Murderpedia has thousands of hours of work behind it. To keep creating
new content, we kindly appreciate any donation you can give to help
the Murderpedia project stay alive. We have many
plans and enthusiasm
to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.
Buddy
Earl JUSTUS
Classification: Serial
killer
Characteristics: Rape
Number of victims: 3
Date of murders: October
1978
Date
of arrest:
October 11,
1978
Date of birth:
December 25,
1952
Victims profile: Ida
Mae Moses, 21(8 1/2
months pregnant) /
Rosemary Jackson, 32 /
Stephanie Hawkins, 21
Method of murder:
Shooting
Location: Georgia/Florida/Virginia,
USA
Status:
Executed by
electrocution in Virginia on December 13,
1990
Man Who Killed 3 Women Dies in
Virginia Electric Chair
The New York Times
December 15, 1990
A man convicted of murdering three women was
executed in Virginia's electric chair Thursday night, hours after Gov.
L. Douglas Wilder refused to grant him clemency.
The condemned man, Buddy Earl Justus, died at 11:06
P.M. at the State Penitentiary.
He was the 11th person to die in the electric chair
in Virginia since that state resumed executions in 1982 and the 143d
to be executed in the United States since the Supreme Court allowed
states to revive the death penalty in 1976.
Mr. Justus was sentenced to die in the electric
chair for the rape and slaying of a pregnant nurse in 1978. He had
also received the death penalty for killing a woman in Florida and
another in Georgia at trials in those states. He had been convicted in
Virginia first.
The Governor rejected a request from a lawyer for
Mr. Justus that the execution be halted because the condemned man had
brain damage, said Laura Dillard, Governor Wilder's spokeswoman.
Ms. Dillard said only that Mr. Wilder had no reason
to grant clemency. She provided no further details on his decision.
John Copacino, a Georgetown University law
professor who provided legal counsel for Mr. Justus, said tests done
in the last few days showed that the 37-year-old convict was born with
brain damage that was worsened by head injuries when he was 20.
A petition urging the Governor to halt the
execution also said Mr. Justus was a victim of child abuse. A Plea for
Forgiveness
Earlier in the day, Mr. Justus asked his victims'
families to forgive him and asked for an end to the death penalty.
"I want it to be over with, not for me, but for the
victims' families," Mr. Justus said in a morning interview with radio
station WFIR in Roanoke. "I'm ready to go to a better place. I want it
to be put to rest."
"I've asked for forgiveness to a lot of people," he
added, "and I was able to forgive myself."
Mr. Justus criticized the death penalty, calling it
a "barbaric" form of punishment.
"Let me be the last person," he said. "There is a
better way to deal with crimes than taking people's lives."
After he was strapped in the oak electric chair, Mr.
Justus nodded to Sheriff Louis E. Barber of Montgomery County, who
investigated the 1978 rape-slaying of Ida Mae Moses, 21 years old,
when she was nearly nine months pregnant.
Sheriff Barber said he had been haunted by the
crime ever since. "He was afforded a great deal more dignity than Ida
Moses," the sheriff said after watching the execution. "At least he
had his minister present."
The Rev. Russ Ford told Mr. Justus, "Be strong,
you'll move on," and the inmate gave a slight smile.
Mr. Justus was convicted of raping Mrs. Moses then
shooting her three times in the head on Oct. 3, 1978. He also received
death sentences for murdering Rosemary Jackson, 32, in Gwinnett
County, Ga., and Stephanie Hawkins, 21, in Tampa, Fla., later that
month.
Buddy Earl Justus
A homicidal drifter and native of
Niagara Falls, New York, Justus stands convicted of killing three
women in separate states during 1978.
A Williamsburg, Virginia, jury
recommended the death penalty on Buddy's conviction for the rape-murder
of a pregnant housewife, and he was formally sentenced to death on
November 5, 1980. At this writing, Justus is awaiting execution of his
sentence.
Michael Newton - An Encyclopedia of
Modern Serial Killers
Serial killer lived quiet life in
falls, saved sadistic lifestyle for weekends
By David Staba
Niagarafallsreporter.com
August 5, 2003
From Monday through
Friday, Buddy Earl Justus was a model employee.
In his off time, he turned into a monster.
The lanky young man with the deep Southern accent
always showed up for work on time and did his job changing truck tires
for the Tire Shoppe on Military Road without complaint.
"When he was at work, he was a conscientious worker
and a gentleman," says Paul Grenga, whose late father, Paolo, owned
the Tire Shoppe when Justus was employed there in the late 1970s. "You
just couldn't count on him on the weekends."
Justus always showed up on Monday morning, though,
so his availability on Saturday and Sunday wasn't an issue.
Until one day in 1978.
"Buddy hadn't shown up for work, and then the state
troopers called us," says Grenga.
Nothing could have prepared the Grengas for what
the troopers had to tell them.
Justus was in a Virginia jail, charged with the
rape and murder of a woman who was 8-1/2 months pregnant.
It got worse. Justus would be charged with the
rapes and murders of two other women, one in Georgia and one in
Florida, both within a week of the Virginia killing.
It didn't seem possible -- Justus' work ethic and
easy-going manner had earned the trust of the Grengas. He let Paul,
then a teen-ager, practice driving his car in the parking lot
surrounding the Tire Shoppe. When the Grengas moved from the Town of
Niagara to Lewiston, Justus helped with the heavy lifting.
"My dad was so shocked," says Grenga, who added
that Justus had never done anything to make his mother or two sisters
uncomfortable. "I just remember the look on his face. I was stunned --
this was the same guy who let me drive his car, the same guy I
remember helping carry our piano out of the house."
Grenga says his father, a prominent figure in local
business and political circles who died in April 1999, never mentioned
Justus again until 12 years later, when their one-time employee paid
for his crimes in Virginia's electric chair.
As an aide to New York State Sen. John Daly, the
younger Grenga helped author legislation in 1982 to strengthen the
punishment for injuring a pregnant woman.
*****
Justus was born in Niagara Falls on Christmas Day,
1952. Soon after, his family moved south, and he wound up being placed
in a Virginia orphanage.
As a young man, he started building a record of
petty crimes, including a breaking and entering conviction that landed
him in the Montgomery County Jail.
There, he met Charlie Harris, a preacher who who
attended to the spiritual needs of the prisoners, or at least made the
effort.
"Some listened. Some did not. Buddy listened,"
Harris told the Roanoke Times shortly before Justus' execution.
"(He was) a fine fellow ... he was kind of quiet. He was the kind of
fellow I was happy to be associated with."
Justus married, but his wife, Alice, soon left him.
He eventually made his way back to Niagara Falls and went to work at
the Tire Shoppe.
"He was tall, thin and lanky with a curly shock of
blond hair on the top of his forehead, his hair shaved closely on the
sides and short all the way around," Grenga says.
Justus never mentioned his troubles with the law to
his employers, and in a time before the Internet, "America's Most
Wanted" or adequate communication between even neighboring
law-enforcement agencies, they would have had no feasible way of
finding out.
Grenga says Justus never spoke of Alice, or any
other aspect of his personal life, while on the job.
"The only thing he ever talked to me about was his
Chrysler Cordoba," Grenga says. "It was his pride and joy. It was a
really distinctive car. It was a maroon and silver two-tone car. It
was really decked out."
Driving a signature vehicle would eventually prove
Justus' undoing.
*****
On Oct. 3, 1978, Justus broke into the double-wide
trailer of Ida Mae Moses. The 21-year-old nurse was due to give birth
in two weeks, and had already named her unborn son.
Justus robbed her, raped her and shot her three
times in the head. Her child also died.
After fleeing the scene, Justus made his way south.
Along the way, he picked up Dale Dean Goins, an 18-year-old
hitchhiker. The pair kidnapped Rosemary Jackson, a 32-year-old
housewife, as she left a grocery store in suburban Atlanta. They
forced her to give them what money she had, then raped and murdered
her before dumping her body on a rural service road.
In Florida, Justus and Goins grabbed Stephanie
Michelle Hawkins, who was getting ready for her son's birthday party
that day, from outside a sunglasses stand in a shopping plaza. Hawkins
suffered a fate nearly identical to Jackson's, her body found in a
similar location.
In Virginia, authorities were looking for Justus
based on a description of his car. Police staked out the orphanage in
Grundy, Va., where Justus was raised and where two siblings still
lived, and arrested him when he came to visit.
Justus admitted robbing and murdering Moses, but
denied raping her. The jury didn't believe him, and sentenced him to
die in the electric chair.
The Virginia Supreme Court overturned the guilty
verdict, due to a flaw in the jury-selection process, but a new jury
also condemned Justus to die.
Justus and Goins were each tried in Florida and
Georgia. The Florida jury needed only seven minutes to convict Justus.
"It took them 45 minutes to decide on the death
penalty," the Florida prosecutor, Phil Van Allen, told the Roanoke
Times. "They told me the only reason it took them that long was
because they had to pray first."
The Georgia jury was just as decisive, giving
Justus his third death sentence.
"I'm a proponent of the death penalty, and I've
seen a lot of people deserving of it in my career," said Burt Blannot,
the chief investigator in Jackson's murder. "But none have been as
deserving as Buddy Justus."
Goins was sentenced to life in prison for his part
in the Florida and Georgia murders.
Justus was one of the inmates profiled in a Dec.
26, 1986 story in the Richmond News Leader portraying Christmas
on death row.
"If I could say anything to the people out there,
it is don't get involved with drugs or alcohol," Justus said. "Even
the nicest in society can turn into a monster with that stuff in their
system."
*****
While on Virginia's death row, Justus and his
attorneys didn't plead innocence during the lengthy appeals process,
instead producing a trifecta of excuses for his horrific crimes --
abuse suffered as a child, a head injury at age 20 that caused damage
to the frontal lobe of his brain, and habitual alcohol abuse.
Harris, the preacher, talked with Justus on death
row and suggested another motivation.
"He said when he got word (Alice) was filing for
divorce, he just went crazy," Harris said. "He wrote a lot of poems,
all of them about Alice."
After nine appeals failed, Justus' execution was
scheduled for Dec. 13, 1990.
There were only four other prisoners left in the
old Virginia State Penitentiary -- the 190-year-old facility in
Boydton closed the next day, and the rest of the inmates and staff had
already moved into new digs.
Opponents of the death penalty staged vigils in
five cities around the state that night, and Justus' attorneys
appealed one last time to Gov. L. Douglas Wilder, citing Justus' brain
damage in requesting clemency and asking that the sentence be commuted
to life without parole.
Wilder, a one-time opponent of capital punishment
who changed his stance under political pressure while running for
governor, refused the request.
Justus, who at one point during his time on death
row had asked to have his execution speeded up, then rescinded the
request, gave a Roanoke radio station an interview on his last day of
life.
"I want it to be over with, not for me, but for the
victims' families," Justus said. "I'm ready to go to a better place. I
want it to be put to rest."
Justus' attorney told reporters that Ida Mae Moses'
sister had written Justus, telling him she forgave him.
Justus ate a last meal of sirloin steak, french
fries, tossed salad, strawberry pie and tea. The 246 people
electrocuted before him at the old state pen made their final walk
accompanied by other death row inmates banging on bars and yelling as
the condemned strolled to the death chamber.
Justus walked in silence. Prison officials granted
his last request -- to make the trek alone, rather than with prison
guards at his side.
He was strapped into the electric chair at 11 p.m.
Six minutes and two jolts later, Buddy Earl Justus, 37, was dead.
Montgomery County Sheriff Louis Barber, who had
been the chief investigator in Moses' murder, spoke to the press after
the execution.
"Buddy Justus died with a great deal more dignity
than he afforded Ida Moses. At least he had his minister present and
he wasn't degraded and raped and murdered," Barber said.
"The victim's parents and grandparents should have
decided his punishment," says Grenga, the father of six and a former
Niagara County Assistant District Attorney. "The electric chair was
probably too humane."
Niagara Falls
Reporter
897 F.2d 709
Buddy Earl Justus,
Petitioner-Appellant, v.
Edward W. Murray, Director, Virginia Department of
Corrections,
Respondent-Appellee.
No. 89-4005
Federal Circuits, 4th
Cir.
Argued Dec. 5, 1989.
Decided March 2, 1990.
Rehearing and Rehearing In Banc Denied March 20, 1990.
Before HALL, Circuit Judge, BUTZNER, Senior
Circuit Judge, and WILLIAMS, United States
District Judge for the Eastern District of
Virginia, sitting by designation.
K.K. HALL, Circuit Judge:
Buddy Earl Justus appeals from
the judgment entered in favor of the Virginia
Department of Corrections on his petition for a
writ of habeas corpus brought under 28 U.S.C. Sec
. 2254. Although on different reasoning, we
affirm.
* On October 3, 1978, Ida Mae
Moses was found murdered in her home in Montgomery
County, Virginia. She had been shot twice in the
face and once in the back of the head; any one of
the wounds would have been fatal. Forensic tests
showed that Moses, who was 8 1/2 months pregnant
at the time of the murder, had also been raped.
Further, it was determined that she had been
killed by her own gun, a snub-nosed .22 caliber
pistol, which was stolen during the incident. See
Justus v. Commonwealth of Virginia, 220 Va. 971,
266 S.E.2d 87, 89 (1980); Justus v. Commonwealth
of Virginia, 222 Va. 667, 283 S.E.2d 905, 907
(1981), cert. denied,
455 U.S. 983 , 102 S.Ct. 1491, 71 L.Ed.2d
693 (1982).
On October 11, 1978, petitioner
was arrested in Grundy, Virginia, pursuant to an
arrest warrant for a Georgia murder. He waived his
Miranda rights and confessed that he had
burglarized the Moses' home and had murdered
Moses. However, he denied raping her. In January
1979 petitioner was indicted for capital murder
during the commission of a rape, in violation of
Va.Code Secs. 18.2-31(5), 18.2-32.
At trial, Justus did not deny
committing the murder. Instead, he used his
confession of the burglary and murder to bolster
the credibility of his denial of the rape. While
this strategy conceded the commission of a first
degree murder, if successful, it would have
defeated the capital murder charge, and with it,
the potential for the death penalty.
1
The strategy proved unsuccessful and Justus was
convicted of capital murder. On a recommendation
from the jury, he was sentenced to death.
On appeal, the Supreme Court of
Virginia reversed the conviction because of an
error in jury selection. Justus, 266 S.E.2d at
90-92. On remand, Justus employed the same trial
strategy and again was found guilty of capital
murder and sentenced to death. This time, the
conviction was upheld on appeal. Justus v.
Commonwealth, 222 Va. 667, 283 S.E.2d 905 (1981),
cert. denied,
455 U.S. 983 , 102 S.Ct. 1491, 71 L.Ed.2d
693 (1982).
Justus sought habeas relief in
state court. On February 13-14, 1985, a hearing
was held on his petition. In August 1985, the
petition was denied in full. The Virginia Supreme
Court denied a petition for appeal, as well as a
petition for rehearing. Likewise, the U.S. Supreme
Court denied certiorari. Justus v. Barss,
479 U.S. 1101 , 107 S.Ct. 1331, 94 L.Ed.2d
182 (1987).
Justus next turned to the
federal courts, filing a federal habeas petition
in April, 1987. By consent of the parties, the
petition was dismissed without prejudice because
it contained unexhausted claims. Justus then filed
directly in the Virginia Supreme Court another
habeas petition which raised the unexhausted
claims. That petition was denied by order dated
February 22, 1988, on the grounds that all of
Justus' claims were procedurally defaulted.
Finally, on May 6, 1988, the
instant habeas petition was filed in district
court. The petition was referred to a magistrate
who, in a lengthy and thorough report, recommended
that the petition be dismissed. Both petitioner
and the Commonwealth filed objections to the
report. The district court denied the objections
and by order dated April 12, 1989, the petition
was dismissed. This appeal followed.
II
Before this Court, appellant
raises seven assignments of error. For purposes of
our discussion, these assignments can be
considered in three categories, grouped according
to the claims' respective procedural postures. We
address these categories seriatim.
1.
Two of appellant's claims--one
involving the effectiveness of his counsel during
the penalty phase of his trial and the other
involving the denial of his request for a
court-appointed psychiatrist to help him prepare
for the penalty phase--were not procedurally
defaulted in any manner. The district court
rejected these claims on the merits, on the
reasoning of the magistrate's report. We also find
the magistrate's report persuasive and,
accordingly, affirm the district court's
disposition of these claims.
2.
One of appellant's claims,
concerning the sufficiency of the evidence
supporting his death sentence, was not raised on
direct appeal. In state habeas, this claim was
rejected as procedurally defaulted under the rule
of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680
(1978), cert. denied,
419 U.S. 1108 , 95 S.Ct. 780, 42 L.Ed.2d 804
(1979). Likewise, the magistrate below
rejected the claim under the rule of Wainwright v.
Sykes, 433 U.S. 72, 86-88, 97 S.Ct. 2497, 2506-07,
53 L.Ed.2d 594 (1977), because appellant offered
no cause to excuse the default.
In his objections to the
magistrate's report, appellant for the first time
alleged ineffective assistance of counsel as the
cause of the default. The district court upheld
the magistrate's finding of a procedural bar on
the grounds that since the ineffective assistance
claim was not alleged in the petition and had not
first been presented to and exhausted in the state
courts, it could not, under Murray v. Carrier, 477
U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46, 91
L.Ed.2d 397 (1986), serve in a federal habeas
proceeding as cause for a procedural default.
Because appellant concedes that this claim was
procedurally defaulted, and because it is clear
that exhaustion in state court would be futile,
this reasoning was entirely correct and we affirm
the district court's disposition of this claim.
See Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038,
1043 n. 9, 103 L.Ed.2d 308 (1989).
3.
The remainder of appellant's
assignments of error stand in a rather peculiar
procedural posture.
2
First, none of these claims was raised on direct
appeal. In state habeas, appellant raised these
issues and offered ineffective assistance of
counsel as cause for his failure to raise them on
direct appeal. The ineffective assistance of
counsel claims were rejected by the state habeas
trial court and, consequently, the underlying
substantive claims were found procedurally
defaulted under Slayton.
In his petition for appeal from
the state habeas decision, appellant failed to
assign as error the ineffective assistance of
counsel rulings. Consequently, when he finally
presented these claims to the Virginia Supreme
Court in this second state habeas petition, they
were also found to be defaulted under Slayton.
Therefore, appellant has procedurally defaulted on
both the substance of his remaining claims as well
as the ineffective assistance of counsel claims he
offered in state court as cause to excuse the
substantive defaults.
Before the district court,
appellant raised his procedurally-defaulted
substantive arguments and again offered the
procedurally-defaulted ineffective assistance of
counsel claims as cause. The Commonwealth argued
that this double-default, so to speak, left the
substantive claims "not reviewable in any manner."
It contended that under
Wainwright and Murray, the procedural default of
the ineffective assistance of counsel claims must
be respected and, consequently, that those claims
could not serve as cause to excuse the defaults of
the underlying substantive claims. The district
court rejected this argument.
The lower court rested its
analysis on the Supreme Court's decision in
Murray. In Murray, the Court held that before a
claim of ineffective assistance of counsel can be
used in a federal habeas proceeding as cause to
excuse a procedural default, the ineffective
assistance of counsel claim must first be
presented to and exhausted in the state courts.
Id. at 488-89, 106 S.Ct. at 2645-46.
The district court reasoned
that even though the instant ineffective
assistance claims were procedurally defaulted,
they nonetheless were also exhausted and thus, if
meritorious, could, under Murray, serve as cause
to excuse appellant's substantive defaults.
The court then disregarded the
procedural defaults on collateral appeal and went
on to adopt the magistrate's report which found
that none of the ineffective assistance of counsel
claims had merit. Accordingly, the court held that
appellant could not show cause to excuse his
procedural defaults on direct appeal and that the
underlying substantive arguments were procedurally
defaulted. While we agree with the result reached
by the lower court, we cannot adopt its reasoning.4
A. It is beyond question that
ineffective assistance of counsel claims offered
as cause to excuse procedural defaults of other
constitutional claims are separate and distinct
from those other constitutional claims. Kimmelman
v. Morrison, 477 U.S. 365, 374-75, 106 S.Ct. 2574,
2582-83, 91 L.Ed.2d 305 (1986). As such, claims of
ineffective assistance of counsel, like other
constitutional claims, may be precluded from
federal habeas review if they have been rejected
in state court on the adequate and independent
state ground of a violation of a state procedural
rule. See Harris v. Reed, 109 S.Ct. at 1042;
Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506.
The Supreme Court made clear in
Wainwright that absent a showing of cause to
excuse a procedural default and a showing that
actual prejudice resulted from that default, a
state procedural bar to a constitutional claim
must be respected by the federal courts.
Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506. Such
is the case with these ineffective assistance
claims.
When first presented to the
Virginia Supreme Court, appellant's ineffective
assistance of counsel claims were unambiguously
rejected as defaulted under Slayton. We have
previously recognized that such defaults, when
made on collateral appeal and relied upon by the
Virginia courts to reject constitutional
challenges, generally preclude federal habeas
review absent a cause-and-prejudice showing.
Whitley v. Bair, 802 F.2d 1487, 1500 (4th
Cir.1986), citing Mason v. Procunier, 748 F.2d
852, 853 (4th Cir.1984). Here, appellant has made
no showing of cause to excuse these defaults.
Consequently, Wainwright and Bair require that we
respect the state procedural bar.5
Therefore, to review the merits
of appellant's ineffective assistance of counsel
claims as cause for the defaults on direct appeal
as the district court did would, contrary to
Wainwright and our prior precedents, circumvent
the state procedural bar. The principles of
finality, comity, and judicial efficiency which
underlie the Wainwright rule cannot tolerate such
a result. And, notwithstanding the district
court's conclusion, the Supreme Court's decision
in Murray certainly does not require it.
B.
In Murray, the precise issue
before the Court was whether a competent defense
counsel's inadvertent failure to raise a
substantive claim on appeal could constitute cause
excusing the procedural default of the claim.
Murray, 477 U.S. at 481-82, 106 S.Ct. at 2642. In
answering this question in the negative, the court
held that constitutionally ineffective assistance
of counsel would provide cause to excuse a
procedural default but, like all other
constitutional claims, before it can be presented
in a federal habeas proceeding, it must first be
exhausted in state court. Id. at 489, 106 S.Ct. at
2646.
Contrary to the district
court's conclusion, this rather unremarkable
holding in no way means that, once exhausted, a
procedurally defaulted ineffective assistance of
counsel claim may be offered as cause to excuse an
earlier procedural default. Such a leap in logic
ignores the distinction between exhaustion and
procedural default as well as the different goals
that both concepts further.
The doctrine of exhaustion and
the procedural default rule are two different
things. Exhaustion generally requires that before
a federal court will review a constitutional claim
in habeas, the claim must first be fairly
presented to the state court system. The
requirement is "principally designed to protect
the state courts' role in the enforcement of
federal law and prevent disruption of state
judicial proceedings." Id. at 489, 106 S.Ct. at
2646, quoting Rose v. Lundy, 455 U.S. 509, 518,
102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982).
The procedural default rule
requires that if a state court rejects a habeas
petitioner's federal constitutional challenge on
the adequate and independent state ground that the
claim is defaulted under a state procedural rule,
a federal habeas court is ordinarily precluded
from reviewing that claim unless the petitioner
can show cause for the default and prejudice
resulting from it. Wainwright, 433 U.S. at 87, 97
S.Ct. at 2506. The rule is based on the principles
of comity and is intended to promote judicial
efficiency and economy. Id. at 88, 97 S.Ct. at
2507.
Thus, these two facets of
federal habeas corpus jurisprudence are different
mechanisms devised to effectuate different, though
related, policy considerations. It follows
naturally, then, that just because claims have
been exhausted, as appellant's ineffective
assistance claims were, it does not necessarily
mean that review of those claims will not be
precluded by the procedural default rule, as
review of appellant's claims is. To conclude
otherwise would be in derogation of the concerns
which underlie Wainwright, and render meaningless,
at least for federal habeas purposes, Virginia's
rules of appellate procedure. The Murray Court
would certainly not countenance such a result.
The foundation of the Murray
decision rests firmly on a sense of respect for
the procedural default rule in the appellate
context:
A State's procedural rules
serve vital purposes at trial, on appeal, and on
state collateral attack.... [Appellate procedural
rules promote] not only the accuracy and
efficiency of judicial decisions, but also the
finality of those decisions.... These legitimate
state interests ... warrant our adherence to the
conclusion to which they led the Court in Reed v.
Ross [468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1
(1984) ]--that the cause and prejudice test
applies to defaults on appeal as to those at
trial.
Murray, 477 U.S. at 490-91, 106
S.Ct. at 2446-47 (quotation, citation omitted).
Thus, the Murray Court did not hold that to be
raised as cause to excuse a prior procedural
default a claim of ineffective assistance of
counsel must only be exhausted in state court.
Rather, Murray stands for the proposition that
before an ineffective assistance of counsel claim
may be raised as cause in federal habeas, it must
first be exhausted in state court and not be
procedurally defaulted. Any other reading of
Murray eviscerates Wainwright.
C.
We turn to the proper way to
analyze the remaining four claims of appellant. As
the district court correctly recognized, the
substance of these claims was defaulted under
Slayton. This procedural bar precludes our review
of these claims under Wainwright unless appellant
can make the cause and prejudice showing.
Appellant has offered as cause four respective
claims of ineffective assistance of counsel. As
the district court correctly noted, these separate
claims were also defaulted under Slayton.
Thus, we cannot review the
merit of these claims under Wainwright unless
appellant can make another cause and prejudice
showing. Appellant has made no showing of cause
whatsoever to excuse the default of his
ineffective assistance of counsel claims.
Therefore, we cannot review the merits of those
claims and they cannot serve as cause to excuse
the underlying procedural defaults. Furthermore,
because these claims were the only offer of cause
to excuse the default of the substantive claims,
Wainwright also precludes our review of the merits
of those issues.
This conclusion, however, does
not end our inquiry. In Murray, the Supreme Court
made clear that "in an extraordinary case, where a
constitutional violation has probably resulted in
the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in
the absence of a showing of cause for the
procedural default." Murray, 477 U.S. at 496, 106
S.Ct. at 2649. Thus, we review the record and
remaining arguments to see if any of appellant's
assignments of error have probably led to the
conviction of an innocent man. We conclude that
they have not.
The evidence of appellant's
guilt is overwhelming. There simply can be no
serious question on this record that appellant
did, in fact, commit the crime for which he stands
convicted. Further, as the magistrate's report
makes clear, besides being procedurally defaulted,
his assignments of error are without merit.
Consequently, we have no difficulty in upholding
appellant's conviction in the face of these four
assignments of error.
III
In sum, although on different
reasoning, we affirm the dismissal of the
petition.
On the facts, the case against Justus was very
strong. Besides his confession to the police, he
had bragged about the murder and rape to a third
party, he was found in possession of the murder
weapon, and secretion tests indicated that Justus
"could not be excluded" as a possible source of
the seminal fluid found in decedent's vagina.
Justus, 283 S.E.2d at 907
Briefly, the substance of these claims is: (1) the
trial court erred in excluding potentially
mitigating evidence during the penalty phase of
appellant's trial; (2) the trial court's
instructions in the penalty phase failed to
adequately guide appellant's jury in the use of
its sentencing discretion; (3) the trial court's
instructions during the guilt phase of the trial
violated appellant's Sixth Amendment rights; and
(4) the jury instructions and verdict form used in
the guilt phase of the trial denied appellant his
right to a unanimous jury (hereinafter the
"substantive" claims)
Apparently, the district court reached this
conclusion because the Murray Court was silent as
to whether the procedural default rule also
applied to ineffective assistance of counsel
claims offered as cause. As is clear from our
discussion below, we interpret the Murray Court's
silence on this point to imply nothing more than
the Court's assumption that the Wainwright rule
applies to all constitutional claims raised in
federal habeas
As an alternative grounds for our decision, we
note that the district court's conclusion that the
ineffective assistance of counsel claims were
meritless and that, consequently, appellant's
underlying substantive arguments were procedurally
defaulted, was correct
For a similar analysis, see Gilmore v. Armontrout,
861 F.2d 1061, 1064-66 (8th Cir.1988), reh. den.
en banc, 867 F.2d 1179, cert. denied, ---U.S.
----, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989)
JUSTUS v. THE STATE
36686.
(247 Ga. 276)
(276 SE2d 242)
DECIDED MARCH 12, 1981
JORDAN, Chief Justice.
Murder, etc. Gwinnett Superior
Court. Before Judge Merritt.
Buddy Earl Justus, the
appellant, pleaded guilty to the October 7, 1978,
murder, kidnapping with bodily injury, armed
robbery and rape of Rosemary S. Jackson. Following
a hearing, the appellant was sentenced to life
imprisonment for the kidnapping with bodily
injury, the armed robbery, and the rape, and to
death for the murder. The case is presently before
this court for mandatory sentence review, and is a
companion case to Goins v. State,
245 Ga. 62 (262 SE2d 818)
(1980).
Although defense counsel has
not enumerated any error in the proceeding below,
he has requested this court to independently
review the record to determine if error occurred.
The record establishes that,
following the appellant's indictment, he informed
the district attorney that he wished to plead
guilty to all charges. In response the district
attorney went to the appellant's jail cell and
advised the appellant of his right to a trial by
jury and his right to either a retained or
appointed attorney. The district attorney further
advised the appellant at this time that the state
would seek the death penalty, and that said
penalty would probably be imposed.
On May 23, 1980, the appellant
was given a hearing in the Gwinnett Superior Court
at which time the trial judge took the following
actions.
First, the trial judge
appointed an attorney who had been practicing law
for fourteen to fifteen years and had handled over
seventeen capital cases to represent the
appellant. Second, he apprised the appellant of
all of his constitutional rights, and told him
that if the circumstances of the case otherwise
warranted it, he had no conscientious, moral or
religious objections to a sentence of death.
(The appellant answered that
he understood this and that he understood the
rights explained to him.) Third, the trial judge
made the following findings of fact: the
appellant was twenty-eight years old and had
attended school through the tenth grade; he had
been tried in a court of law three times prior
to the present proceedings (he had one retained
and two appointed attorneys); and, he understood
the nature of the present proceeding. Finally,
the trial judge set down June 13, 1980, ten days
hence, as plea day.
During the ten day interim
prior to plea day, the district attorney turned
over to the appellant's appointed attorney, in
addition to his entire file, the list of
witnesses, the statement which the appellant had
made to the Gwinnett County Police, a copy of
the appellant's FBI rap sheet, a mental
evaluation of the appellant, and the State Crime
Lab Report.
On June 13, 1980, the plea
hearing was held before the Gwinnett Superior
Court. During said hearing, the appellant, with
his attorney present, was extensively questioned
by both the district attorney and the trial
judge as to whether he understood each and every
right and as to whether he was under the
influence of any drugs, medicines or alcohol.
Further, the trial judge explained to the
appellant the alleged aggravating circumstances.
As the result of additional
questioning, the trial judge found that the
appellant had consulted with his attorney four
times, and that his attorney had given the
appellant all the time he needed or wanted to
talk with him and discuss his situation (the
appellant had had the attorney's phone number
and could have called him at any time to discuss
the case).
The trial judge also found
that the appellant understood that he was
pleading guilty without any recommendation on
behalf of the state, and that the appellant was
pleading guilty freely and voluntarily without
promise of reward or threat of harm.
Finally, the trial judge
found that the appellant was factually guilty
and that he persisted in his plea of guilty
despite his attorney's determination that the
appellant had a better chance to avoid the death
penalty with a jury than with the court (the
attorney admitted, however, that despite
discovery and consultation with his client,
there were no material defenses to the charge).
The record establishes that
the appellant was given a psychological
evaluation in Virginia and, upon motion by
defense counsel, in Georgia. These evaluations
affirmatively show that the appellant was sane
at the time he committed the crimes and could
actively participate in his defense and was
aware of the nature of the proceedings against
him.
Upon independent review of
the record, we find that the plea was properly
accepted by the trial court and that no error
occurred. See Fair v. State,
245 Ga. 868 (268 SE2d
316) (1980); Mitchell v. State,
234 Ga. 160 (214 SE2d
900) (1975); Moore v. State,
233 Ga. 861 (213 SE2d
829) (1975); Hooks v. State,
233 Ga. 149 (210 SE2d
668) (1974).
Sentence Review
The death sentence imposed in
this case must be reviewed by this court under
the standards set forth in Code Ann. 27-2537 (c)
(1-3). Thus, we must determine whether the
sentence of death was imposed under the
influence of passion, prejudice or any other
arbitrary factor; whether the evidence supports
the trier of fact's finding of the statutory
aggravating circumstances; and, whether the
sentence of death was excessive or
disproportionate to the penalty imposed in
similar cases, considering the crime and the
defendant.
We find that the sentence of
death was not imposed under the influence of
passion, prejudice or any other arbitrary
factor. The trial judge found beyond a
reasonable doubt the existence of the following
statutory aggravating circumstances: (1) the
offense of murder was committed while the
offender was engaged in the commission of an
additional capital felony, to wit: the armed
robbery of Rosemary Jackson, Code Ann. 27-2534.1
(b) (2); (2) the offense of murder was committed
while the offender was engaged in the commission
of an additional capital felony, to wit: the
kidnapping of Rosemary Jackson with bodily
injury, Code Ann. 27-2534.1 (b) (2); (3) the
offense of murder was committed while the
offender was engaged in the commission of an
additional capital felony, to wit: the rape of
Rosemary Jackson, Code Ann. 27-2534.1 (b) (2);
and (4) the offense of murder was outrageously
or wantonly vile, horrible and inhuman in that
it involved torture, depravity of mind and an
aggravated battery to the victim, Code Ann.
27-2534.1 (b) (7).
From the evidence in this
case, the trial court was authorized to find
that the appellant and Dean Goins, a
co-defendant, came to Georgia from Florida and
decided to steal a van and rob someone. They
pulled into a shopping center and sat there
drinking beer until Rosemary S. Jackson, who was
driving the type of van they desired, parked her
van in the shopping center parking lot.
They abducted the victim at
gunpoint and took her to Crack Road, a dirt
access-road. The appellant drove the victim's
van with the victim inside, and Goins drove the
car that they had driven up from Florida.
On the way to the execution
site the appellant stopped at a truck stop and
made the victim purchase a C. B. unit, and pay
for it with a credit card. The two proceeded to
Crack Road where the appellant raped, stabbed
and shot Mrs. Jackson. The co-defendant, Goins,
was present at the scene but did not participate
in the rape or murder. The New York tag was
removed from the car and placed on the van. The
car was then left near the body, and the
appellant and his co-defendant left in the van
ultimately being arrested in Virginia.
The state presented
evidence that the chief jailer had observed
the appellant in jail and that the appellant
was normal, and was totally aware of his
surroundings, capable of taking care of
himself and coordinating his daily activities,
conversing with his cell mates and the jail
staff.
Forensic evidence
established that the victim had been raped and
had suffered three stab wounds to her body
(one stab wound went through the right breast
into the right lung through the diaphragm and
down into the liver, and two wounds went into
the back, one to the lower part of the
shoulder blade, and the other one to the top
of the right shoulder). The stab wounds
occurred prior to death and caused
considerable pain. The victim was then shot
execution style with a single gunshot wound to
the base of the skull just above the hairline.
The appellant's fingerprints were located in
the abandoned automobile.
The manager of the grocery
store at the shopping center where the
abduction took place became suspicious of the
two men as they sat in the parking lot, and as
he went to lunch, he wrote down the New York
license plate number. The appellant was
identified as the man coming in with the
victim to the Atlanta Gateway Truck Stop where
the C. B. radio was purchased.
In that the sentence of death
in this case rests partially upon a finding of
Code Ann. 27-2534.1 (b) (7), it must be reviewed
in light of the United States Supreme Court's
decision in Godfrey v. Georgia, 446 U. S. 420
(100 SC 1759, 64 LE2d 398) (1980), as construed
by this court in Hance v. State,
245 Ga. 856 (268 SE2d
339) (1980).
"Torture" as the term is used
in the statute occurs when the victim is
subjected to serious physical abuse prior to
death. Hance v. State, supra. Serious sexual
abuse may be found to constitute serious
physical abuse. Hance v. State, supra.
Rosemary S. Jackson was not
killed instantaneously nor was she the victim of a
domestic murder. She gave the appellant no reason
whatsoever to assault her and was in no manner
threatening. The appellant fled and attempted in
every manner to hide his crime. See Godfrey v.
Georgia, supra. Ms. Jackson was abducted and
sexually assaulted prior to death. Therefore, the
murder was outrageously or wantonly vile, horrible
or inhuman in that this murder is distinguishable
from ordinary murders in which the death penalty
is not appropriate. Green v. State,
246 Ga. 598 (272 SE2d 475)
(1980). Under the facts of this case, we
find that murder was of the type universally
condemned by civilized society as wantonly vile,
horrible or inhuman, as it involved depravity of
mind of the defendant and torture to the victim as
set forth above.
The evidence supports a finding
of the four aggravating circumstances by a
rational trier of fact beyond a reasonable doubt.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61
LE2d 560) (1979).
The appellant's co-defendant,
Dean Goins, was sentenced to life imprisonment.
See Goins v. State, supra. The question is thus
presented whether, in light of the lesser sentence
imposed on the co-defendant, appellant's sentence
is disproportionate.
Each case must be evaluated on
its unique factual circumstances, as there is no
simplistic rule that a co-defendant may not be
sentenced to death when another co-defendant
receives a lesser penalty. Collins v. State,
243 Ga. 291 (253 SE2d 729)
(1979); McClesky v. State,
245 Ga. 108 (263 SE2d 146)
(1980). We find material distinctions
between appellant's case and the case of the
co-defendant. First, the appellant was the actual
perpetrator of the murder and rape of the victim,
whereas the co-defendant was not, and in fact
remained in the car while the killing took place.
Second there was evidence that the appellant was
the prime mover and that to some extent Goins was
coerced into assisting the appellant in the
commission of the crimes. Juries in similar
circumstances have sentenced "triggermen" to death
while the same penalty has not been imposed on
co-defendants. These cases have been affirmed by
this court. McClesky v. State, supra; Bowden v.
State, 239 Ga. 821 (238
SE2d 905) (1977); Pulliam v. State,
236 Ga. 460 (224 SE2d 8)
(1976); Dobbs v. State,
236 Ga. 427 (224 SE2d 3)
(1976); Ross v. State,
233 Ga. 361 (211 SE2d 356)
(1974).
We find that the appellant's
sentence to death is neither excessive nor
disproportionate to the penalty imposed in the
case of his co-defendant. In reviewing the death
penalty in this case, we have considered the cases
appealed to this court since January 1, 1970, in
which a death or life sentence was imposed. We
find that the following similar cases listed in
the Appendix support the affirmance of the death
penalty.
This was the brutal rape and
murder of an armed robbery victim committed for
the sole purpose of financial gain and sexual
gratification. The appellant's sentence to death
for murder is not excessive or disproportionate to
the penalty imposed in similar cases considering
the crime and the defendant.
APPENDIX.
Kramer v. State,
230 Ga. 855 (199 SE2d 805)
(1973); Jarrell v. State,
234 Ga. 410 (216 SE2d 258)
(1975); Davis v. State,
236 Ga. 804 (225 SE2d
241) (1976); Gibson v. State,
236 Ga. 874 (226 SE2d 63)
(1976); Bowden v. State,
239 Ga. 821 (238 SE2d 905)
(1977); Corn v. State,
240 Ga. 130 (240 SE2d 694)
(1977); Spraggins v. State,
240 Ga. 759 (243 SE2d 20)
(1978); Westbrook v. State,
242 Ga. 151 (249 SE2d 524)
(1978); Moore v. State,
240 Ga. 807 (243 SE2d 1)
(1978); Johnson v. State,
242 Ga. 649 (250 SE2d 394)
(1978); Collins v. State,
243 Ga. 291 (253 SE2d 729)
(1979); 246 Ga. 261
(271 SE2d 352) (1980); Tucker v. State,
244 Ga. 721 (261 SE2d 635)
(1979); Gates v. State,
244 Ga. 587 (261 SE2d 349)
(1979); Tucker v. State,
245 Ga. 68 (263 SE2d 109)
(1980); Brooks v. State,
244 Ga. 574 (261 SE2d 379)
(1979); 246 Ga. 262
(271 SE2d 272) (1980).
