Percy Levar Walton v. Gene M. Johnson, Director, Virginia Department of Corrections

confession,” id., they “knew that of qualified or that court’s denial im- munity to Wilmore. mentally Washington was retarded at the id. at interrogations,” time of the 713. district court found that “[e]ven also

assuming officers] asked Wash- [the leading questions, sup- record

ington Washington the conclusion that an-

ports questions,

swered those confessed to murder;” the district

the Williams court thus concluded confession itself that“[t]he Percy WALTON, Levar Petitioner- not a fabrication.” Id. at 712. was Conse- Appellant, held that quently, district court “there v. no record support evidence on the Washington’s against coercion claim JOHNSON, Director, Virginia [the Gene M. Department Corrections, Id. at officers].” 715. Respondent-Appellee. aptly The First Circuit has stated that No. 04-19. any concept “if is fundamental to our system justice, it American is that those United of Appeals, States Court charged upholding prohib- law are Circuit. Fourth deliberately fabricating from ited evidence Argued: Dec. 2004. framing for crimes they individuals did not commit. Actions taken contraven- April Decided: 2005. prohibition necessarily of this tion violate (indeed, process are due we unsure what process if not protection

due entails framing

against deliberate under color of sanction).” Condon,

official Limone Cir.2004) (citation (1st 39, 44-45

F.3d omit-

ted).2 By today, our decision we have opinion no whether

expressed any law including

enforcement Wilmore— officer— precept this

violated constitutional re- against

gard Washing- the criminal case held, We merely

ton.3 have based on the light of

record before us and in our limited review, we cannot

standard reverse However, Unquestionably, ington). litigation issue in circumstances Wash simply justice system is not whether failed ington's pardon conviction and eventual are Washington, any but such instead extraordinary public scrutiny. and warrant failure is the result of deliberate or reckless Virginia Dept. Washing Police v. State misconduct law enforcement. Post, (4th Cir.2004), 386 F.3d ton — denied, -, cert. Likewise, expressed opinion we have no (2005) (noting public's L.Ed.2d 526 correctly whether the dismissed justice claims, system obvious interest in how Washington's which are not other against operated in the case now criminal Wash- before us. and remanded published

Vacated opinion. Judge opinion, MOTZ wrote the joined. Judge which Chief WILKINS Judge wrote a dissenting opinion. SHEDD MOTZ, DIANA Circuit GRIBBON Judge:

Percy appeals Levar the denial Walton petition, of his second federal habeas con tending that his execution would violate Eighth Amendment. Specifically, he him asserts to execute would violate prohibition against both the execution of insane, Wainwright, see Ford v. 399, 2595, S.Ct. 91 L.Ed.2d 335 (1986), prohibition against and the execu retarded, mentally tion of see Atkins v. 304, 2242, Virginia, 536 U.S. (2002) (“Atkins I”).1 L.Ed.2d 335 In his petition, first federal at habeas Walton tacked his convictions and death sentences grounds. on numerous The district court denied that and we affirmed. (4th Angelone, v. F.3d 442 Walton Cir.2003) (“Walton ”). I Subsequently, however, Supreme in the wake of the I, Court’s decision in Atkins moved Walton for authorization to file a successive 2254 petition. granted such authorization We Givens, Leigh Virgi- ARGUED: Jennifer claim and consider both Atkins Capital nia Representation Resource Cen- claim, premature Ford which was at the ter, Charlottesville, Virginia, Appellant. for original petition. of his federal time Harris, Quentin Attorney Assistant Robert The district court denied both claims. For General, Attorney Office of the General follow, the reasons we vacate Richmond, Virginia, Virginia, Appellee. for judgment proceed and remand for further Bilisoly, BRIEF: F. ON Nash Vandeven- ings. Black, L.L.P., Norfolk, Virginia, ter Appellant. Jerry Kilgore, Attorney W. I. Richmond, Virginia, Virginia, General of 1997, 7, pleaded On October Walton Appellee. Moore, Eliza- guilty murdering Archie WILKINS, Kendrick, Judge,

Before Kendrick in Chief beth Jessie I, SHEDD, Danville, Judges. Virginia. MOTZ and 321 F.3d at Circuit Walton executed, executed, Incompetence insanity, to be or mental retardation must manifest course, overlap, and mental retardation but by age satisfy definition. 18 to its clinical may I, 318, retarded individuals 536 U.S. at 122 S.Ct. 2242. Atkins trial, and, incompetence stand unlike to be Virginia law.” under mental retardation court sentenced Wal trial 449. The state 692, Johnson, Virgi v. death; Supreme Court Walton ton to II”). and, (W.D.Va.2003) (“Walton 450; affirmed, on December at nia id. 700-01 Supreme order, Court finding States “sufficient conflict the United the same of certio- for writ evidence,” regarding denied Walton’s id. at Wal ing 525 U.S. Virginia, executed, rari. the court competence ton’s (1998). L.Ed.2d 544 evidentiary hearing Wal scheduled ultimately denied supreme The state claim, that under Mar noting ton’s I, relief, 321 F.3d collateral ripe for re that claim was tinez-Villareal States and the United view. See id. petition for denied Walton’s again the district court held two Subsequently, Taylor, v. 529 of certiorari. Walton writ hearings on Ford evidentiary 1693, L.Ed.2d 499 1076, 120 S.Ct. 2004, 4, March claim. On (2000). claim, concluding that that court denied 2000, filed his first In March of that he is sentenced understands “Walton which the district federal habeas that he is to be die execution and I, F.3d at 452. court denied. Walton murdering people.” for three executed court, turn, a certifi denied Walton This Johnson, 597, to the claims raised appealability as cate of (“Walton III”). (W.D.Va.2004) appeal. and dismissed petition in that however, noted, as the Id. at 467. We II. had, that under the district v. Martinez- in Stewart Court’s decision claim. first address Walton’s Ford We 1618, Villareal, 523 U.S. (1998), Ford claim L.Ed.2d 849 A. and he would premature at that time was raising it barred from therefore not be July hearing, 2003 Ford six wit- At the subsequent petition. in a Wal again behalf, includ- testified on Walton’s nesses I, 452, 467 n. 21.2 F.3d at ton who ing professionals four mental health treated Sherri previously had Walton. decision, the Common- Following our psychologist charged a Hopkins, Ann for execution wealth scheduled Walton’s I monitoring death row inmates at Sussex date, days Five before May Prison, incarcerat- where Walton is State authorized Walton to May we ed, under- opined that Walton does not to raise file a successive or going that he is to be executed stand claim, days later the and two his Atkins people “Most why might be executed. stay a of Walton’s granted district court they’re going ... when Greens- order, prepare July execution. In a ville,” prepared “He hasn’t she said. Atkins court dismissed Walton’s I don’t think he knows what’s whatsoever. ruling that “Walton pleadings, claim on the Similarly, Dr. to him.” going happen statutory definition has not satisfied claim, Nevertheless, troubling a admission. See Virginia argues Wal- itself now 416-17, Ford, procedurally his Ford claim be- 106 S.Ct. 2595 ton defaulted 477 U.S. court. Brief to raise it in state cause he failed (plurality opinion) State[s] leave to C‘[W]e We the Com- Respondent at 49-51. find developing appropriate ways to the task of disingenuous argument rather monwealth's upon restriction enforce the constitutional given to the district court it admitted sentences.”). execution of [their] raising a procedure in there is no General, 28th, 2003, May you who ATTORNEY: prison psychiatrist Patricia a April hearing? several times have examined Walton May testified that Walton is Yeah. WALTON: “floridly psychotic” and does not know going it that he is to be exe-

what means you ATTORNEY: If have an execution cuted. date, you does that mean that have been Pandurangi, Dr. Anand director of the sentenced death? program and chairman of schizophrenia Umm, I WALTON: nah. don’t think —I College at the Medical

inpatient psychiatry don’t think so. Virginia, also testified on Walton’s be- ATTORNEY: What does mean? Pandurangi, half. Dr. who had seen Wal- I WALTON: believe—I believe—I be- ton several times since stated that so, lieve but I don’t know. You know subject thinking on the of death what I’m saying? don’t know. delusional, part by as evidenced in ATTORNEY: You believe it does mean telephone, motorcycle, desire to have a you’ve been sentenced to death? job Burger King, good and a and to look WALTON: No. to the mall—all after shopping visit Pandurangi Dr. testi- his execution. also fied that Walton does not understand “[i]n I you, ATTORNEY: If told or reminded way” any sustained sort of the fact that he 28th, 2003, you, May already has going why is to be executed and die or passed you why you ... can tell me

Virginia has sentenced him to death. Fi- weren’t on that executed date? nally, Pandurangi Dr. testified that he No, why. WALTON: I don’t know I competent does not think Walton is why. don’t even know assist in his own defense. you Do any ATTORNEY: have idea? Gur, Dr. Ruben director of the brain you guess? Can take a University behavior center at the of Penn- WALTON: Huh? sylvania, Dr. Pandurangi’s corroborated you guess? ATTORNEY: Can take a testimony, stating expressed that Walton a you any Do have idea? “get Burger King” desire to a after his Umm, WALTON: no. I don’t know. execution. Dr. Gur also testified that Wal- ton does not understand what his execu- you ATTORNEY: Are concerned about comprehend

tion means. “He does not dying? going right speak.” what is now as we No. WALTON: testimony seemingly confirmed Why ATTORNEY: not?

Dr. In response Gut’s assessment. to re- peated questions, Walton failed to commu- I don’t know. WALTON: sensibly nicate about his sentence or the you ATTORNEY: Do know what hap- meaning of his execution: pens you when die? you your

ATTORNEY: Do know what Umm, no, really. not I WALTON: now, you’re sentence is since Sussex? don’t know. I don’t even know what’s know, Nah. I WALTON: what. You don’t know. you guess? you guess? ATTORNEY: Can take a take a ATTORNEY: Can Umm, got got I a I don’t know. You paper saying WALTON: WALTON: —I 28th, got hearing May saying? really that I know what I’m I don’t direction, Dr. response That’s hard. In Mills know, you know that? that, know saying? given I’m You “focused and ... opined know what You I I don’t saying? don’t know. I’m circumscribed and ... limited” standard what know. even district court him to apply, had asked competent said he believed Walton was hard? You ATTORNEY: What’s “[M]y executed. sense is that the stan- something was hard. that, sufficiently dard for execution is low Umm, I I real- don’t know. WALTON: sadly, Mr. Walton meets standard. really You know what ly don’t know. —I enough knows the judge’s He to meet know, really really I don’t saying? I’m — testified, him.” questions to Dr. Mills also a lot. through know. I’ve been you however, that Walton’s condition know, made saying? I’m You You know what unlikely prepare that Walton for his would know, know, you what’s really don’t concluded, death. The district court then I’m know what what and stuff. You on the largely basis of Dr. Mills’ testimo- saying? I’m saying? You know what ny, is execut- July hearing, Dr. at the 2003 Ford Also ed because “understands that he is Arikian, prison who psychiatrist Alan J. die by sentenced to execution and that he in 1999 and numerous times saw Walton murdering to be executed for three peo- on behalf of the Common- testified III, F.Supp.2d at ple.” Walton Dr. Arikian that Walton opined wealth. young man elected life- “a mature who has been a

style disappointment which B. expectations.” him and has fulfilled Ford, long-established drawing on “has a full He further testified that Walton law principles, common the Court of on.” understanding going what’s Eighth prohibits held that the Amendment this testi- After consideration of all of execution of the insane. 477 U.S. at 406- not feel it mony, the district court did 10, Although 106 S.Ct. 2595. the Ford question the could resolve components identified Court some of the Accordingly, to be executed. competence necessary to a demonstrate constitutional- on March hearing the court held a second ly insanity, applica- minimum definition 3, Mills, Dr. a foren- at which Mark presents challenges tion of Ford because experts whom psychiatrist parties’ sic the insanity or the Court did define man- expert, as a neutral testified. selected must procedures date that courts follow in III, 306 at 599. Prior determining is whether a defendant in- the directed Dr. hearing, that court sane. The Court those tasks to left the “(1) questions: address Mills to two states, yet any and has to enact that he is to whether Walton understands procedures or own. definition of its (2) execution; punished by be and wheth- supra note 2. why being he is er Walton understands Furthermore, punished.” hearing, legal At the the court reit- precise the standard ... “Any questions” incompetence complicat other than for under Ford is erated: Powell, by fact petitioner understands ed that Justice “whether who case, punished the fifth and in the being by deciding he’s execution” cast vote petitioner why joined only part opinion “whether understands the Court’s punished” separately “extraneous.... his view of being explain he is are wrote “meaning insanity further is irrelevant or in this Anything simply context.” (Pow- Ford, 418, 106 at immaterial.” S.Ct. counsel, Thus, trial, ell, J., right in to constitutional at concurring). Justices by employment appointment or at oth majority opinions: in Ford issued three stages process of the (1) er whenever the joined by opinion an Court defendant raises substantial claims.” Id. Powell, majority, including Justice entire (Powell, J., (2) at 106 S.Ct. 2595 concur 401-10, plurality a id. at 106 S.Ct. “a ring). Because defendant must be com Powell, joined by at opinion not Justice id. trial, ... (3) petent to stand the notion that a 410-18, 106 Justice S.Ct. defendant must be able to assist concurrence, 418-27, id. at Powell’s largely provided is defense for.” Id. at S.Ct. 2595. 421, 106 (Powell, J., S.Ct. 2595 concurring); reading opinions, of these Based on his see also id. at n. Walton maintains that the district (Powell, J., concurring). misapplied respects. Initially, Ford in two though even Justice Powell’s as- that, contrary to argues he “unlikely that it surance is indeed that a determination, court’s defendant today go defendant could to his death with Ford, to be executed under knowledge of undiscovered trial error that “ability have an to assist counsel must free,” might set him id. at own defense.” Brief of Petitioner at (Powell, J., concurring), has since addition, 47. In Walton maintains that see, question, e.g., been called into 2002 Ill. necessary component inqui- of the Ford Capital Governor’s Commission on Punish- court, ry, not undertaken Rep., ment available a determination of whether the defendant http://www.idoe.state.il.us/ccp/ccp/reports/ capable preparing for his own death. commission_report/complete_report.pdf, Id. 48-50. argument

is clear has never Indeed, garnered majority of the Court. indicating any Member of without respect argument With to his first —that accepted position, all that Court competence requires “ability Ford instructs is one Member deci- assist counsel own defense”— [one’s] rejected it. sively opinion Walton cites neither the plurality’s in Ford nor even the Nevertheless, argues opinion. merely He asserts that support as a condition of we should hold Ford argument rationally for this “can be for- competence that the defendant have a mulated from inferences found in the Ford present ability to counsel. assist his Wal at plurality opinion.” Id. on, authorities, among ton relies other Jus course, We, of must look to the tice Frankfurter’s dissent in Solesbee v. opinion Balkcom, 9, 457, of the to re- 94 Court determine the Ford 339 U.S. (1950), quirements. opinion That is silent as to L.Ed. 604 Justice Marshall’s dis whether a defendant must be able to assist sent from the Court’s denial of writ of in competent Bryant, his counsel order to be found certiorari in Rector v. 501 U.S. Ford, to be executed. See 477 U.S. at 111 S.Ct. 115 L.Ed.2d 1038 401-10, Moreover, (1991), Bar 106 S.Ct. 2595. Justice and the American Association Powell, standard, necessary fifth vote for a ma- states: “A convict is ... which if, rejected jority, expressly position incompetent this in as a result of mental illness retardation, merit,” “slight his concurrence. It has or mental the convict lacks reasoned, times, recognize in or under capacity because modern unlike sufficient law, any might at common “the has stand fact which exist which defendant access stripped un- punishment unjust or out and of his fundamental make the would lawful, convey such ability Similarly, lacks the to life. the natural ab- right or ABA or the court.” killing information counsel civilized at horrence societies feel Health Standards Justice Mental Criminal capacity grips has no to come to one who (1989). 7-5.6 Standard deity or is still his own conscience today. vivid authority, and this Despite venerable embrace Wal fact that several states (cita- Ford, 477 U.S. view, §Ann. 99-19- e.g., Miss.Code ton’s omitted). concurrence, tion Justice (2000), in the of the total silence face emphasized point: this Powell necessity as of the to the the Ford perceives the connec- If the defendant “ability in his to assist counsel defendant’s punish- tion between crime Powell’s decisive own defense” Justice ment, criminal goal the retributive of the of this rejecting consideration concurrence if defen- only law is satisfied. And factor, that .in order to we decline to hold approach- aware that his death is dant is Ford, a under find a defendant ing prepare pass- can he himself for his present must find that he has the court Accordingly, I hold that the ing. would note ability to assist counsel. We execu- Eighth Amendment forbids the argu every circuit have considered only of those unaware of tion who are similarly it. Rohan rejected has ment to suffer punishment they are about 803, 809-10 Woodford, v. F.3d ex rel. why they are to suffer it. Bell, (9th Cir.2003); n. Coe & (Powell, J., 106 S.Ct. 2595 con Id. (6th Cir.2000); Barnard v. F.3d curring). (5th Collins, n. 4 Cir. 13 F.3d &877 1994). argu unlike first ment, which the did not ad Ford Court Powell, concurrence, dress and Justice argument, to his howev- In contrast first rejected, argument expressly his second er, second contention —that support opinion finds both the inquiry the defen- demands into whether concur Ford Court Justice Powell’s firmly prepare can for his death —is dant agree enough Both it is not rence. the Court grounded opinion both the that a defen for a court to determine concurrence.3 in Ford and Justice Powell’s recognize can the cause and effect dant Court, Jus- opinion In the his crime and his punishment. between which. joined, Court ex- Rather, insanity tice Powell deciding when whether plained: execution, a must person’s bars a can, before, in the may person determine

[Tjoday, no less than we Court, language “compre of the seriously question value Ford the retributive why ... out.” executing person singled no com- he has been hen[d] of who has Or, using why singled of he has been Id. at 106 S.Ct. 2595. Jus- prehension Thus, recognize erroneously I the The dissent to that Parts the dissent references refuses Court, opinion of Ford are the plurality” plu- and II the and the “Ford "four-member of Ford, joined: which Justice Powell citing opinion. rality” Post when the Court’s J., ("Marshall, U.S. at 106 S.Ct. 2595 rely opinion fact we on the judgment Court and announced of the Court, joined, in which Justice Powell opinion respect an delivered of the Court with any portion plurality Ford never on of the Brennan, II, I and Black- to Parts mun, Powell, in which III, IV, V. opinion i.e., Parts — Stevens, JJ., joined....”). formulation, being that he’s petitioner in order to deter understands tice Powell’s to death person punished by mine whether a sentenced execution” and “whether the punishment of the [he is] is “unaware petitioner why being understands he is why to suffer [he is] about to suffer and punished” Anything are “extraneous.... it,” a court must consider whether simply or immaterial.” further is irrelevant “prepare passing.” to for his person is able expert on which (Powell, J., con Id. at relied, Mills, clearly Dr. felt constrained Collins, curring). See also Garrett inquiry imposed by the limits of the (5th Cir.1992) (suggesting that F.2d testified, court. Dr. “The Hence Mills survive, to he for a defendant’s Ford claim ... problem for me is the issues “prepar[e] passing,” must be able to for his judge asked me to consider think are so rejection state court’s upholding but focused and so and so limit- circumscribed claim). Collins’ opined that I ... he meets those ed have although the Commonwealth Tellingly, limited criteria.” affirm the vigorously urges us to dismissal claim, not above, Ford it does contend re As demonstrated requires

that Ford no consideration of quires person A can ac more. who ability prepare defendant’s for his knowledge, barrage amidst a of incoherent Rather, Virginia merely argues death. responses, the bare facts that he will be counsel’s belief that ‘Walton’s executed and that his crime is the reason ... for his execution as ‘prepare’ must why not for com does meet the standard ... can- ‘prepare’ counsel thinks he should opinion petence contemplated either grounds finding constitute of the Ford Court or in Justice Powell’s at 47. incompetent.” Respondent Brief of Undoubtedly, determining concurrence.4 case, However, in agree. is We person whether a is to be exe competent clear from the record that light cuted is not an exact science. And in court determined that no consideration of determination, high stakes of such ability “prepare” “passing” for one’s impulse of the district court to confine necessary Ford. is under inquiry precise possible to the most understandable, particularly standard is In reaching its conclusion that Wal yet adopt procedures since has executed, ton the dis inquiry bringing a Ford claim. But the ability trict court believed Ford, aim to required by its “[w]hether prepare for his own death was irrelevant. pain from fear and protect the condemned attor the district court told Walton’s understanding, or to evidentiary hearing, without comfort of ney at the March 2004 society itself from “Any questions” protect dignity ... other than “whether Ford, that, contrary sug- 4. We note to the dissent’s death.” 477 U.S. J., Furthermore, (Powell, gestion, holding concurring). our is not at odds with Jus- test, formulating proposed he stated: tice Powell's concurrence or the Florida stat- when ute, “[0]nly requires an inmate to be able to if the defendant is aware that which prepare penalty approaching death can he himself "understand” the nature of the death passing.” S.Ct. 2595 if is to be See Fla. Stat. Ann. for his Id. at executed. J., 2001). (Powell, 922.07(3) (West Similarly, concurring). As Justice Powell none dissent, Eighth by post see at explaining said when his view that the the cases relied on the 305-06, test does not prohibits execution of the insane: has held that “the Ford Amendment today require” an in- "It is as true as when Coke lived that a determination of whether passing. opportunity prepare for his most men and women value the mate is able to mentally spiritually, prepare, and for their id. at 46-47. 294 provisions enacted is definition exacting Virginia mindless ven- barbarity

the of 410, 2595, of mental retardation: at 106 is geance,” 477 U.S. S.Ct. ” inquiry “Mentally disability, the district court means than the retarded broader of originating age years, the 18 before conducted in this case.5 (i) concurrently by signifi- characterized vacate the Accordingly, we cantly subaverage intellectual function- claim on Walton’s Ford judgment court’s ing performance as on demonstrated proceedings. and for further remand a standardized measure intellectual in conformity administered functioning III. professional practice, accepted is at standard below least two deviations claim. address Walton’s Atkins We next (ii) significant

the mean and limitations adaptive expressed as in behavior A. conceptual, practical adaptive social I, Supreme held Atkins skills. prohibits exe- Eighth that the Amendment 19.2-264.3:1.1(A) (Michie Va.Code Ann. I, mentally cution retarded. Atkins I, 2004); 3, at n. Atkins 536 U.S. 308 cf. 321, 122 2242. As in 536 at S.Ct. U.S. 318, (noting 122 2242 that “clinical S.Ct. “ Ford, to the ‘le[ft] State[s] the Court definitions retardation require” of mental ways to developing appropriate task of “subaverage functioning” both intellectual upon restriction enforce the constitutional “significant adaptive limitations Id. at of sentences.’” [their] execution skills”). Ford, 477 (quoting S.Ct. Supreme Virginia Court of has held (second 2595) 416-17, at “[pjerformance standardized original). third alterations functioning measure of intellectual ... at however, insanity, Unlike in the case two least standard deviations below the Virginia legislature see note supra IQan score corresponds mean” of 70 or Commonwealth, in the wake quickly moved below. See Johnson (2004); in Atkins I to establish Court’s decision Va. 591 S.E.2d see Association, execution of the procedures regulating Psychiatric for also Di- American agnostic See Atkins v. Com Manual mentally retarded. and Statistical Mental (hereinafter (4th ed.1994) monwealth, 266 514 Disorders 39 Va. S.E.2d II”). IV”).6 (2003) (“Atkins Among newly bears “DSM The defendant the bur- holding that our will Substance Services "shall maintain an The dissent's concern Abuse “preclude! any capital punishment" in- ] for exclusive list of standardized measures of in- incompetence execut- mate who claims ed, functioning generally accepted by tellectual of whether an inmate because the issue testing.” psychological the field of Va.Code passing prepare can "controlled 19.2-264.3:1.1(B)(1). Significantly, §Ann. inmate,” post misplaced. We case, all in this relevant times Commis- experts will are that mental health confident sioner's list has included Wechsler Adult professional judg- continue to exercise their ("WAIS-R”), Intelligence Scale-Revised particular are ment as to defendants updated which as the Wechsler has been Ford, malingering. 477 U.S. at Cf. Edition, Intelligence Adult Scale-Third see (noting doctor’s conclusion that S.Ct. 2595 ” II, n.l; at 695 possibility' "there was 'no reasonable " Ability the General list now includes Measure put- 'dissembling, malingering or otherwise ("GAMA”), though it did in- Adults ”). ting performance’ on a July clude it of the district at the time court's statute, Under the Commission- Health, er of Mental Mental Retardation and II, age.” F.Supp.2d at 700. mentally retarded Walton proving that he den case, echoing in in appeal On its words preponderance of the evidence. Ya. Walker, 19.2-264.8:1.1(0. acknowledges the Commonwealth §Ann. Code “dismissing” that the district court’s order a defendant to be consid actually claim was “in the nature Walton’s law, mentally Virginia under ered retarded grant summary judgment.” of a Com- “significantly subaverage in he must have in pare Respondent Brief Walker at 14 lim functioning” “significant tellectual Respondent with Brief of in at 22. Walton (as adaptive itations in behavior” statutori summary But if judgment even was the defined), ly originate and both must before not, procedure, correct which it was see age 18. Walker, 399 F.3d at & n. because, ruling court’s cannot stand as in B. Walker, the court resolved a factual dis- in pute favor of the Government. See id. posture of procedural at 319. very to the one we Atkins claim is similar True,

recently addressed Walker claim, In rejecting Walton’s Atkins (4th Cir.2005). Walker, Like F.3d 315 court relied on the of two results Walton’s conviction and sentence became IQ tests administered to Walton around its final before the Court issued birthday. eighteenth the time of his Walker, I. opinion Atkins Like because first, a administered to at WAIS-R Walton completed appeal Walton his direct months, years eight age seventeen he could proceedings state habeas before gave IQ him a full-scale purportedly claim, remedy” raise his Atkins “his sole II, 694-95; at Walton Virginia under in federal court.” “lie[s] law second, a administered to WAIS-R (Michie §Ann. & Va.Code 8.01-654.2 months, age eighteen years and five Walker, Therefore, Supp.2004). as in IQ gave him a full-scale of 77. Id. at 695. petition, considering when Walton’s habeas alleges that neither score bars his no factual the district court faced state claim, of 77 in fact the score and, accordingly, findings owed deference supports it. obliged pleaded all facts “was assume IQ Specifically, respect to the first resolving to be true” in [Walton] test, maintains that there is “no Government’s motion to dismiss the Atkins way validity of that test” determine Walker, (internal claim. F.3d at 319 forth no “raw data” put since has omitted). quotation marks and citation from it. He contends that this first test Walker, But, as in the district court in the all,” rather: “is not a test but at hand failed to do so. case juvenile report which refers to intake truth of

Rather than assume the test. There is no purported scores on alleged facts the dis- who administered the information about rejected test, administered, trict Atkins claim it was or what when “not testing because found Walton had conditions were when the data for given. forecast sufficient evidence to show test was There is no raw protocols func- no indication what alleged subaverage intellectual the test and whether the tioning originated years he was 18 were to be followed and before dismissing F.Supp.2d at 700 n. 7. 2003 order Walton’s claim of II, mental retardation. See Walton 296 course, Ordinarily, at 61. of format of the test was ad- of Petitioner

standardized a score within put of 74 would Walton to in full or what accommodations hered range the of retardation in legal mental adjustments made. or were But, Walker, Virginia. like he further Walker, 61; 399 Brief of Petitioner at cf. that, after for accounting maintains the petitioner’s allega- (discussing F.3d at 323 error, five-point of margin standard his IQ is“ ‘highly one of his tests tion that range. required score of 74 falls within the ”). If multiple for reasons’ Wal- unreliable n.ll; Reply See Brief 25-26 & see IQ that test he when can show the took ton (“It also at 39 DSM IV should noted in not “administered he was seventeen was that ap- there is a measurement error of professional conformity accepted with proximately points 5 assessing then, law, it can- practice,” under IQ....”).7 alleged used to his mental not be refute Ann. 19.2- retardation. Va.Code Because the district court failed to 264.3:1.1(A). consider contention as to the in Walton’s test, adequacy IQ the Walton ar- of the first and the im Regarding second test (much pact Flynn of gues respect as Walker did the Effect or the standard 76) adjusted test, IQ margin for on an score of that when of error the second we must, Walker, “Flynn and the standard mar- as in and remand for the Effect” vacate remand, error, 77 further actually sup- proceedings.8 of his of On the gin score dis trict ports adequacy his claim of mental retardation. court should determine the Effect, according to of the and the Flynn persuasiveness Pursuant to the first test of Walton, intelligence Flynn the an test Effect as to age “as of evidence the test; Flynn farther from the date on which it is second if the the moves court finds normed, population persuasive, the mean of the Effect evidence then score should Reply increases.” the Virginia as a whole that test determine whether statute And, adjusted Flynn permits at 25. Brief “consideration of measurement Effect, contends, IQ score of 77 error in order to determine whether” Wal “ 74.” purported “indicates a full-scale score of Brief ton’s score of ‘two stan- 74 hearing reply 7. At the June on the Com- that the "standard error of measure- dismiss, See, Atkins, spe- monwealth’s motion to Walton points. e.g., ment” is five that, cifically represented to the when (noting U.S. at 309 n. 122 S.Ct. 2242 Effect, adjusted Flynn IQ "with ... "between 70 75 or lower score measurement,” his error of score of standard cut-off”); typically DSM IV considered addition, be” as "69.” In "would as low "ap- (noting error is measurement reply support in his IQ”). proximately points assessing hearing, filed before the Walton June support maintained that of 77 could his score 8. Because the district not resolve court did "Considering both the his claim: standard IQ contention test first ('SEM') impact error of measurement could not be used evaluate his mental re- particular of the date on test was which unreliable, was tardation because it the court general population, to the th[is] normed persuasiveness did not determine the support[s] claim that he has score[ ] Flynn regarding Walton’s sec- Effect evidence significantly subaverage intellectual function- IQ simply ond test. Instead the court noted ing.” sufficiency questions The dissent application Flynn Effect allegation, asserting that "Walton never IQ 85, yield test "would still sub- however, alleged, papers to in his first stantially above the threshold of mental retar- court that the error measurement was five II, at 699 n. dation.” points.” Post at Given the extensive authority subject, on the it is no conse- quence that did not also state in his ” that, statute, required as below the mean.’ Walk- dard deviations facts, which, has set out a number of if er, 399 F.3d at 323. credited, significant to tend indicate limita- of also submitted evidence two in adaptive tions behavior. tests, IQ reporting more recent both ordinarily Walton would not be entitled for mental retarda- scores below the cutoff evidentiary hearing to an on remand be- II, at 695 tion. See Walton develop cause he has “failed to the factual (noting August reporting 1999 WAIS-R of claim in [his basis Atkins State court.” ] IQ May full-scale of 69 and 2003 GAMA 2254(e)(2)(2000). § 28 U.S.C. But because 66). IQ reporting full-scale of We note Atkins was decided after the of denial “[ajssess- statute, Virginia that under the appeal direct and state habeas be- origin of shall be developmental ment final, came he cannot be held accountable multiple based on sources information for failure to raise this claim in court. state generally psycho- the field of accepted § (providing See Va.Code Ann. 8.01-654.2 logical testing appropriate par- for the remedy” people that the “sole in Wal- assessed, being ticular defendant includ- position, ton’s have “completed who both educational, available, ing, whenever social appeal corpus proceed- direct and a habeas service, records, prior disability medical law, ing” Virginia under in federal “lie[s] assessments, caregiver reports, or parental court”); Walker, 399 F.3d at 326-27. data.” Ann. and other collateral Va.Code evidentiary hearing At the on held re- 19.2-264.3:1.1(B)(3). remand, on mand, parties opportunity will have the may properly consider the district court to reliability demonstrate the vel non of tests, though from even the scores these IQ first persuasive- Walton’s test and the well after they were administered possible ness of other mental retardation Walker, birthday. F.3d eighteenth Cf. evidence, including evidence as to the at 323 n. 7.9 Effect, error, Flynn measurement other may remand the district court have On tests, IQ adaptive behavior. make We “limitations consider validity no determination as to the of Wal- adaptive age eighteen— behavior” before arguments any points; ton’s on we these another essential element of his claim. merely hold is entitled to be rejected Because the court At- heard on them. kins claim due to his asserted failure to IV.

proffer sufficient evidence of mental retar- dation, any above, the district court did not reach For the reasons set forth we judgment conclusions as to this element. note vacate the of the district court We Walker, Moreover, there 9. The dissent makes much of the fact that 399 F.3d 322-23. Walker's, requirement Walton's unlike was "with- is no law or else- testimony expert expert accompany pe- out the benefit of an assessment.” where (al- may factually distinguish stage proceedings Post at 301. This tition at this of the Walker, though testimony holding Walker would no doubt be but its controls here. such Effect, Flynn important proving holds that the combined with a claim of mental retar- measurement, dation). Rather, stage proceed- could at this the standard error of IQ ings, allege required Walton is "facts render an score "two standard deviations mean," that, true, allegations [ ] below the and that if would entitle him to relief bring rely phenomena on these one six factors set out establish[] scientific IQ Sain, petitioner's Virginia’s 372 U.S. score within stan- Court in Townsend (where (1963)." dard for mental retardation there are 9 L.Ed.2d Walker, fact) (internal quotation findings at 327 no relevant state court suffice F.3d omitted). evidentiary hearing. and citation entitle him to an marks society, proceedings for further con- serious threat to the Danville Cir- remand cuit sentenced Walton to death opinion. with this sistent murders. three REMANDED. AND VACATED challenged his on di- convictions SHEDD, Judge, dissenting: Circuit claiming, among things, rect other appeal, they photographs that the the victims as respectfully dissent. ad- were should not have been discovered court’s denial of habeas relief Walton’s phase mitted in the because sentencing insanity and claims mental retardation they gruesome too that his sen- were The district court should be affirmed. tence was dispropor- of death excessive or mental retar- properly dismissed Walton’s Virginia af- Supreme tionate. The Court peti- claim habeas dation because Walton’s firmed conviction and sentence. Walton’s facts tion fails to sufficient demon- state 85, Commonwealth, Walton v. 256 Va. mentally strating that he retarded under (1998). The S.E.2d 134 States Su- United Moreover, deciding Virginia law. preme denied for a petition Court Walton’s executed, Walton of Virginia, writ certiorari. Walton v. applied proper legal stan- court 1046, 602, 119 S.Ct. 142 L.Ed.2d 544 dard, its of fact are not clear- findings (1998). ly erroneous. peti- then filed a Walton state habeas

I. raised, tion. the nine Among issues he that he to incompetent Walton claimed was eight mur- years ago, More than Walton plead guilty stand trial and and that his people neighbor- dered three in the same lawyer failing ineffective for to ade- was Danville, in two Virginia, separate hood in quately incompetency raise his to the trial incidents.1 Two of the victims were an court. de- Supreme The Court elderly couple. burglarizing their While petition, nied habeas v. Walton’s Walton home, themof at close Walton shot both (Aug. Warden Sussex Prison in the the head. range top of Walton State 1999), the United States victim, man, young murdered other petition for a writ denied Walton’s him by shooting in his home above his left certiorari, Taylor, Walton v. 529 U.S. eye. Although physical evidence alone 146 L.Ed.2d 499 overwhelmingly guilt, Walton’s established jail (2000). also admitted to several other Walton he inmates that committed murders Circuit Danville Court scheduled graphic and described the details of the Walton’s execution December

murders to his cellmate. Three days before scheduled execu- ' counsel, tion, exe- stayed With the assistance of murders, guilty to three cution allow him to federal pled all three to file his first robbery, burglary, petition. counts of one count district court held an using evidentiary hearing and six counts a firearm in the on several claims, a felony. determining including commission of After Walton’s assertion that failing likely commit additional his trial counsel was ineffective for Walton would continuing adequately incompetency criminal acts raise and would arrest, stranger sisting battery police to crime 1. Walton was no before assault and firearm, officer, prior possession people. juvenile murdered these His con- of a three battery. burglary, grand larceny, victions include re- assault and court denied trial court. The district L.Ed.2d 642 (2003). claim on the merits and denied Wal entirety. in its petition ton’s habeas Wal Thereafter, the Danville Circuit Court (W.D.Va. Angelone, 2002 WL 467142 ton rescheduled Walton’s execution date for 2002) (unpublished). May days 2003. Just three before this sought ap- then a certificate of date, granted execution the district court from this court. As to pealability request stay Walton’s second for a of exe claim that his counsel was ineffective for cution. A panel granted this court Wal failing adequately assert that he was request ton’s to file a successive habeas mentally incompetent to stand trial or him allow to claim for the first trial court plead guilty during proceed- that Virginia may time not execute him ings, we reviewed the extensive evidence mentally because he is retarded. In this regarding what counsel knew second federal makes no during mental about Walton’s state further attack on his conviction. Walton’s proceedings. state trial court the trial only remaining that claims are he cannot court, sought appoint- counsel Walton’s (1) mentally be executed because he is of a professional ment mental health (2) retarded and he is insane. The district analyze appointed The trial court Walton. court dismissed mental retarda Samenow, psycholo- Dr. a clinical Stanton pleadings, tion claim on the Walton v. Dr. gist. When Samenow raised concerns Johnson, (W.D.Va. 269 F.Supp.2d 692 behavior, about intermittent odd 2003), and denied relief on Walton’s insani appointed the trial court a second mental ty evidentiary claim after an extensive professional, psychiatrist. health a forensic Johnson, hearing, Walton v. 306 Ultimately, profession- both mental health (W.D.Va.2004). appeals. 597 Walton now competent als determined that Walton was trial, to stand ie. that Walton understood II. him,

precisely charges against he knew him, that required evidence was to convict majority vacates the district court’s lawyers he was able to assist his his own dismissal of Walton’s mental retardation defense, get and he realized that he could by concluding claim that the court failed to penalty the death for his crimes. Based by all pleaded assume as true the facts on this evidence and the fact that Walton Walton and instead resolved facts in favor had told at least two of his fellow inmates contrast, Virginia. By I would affirm “play crazy,” that he intended to allege because fails to facts in his ultimately pursue counsel decided not to demonstrating that petition he is incompe- further a claim that Walton was mentally Virginia retarded under law. tent to plead guilty. stand trial or After notes, majority correctly As the the Su- evidence, reviewing this we denied Wal- preme Virginia, Atkins v. 536 appealability, concluding ton’s certificate of 304, 317, 153 L.Ed.2d U.S. jurists that reasonable would not “find the (2002), left to the states the task of question of whether Walton was “developing appropriate ways to enforce guilty pleas at the time of his at the and/or ” executing the constitutional restriction” sentencing phase of the ease ‘debatable.’ (4th mentally Virginia respond- retarded. Angelone, Walton v. 321 F.3d Cir.2003). by enacting ed its definition of “mental The United States requiring, among retardation” other Court denied Walton’s for a writ Johnson, things, capital of certiorari. v. that the defendant’s disabili- U.S. reliable, allege age of considered Walton does not 18 and be ty originate before subaverage by “significantly testing prove somehow tends to characterized as demonstrated functioning retarded, ie., mentally intellectual that his that he is on a standardized measure performance actually on this test have been score would functioning administered intellectual or has less. Walton the burden professional conformity accepted relief, him he allege entitling facts that is at least two standard devi- practice, simply attempt- cannot his burden meet Va. Code ANN. ations below the mean.” ing opposing evidence discredit 19.2-264.3:1.1(A). Virginia Su- mentally shows that he is not retarded. Court, with the preme consistent stan- IQ alleges that he Walton also received Psychiatric dards of the American Associa- trial Dr. expert, score of 77 when his Sam- tion, that this standardized has determined enow, a few he him months after tested IQ to an of 70 corresponds measure score Although turned Dr. did not Samenow Commonwealth, or less. Johnson perform- all of the verbal and administer (2004), 47, 59 vacated on 591 S.E.2d Va. available, ance nevertheless tests — -, grounds, other not “in- shortcoming admits that this does 161 L.Ed.2d WL 516756 IQ final does validate” the score. Walton 2005). (U.S. Mar. Walton is men- however, allege, of 77 this score law if tally retarded under to a of 72 should be reduced “true” score establishes, requirements, among other Ef- possible “Flynn because it is functioning that his intellectual would have Accepting fect” affected his score.3 these IQ corresponded to an score 70 or less true, not allegations as Walton still does he turned 18.2 before retarded, mentally that he is state claim peti- A close habeas review Walton’s requires a score of 70 Virginia because law allege that he fails to facts tion reveals age or less 18.4 before mentally demonstrating that he is retarded Virginia After filed its motion to dismiss Virginia alleges law. Walton that under petition, alleged Walton’s Walton shortly IQ score in before he his separate filing the in a that first time Although turned 90. he claims was “[Ijittle supports test claim of how his score of his that is known” about this test- er- whether it can be mental retardation once the “standard ing was conducted and indicates, expla- appeal, does that a in- 3. On Walton without 2.This not mean condemned nation, must a score of 70 or from "Flynn mate submit less would that the Effect” reduce IQ turned an test before he 18. Walker taken his score of 77 to not (4th Cir.2005). True, 323 n. F.3d Nevertheless, allegation must some there alleges also that was tested two Walton he functioning that the inmate's intellectual other well after he 18 and that times turned this would have fallen below standard before Although both results are below 70. test turned 19.2- he 18. See Va. Code Ann these test results are to Walton’s relevant instance, 264.3:1.1(A),(B)(3). For evidence of functioning, more intellectual see current IQ test 70 taken a con- score below after Walker, not 399 F.3d 323 n. Walton does may be inmate reaches 18 sufficient demned allege scores his intel- that these demonstrate expert verifies if a mental health that functioning before 18. In lectual he turned functioning inmate’s intellectual before fact, gave expert who which the test on turned 18 would have been consistent with lowest that received his score stated Walton Atkins, qualifying this test score. mentally she does not consider Walton to be case, U.S. at 309 n. however, 2242. In this retarded. these two do not meet scores experts who none of the assessed origin developmental requirement of Vir- mentally opined he is retarded Virginia's ginia's statutory retardation standard. under definition. mental ably, majority representations is taken into account. cites to ror of measurement” briefs, appellate in not in his the district court assuming that Even court, filings to the district to find what it which is representation, could consider allegations to be of mental deems sufficient explain in does not not his instance, majority retardation. For error of measure- what this “standard representation on appeal credits Walton’s is, how it could reduce his ment” much less qualifies that his test score of 77 based on only spec- can score to 70 or less. Walton “Flynn Effect” and “the standard five- measurement error ulate that the standard al- point margin of error.” Walton never (which expert can invoke a mental health however, leged, papers in his to the dis- or lower a in some cases to either raise trict court that the measurement error was 322) score, actually given IQ test see id. points.5 five given enough his score of 77 lowered accepting true conclu- Even as retardation stan- Virginia’s meet mental briefs, in sory allegations appellate his conclusory, speculative allega- dard. Such relies, majority upon improperly which the dismissal preclude do not the court’s tions satisfy these do not assertions claim. See United States v. of Walton’s mentally alleging burden of he is re- (4th Cir.2004) Roane, 382, 400 378 F.3d argues tarded under law. Walton allegations (concluding speculative that “it appellate possible brief giving not warrant a habeas do diagnose Mental Retardation individuals evidentiary hearing to fur- petitioner an IQs Reply 70 and 75.” Brief between claim). Accordingly, be- pursue ther added). at 21 He (emphasis also asserts allege to specifically cause failed “[ejxpert analysis specific data petition demonstrating facts in his habeas important.” arguments Id. What these functioning that his intellectual was below acknowledge person is that a with a score required level before he turned likely 70 and 75 is at least as between properly district court dismissed Walton’s mentally mentally retarded as to be mental retardation claim. that an expert retarded and must deter- nevertheless, majority, concludes a test 70 and mine whether score between that, facts if alleges adjusted up- that Walton sufficient downward or should be true, any in case. For particular would entitle him to relief. Remark- ward Walton judicial response, majority range, we cannot take notice that In states that a hear- ror ing transcript excerpt shows that Walton's person automatically particular a is entitled represented district court that counsel reduction. Without five-point prop- a to a full IQhis of 77 would be as low as 69. A score asserting er basis for that Walton’s test score however, transcript, review of this reveals by points possi- should be reduced the full five by that this counsel is not sufficient statement ble, competent- the best Walton’s counsel can relief. states that to entitle Walton to Counsel ly represent Walton's score is some- is that Walton’s score of 77 would result in score Accordingly, where between 69 and 79. taking fully into account of 69 after suggest that Walton's counsel “Flynn five-point Effect” and the standard score would be 69 rather than 79 or some above, explained measurement error. As nothing in more between is number other standard measurement error does not auto- allegation speculative opinion, than not an matically by points. reduce a test score five Roane, fact, fact. 378 F.3d at 400. In Instead, plus range or minus that a it is a expert specifically only health who has mental can use to either reduce expert mental health the test score of 77 should addressed whether or increase a test score after assessing par- adjusted expert, be is Walton’s trial Dr. Same- person. Although agree that we can ticular now, Walton's score should who testified that plus judicial take notice of the existence higher probably be than 77. or minus five-point measurement er- standard in inmate expert the benefit of an Unlike the condemned Walk- without allege,

assessment, er, ad- that this score should be allege petition Walton not his does justed speculation.6 is mere downward IQ that his test score of should be allega- made had Walton these even Moreover, reduced to 70 or less. in his court, to the arguments tions and post-petition filings, Walton advances would have dismissed properly court speculative assertions. Walton has never his claim. supported any of his mental retardation allegations, allowed to in a that is as he is do majority suggests this case opinion recent in Walker Rule Rules controlled our see Govern- (4th Cir.2005). True, F.3d 315 in the ing 2254 Cases Section United my view, significant are differences there (2003), with opinions States District Courts Walker, these case and between this experts.7 Despite from mental health why the district court differences reveal high- fact that has retained several this case. properly dismissed ly qualified psychiatrists, psychologists and opined none of ever them has inmate Walker scored The condemned particular IQ supports of 77 IQ 76 on an test before turned 18. test score actually that this score sat- alleged Walker To mental retardation claim. the con- functioning require- intellectual isfied the Samenow, trary, expert, trial Dr. mental ment retardation test score testified that Walton’s of 77 definition, actually represented because “most underestimate likely is an of his after factors score of 70 or less certain added). intelligence.” (Emphasis More- were into account. Id. at 320-22. taken over, expert no mental health has while supported alle- Importantly, Walker these opined mentally ever is that Walton re- gations from affidavits tarded, Dr. Samenow testified experts. experts mental health These “certainly Without retarded.” some score of that Walker’s 76 should stated expert verification the “Flynn to 72 based on Effect” reduced retarded, mentally self-serving it should be further reduced speculative fail to assertions sufficient- (rather increased) below 70 based on than ly allege mentally that Walton is retarded five-point measurement er- standard Accordingly, under Virginia law. the dis- ror. on their review of Based Walker’s trict properly dismissed Walton’s functioning background, intellectual mental claim. retardation opined that Walker was men- experts in- tally Virginia under law—his retarded III. functioning tellectual measured below majority The vacates the district court’s IQ he at score of 70 before turned 18. Id. insanity by dismissal of claim cre- Virginia multiple based sources of implicit It is in the statute that on information ordinarily cannot be di- generally psychologi- mental retardation accepted the field agnosed particular person in a without particular testing appropriate cal and opinion a and of mental health assessment being assessed." Va. Code Ann. defendant § expert. example, statute re- For 19.2-264.3:1.1(B)(3) added). (emphasis "[ajssessment quires func- that intellectual tioning include administration of at shall 7. Walton attached to his affidavits generally measure ac- least one standardized reports experts health and from his mental cepted by psychological testing.” the field of support insanity but not of his claim his men- 19.2-264.3:1.1(B)(1) (empha- § Va. Code Ann. tal claim. retardation Also, added). determining sis whether disability originated before be 18 “shall his conviction for murder.” Walton v. constitutional test deter- ating a new (W.D.Va. Johnson, I to be executed. mining competence 2004). affirm the district would because test, findings and its proper

followed the Despite the district court’s extensive clearly are not erroneous. fact hearings findings, majority and careful hearings held two on The district court Wainwright, concludes that Ford v. In insanity claim. the first hear- 91 L.Ed.2d 335 court heard extensive tes- ing, the district (1986) view, requires my more. Virgi- and timony offered both Walton that we affirm the district necessitates hearing, Following nia. this judgment. court’s Mills, Dr. Mark a appoint court decided to Ford, petitioner a convicted psychiatrist, provide to additional forensic row, began on Florida’s death murderer relating competence to evidence exhibiting peculiar behavior after he had interviewing and to be executed. After exhausted all his direct and collateral Walton, assessing Dr. Mills testified at appeals. lawyers Ford’s retained a men hearing. at He ex- length the second expert tal health to assess him. Ford told and plained cooperative that Walton was expert that he free to was leave the important-information able to volunteer he that he prison whenever wanted and in- beginning of the interview. For not executed he won could because had stance, volunteered that he is in Walton invalidating a landmark case the death killing convicted of prison because he was that penalty representations were obvi — that people. three Walton also knows he ously That expert opined incorrect. that executed, going prefers to be but he to understanding why Ford “had no prison of his life rather live rest being was executed made no connec [and] than be executed. He considers death tion between the homicide of which he kind of an end and be some believes penal had been convicted the death go he will to heaven then return ty.” Id. at 106 S.Ct. 2595. Based on continued, As the interview earth. expert’s opinion, lawyers their Ford’s by immedi- began responding questions sought reprieve penalty from the death know, “I ately repeatedly stating don’t incompetence. Florida law based just explained don’t know.” Dr. Mills prohibited today it still does ex —as —the majority response —which inmate if he “does not have ecution of an suggests compe- shows Walton is capacity mental to understand the na of defense tent to be executed—is sort penalty why of the death it was ture that Walton uses when he starts lose him.” Ann. imposed on Fla. Stat. focus or becomes 'irritated continued 922.07(3) (1985 2005). governor, & get Dr. was able to questioning. Mills authority to determine who has sole by asking beyond this defense row inmate is death questions. more structured Based on his executed, appointed psychia three assessment, Dr. Mills testified to Ford in the same 30-min- trists assess going that he to be execut- understands is All three of these state- ute interview. going ed and understands that he is to be concluded that appointed psychiatrists punishment murdering executed as for nature order, Ford was able “to understand the thorough In a three individuals. why the penalty of the death reasons court determined that “Walton the district Ford, upon him.” imposed to it was both understands that he is be executed 403-04, Although 2595. punishment and that his execution is for U.S. S.Ct. report properly permit the did not the execu- lawyers submitted statute Ford’s that Ford the insane. n. who believed tion of Id. at 408-09 psychiatrist their ac- the did not 2595. Its was not with incompetent, governor S.Ct. concern the was for Id. at report incompetency review. standard established the cept that governor denied statute but with the 106 S.Ct. Florida rather district explana- without failure to Ford’s request Ford’s relief court’s consider evidence insanity. his signed demonstrating alleged warrant. tion and instead death concurrence, agreed, a federal but Justice Powell stat- Ford filed ing: court with- the district denied hearing. Id. at 106 S.Ct. 2595.

out insanity plainly claim [Ford’s] fits proper] According [the within standard. opinion, five-member In a fractured proffered psychiatric to exami- [Ford’s] agree could majority of the nation, does not know that he [Ford] (1) Eighth holdings: three on executed, to be rather believes that but from exe- Amendment forbids the states death penalty has been invalidated. insane, 409-10, 419, 106 cuting the id. at correct, If this [Ford] assessment is can- (2) 2595; to consider Florida’s failure S.Ct. not connect his execution to the crime psychiatrist view of opposing Ford’s for which he was convicted. id. at process rights, violated his due question is whether evidence [Ford’s] (3) 2595; remand, 424, 106 on him hearing entitles to a in Federal to hold a required the district court was District Court on claim. consider the evidence to hearing to all 422-23, (emphasis Id. S.Ct. 2595 competent to determine whether Ford was added) (internal omitted). citations 424-25, executed, id. at be case, important purposes It is of our it In this that the is clear district majori- Ford provided process review to determine what the court Walton all majority did not ty did not decide. The was due under Ford. in Ford Whereas provided that Florida’s for deter- was petitioner hearing decide standard no and the ie., executed, mining incompetence governor be and the court failed whether the condemned inmate “does consider Ford’s demonstrating evidence incompetence, capacity alleged have the mental to understand the district court why penalty hearings the nature of the death in this case held two consid- him,” imposed inadequate was on was an ered all the presented evidence Walton. Instead, legal standard. the five-member Not content with the extent evi- it, majority governor appoint- decided the Florida dence before court Mills, give expert, Ford a and the district failed to ed a neutral Dr. to further hearing by fair to consider all the Dr. refusing competence. assess Mills question Virginia’s that bore the opinion evidence corroborated ex- competent. majority he was pert competent whether indeed be review, legal thorough did not establish a standard executed. After new its was to testimony which the district court on remand district court found Dr. Mills’ competent persuasive to be judge particularly whether was and determined contrary, executed. To the the four-mem- that Walton is executed. Walton, plurality recognized ber that Florida’s at 601.8 Because majority suggests specifically 8. The the district court nesses under- hearing improperly limited killing in the March 2004 stood that he was to be executed for expert people. Contrary asking majority Walton’s counsel to the wit- three what the to in insanity required different from the test of fact are not findings court’s Instead, erroneous, judg- plurality its the Florida statute. the I would affirm clearly necessary Taylor, primarily process 240 F.3d focused on the Mickens ment. See Cir.2001) (4th (stating insanity that the determination. The to make in a findings explained of fact that the reason it plurality court’s Ford subject clearly to the erro- deciding Eighth are the substantive proceeding was forth in Fed.R.Civ.P. set to determine wheth- neous standard Amendment issue was 52(a)). procedures er Florida followed Ford, 477 adequate. Ford’s case were nevertheless, case, majority in this The (stating that 106 S.Ct. 2595 more. Ac- requires still insists Ford by “adequacy procedures of the chosen majority, pronounces to the Ford cording therefore, sanity, will State to determine states must use to test that substantive ... whether the Constitution depend upon inmate is a condemned determine whether restriction on the places a substantive holding is to be executed. This competent life of an insane power State’s to take the majority’s earlier correct at odds with the added)). under- prisoner” (emphasis To Ford acknowledgment Justice Powell his con- point, score this insanity proce- or mandate “did not define correctly plu- that the recognized currence follow in determin- dures that courts must “meaning of rality did not address the a defendant is insane ing [but whether competence to insanity” in the context of the states.” left those tasks to instead] Id. at 106 S.Ct. 2595. executed. majority in remarkably, Even more purported insists that Ford’s this case nevertheless, case, majority in legal prong test includes substantive stray from Ford to together cobbles dicta interpreting Ford has ever no other court prop- that the suggest that the Court held majority’s new According to the required. determining compe- for er substantive test test, cannot be exe- a condemned inmate requires consider- tence to be executed for “prepare he is able to his cuted unless the condemned inmate is ation of whether ”9 passing. This passing. for his prepare able to plurality holding is not mandated prong simply part new not This fairly implied by Justice opinion, nor is plu- four-member holding. Ford Ford’s fact, of Powell’s concurrence.10 rality did not create a new definition prob- thought that Walton would prevented question but suggests, the district court say goodbye people, ably able to to asking impres- not be from Dr. Mills his counsel relations, arrange- make turn emotional or interpretation of off sions of the district court's standard, dispose property. clearly improper ments to legal the Ford improperly limit the did not questioning. court other- district court line of The district hearing. question at the permitted to evidence wise Walton's counsel range topics, experts a wide of factual majority's Although disagree with the cre- they I including believe Walton is able prong, agree separate Although ating with its Dr. Mills this new prepare his death. require a holding does not con- that Ford did not believe that testified that he to be able to assist his counsel passing, did demned inmate prepare that belief would be executed. opinion his firm that Walton under- not affect going he was to be executed for stood that majority complains that I refuse killing people. Walton's counsel was three up parts recognize of Ford make expert wheth- which allowed to ask his retained also majority simply opinion the Court. The thought prepare could for his he er disagree which We do over only manage expert could mistaken. death. The agreed parts five members difficulty answering” that of Ford are some "would have 306 Collins, F.3d Barnard v. 13 process”); a standard for does not establish

plurality (5th Cir.1994) Powell’s concur- insanity, 871, and Justice (recognizing 876 only proper legal place rence—the standard, i.e., prisoner that a must “Ford adopted explicitly standard impending addressed — exe- understand the fact of his comparable to the Flori- two-prong a test it”); for Rector v. cution and the reason statutory Justice Powell da standard. (8th Cir.1991) Clark, 570, 572 923 F.2d I “Accordingly, would hold plainly stated: Ford, we must (stating “according Eighth Amendment forbids assessing petition- factors in examine two unaware only of those who are execution (1) to be executed: competency er’s punishment they are about to suffer of the understands that he is petitioner whether it.” why they are to suffer Id. (2) execution; by punished added).11 (emphasis 2595 106 S.Ct. why petitioner understands he is other circuits that have None of the four agree with these cir- being punished”). competency to be addressed the issue of require that the Ford test does not cuits requires has held that Ford executed to determine whether an inmate is state whether a condemned states to determine “prepare passing” able to for his when passing.” “prepare inmate is able to competence to be executed.12 deciding his have contrary, To the all these circuits proffered Powell’s hold recognized Justice majority’s competence new test suf- The essentially the same test ing —which only faulty legal from a basis but fers not in 1985 and continues Florida followed vagueness. majority seems also from today appropriate standard follow an—as by its failure to recognize problem this by competence. to determine which any as to what a provide guidance sort 1195 Woodford, Massie v. F.3d state or court must do or consider decid- Cir.2001) (9th (citing Ford for the n. prepare an inmate is able to ing whether Eighth that “the Amendment proposition Moreover, if passing. even for his forbids the execution of those who are requirement could be read to add this new they punishment unaware of the are about (which cannot), prong it this third is so it”); why they to suffer and are to suffer by and controlled the inmate open-ended (6th Bell, Coe v. 209 F.3d Cir. never find that it is met. might that courts 2000) (concluding that “Justice Powell’s prong effectively pre- Requiring this new standard, ‘only those who are un any con- capital punishment cludes they about to punishment aware of the are a claim of demned inmate who even raises they suffer and the reason are to suffer reprieve,’ insanity. satisfies due are entitled to statute, Instead, disagree by we over how to scribed Florida’s which is same the Court. interpret holding opinion. just of the Court's Id. at as the standard described." below, explained my interpretation As of the added). (emphasis S.Ct. holding consistent with the four of Ford is addressed the issue. other circuits that have Importantly, Court—albeit in majority’s interpretation, which creates recognized dicta—has also Justice Powell's test, prong incompetence new stands two-part proper test in Ford as a standard alone. person which to determine whether a is com Lynaugh, petent Penry v. to be executed. standard, proffering precise Jus-

11. After 302, 333, 106 L.Ed.2d acknowledged that it is the same tice Powell (1989), grounds overruled on other At as Florida's standard: concedes that "[Ford] Virginia, 536 U.S. kins the Governor of Florida has determined (2002). pre- 153 L.Ed.2d 335 he is not insane under standard case, court followed In this whether Wal- to determine proper test The to be executed.13 is

ton present- all the evidence considered

court appointed and also sides

ed both to assess Walton. psychiatrist

additional evidence, the review of the

Based on its un- court determined

district is to be executed that he

derstands individuals. The

murdering three protections all the afforded Walton I af-

constitutionally required, and would judgment

firm the district court’s executed. competent to be

IV. judg- court’s affirm the district would corpus peti- denying

ment retardation and his mental

tion on both

insanity claims. America,

UNITED STATES

Plaintiff-Appellee, BARTRAM,

Michael Jason

Defendant-Appellant.

No. 99-4566. Appeals, States Court

United

Fourth Circuit. 2, 2004.

Argued: Dec. 29, 2005. April

Decided: is, what Ford mandates. is not before this court whether 13. The issue course, expand expand test if it decides the Ford free to test it would be wise factors, including constitutionally con- include new standard that a different prepare must be able to demned inmate required. we decide is passing. issue that must

Case Details

Case Name: Percy Levar Walton v. Gene M. Johnson, Director, Virginia Department of Corrections

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 28, 2005

Citation: 407 F.3d 285

Docket Number: 04-19

Court Abbreviation: 4th Cir.