Alton Waye, a Virginia death row inmate, moves for a stay of execution pending his appeal of the denial by the district court of his motion under Federal Rule of Civil Procedure 60(b) for relief from the judgment previously entered in this case denying his petition for a writ of habeas corpus. Waye was granted a certificate of probable cause to appeal.

Due to the exigent nature of this matter, we began immediate consideration of Waye's contentions upon receipt of the papers simultaneously filed with this court and with the district court beginning on July 18, 1989. We have carefully considered the issues presented and deny the motion for a stay of execution and affirm the denial of Waye's Rule 60(b) motion.

The overwhelming evidence at trial indicated that on October 14, 1977, Waye drove to the residence of a 61-year-old widow in Lunenburg County, Virginia and requested permission to use her telephone.

After gaining entry to the home, Waye forced the victim upstairs where he raped and beat her. He then retrieved a knife from the kitchen downstairs and returned upstairs where he stabbed her 42 times, killing her.

After placing her body in a bathtub and pouring Clorox over her, Waye ransacked the house, took the telephone off the hook, switched on the television, and wiped the knife clean.

Waye turned himself in to the authorities and led them to the victim's house. The police found the victim beaten beyond recognition with bite marks on her body.

Waye provided the authorities with both written and oral statements detailing his involvement in the homicide. Waye was convicted in 1978 of capital murder. In a separate sentencing hearing the jury sentenced him to death.

During the almost 11 years that have elapsed since Waye's conviction, both state and federal courts have repeatedly reviewed the conviction and sentence of death. The Virginia Supreme Court affirmed Waye's conviction and sentence of death on January 12, 1979 and the United States Supreme Court subsequently denied his petition for a writ of certiorari. Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 292 (1979).

Waye then filed a petition for a writ of habeas corpus in state court contending that the trial judge's instruction regarding intent was a burden-shifting instruction that violated the rule enunciated, after Waye's conviction, in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Waye's trial counsel did not object to the instruction at trial and the issue was not raised on Waye's direct appeal to the Virginia Supreme Court.

The state court specifically held that Waye was not entitled to be heard on the issue because he failed to make a contemporaneous objection at trial or to raise the issue on direct appeal. The Virginia Supreme Court affirmed the denial of the writ of habeas corpus on April 27, 1984. The United States Supreme Court again denied Waye's petition for a writ of certiorari. Waye v. Morris, 469 U.S. 908, 105 S.Ct. 282, 83 L.Ed.2d 218 (1984).

Subsequently, Waye filed a petition for a writ of habeas corpus in federal court. See Waye v. Townley, 871 F.2d 18 (4th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3202, 105 L.Ed.2d 710 (1989) (discussing history of Waye's original federal petition for a writ of habeas corpus). There, we held that, assuming Waye satisfied the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by showing that counsel was deficient for failing to object to the instruction, Waye could not overcome the procedural bar because he failed to show cause for his noncompliance under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

We further held that assuming Waye could show cause and actual prejudice under Wainwright v. Sykes, it is clear that the presumption instruction was harmless beyond a reasonable doubt under Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The Supreme Court denied certiorari for a third time. Waye v. Townley, --- U.S. ----, 109 S.Ct. 3202, 105 L.Ed.2d 710 (1989).

Waye began this collateral attack on July 18, 1989 by filing a pro se petition for a writ of habeas corpus. On August 25, 1989, Waye filed a habeas petition with the Virginia Supreme Court. He then filed a motion under Rule 60(b) and a motion for a stay of execution in the district court. The Virginia Supreme Court dismissed the state habeas petition on August 28, 1989 for reasons of procedural default.

That same day, two days before his scheduled execution, Waye filed in the district court an amended habeas petition. The district court then denied Waye's motion under Rule 60(b) and his motion for a stay of execution, but granted Waye a certificate of probable cause to appeal. Because of the exigency of the circumstances we consider both the motion for a stay of execution and the merits of the appeal from the denial of the Rule 60(b) motion.

As the Supreme Court stated in vacating a stay entered by a district court for the purpose of considering a last-minute habeas petition in Alabama v. Evans, 461 U.S. 230, 103 S.Ct. 1736, 75 L.Ed.2d 806 (1983), "respondent's 'constitutional challenges ... have been reviewed exhaustively and repetitively by several courts in both the state and federal systems.' " Id. at 231, 103 S.Ct. at 1738.

As this court has recognized, "constitutional litigation is not to be conducted piecemeal, claims should be raised earlier rather than later, and considered resolution by state courts is far preferable to a last minute dash to federal habeas corpus." Clanton v. Muncy, 845 F.2d 1238, 1240 (4th Cir.1988). Nevertheless, we have reviewed each of the claims raised by Waye in his Rule 60(b) motion.III.

Waye originally sought federal habeas corpus review based on a burden shifting instruction that violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Waye v. Townley, 871 F.2d 18 (4th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3202, 105 L.Ed.2d 710 (1989).

The district court denied the petition and we affirmed. Id. Waye now contends that the prior determination made by the district court and affirmed by this court that the claim was procedurally barred because of counsel's failure to lodge a contemporaneous objection is erroneous in light of Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). See Waye, 871 F.2d at 19. Waye contends further that the harmless error analysis as applied by the district court and affirmed by this court has been undermined by the Supreme Court decision in Carella v. United States, --- U.S. ----, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989).

The district court ruled that Waye had timely filed his Rule 60(b) motion and that there was no unfair prejudice to the Commonwealth of Virginia. However, the district court found that Waye did not meet the Rule 60(b) requirements of a showing of a meritorious defense. See Werner v. Carbo, 731 F.2d 204 (4th Cir.1984); Compton v. Alton Steamship Co., 608 F.2d 96 (4th Cir.1979). Finally, the district court concluded that alternative grounds exist for denying the motion. First, Waye was barred from federal habeas corpus relief under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because he did not raise the issue in state court, and he failed to demonstrate prejudice in order to lift the bar. Second, even if not foreclosed, the harmless error standard of Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), was applicable. Finally, the district court concluded that the majority in Carella reinforced the Rose v. Clark standard, and the facts here may even pass the test proposed by Justice Scalia's concurrence in Carella. See Carella, --- U.S. at ---- - ----, 109 S.Ct. at 2421-24 (Scalia, J., concurring).

We conclude as did the district court that Waye is foreclosed from review because of Virginia's contemporaneous objection rule. We previously held that the Virginia state court specifically held that Waye was not entitled to be heard on the issue because of his failure to lodge a contemporaneous objection at trial. See Waye, 871 F.2d at 19. We further held that Waye could not overcome the procedural default because he failed to show cause and actual prejudice under Wainwright v. Sykes.

Finally, we held that even if Waye could overcome the procedural default, the Sandstrom violation was subject to the harmless error analysis of Rose v. Clark, and the presumption instruction was harmless error beyond a reasonable doubt.

Waye's contention that Carella undermined the harmless error analysis of Rose v. Clark is equally without merit. The majority in Carella reinforced the Rose v. Clark analysis. Carella, --- U.S. at ----, 109 S.Ct. at 2421. As the district court noted, we applied Rose v. Clark by examining the whole record and concluded that the jury could have reached no conclusion other than that Waye possessed the intent required for conviction of capital murder.

As the Court noted in Carella "the erroneous instruction is simply superfluous: the jury has found, in Winship 's words, 'every fact necessary' to establish every element of the offense beyond a reasonable doubt." Carella, --- U.S. at ----, 109 S.Ct. at 2421 (quoting Rose v. Clark, 478 U.S. 570, 581, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986)).

Having concluded that the contentions raised by Waye's Rule 60(b) motion are without merit, we affirm the ruling of the district court denying Waye's motion. Therefore, we also deny Waye's motion for a stay of execution.

While the district court did not enter its formal written order, we treat its oral opinion delivered in open court as such. See Cedar Coal Co. v. UMWA, 560 F.2d 1153, 1161 (4th Cir.1977).

Our mandate will issue forthwith.

  

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884 F.2d 765

Alton Waye, Petitioner-Appellant,
v.
Edward Murray, Director, Virginia Department of Corrections,
Respondent-Appellee.

Docket number: 89-4008

Federal Circuits, 4th Cir.

August 30, 1989

Before WIDENER, WILKINSON, and WILKINS, Circuit Judges.

PER CURIAM:

As is the present way with most capital cases, at least in this circuit, this case has been litigated line by line and letter by letter for about 12 years. The initial conviction was appealed to the Supreme Court of Virginia and certiorari was denied by the U.S. Supreme Court. A state habeas corpus proceeding took the same course. A federal habeas corpus proceeding was decided adversely to Waye by this court in 871 F.2d 18 (4th Cir.1989), and certiorari was denied by the Supreme Court on June 19, 1989. During the course of all these proceedings, Waye was represented by competent and able attorneys, skilled not only in criminal practice but in the aspects thereof relating to capital punishment. Even now, any claim that counsel has been ineffective is especially denied in Waye's papers presently before the court.

On June 5, 1989, the state trial court set Waye's execution for August 30, 1989, which date remains in effect. It is this date.

On July 18, 1989, Waye filed, pro se, the present petition. Upon the state court's being advised by Waye's then present attorney, J. Lloyd Snook, III, Esq., who had represented Waye for some 10 years, that he intended to file no more papers for he did not know of any stone that had been left unturned, the district court appointed Waye's present counsel on August 17, 1989, who filed the present amended petition for habeas corpus on August 28, 1989, only two days prior to Waye's scheduled execution date. In the meantime, present counsel had filed a motion under Rule 60(b) in the district court, the effect of which was to seek review of our previous decision in this case referred to above and reported as Waye v. Townley, 871 F.2d 18 (4th Cir.1989). The appeal taken in that case was argued this morning orally in a telephone conference call and is affirmed by separate opinion, Waye v. Townley, No. 89-4007, 884 F.2d 762 (4th Cir. August 30, 1989). Consolidated for argument with No. 89-4007 was the present case. The district court heard this case at about 8:00 p.m. on August 29, 1989, and announced its decision at about 8:30 a.m. this date. We received its order some 3 hours later and scheduled oral argument by telephone conference call immediately. We now affirm the judgment of the district court.

The points made by the petitioner in the present petition for habeas corpus are briefly summarized below. For convenience, we follow the order listed by the district court in its opinion which was the order in the federal petition. The state petition filed the same day had the same points, but the order was changed.

A. The Commonwealth fostered false impressions from the evidence.

B. The psychiatrist testifying for Waye at his trial was incompetent in that he did not put enough emphasis on any diminished capacity of Waye, who, it is now claimed, has an I.Q. of about 78.

C. There is an impermissible risk that race was a factor in Waye's sentencing.

D. The sentencing instructions concerning mitigating evidence were erroneous.

E. The sentencing report contains improper material.

F. There was evidence in the case, or remarks were made, regarding the character of the victim.

G. The Commonwealth withheld material evidence that Waye was under the influence of drugs or alcohol at the time of the offense.

These same claims were raised in a petition for habeas corpus filed in the Supreme Court of Virginia the same day the petition in this case was filed, August 28, 1989. That petition in the Virginia Supreme Court was denied by order of the Virginia Supreme Court entered August 28, 1989 for the reason that "all of the claims" were "procedurally barred." The Virginia court also found under Virginia Code Sec. 8.01-654(B)(2) that the petitioner had knowledge of the facts on which his present petition was based at the time he had filed a previous petition. Thus, the Virginia court held that the present allegations were procedurally barred for more than one reason: the facts were previously known to the petitioner; a part of the merits of one of the allegations had been considered previously; and the balance of the allegations had not been raised previously when they should have been.

The district court in this case, as in the other appeal heard this date in Waye v. Townley, did not enter its formal written order denying relief and denying the prayed-for stay of execution; rather, apparently, it relied upon its oral directions delivered in open court. We treat the oral denial as if an order had been entered denying all relief claimed in the petition for habeas corpus and denying the stay of execution, although no written order was formally entered. See Cedar Coal v. United Mine Workers of America, 560 F.2d 1153, 1161 (4th Cir.1977).

The attorney for Waye has filed in this court a motion for stay of execution and has advised us that he relies upon the papers filed in the district court for the merits of his case.

The Virginia court, in its denial of Waye's parallel petition, found that the facts on which the petition was based were known to the petitioner at the time of filing a previous habeas petition. Although that decision is entitled to presumptive validity under 28 U.S.C. Sec . 2254(d), and nothing was brought to the attention of the district court to offset such presumptive finding, the district court, nevertheless, with care, went over each of the present allegations, which we have numbered above A through G, and found that Waye had not shown the cause and prejudice necessary because of the procedural default. We are of similar opinion, that the cause and prejudice required to overcome the procedural default has not been shown for any of the grounds. The district court, additionally, made factual comments with respect to certain of the grounds to the effect that there was no merit to them in fact, in any event, and we agree with its comments.

As the Virginia Supreme Court and the district court have found, all of the facts on which the current petition was based were either known or available to the petitioner years ago. While it is true that the tack the petitioner takes in this case principally is to disclaim inadequate performance of his attorneys on the one hand, and claim inadequate performance of his psychiatrist on the other, we think that no such rule should be inaugurated, even in a capital case. It will nearly always be possible in cases involving the basic human emotions to find one expert witness who disagrees with another and to procure an affidavit to that effect from the second prospective witness. To inaugurate a constitutional or procedural rule of an ineffective expert witness in lieu of the constitutional standard of an ineffective attorney, we think, is going further than the federal procedural demands of a fair trial and the constitution require. There must be some finality to litigation, and the final stage has been reached in this case.

We are not unaware of the seriousness of the case and of our lack of inclination to decide the same on procedural rather than substantive grounds. Yet, the very lateness of the petition does not serve to add to any possible merit therein. Despite this, we have carefully considered the current petition for habeas corpus, and although we decide the case on the procedural aspects, we are of opinion that it is without substantive merit.

The judgment of the district court appealed from is accordingly affirmed.

The motion for a stay of execution is denied.

The mandate will issue forthwith.