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Dana Ray
EDMONDS
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder:
July 22,
1983
Date of birth: 1962
Victim profile: John
Elliott, 62 (grocer)
Method of murder: Stabbing
with a butcher knife
Location: City of Danville, Virginia, USA
Status: Executed
by lethal injection in Virginia on January 24,
1995
In July, 1983, Edmonds murdered John
Elliott, a grocer in the City of Danville during a robbery. Elliot
was first gagged, then stabbed in the neck with a knife and hit in
the head with a brick by Edmonds.
The robbery netted $40 for Edmonds and
Elliot was left behind the counter by the cash register, where he
bled to death from his injuries.
Inmate executed
The New York Times
January 26, 1995
In Jarratt, Va., Dana Ray Edmonds was pronounced dead at 9:14 P.M., hours
after the United States Supreme Court denied his request for an
appeal and Gov. George F. Allen denied a request for clemency.
On Monday, Judge James C. Turk of Federal
District Court in Roanoke refused to halt the execution, although he
conceded that Mr. Edmonds had been denied the constitutional right
to effective counsel during trial. Judge Turk said the lawyer issue
was raised too late to block the execution and would probably not
have changed the outcome of the trial.
Before officials administered the drugs on
Tuesday night, Mr. Edmonds said softly that he wanted to leave earth
"in the grace of God."
17 F.3d 1433
Dana Ray EDMONDS, Petitioner-Appellee, v.
Charles E. THOMPSON, Warden, Mecklenburg Correctional
Center, Respondent-Appellant.
v.
Charles E. THOMPSON, Warden, Mecklenburg Correctional
Center, Respondent-Appellee.
Nos. 92-4011, 92-4012.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 27, 1993.
Decided Feb. 16, 1994.
Appeal from the United States
District Court for the Western District of Virginia, Roanoke.
James C. Turk, District Judge. (CA-89-727-R)
AFFIRMED IN PART, REVERSED IN
PART, AND PETITION DENIED.
Before ERVIN, Chief Judge, and
HALL and LUTTIG, Circuit Judges.
OPINION
PER CURIAM:
The warden of Virginia's
state penitentiary appeals an order of the district court
holding that Dana Ray Edmonds received ineffective
assistance of counsel at the sentencing stage and granting
his petition for a writ of habeas corpus to the extent of
vacating his death sentence. Edmonds cross-appeals the
district court's dismissal of his remaining claims. Because
we hold that Edmonds did not assert the claim upon which the
district court granted relief, we reverse and deny Edmonds'
petition.
I.
Following a bench trial,
Edmonds was convicted in 1983 of the robbery and capital
murder1 of
grocer John Elliott in Danville, Virginia. The court, after
finding both statutorily created aggravating factors--"future
dangerousness" and "vileness"--to exist in Edmonds' case,
sentenced him to death for the murder.2
However, the court failed to order a presentence report
prior to entering judgment on the sentence.3
Upon Edmonds' motion, the
court vacated his sentence, ordered a presentence report,
and scheduled a new sentencing proceeding. Despite having
previously sentenced Edmonds to die, the judge did not
recuse himself from presiding over the second proceeding,
and Edmonds did not request recusal. On resentencing, the
court reviewed the evidence that had previously been
presented, and, after also considering the presentence
report and additional psychiatric evidence, once again found
both aggravating factors and imposed the death sentence.
On direct appeal, the
Supreme Court of Virginia affirmed Edmonds' conviction and
sentence. Edmonds v. Commonwealth, 329 S.E.2d 807 (Va.1985).
The United States Supreme Court denied certiorari. Edmonds
v. Virginia, 474 U.S. 975 (1985).
In 1986, Edmonds filed a
habeas corpus petition in the state trial court, asserting
numerous claims. As one ground in support of his claim of
ineffective assistance of counsel, Edmonds alleged that "counsel
failed to challenge the trial [c]ourt's imposition of the
death sentence without finding the existence of an
aggravating circumstance beyond a reasonable doubt, and
without finding the essential elements of future
dangerousness."4
The state trial court
dismissed Edmonds' petition, and he appealed to the Supreme
Court of Virginia. With regard to the ineffective assistance
claim, Edmonds argued before that court as he had argued
below, complaining that counsel "inexplicably chose not to
challenge the Circuit Court's final sentencing order, which
not only applied the wrong burden of proof, but also ignored
critical statutory elements of the aggravating circumstance
on which it relied to impose the death penalty." Edmonds did
not persuade the court; it denied his petition.
Pursuant to 28 U.S.C. Sec.
2254, Edmonds petitioned the district court for relief.
There, among his other claims, Edmonds argued once more that
he
did not receive effective assistance of
counsel because trial counsel failed to object to the trial
court's sentencing order which both held the Commonwealth to
[a] standard of proof lower than mandated by the Virginia
death penalty statute and failed to find the essential
elements of the future dangerousness prong.
In a memorandum opinion,
the district court "liberally construed" Edmonds' claim that
counsel should have objected to the content of the final
sentencing order, finding "inherent" within it a claim that
counsel should have moved to recuse the trial judge after he
had already sentenced Edmonds to death without a presentence
report. Holding that Edmonds' "claim" had not been
adequately developed during the state habeas proceedings,
the district court referred the matter to a magistrate judge
for an evidentiary hearing.
The magistrate judge
issued a "Report and Recommended Disposition," evaluating
counsel's performance under the standard enunciated in
Strickland v. Washington, 466 U.S. 668 (1984). In his report-recommendation,
the magistrate judge found that counsel's performance was
objectively deficient because he failed to move to recuse
the trial judge from the resentencing proceedings, and that,
but for counsel's unprofessional error, a reasonable
probability existed that Edmonds would not have been
sentenced to death. The magistrate judge therefore concluded
that the habeas petition should be granted.
On August 31, 1992, the
district court adopted the findings of the magistrate judge
in their entirety, vacated Edmonds' death sentence, and
ordered the state to either reduce Edmonds' sentence to life
imprisonment or conduct a new sentencing procedure within
180 days. The district court granted the warden's motion
staying its order pending this appeal.
II.
It is axiomatic that we
cannot grant habeas relief based upon a claim that has not
been asserted. The plain, reasonable, and, indeed, only
meaning of Edmonds' claim is that counsel was ineffective
for failing to object to the content of the sentencing order.
To perceive in it a claim that counsel was ineffective for
failing to move to recuse the trial judge is to force
Edmonds' words to bear more meaning than they are capable of
bearing.5
Because the district court granted Edmonds' petition based
solely on a claim that was not before it, its judgment must
be reversed.
III.
On cross-appeal, Edmonds
contends that the district court erred in dismissing his
remaining claims. The court found no merit in the other
grounds Edmonds has alleged in support of his claim of
ineffective assistance of counsel, and likewise found the
evidence sufficient to prove that Edmonds murdered Elliott
in the commission of a robbery. Edmonds also appeals the
district court's refusal, by reason of procedural bar, to
consider various other claims contained in his petition. He
argues that consideration of these claims is mandated
because he is "actually innocent" of the death sentence, see
Dugger v. Adams, 489 U.S. 401, 410 n. 6 (1989), and its
imposition in his case would therefore be a "fundamental
miscarriage of justice." Id. Upon a review of the record, we
can ascertain no error committed by the district court with
regard to the cross-appeal issues, and we affirm its
judgment on the reasoning contained in its memorandum
opinion.
IV.
The district court's
decision to grant Edmonds' petition is reversed. The
judgment of the district court is affirmed with respect to
the issues contained in Edmonds' cross-appeal, and Edmonds'
petition for relief under 28 U.S.C. Sec. 2254 is denied.
AFFIRMED IN PART, REVERSED
IN PART, AND PETITION DENIED
Va.Code Ann. Sec. 18.2-31 (Michie
1992) limits the death penalty to defendants convicted
of "capital murder," which is a "willful, deliberate,
and premeditated killing" committed in certain
situations, generally involving the commission of other,
specified crimes. Edmonds was convicted of violating
Sec. 18.2-31(4), intentionally killing Elliott "in the
commission of robbery ... while armed with a deadly
weapon."
Virginia law permits the imposition
of a capital sentence only upon proof beyond a
reasonable doubt that the accused would either "commit
criminal acts of violence that would constitute a
continuing serious threat to society" (the "future
dangerousness" aggravating factor) or "that his conduct
in committing the offense was outrageously or wantonly
vile, horrible or inhuman" (the "vileness" aggravating
factor). Va.Code Ann. Sec. 19.2-264(4)(C) (Michie 1992).
The latter is present if the act of murder involved
torture, depravity of mind, or aggravated battery to the
victim. Id. The court found that Edmonds committed an
aggravated battery, in that he fractured Elliott's skull
with a brick, dragged him behind the meat counter of his
store, slit his throat, and stabbed him in the neck with
a butcher knife, twisting the knife and severing his
carotid artery
The purpose of the presentence report,
required by Va.Code Ann. Sec. 19.2-264(5) (Michie 1992)
to be obtained before imposing a death sentence, is to
fully investigate any relevant facts, including the
defendant's history, that might justify setting aside
the death sentence in favor of imprisonment for life
The court stated in its final
sentencing order that "the evidence clearly establishes
that the crime was one of violence and that the
defendant poses a high probability for future
dangerousness." The court may have inadvertently
substituted the word "violence" for "vileness." The
court also did not state explicitly in its order that it
found either vileness or future dangerousness beyond a
reasonable doubt. Trial counsel did not object to the
order, because, as he testified at the state habeas
proceeding, he "had no doubt" that the court had
strictly followed the statutory requirements, and "had
no question" that it was aware of and applied the
correct standard of review. The Supreme Court of
Virginia, on direct appeal, held the evidence sufficient
to support a finding of both vileness and future
dangerousness
Because Edmonds' claim of ineffective
assistance based upon his counsel's failing to object to
the content of the sentencing order was phrased nearly
identically in his state and federal petitions, it
follows that he did not raise the "failure to request
recusal" ground at his state proceedings. Therefore,
even had the district court granted Edmonds leave to
amend his petition to include the latter claim, it would
have had to dismiss the petition as containing
unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510
(1982)
46 F.3d 1123
Dana Ray EDMONDS, Petitioner--Appellant, v.
John JABE, Warden, Greensville Correctional Center,
Respondent--Appellee.
No. 95-4002.
United States Court of Appeals, Fourth Circuit.
Submitted: Jan. 23, 1995.
Decided: Jan. 23, 1995.
Before ERVIN, Chief Judge, and
HALL and LUTTIG, Circuit Judges.
PER CURIAM:
Dana Ray Edmonds is scheduled
to be executed in Virginia tomorrow evening for the murder of
Danville grocer John Elliott. Edmonds appeals an order of the
district court denying his motion for stay of execution and
dismissing his second federal habeas corpus petition. We affirm.
I.
Edmonds' sole claim is that he
was denied his Sixth Amendment right to effective assistance of
counsel because of a conflict of interest on the part of his
court-appointed attorney. During the pendency of his trial,
Edmonds' attorney accepted another appointment to represent
Laverne Coles--Edmonds' former girlfriend and a prosecution
witness--in an unrelated criminal proceeding. This claim was
contained in a habeas petition filed with the Supreme Court of
Virginia on January 11, 1995. That court dismissed the petition
on January 18, stating only that
On consideration of this case,
the Court is of opinion that the writ of habeas corpus should
not issue on grounds that no writ shall be granted on the basis
of any allegation the facts of which the petitioner had
knowledge at the time of filing any previous petition. Code Sec.
8.01-654(B)(2).1
Edmonds filed the instant
petition in the district court the following day. The district
court held that the Supreme Court of Virginia's bare denial of
Edmonds' most recent state habeas petition, without citation to
any facts it had found that would support its evident holding
that Edmonds' claim was procedurally barred, did not effectively
bar the federal courts from considering the merits of the claim
if Edmonds could demonstrate cause for the default and prejudice
attributable thereto.2
We will assume, without deciding, that the district court ruled
correctly on this narrow issue.
II.
A.
The district court ruled that
Edmonds had shown sufficient cause why this latest claim had not
been brought at the time his first petition was filed. We
disagree. A psychiatric report prepared during the presentencing
phase of Edmonds' trial noted that
[Edmonds] indicated that at present, Ms. Cole
[sic] is in the Danville City Jail for "beating her kids." [Edmonds]
stated that she had beaten three of her four children. [Edmonds'
attorney], who is also Ms. Cole's attorney, corrected the story
indicating that the altercation occurred only with her oldest
boy ...." (emphasis supplied).
Edmonds has offered no reason
why we should not hold him and his counsel responsible for
information stated plainly in the record, and we can think of
none. If Edmonds' present attorneys were capable of reading and
understanding the record, then we believe that his counsel at
the time he filed his first habeas petition should also have
been.
B.
We do, however, agree with the
district court that Edmonds has not demonstrated that his trial
counsel's alleged ineffectiveness prejudiced him. We entirely
agree with the lower court's conclu sion that, even had Edmonds
been appointed new counsel, he still would have been found
guilty and sentenced to death. Even if substitute counsel had
impeached Coles more thoroughly, and that impeachment had
somehow prevented the sentencing court from finding that Edmonds
posed a future danger to society, the court would still have
sentenced Edmonds to death based on the vileness of Edmonds'
actions.3
As Edmonds has demonstrated
neither cause for bringing this claim at the eleventh hour nor
prejudice from our refusal to consider its merits, when he is
plainly required to demonstrate both, the claim is procedurally
barred and Edmonds is entitled to no relief.
Section 8.01-654(B)(2), the
Commonwealth's procedural default statute, provides that "[n]o
writ shall be granted on the basis of any allegation the
facts of which petitioner had knowledge at the time of
filing any previous petition."
See Coleman v. Thompson, 501 U.S. 722,
750 (1991) (absent cause and prejudice, or a fundamental
miscarriage of justice, an adequate and independent finding
of procedural default will bar federal habeas review). A
habeas petitioner must ordinarily "establish by convincing
evidence that the factual determination by the State court
was erroneous." 28 U.S.C.A. Sec. 2254(d) (1994)
We also concur in the district court's
holding that a mis carriage of justice will not result from
our refusal to consider the merits of Edmonds' claim. The
same factors that preclude Edmonds from demonstrating
prejudice operate to also prevent him from showing by clear
and convincing evidence that he is "actually innocent" of
the death penalty. See Sawyer v. Whitley, 112 S.Ct. 2514,
2523 (1992). We do not believe that the Supreme Court's
decision rendered today in Schlup v. Delo, No. 93-7901, 1995
U.S. LEXIS 701 (Jan. 23, 1995), should cause us to reach a
different result. Even applying the more lenient Murray v.
Carrier standard, Schlup, at * 30-32, the petitioner would
not be entitled to relief
