After employing structured questioning, Dr. Mills concluded that Walton comprehended his impending execution as a consequence of his murder conviction.
The district court ultimately found that Walton understood both the execution and its punitive nature. The dissent contends that the majority's reliance on Ford v. Wainwright misapplies the precedent, highlighting that in Ford, the petitioner displayed a lack of understanding regarding the death penalty, unlike Walton, who demonstrated awareness of his situation. Florida law prohibits executing an inmate who cannot comprehend the death penalty's nature or rationale, but in Ford's case, expert evaluations indicated he did understand these aspects. The dissent maintains that Walton’s case does not warrant the same conclusion as Ford, supporting the district court's judgment.
Ford's legal team submitted a psychiatric report asserting his incompetence, which the governor did not review, subsequently denying Ford's request for relief and signing a death warrant. Ford's federal habeas petition was denied by the district court without a hearing. The Supreme Court's majority issued a fractured opinion, establishing three key points: (1) the Eighth Amendment prohibits executing the insane; (2) Florida violated Ford's due process rights by not considering his psychiatrist's opposing view; and (3) the district court must hold a hearing to evaluate Ford's competence. Importantly, the majority did not critique Florida's legal standard for incompetence but emphasized the failure to consider Ford's evidence of insanity. Justice Powell concurred, noting Ford's claim of insanity warranted a hearing. In contrast, Walton's case involved a district court that conducted two hearings, considered all evidence, and appointed a neutral expert who confirmed Walton's competence, leading to the conclusion that the district court's findings were not clearly erroneous, warranting affirmation of its judgment.
District court findings in a § 2255 proceeding are subject to the "clearly erroneous" standard per Fed. R. Civ. P. 52(a). The majority opinion in this case asserts that the Ford decision requires a substantive test for determining a condemned inmate's competency to be executed, which contradicts the acknowledgment that Ford did not define insanity or set mandatory procedures for such determinations, leaving those to the states. The majority introduces a new criterion, asserting that a condemned inmate must be able to "prepare for his passing" to be executed. This criterion is not part of the Ford holding, which focused on procedural adequacy rather than establishing a new definition of insanity. Justice Powell's concurrence recognized that the plurality did not address the meaning of insanity concerning execution competency, and he proposed a two-prong test aligned with Florida's statute: the Eighth Amendment prohibits executing those who are unaware of the punishment and the reasons behind it. Other circuits have not adopted the majority's new criterion and instead uphold Justice Powell's standard, maintaining that only those unaware of their impending punishment are entitled to reprieve.
The excerpt addresses the legal standards for determining a prisoner's competency to be executed, referencing the "Ford standard," which requires that a prisoner understands both the fact of their impending execution and the reasons for it. The text critiques a majority's new competence test for being vague and lacking legal foundation, arguing it could hinder capital punishment by allowing any raised claim of insanity to disrupt the process. The district court in Walton's case properly applied the Ford test, considering evidence from both sides and appointing an additional psychiatrist, ultimately finding Walton competent to be executed for the murder of three individuals. The judgment affirming this competence is supported by the court's adherence to constitutional protections. Regarding Walton's habeas corpus petition, the court also denied claims of mental retardation and insanity, noting Walton's prior criminal history and the lack of expert opinions supporting a finding of mental retardation as defined by Virginia law. Furthermore, while Walton references the "Flynn Effect" to contest his IQ score, he does not provide adequate evidence to demonstrate his intellectual functioning fell below the required threshold before he turned 18.
The expert who administered the test resulting in Walton's lowest score does not classify him as mentally retarded, indicating that the scores do not satisfy Virginia's developmental origin requirement for mental retardation. Walton's counsel claimed that his IQ score of 77 should be considered as low as 69 by accounting for the "Flynn Effect" and a standard measurement error. However, the review of the hearing transcript shows that this assertion lacks sufficient basis for relief, as the standard measurement error allows for a range of adjustment rather than an automatic five-point reduction. Without a proper justification for a full reduction, Walton's score should be viewed as falling between 69 and 79, making the claim of a score of 69 speculative. The only mental health expert specifically addressing Walton's score, Dr. Samenow, suggested it might be higher than 77. Virginia law stipulates that diagnosing mental retardation requires expert assessment and multiple sources of accepted information, neither of which was sufficiently provided for Walton's mental retardation claim, despite his submission of expert opinions for his insanity claim. Additionally, the district court appropriately limited questioning of Dr. Mills to avoid improper inquiries regarding the court's interpretation of the legal standard, while allowing broader questioning on Walton's comprehension of his execution.
Dr. Mills expressed a belief that Walton would not prepare for his execution; however, he maintained that Walton comprehended he was to be executed for killing three individuals. Walton’s counsel inquired if the expert thought Walton could prepare for his death, to which the expert indicated uncertainty but suggested that Walton likely could not say goodbye, sever emotional ties, or arrange for his property. The district court's handling of evidence at the hearing did not appear improper. Although there is disagreement regarding the introduction of a new prong in the incompetence test, it is agreed that the Ford case does not necessitate that a condemned inmate assist counsel to be deemed competent for execution. The differing interpretations of the Ford opinion between the majority and dissenting views focus not on the agreed parts of the case but on how to interpret its holdings. Justice Powell's two-part test from Ford has been recognized, albeit in dicta, by the Supreme Court as a valid standard for assessing execution competency. The court's current task is not to determine the wisdom of expanding the Ford test but to ascertain its mandated requirements, leaving the possibility of expansion to the Supreme Court if it deems necessary.
