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

CONCLUSION judgment of the district court dis-

missing jurisdiction the case for lack of

affirmed.

AFFIRMED.

Percy WALTON, Levar Petitioner-

Appellant, JOHNSON, Director, Virginia

Gene M.

Department Corrections,

Respondent-Appellee.

No. 04-19.

United Appeals, States Court of

Fourth Circuit.

Argued Oct.

Decided March Givens, Virginia + Jennifer

ARGUED: Center, Resource Capital Representation Charlottesville, Virginia, Appellant. for Harris, Attorney Quentin Assistant Robert General, Attorney General Office of the Richmond, inmates). Virginia, Virginia, Appellee. for tion of retarded Bilisoly, ON BRIEF: F. Nash Vandeven- district court peti- denied Walton’s habeas Norfolk, Black, L.L.P., tion, Virginia, ter and we now affirm.

Appellant. Jerry Kilgore, Attorney W. applied We hold that the district court Richmond, Virginia, Virginia, General of proper legal standard in deciding Appellee. mentally Walton exe- cuted, and findings its of fact are not clear- WILKINS, Before Judge, Chief and ly erroneous. We further hold that WIDENER, WILKINSON, NIEMEYER, properly district court dismissed Walton’s LUTTIG, WILLIAMS, MICHAEL, mental retardation claim because his habe- MOTZ, TRAXLER, KING, GREGORY, petition as fails to state sufficient facts DUNCAN, SHEDD, Judges. and Circuit demonstrating mentally that he is retarded by published opinion. Judge Affirmed Virginia under law. opinion,

Shedd wrote the in which Judge

WIDENER, WILKINSON, Judge Judge I. NIEMEYER, LUTTIG, Judge Judge people, Walton murdered three an elder- WILLIAMS, Judge joined. and DUNCAN ly couple man, and a younger in their Judge a separate WILKINSON wrote in separate homes two during incidents concurring opinion. Judge WILLIAMS November 1996. separate concurring wrote a opinion. Although evidence alone Judge Chief a dissenting WILKINS wrote overwhelmingly guilt, established Walton’s opinion, MICHAEL, Judge which Judge Walton also jail admitted to several other MOTZ, TRAXLER, KING, Judge Judge murders, inmates that he committed the joined. and Judge GREGORY and he described the graphic details of the murders to his cellmate. previously We

OPINION recounted the facts of Walton’s crimes SHEDD, Judge: Circuit greater opinion detail in our deciding Wal- 1996, Percy In Levar Walton murdered ton’s first federal petition. habeas See Danville, people Virginia. three Walton Angelone, 442, Walton v. 321 F.3d 446-49 pled guilty to the crimes and was sen- (4th Cir.2003). Virginia, tenced to death in state court. counsel, With assistance of Walton Over years, the next several Walton direct- pled guilty murders, to all three three ly appealed his conviction and then filed robbery, counts of one count of burglary, both state and federal habeas petitions, all and six counts of using a firearm in the 2003, of which were unsuccessful. after commission of a felony. Walton indicated the state court scheduled his execution that he plead guilty wanted to because the time, date for the second Walton filed his “chair is for killers.” Id. at 454. After second petition federal habeas wherein he determining that Walton would likely com- asserted that he is both incompe- mit additional criminal acts that would and, therefore, tent and mentally retarded constitute a continuing threat serious his execution precluded under Ford v. society, the Circuit City Court for the Wainwright, Danville sentenced Walton to death. (1986) 91 L.Ed.2d (prohibiting the exe- inmates), cution of insane and began Atkins then long process Walton Virginia, challenging his conviction and sentence on L.Ed.2d 335 (prohibiting the execu- both direct and collateral review in state his coun- him and could assist against ings habe- first federal Our court. and federal at 456. sel. Id. the exten- exhaustively details opinion the claims history and procedural sive psychia- conferring with these After prior proceed- numerous in Walton’s trists, made decided trial counsel In both his state 450-52. Id. at ings. incompetence See strat- using a mental against chal- because, reasons, petitions, among habeas other federal at trial egy on the testimony psychiatrists and sentence of the two conviction lenged had others, helpful, not have been that he was would many among ground, inmates that at least two of his told fellow guilty. plead mentally competent just a few “play crazy,” he intended court denied Walton district After the trial for earlier had stood months petition, habeas in his first relief grand larceny compe- and his burglary from of appealability a certificate sought then. trial was not at issue tence to stand he claims that As to Walton’s court. this Id. at 458. and that plead guilty competent was evidence, we denied reviewing After this failing ineffective counsel was appealability, of con- certificate Walton’s state during the raise the issue adequately that harbor no doubt” cluding “we we reviewed proceedings, court trial guilty and competent plead Walton was what Wal- regarding evidence extensive by Walton’s provided that the assistance mental knew about Walton’s ton’s counsel Id. “more than reasonable.” counsel was proceed- court during the trial condition Supreme States at 460-61. United explained, we at 453-57. As ings. Id. for a writ petition denied Walton’s Court indicted, was shortly after Walton Johnson, 539 U.S. certiorari. v. of Walton to as- psychiatrist a appointed court state 2626, 156 L.Ed.2d psychiatrist Walton told sess Walton. (2003). life to come back to be able

that he would Thereafter, Court the Danville Circuit the same his execution with shortly after date for execution rescheduled Walton’s said also spirit. a new Walton name but electrocution 2003.1 May Walton chose his dead be able to resurrect that he would days three Just the form of execution. return. Id. at upon his family members date, the district this execution before opined psychiatrist n. 12. This stay for a request granted court Walton’s be- to stand trial was Walton grant- this court panel A of of execution. proceedings Walton understood cause habeas request to file second Walton’s ed that, if con- him and understood against (for the first him to claim petition to allow murder, be exe- he could capital of victed that he cannot be any proceeding) time lethal chair cuted in the electric mentally retarded. because he executed court at 455-56. The state injection. Id. petition, federal this second to assess psychiatrist his conviction. appointed a second no further attack on makes are that he psychiatrist remaining also claims The second Walton. (1) men- he is because competent because be executed was cannot opined Walton retarded;2 and he is tally proeeed- understood the nature passed on Walton's Virginia court has 2. No was December execution date 1. Walton's first By the mentally retarded. he is claim that stayed that exe- district court 1999. The claim, he had Walton first advanced time to file his first date to allow Walton cution appeal and direct already completed both his Walton, F.3d at petition. habeas federal Virginia’s petition. mental retar- state habeas statute, after which was enacted dation incompetent.3 responses acknowledging that death does occur, Pandurangi ultimately opined Dr. The district court dismissed Walton’s comprehend Walton does not that he retardation claim mental without evi- to be executed and will die for dentiary hearing, concluding that Walton murdering people. three failed to alleged forecast evidence Gur, originated mental retardation before the Dr. neuropsy- When the director of age required Virgi- of 18—a element under chology University Pennsylvania, at the Johnson, meant, nia law. 269 asked Walton what death (W.D.Va.2003). F.Supp.2d responded, you’re On the “It means dead.” J.A. however, competence, issue mental proceeded explain, howev- er, district court determined that an evidentia- that after his execution he would “come ry hearing was warranted. Id. at 694. person” back as a “get better Burger King.” J.A. 441. Walton also told The district court heard extensive evi- Dr. Gur he had received a letter regarding compe- dence Walton’s mental 28, 2003, informing May him of his execu- during days testimony. tence two On “Yes, letter, tion date: I have the day, vastly conflicting testimony the first have an execution date.” J.A. 442. Dr. presented. experts, Walton’s retained Gur testified that Walton said that execu- Pandurangi Gur, Drs. Anand and Reuben dying, tion means but Walton’s main con- testified that suffering Walton is from cern is that after his death he will come schizophrenia and has borderline delusion- a back as woman. Based on his interviews al ability ideas about his to come back to Walton, Dr. Gur concluded that al- instance, life after his execution.4 For though Walton “was able discuss the Dr. Pandurangi, Walton told chairman of seemingly method of execution in a ration- the Division Inpatient Psychiatry of at the fashion, al ... failed to comprehend [he] that, College Medical Virginia, despite that at the procedure end of the nowill sentence, impending death he wanted a longer be alive.” J.A. 466. motorcycle, telephone, good and to look the mall. In their discussion about presented Walton also the testimony of death, Walton told him that “[p]eople General, who Dr. Patricia a psychiatrist em- go die graveyard ... but everybody ployed inmates, Virginia assess who as- Despite comes back.” J.A. 425. sessed shortly Walton before his scheduled Supreme prohibition determined, Court announced its petition, habeas the district court the execution of Martinez-Villareal, retarded inmates in based on Stewart v. Atkins, provides petitioners that habeas who 637, 644-45, already "completed appeal have both a direct (1998), L.Ed.2d 849 that Walton was not corpus proceeding and a [state] habeas ... arguing incompetence barred from mental be- any shall not be entitled to file further habeas petition cause that was not second or succes- petitions [Virginia] Supreme in the Court and Walton, sive. F.Supp.2d at 696. petitioner's] remedy'shall [the sole lie in fed- eral court." VA. CODE ANN. 8.01-654.2. lay Walton also called other witnesses testimony suggested whose that Walton is not 3. Walton also claimed in his first federal ha- instance, competent. For one of Walton's petition beas incompetent that he was to be executed, jailers testified that Walton sometimes but talks the district court and this court cell, imaginary person about an premature refused to address issue in his has pending strong body because there was no execution date. odor because he refuses to show- Walton, 21; er, See 321 F.3d at 467 n. Wal and does not have a television or radio in (W.D.Va. Angelone, ton v. 2002 WL occupy his cell to his time. 2002) (unpublished). In this second federal Virginia’s offered a different testified evidence date. Dr. General execution view of Walton’s mental condition. Short- any type of never exhibited that Walton ly his second scheduled execution before during presence her behavior delusional May was date Walton transferred interviews, but he was confused three their to Greensville Correctional Center where any of her unable to answer largely chair is located. Allen Virginia’s electric Dr. during their first session. questions Glasgow, a rehabilitation counselor at was that Wal- impression initial General’s who conducts intake reviews Greensville she floridly psychotic, but appeared ton inmates arrive at when condemned had a sufficient basis not believe she did facility, when he ar- interviewed Walton any In their him medication. prescribe Glasgow thought rived. Walton com- interview, Dr. General asked Wal- second during meeting, municated well their going put to death. ton he was using ever he did recall Walton people had responded that “some just “I phrase don’t know. don’t know” peo- him ... that he had killed some told during the entire intake interview. Dur- After Dr. General’s J.A. 311-12. ple.” interview, ing Glasgow their discussed with Walton, it interview with third and last documentary several forms: a visi- Walton, impression Dr. General’s list, list, attorney an call telephone tors exe- receiving explanation of what after list, final disposition and a remains des- means, understood that he is cution ignation form. Walton filled out the visi- convicted of he had been to die because handwriting list in his own with names tors murder. memory. from cor- and addresses lawyer rectly wrote the name of his on the day the first also testified on list, attorney but then indicated that he did responded to evidentiary hearing. He Glasgow explained not know her address. many questions simple ques- —even that the final remains form was meant for by saying, “I don’t repeatedly tions — person dispose to select a to of his Walton know, I know.” This was the don’t even Glasgow after his execution. remains varying in response that he had used same if the final asked he understood Walton in with all of the men- degrees interviews form, that he under- said remains Walton him. Al- experts tal health who assessed it, Glasgow’s impression it stood and was acknowledged that he had though Walton it. did understand Walton Walton sentence, received a death he waffled Glasgow put that he wanted to told he been his answers about whether had form. name on the final remains mother’s if given an execution date. When asked testimony presented the Virginia also him happen what would to when he knew Arikian, psychiatrist employed Dr. Alan dies, said that he did not know Walton Virgi- health service to provide to mental “hard.” J.A. question and that began seeing nia inmates. Dr. Arikian knowing why also denied 508. Walton months before Drs. several Walton him, to and he going state was execute began seeing Pandurangi and Gur Walton. having to no recollection of the professed Gur, Pandurangi and who Drs. Unlike ac- elderly couple he murdered. Walton regarding retained to assess Walton were injec- knowledged by that execution lethal mentally incompetent, his claim that he is into having a needle stuck regarding tion involved initially Dr. Arikian saw Walton die,” your “you disruptive arm and that but he denied him for complaints against made According happen in the electric on his cellblock. knowing what would behavior Arikian, no distur- Dr. Walton exhibited chair. J.A. 523. thought any bance of or mental illness of victed of murder. When confronted with kind when he first saw him. Walton did directly opposing views of Drs. Pandu- phrase not use the “I I Gur, don’t know. don’t rangi responded: Dr. Arikian “I even know” in their first session. When opposite think we’re at spec- ends of the Dr. Arikian disrup- asked Walton about his trum that.... I think far from not behavior, said, ‘Well, just tive Walton having understanding going what’s enjoy playing around with I enjoy folks. on, I think [Walton] has a full under- messing them.” Ariki- J.A. 553. Dr. standing of what’s on.” J.A. 579. an met with several more Walton times After hearing divergent testimony during leading the months up to his first regarding competence, Walton’s mental scheduled execution date December the district court appoint decided to a neu sessions, early 1999. In the car- expert tral to interview assess ried on normal conversations with Dr. Ari- his mental condition. The district court conversation, kian. In one Walton said attempted expert to obtain an agreeable to people that old were expendable and that both having sides each appoint side they expect they should to be killed if tried psychiatrist who in turn advised the court keep him from taking things their on suitable neutral candidates. These two he wanted. also said that he psychiatrists ultimately recommended Dr. thought that “[execution the same as Mills, Mark a highly qualified forensic psy murder,” and he disappointed seemed chiatrist, and the district court adopted when Dr. Arikian express did not support their recommendation. Virginia later ob for his comment. Although J.A. 556. jected appointment to the of Dr. Mills deathrow, Walton denied that he was on coming after to believe that he could not Dr. Arikian did not believe Walton’s denial neutral personal because of his opposi because seemed inconsistent with the tion to the death penalty. Virginia also rest of their conversation. noted that Walton’s previously counsel had As Walton’s December 1999 execution retained Dr. Mills in another similar death near, however, date drew began penalty case. Walton’s responded counsel use the phrase just “I don’t know. I don’t by assuring the district court that Dr. know” in his conversations with Dr. Ariki- objective Mills could render opinions in an even in response simple matters. Walton’s case. The district court over After Walton’s December 1999 execution ruled Virginia’s objection appoints to the stayed, date was Dr. Arikian did not see ment of Dr. Mills and requested, based on again shortly Walton until before his of Ford v. Wainwright, interpretation its second scheduled execution date. Al- that Dr. Mills assess Walton and consider though Walton had become more subdued (1) two issues: whether Walton under conversation, and less inclined to’ engage stands that punished by he is to be execu Dr. Arikian does not believe that Walton is tion; and whether Walton understands suffering schizophrenia from and instead his consequence is a of his symptoms believes Walton’s are more con- having been murdering convicted of three sistent person with a who has become com- people. pletely indifferent, “plays who with each of spirit us as the moves him.... After Dr. peo- Some Mills interviewed Walton ple he respond will to and report, some he won’t.” submitted his the district court J.A. 578. Dr. Arikian testified that held a evidentiary he second hearing. At the believes that Walton understands that hearing, he Dr. Mills testified that he found will be executed as a being “odd,” result of con- Walton to intelligence be of low but retarded, mentally probably not suf- “clearly believe[s]” Walton under- fering significant psychiatric from a disor- stands prison that he is in for killing three der, quite possibly schizophrenia.5 Ac- people and that he will be executed as Mills, cording person to Dr. suffering punishment for these crimes. J.A. 930. can, nevertheless, schizophrenia from The district court also allowed Walton to trial, “competent to competent stand to call Dr. Pandurangi to testify again be- will, make a [and] to be execut- cause he had reassessed Walton a few ed.” 916. Notwithstanding J.A. days before the second hearing. Dr. Pan- limitations, cognitive Dr. Mills stated that durangi’s experience with Walton was dif- Walton was able to that he volunteer ferent Dr. experience. from Mills’ Where- prison murdering for three people and as Walton was able to volunteer to Dr. that he was sentenced to be executed. Mills that he was sentenced to be executed correctly Walton Dr. informed Mills that for killing people, three Walton told Dr. he had selected electrocution for his execu- Pandurangi at the start of their interview tion. Dr. When mentioned Mills that he did not know what the status of his many people injec- would consider lethal case Dr. proceeded was. Pandurangi to preferable, tion Walton said that it not did inform pled Walton he had guilty to because matter execution was “an end” killing people three and that he had been “the end.” J.A. 899. given a death sentence. In the next few Dr. Mills asked about his reli- moments, Walton was repeat able to gious views and his understanding However, information when asked. about responded death. Walton that he believes twenty later, minutes Dr. Pandurangi go that he will and then heaven come again status, asked Walton about legal his back some form and be able to his see but this time Walton reverted to saying family. While Dr. Mills believes Walton that he did not Although know. Dr. Pan- very has a firm and clear belief in durangi stated that he does not think that “afterlife,” he does not believe that Walton overtly retarded, he a person going who is to prepare for his does believe that Walton thinks on the death. J.A. 925. Even though Dr. Mills level of a child. When asked whether Wal- found Walton’s about death answers to be ton prepare death, for would Dr. Pan- childlike, and even simple Dr. Mills never- durangi that such a question said would be stated that theless believes that difficult him for to answer but he does understands that after “things his death believe be able to would are different than very they goodbye, people “wish[] off turn[] are emo- now.” J.A. 902. Walton also Dr. told relations, tional any if he has belong- little prefers Mills that he in prison live ings, get life who what.” J.A. rest rather than be beaten updated assessment, death. Dr. Based on his Mills admitted that he is Dr. philo- sophically opposed Pandurangi the death testified that penalty he continues to and that he preferred to believe have find that Walton from suffers schizo- competent Walton not phrenia. However, to be executed. Dr. Pandurangi agrees Nevertheless, Dr. stated Mills that he with Dr. diagnosing Mills that an inmate definitively diagnose Dr. Mills did not making diagnosis necessary Wal- a was to psychiatric making ton's disorder questions, because answer making the court's because diagnosis scope diagnosis such was not within the determining competency of such a the district court’s separate to instruction him. How- are two issues that must be assessed ever, Dr. Mills stated that he differently. did not believe find necessarily competency to be executed. We Wal- does schizophrenia misplaced. on Ford ton’s reliance mentally incompe- inmate is that the

mean Pandurangi also Dr. to executed. tent exhibiting petitioner began in Ford experience very little that he has admitted being sentenced to peculiar behavior after assess- type making lawyers re for murder/ Ford’s death called on to make being was ment he assess his experts health tained mental this case. interviewing After competence. mental Ford, “had no expert opined that Ford one rested, the district sides After both being execut understanding why he was In addition arguments. final court allowed ed made no connection between [and] for relief that grounds other arguing convicted homicide of which he had been petition, habeas stated Walton’s were Ford, 477 penalty.” the death the first time asserted for counsel ex 2595. Based on this 106 S.Ct. Walton, to be execut is not lawyers sought a pert’s opinion, Ford’s spiritually “unable to he is ed because penalty from the death based reprieve death.” J.A. 995.6 prepare for his incompetence. Ford’s the district court thorough opinion, In a appeal time of Ford’s still At the —and mental habeas relief on Walton’s denied the execu- today prohibited law —Florida claim, concluding “Wal incompetence if tion of an inmate he “does not have understands that he is ton both the nature capacity to understand mental punish that his execution is executed and why it im- penalty of the death was conviction for murder.” Wal ment for his on him.” FLA. STAT. ANN. posed Johnson, F.Supp.2d ton v. (1985 2005). 922.07(3) § & The Florida (W.D.Va.2004). appeals. now au- governor, who at that time had sole to determine thority under Florida law II. compe- row inmate was whether a death in- mental We first consider Walton’s executed,7 psy- appointed tent to be three that the argues claim. competence Ford. After interview- chiatrists to assess by failing to follow the district court erred interview, ing Ford in the same 30-minute legal standard under Ford v. Wain- proper con- state-appointed psychiatrists all three alternative, argues In the wright. cluded, requirements consistent with the that the court’s factual determina- district statute, that Ford able “to the Florida tion that he understands that has been penalty the nature of the death understand murdering three sentenced to death for upon imposed and the reasons it was clearly erroneous. people is Ford, 403-04, him.” 477 U.S. at lawyers Although Ford’s submitted A. report attesting that psychiatrist’s their un- primari incompetent Ford was to be executed argues, first based Ford, standard, governor, ly on that the district court erred der the Florida publicly announced using previously an incorrect test to determine his who had Ford, inability pre- legislature 7. After enacted 6. Walton did not assert his Florida 3.811, abrogated FLA. CRIM. P. which R. pare passing prohibit as a basis to governor's authority compe- sole to determine petition habeas or in execution in his state right by giving inmates the tence condemned peti- either his first or second federal habeas competence determination in Flori- seek tions. da state court. 408-09,106 he would not consider materials filed tion of the insane. Id. at S.Ct. prisoner’s suggestion in of a of support plurality’s 2595 n. 2. The concern was not incompetence, apparently accept did not statutory with Florida’s incompetence report the for review. Id. at 106 standard —the same by standard used the Instead, governor the denied S.Ct. district court in Walton’s case—but rather request explana- Ford’s for relief without was with the district court’s failure to con- signed tion and a death warrant. Ford sider Ford’s evidence demonstrating his a petition, filed habeas but the federal alleged insanity. concurrence, In Justice petition court the district denied without agreed, Powell stating: hearing. Id. at 2595. After S.Ct. claim insanity [Ford’s] plainly fits affirmed, Supreme the circuit court the within statutory] [Florida’s standard. granted petition Court Ford’s for certiora- According proffered psychi- [Ford’s] ri. examination, atric [Ford] does not know In a opinion, fractured the five-member executed, that he tois but rather of a majority consisting four-member — penalty believes the death has been plurality separate by and a concurrence If invalidated. this assessment is cor- agreed Justice on three matters: Powell— rect, [Ford] cannot connect his execution (1) the Amendment forbids the to the crime for which he was convicted. insane, executing states from the id. at Thus, question the is whether [Ford’s] (2) 409-10, 418,106 2595; S.Ct. the Florida evidence entitles hearing him to a governor’s opinions failure consider the Federal District Court on his claim. psychiatrist of Ford’s violated pro- his due 422-23, Id. at (emphasis S.Ct. 2595 413-16, 423-24, rights, cess id. at added) (internal omitted). citations 2595; and was Ford entitled to an case, In this it is clear that the district evidentiary hearing federal district provided court all process the 418, 424-25, court. Id. at was due under Ford. Whereas in Ford the sum, majority the concluded that Flori- petitioner provided was no hearing and the da failed to adequately consider all the governor and- the district court failed to bearing question evidence on the of wheth- demonstrating consider Ford’s evidence er Ford was under the Florida alleged i.e., incompetence, the distxict court standard, legal whether Ford had “the present- this case heard all the evidence capacity mental to understand nature by Virginia. ed Walton and The district penalty of the death and the reasons court went even appointed further an- imposed was on him.” Id. at however, expert' other endorsed majority, S.Ct. 2595. The did Walton —to —one provide yet not decide that another assessment of legal Florida’s standard for Wal- determining mental incompetence question mental in- ton’s state. There is no adequate. contrary, To the diligently protected the four-mem- the district court plurality recognized ber right explore fully that Florida’s properly permit statute did not the execu- competence issue of his to be executed.8 suggests degree, 8. Walton that the impressions district court im- also holds a law properly asking interpretation prop- limited his counsel to the district court's expert specifically legal witnesses whether Walton er standard to determine mental incom- petence, clearly question- understands improper that he is to be executed for line of killing people. Contrary ing. permitted three to Walton’s The district court otherwise suggestion, prevented question experts court district Wal- Walton's counsel to on a Mills, asking range including ton's counsel topics, from Dr. who wide of factual wheth- 170 409, 106 right to life.” Id. at S.Ct.

Walton, however, mental argues that the dis- following by not the sub- further stated that plurality trict court erred 2595. The determining in for test Ford stantive today than it has no less abhorrent “is competent inmate is a condemned whether penance the for centuries to exact been ar- particular, to be executed. prevents illness life of one whose mental competent is to be gues that an inmate for comprehending the reasons him from (1) compre- if to: only executed able 417, Id. at penalty implications.” the or its punish- that he is to be executed as hend implicitly Powell 106 S.Ct. 2595. Justice (2) crime; assist his counsel ment for his rationale in his con- adopted particular this and during competency proceeding; the his test for proposed currence when he (3) meaning- in some prepare for his death “I would hold determining competency: ful manner.9 forbids the Eighth the Amendment pro- of component The first are unaware of execution of those who that a con- posed competency test they are about to suffer the compre- inmate must be able to demned 422, why they are to suffer it.” Id. and to death and the hend that he is sentenced proffered 106 S.Ct. Justice Powell’s why. Virginia asserts that reason only ground on which a represents test the proper legal inquiry narrow constitutes majority agreed regarding of the Court competency for execu- test to determine com- determining the standard for mental tion, agree. Although the Ford we executed, and we are bound petence specifically did not set out to plurality 153, by Gregg Georgia, it. v. 428 U.S. See for men- create a Constitutional definition 2909, 49 L.Ed.2d 859 169 n. 96 S.Ct. give incompetence, plurality tal did multi- (stating that when there are holding primary several rationales for its by justices different ple given rationales prohibits the that the Amendment support judgment holding one “the of of its ratio- execution the insane. One may position tak- Court be viewed as is that the retributive value of exe- nales by who concurred in en those Members if cuting a condemned inmate is thwarted judgments narrowest why of he has comprehension he “has no singled stripped grounds”).10 out and of his funda- been certiorari, they prepare petition for a Justice er believe Walton is able to writ Marshall, plurality his death. the author of the Ford opinion, did asserted that the Ford Court Florida, Virginia statutory 9. Unlike has no competence establish the test for to be execut- determining test for whether a condemned 1239, 1241, Bryant, ed. v. Rector 501 executed, competent inmate is so our (1991). 115 L.Ed.2d 1038 by review is limited to whether the test used comments, however, Despite these the actual the district court satisfies the Constitutional overlapping discussion of rationales and the standard. agreement on one of the rationales in both the plurality opinion Ford and Justice Powell’s by 10. A statement Justice Powell Ford Supreme concurrence and also the Court’s Marshall in a another statement Justice subsequent acknowledgment of Justice Pow- suggest subsequent case that Ford does not (albeit dicta) proffered ell’s test as the actually a substantive test for deter- establish standard, Penry Lynaugh, appropriate see v. concurrence, mining incompetence. In his 302, 333, S.Ct. specifically Justice Powell stated that (1989) ("[U]nder L.Ed.2d 256 Ford v. Wain- opinion "Court’s does not address ... wright ... someone who is 'unaware of the meaning insanity” being in the context of Ford, punishment they are about to suffer to be executed. U.S. at executed”), added). they are to suffer it’ cannot be (emphasis In a Virgi- subsequent opinion dissenting grounds by from the denial ovemded on other Atkins test to two-part question Justice Powell’s deter- the convict in does not have the competency mine to be executed has been capacity mental to understand the nature widely recognized adopted appro- or as the of the death penalty why and im priate determining compe- test for mental posed upon convict,” appropriately de Supreme tence to be executed. The Court incompetence executed); fines Mas approv- has cited Justice Powell’s test with sie v. Woodford, 1192, 244 F.3d 1195 n. 1 al, 302, Penry Lynaugh, see v. 492 U.S. (9th Cir.2001) (citing Ford for the proposi 333, 2934, 109 S.Ct. 106 L.Ed.2d 256 tion that “the Amendment forbids (1989), grounds by overruled on other At- execution of those who un are 304, Virginia, kins v. 122 S.Ct. punishment aware of the they are about to 2242, (2002), 153 L.Ed.2d 335 and Con- why they it”); suffer and are to suffer gress followed Justice Powell’s in en- test Scott, (5th 633, Fearance v. 56 F.3d 640 acting statutory determining its test for Cir.1995) (recognizing that the Ford stan 3596(c) (“A competency, § see 18 U.S.C. requires only dard that an inmate “know sentence death shall not be carried out the fact of his impending execution and the who, upon a person as a result of mental it”); Clark, reason for Rector v. 923 F.2d disability, lacks the mental capacity to un- (8th 570, Cir.1991) 572 (stating that “ac penalty why derstand the death it was Ford, cording to we must examine two addition, imposed person”). on that all factors in assessing petitioner’s competen four federal circuit courts that have ad- (1) cy to be executed: petitioner whether dressed to be executed have understands that he is to punished by recognized proffered Justice Powell’s test (2) execution; and petitioner whether un the appropriate by standard which to why derstands being punished”). he is See, competence. e.g., determine Scott v. Moreover, Mitchell, (6th most 1011, states that have a 250 F.3d 1014 statuto Cir. 2001) (concluding ry definition of competency that the standard estab- for execution statute,” ie., lished “Ohio’s Ford “that use Justice two-part Last, Powell’s test.11 nia, 304, 536 punishment”); U.S. 122 S.Ct. 153 LA. REV. STAT. ANN. (2002), 15:567.1(b) (2005) ("A § L.Ed.2d person convince us compe Ford is not effectively proceed adopted Court tent to Justice Powell’s execution when defen proffered two-part presently Constitutionally competence dant lacks test as the to under executed, stand that he is to be determining minimum standard for and the mental reason penalty”); he is to competence suffer that to be executed. See United States OHIO REV. Fareed, 2949.28(A) (2005) (4th Cir.2002) § CODEANN. (stating 296 F.3d 'insane’ (stating question means that the convict in by that the circuit court can be bound Supreme capacity does not have the firmly Court dicta mental to under almost as as Su- preme holdings). penalty why stand the nature of Court the death imposed convict”); upon it was UTAH See, 13-4021(B) e.g, § ARIZ. REV. STAT. § CODE (stating ANN. 77-19-201 (2005) (" '[MJentally that, incompetent 'incompetent to be exe- to be executed’ means condition, cuted’ means that due to a mental disease or due to mental an inmate is un person defect a who is sentenced to death is aware of either the he is about to presently it”); punished why unaware that he is to be or he is to suffer WYO.STAT. suffer 7-13-901(a)(V) (Michie 2005) for the § crime of murder or that he (stating is unaware ANN. " impending punishment that the 'requisite capacity' crime mental means the death.”); ability § GA. CODE ANN. 17-10-60 to understand the nature of the death (2005) ("As article, penalty used in this the term imposed”). and the it was reasons 'mentally incompetent to be executed’ means adopted Other states have Justice Powell’s See, person two-part that because of a mental e.g., condition the test case law. Baird v. State, presently (Ind.2005), unable to know she is 833 N.E.2d de cert. - nied, -, being punished and understand the nature of nu- history of Walton’s procedural that the dis- the dissent asserts although con- sentence and challenges not suffi- merous findings of fact are trict court’s example of the provides good viction cient, that Justice Powell’s agrees it also safeguards proce- exhaustive modern competency stan- appropriate test is the (“I inmates. Dissent, agree dures available to condemned p. dard. infra 1997, pursued has several under the Since Walton competency that the test for and collateral review-— an individ- rounds of direct Eighth Amendment is whether always by counsel—in both represented to executed ual understands that he is be validity and federal court to test the state why”). and All of of his conviction and sentence. argues that an inmate next Walton, failed, in challenges and now these in his defense able to assist must be proceeding, his second federal habeas competency determination throughout makes no further attack on his sentence candidly counsel and process. Walton’s only remaining issue is conviction. The correctly argument conceded at oral competent to execut- whether Walton is be only of the Ford Court four members ed, is no and we conclude there Con- that an inmate be required would have requirement12 stitutional under Ford counsel to be deemed able to assist his be able to assist counsel to be plurality competent for execution. competent deemed to be executed.13 requirement this based would have added Last, proposes compe premise the common-law “had the a con memory, might tency requires he for execution prisoner of sound been something stay judg capacity pre demned inmate have the alleged have Ford, 407, pare spiritually 477 himself ment or execution.” U.S. only passing Powell found to “another world.” 106 S.Ct. Justice Brief that Ford man slight requirement p. merit for such a be 32. We conclude practice provides requirement. far dates no such Justice Pow cause “[m]odern provided review of convictions and ell—who the fifth vote Ford— more extensive law, in require than did the common did not that an inmate have the sentences cluding only appeal capacity prepare mentally spiritual not direct but ordinari ly To ly passing two-part state and federal collateral re for his test. both unlikely contrary, clearly ... that a stated view. It is thus indeed Justice Powell today go Eighth could to his death with that “I would hold that the Amend defendant knowledge of undiscovered trial error that ment forbids the exe-cution of those 420, they might set him free.” Id. at 106 S.Ct. who are unaware of the why they are about to are to suffer State, (2005); L.Ed.2d 269 Van Tran v. 6 tections than the federal Constitutional mini- 257, (Tenn.1999). perfectly S.W.3d 266 mum is consistent with federalism not, however, principles. Virginia is one of (in specifically require 12. Some states addi- require the states that an inmate be able to test) tion to Justice Powell's that an be inmate competent assist counsel to deemed to be able to assist counsel to be deemed executed. See, e.g., executed. MISS. C ODE ANN. to be 99-19-57(2)(b) (2005); specifi- § N.C. GEN. STAT. 13. At least one other circuit court has State, 15A-1001(a) (2005); Singleton cally rejected requirement. § v. 313 See Coe 53, (1993); Bell, 815, 75, (6th Cir.2000) (“We 437 58 State v. 209 F.3d 826 S.C. S.E.2d 60, Harris, 419, agree prisoner’s ability 114 Wash.2d 789 P.2d 66 that a to assist in his (1990). necessary The fact that some states have defense is not a element to deter- executed”). provide greater pro- appropriate mination of to be deemed

173 Ford, suffer it.” We review factual findings by added).14 Therefore, the district court (emphasis clearly we under the errone ous standard set forth in that the Federal Rule of conclude Amendment does 52(a). Civil Procedure Monroe v. require capaci- Ange that an inmate have lone, (4th 323 F.3d Cir.2003); ty prepare passing for his to be deemed Md., Attorney Fields v. Gen. 956 F.2d competent to be executed. (4th Cir.1992). n. Our scope determining whether Walton is com- narrow; of review is we do not exercise de executed, petent the district court novo review fac-tual findings or substi specifically examined whether un- tute our version of the facts for that found punished by derstands that he is to be by the district court. Jiminez v. Mary execution and whether understands (4th Washington College, 57 F.3d Walton, why he is to punished. be 306 Cir.1995).15 Instead, “[i]f the district F.Supp.2d 601. Because the district court’s account of plausible the evidence is faithfully court followed Justice Powell’s in light of the record entirety, viewed its test, two-part we conclude that the district the court appeals may not reverse it employed proper legal court the test though even convinced that had it been making its determination. sitting fact, as the trier of it would have weighed evidence differently.” City Anderson v. City, Bessemer B. 564, 573-74, 105 S.Ct. that, argues ap (1985). Walton also even Thus, L.Ed.2d 518 by facts found test, plying the two-part Powell the district the district court are conclusive on appeal clearly finding court him compe erred they Jiminez, plainly wrong.” “unless are tent to be executed. Walton contends that 57 F.3d at 378-79. A finding by factual overwhelmingly the evidence if, demonstrates the district court may only be reversed incompetence. disagree. “although it, We there support is evidence to support argument, pri trigger In of his that should Amendment 14. Ford, 421-22, marily prohibition.” focuses on Justice Powell's statement 477 U.S. at "only if the defendant is aware that his 2595. approaching prepare death is can he himself Ford, passing.” for his 477 U.S. at undisputed 15. The dissent states that it is context, S.Ct. 2595. Read in its it is clear deeper deeper "Walton has fallen and into that Justice Powell Dissent, did not include this as a p. mental illness.” infra required element of his test. Justice Powell legal significance. This comment has no real ("I two-part explicitly made his test clear mentally Whether Walton is ill is not the hold”) any would excluded mention of question relevant before us. As both Drs. requiring stated, capa that a condemned Pandurangi inmate be and Mills whether an in- preparing passing. ble of for his concept other mate is ill is a different from words, passing preparing might while mentally incompetent for well whether an inmate is to Moreover, salutary satisfying abe result of Justice Pow obliged be executed. we are test, required ell's it is not a element of the consider evidence of Walton's mental people test. Justice Powell noted that "most” condition that the district court considered. "opportunity" prepare would value the argument, for At oral Walton’s counsel stated that, passing, their but he assuming challenge, also stated that the Flori he loses his current standard, statutory requires only da precluded which Walton would not be from later capacity contesting that the inmate have the "mental his execution if he demonstrates penalty understand the nature of the death that his condition has deteriorated. The issue him, imposed” "appropri challenge of whether be such allowed us, ately deficiency defines the kind of mental is not before and we do not address it. For executed. on the entire evidence reviewing court testimony firm instance, conviction Virginia presented left with the definite committed.” has been

that a mistake Arikian, has as- psychiatrist Dr. á who Gypsum States v. United States United during his prisoners hundreds of sessed Co., 364, 395, several times career and who saw Walton (1948). L.Ed. 746 experts other who any than of the more vastly conflicting presented parties that he be- Dr. Arikian stated testified. understands whether Walton evidence that he is understands lieves that Walton Af- in his death. will result his execution for crimes. When going to be executed submit- considering all of the evidence ter Dr. view of opposing with the confronted sought court parties, the district ted very admittedly has had Pandurangi, who by ap- professional opinion yet another Dr. Ariki- prisoners, experience little Mills, Dr. who expert, a neutral pointing ends opposite “I think we’re at replied: an objective strongly endorsed as far on that.... I think spectrum Walton, Dr. Mills met with expert. When understanding of having an from not that he was to volunteer was able on, a full I think has going [Walton] what’s peo- three killing going to be executed on.” J.A. understanding of what’s “an that his execution would be ple and Dr. 899. When end” or “the end.” J.A. religious asked about his Mills in its en reviewing After the evidence death, understanding of Wal- views and his findings of tirety and the district court’s go to that he that he will ton said believes fact, being are far from left with we in form and then come back some heaven firm conviction that a mis “definite and family. Dr. Mills and be able see States United committed.” take has been very firm and clear has a believes Walton Co., 525. Gypsum at “afterlife,” in an but that Walton belief consid contrary, To the the district court the rest prefer prison to live in for by divergent presented evidence ered the 925. life rather than be killed. J.A. of his Dr. testimony of both sides and the neutral Mills, sum, op- personally In Dr. who is Mills,16 and there is substantial evidence have penalty to the death and would posed support record to the district court’s incompetent, stat- preferred to find Walton that understands that he finding “Walton clearly that believes that Walton ed he prison killing for an execution prison understands that he is and has received people three and that he will be executed murdering for three individuals sentence crimes. punishment as for these that to be Walton understands [and that] Walton, executed means he will die.” by Virginia presented Other evidence F.Supp.2d that at 600. opinion confirms Dr. Mills’ ultimate findings support court's Mills' assess- dence to the district 16. The dissent states that "Dr. j/Valton’s pres- not suggest does ment we do that Dr. of fact. While majori- unequivocal certainty ent the that the testimony presents “unequivocal cer- Mills’ Dissent, p. ty opinion at claims for it." opinion infra tainty,” that Walton is Dr. Mills' firm Contrary to the dissent’s characteriza- 191. testimony competent, along with the other tion, suggest we do we need to— do not —nor by Virginia, provides presented more than testimony unequivocal. Dr. Mills' This finding ample support court's district fhe by statement the dissent is either irrelevant going to that Walton understands that he is be misunderstanding a of our standard reflects punishment as for his executed and will die court, reviewing we are re- of review. As a crimes. quired to determine if there is sufficient evi- determining competen- court— ment” that a court though the district Even cy specifically for execution considering evi must decide thoroughly after un whether the condemned inmate under- found that Walton specifically dence — that to “executed means to punishment die as stands be have will derstands Instead, crimes, physical that the one’s life ended.”17 the dissent insists for his cases stand for the Ford test particular, more. these unremarkable requires “require proposition, adopted, a new which we have would create the dissent condemned inmate the district court must also must understand ment” that punishment the con that he will die as for his determine whether specifically case, court, crimes.18 In this the district “understand^] demned inmate evidence, vastly conflicting life faced with means to have one’s executed Dissent, by preponderance In an found a of the evidence p. ended.” infra new “re that “Walton understands that he is sen- legitimacy to add to this attempt die tenced execution” for the dissent asserts that other his crimes quirement,” and, precisely, even more “un- required “precisely” have such courts Id. at 185-186. derstands that to be executed means that finding. Con specific Walton, none of he will die.” contention, F.Supp.2d trary to the dissent’s added). (or any Ford does not (emphasis that we have 600-01 cases it cites case found) more. “require- require new supports the dissent’s applying requirement demned inmate understood that he would die Even the substantive See, e.g., the condemned the dissent’s new test—that for his crimes. Billi State, (Miss.1995) (affirm that death "means inmate must understand ot v. 655 So.2d physical life”—the record the end of one’s finding ing the lower court’s that the con evidence, ample as the dissent cor- contains competent to be executed demned inmate was concedes, establishing rectly that Walton un- though expert even one testified the in that his execution will mean derstands understanding mate "does not have rational physical life. Walton told Dr. Pan- end of his proceedings; rationally ... he can’t go durangi "[pleople die to the that who and ... the connect what he was tried for Glasgow graveyard.” J.A. 425. told Walton penalty actions. He can’t and his relate responsible be he wanted his mother to that And he ... believes that he will never those. disposing after his execu- of his remains Collins, executed”); Barnard v. 13 F.3d be prefers told Dr. Mills that he tion. Walton 871, Cir.1994) (5th (denying habeas relief 877 execution, electrocution for his which con- finding that the state court's the based on Walton’s statement at the time of sistent with that he was condemned inmate "knew sentencing that chair is for killers.” "the going to be executed and he was prefer to Walton also told Dr. Mills he would finding required by precisely the executed— prison of life rather than be live the rest in competency”) (emphasis the Ford standard interpreted Mills Walton's com- killed. Dr. Moreover, added). holding our is consistent that, considering to mean in the alterna- ment Collins, (5th F.2d 57 Cir. with Garrett v. death, life and Walton "would tives between case, 1992). did not believe In that Garrett spe- Mills like to live.” J.A. 909. When Dr. in his death that his execution would result cifically Walton if he knew that he asked thought that his dead aunt would because he die, might Walton re- well be scheduled to effects of the protect him from the harmful Mills asked plied, “Yes.” J.A. 910. When Dr. injection. Id. at 58-59. Garrett did lethal meal, he wanted for his last Walton what however, understand, possible for that it was what Dr. Walton showed no confusion about die when needle is stuck into his him to the by question and answered Mills meant the argued Although Id. at 59. Garrett arm. quickly clearly. and competent be executed under he was not Ford, met Circuit found that Garrett fact, the Fifth many by of the cases cited the In understood the na dissent, the Ford test because he majority reviewing the the court'—like penalty implications. its finding by ture of the death and upholds the does in case— Id. at 59. over contested facts that the con- lower court sum, conclude that the district may not under- In we asserting Walton employed proper legal test and physi- that his execution will end his court

stand life, points primarily findings “plainly wrong,” to the of fact are not cal the dissent its Jiminez, Thus, has made about comments see 57 F.3d at 379. we to life after being judgment able “come back affirm the district court’s Dissent, at p. competent execution.” to be executed. Walton is infra many of beliefs about the While Walton’s might “afterlife” strike others as odd or III. unrealistic, they are not inconsistent argues also that the district finding district court’s that “Walton by dismissing court his claim that he erred understands that to be executed means mentally cannot be executed because he is Walton, F.Supp.2d at 600.19

will die.” Virginia under law. retarded defined Moreover, some of Walton’s recent state- disagree. We happen ments of what he believes will Virginia, Supreme after his death are no more unrealistic In Atkins v. than the statements made to his Court held that Amendment mentally psychiatrist attorney during prohibits the state the execution of the re- tarded, concluding that not a proceedings. During trial his recent inter- “death is mentally told Dr. Mills that he suitable for a retard- view criminal.” go believed that he would to heaven but ed 536 U.S. at S.Ct. Court, however, return and his rela- 2242. The left to be able see During proceedings developing appropriate tives. the state trial states the task of in- procedures Walton stated that he would come to determine whether an shortly mentally back to life after his execution mate who claims to retarded would be able to resurrect his dead rela- is in fact retarded. Id. at court, panel tives. A of this 2242. Virginia responded after consid- en- statement, ering acting statutory neverthe- its definition of mental less ruled in requires, among Walton’s first federal habeas retardation that other el- ements, proceeding that “we harbor no doubt the condemned inmate’s dis- appear ability originate age Walton was in court before the 18 and Walton, plead guilty.” by “significantly 321 F.3d at be characterized subaver- competen- 460. Because the standard for age functioning intellectual as demonstrat- which, cy to plead guilty, by performance similar to the ed on a standardized executed, standard for functioning measure of intellectual admin- understand, requires that in conformity accepted pro- defendant istered among things, “consequences practice, other fessional is at least two him,” see, proceedings against 18 standard deviations below mean.” Moran, 4241; 19.2-264.3:1.1(A)(I). § § U.S.C. v. Godinez 509 VA. CODE ANN. 389, 396, 2680, Court, 113 125 Virginia Supreme U.S. S.Ct. L.Ed.2d The consistent (1993), 321 Psy- Walton’s recent comments with the standards of the American Association, clearly suggest about his “afterlife” do not chiatric has determined that incompetence any more than his similar this corresponds standardized measure IQ during comments did his first federal ha- an score of 70 or less. Johnson v. Commonwealth, 53, proceeding. 47, beas 267 Va. 591 S.E.2d be, person may necessarily suggests 19. That a believes that he will have an "afterlife” "afterlife,” strange existing however his views of that believes his life will end.

177 (2004), that, grounds, true, vacated on other 544 “has set forth facts if 59 1589, 901, 161 L.Ed.2d mentally 125 S.Ct. 270 demonstrate that he is retarded True, (2005); also, v. 399 Virginia see Walker F.3d under law.” Id. at 320. Cir.2005) (4th (“On 315, properly A review of petition Walton’s habeas IQ only normed test scores of 70 or lower reveals that allege he fails to facts demon- are two standard deviations below the strating mentally that he is retarded under mean”). Thus, can be deemed Walton Virginia alleges law.21 Walton that he mentally Virginia retarded under law IQ 1996, scored 90 on an test in shortly establishes, among require- if he other before Although he turned 18. ments, functioning that his intellectual claims that “[IJittle known” about how IQ corresponded

would have to an score testing was conducted and whether it of 70 or less before he turned 18. See reliable, can be considered he does not Walker, 399 F.3d 320.20 allege testing that this somehow tends to i.e, prove mentally retarded, that he is The district court dismissed Wal his score on claim, actually this test was 70 or mental concluding ton’s retardation less. also alleges that he received has not satisfied the statuto “Walton IQan of 77 expert score when his trial ry definition of mental retardation under Walton, tested him a Virginia F.Supp.2d few months after he law.” turned contends, however, 700-01. Because the district court dis 18. Walton that this posed of mental claim score of 77 retardation should be reduced to a score of dismiss, by granting the state’s motion to “Flynn because of the Effect.”22 Ac- Walker, cepting our is de novo. 399 F.3d allegations review these Walton’s habe- true, In determining petition at 319. whether Walton as still does not properly has stated a claim for relief in state a claim that mentally he is retarded petition, Virginia requires we must decide whether Walton because law that intellec- (2002); Washington 20. This does not mean that a condemned in- L.Ed.2d 335 v. Common wealth, 577, mate must submit a score of 70 or less from 228 Va. S.E.2d 586-87 IQ Walker, (1984); Penry Lynaugh, test before he turned 18. taken see also v. 302, 337-38, (4th Cir.2005). 399 F.3d at 323 n. 7 Never- 106 L.Ed.2d 256 theless, (1989) (''[T]he competent allega- sentencing body there must be some must be al functioning tion that the inmate’s intellectual lowed to consider mental retardation as a mitigating making would have fallen below this standard before circumstance in the indi § he turned 18. See VA. CODE ANN. 19.2- vidualized determination death is the whether 264.3:1.1(A),(B)(3). appropriate particular in a case”), grounds by overruled on other Atkins Virginia, 536 U.S. Pandurangi began 21. Both Drs. and Gur see- Nevertheless, (2002). L.Ed.2d 335 Drs. Pan ing shortly before his first execution durangi opined and Gur have never that Wal Although date in December 1999. these ex- ton is retarded. perts Supreme were retained before the Court categorical executing announced the ban on Atkins, mentally premise "Flynn retarded inmates in whether 22.The of the Effect” is that IQ IQ mentally Walton is retarded was a factor that scores over time and that tests increase Virginia could have been considered under that are not renormed to take into account IQ IQ capital rising will a law in murder case even before the levels overstate testtaker’s Walker, categorical mentally ban 399 F.3d at 322. Walton ac- execution of score. tually alleged petition retarded condemned inmates was in his that his score established by Supreme being adjusted "Flynn Court in v. for the Effect” Atkins. See Atkins after Commonwealth, 375, 312, (not 260 Va. 534 S.E.2d would be as low as 72 74 as he now (2000), grounds, alleges), posi- 320 rev’d on other Atkins v. but he has now abandoned that 304, 2242, Virginia, 536 U.S. 153 tion. a recital of credible by a unsubstantiated functioning be commensurate tual fur- facts, without justify dismissal age 18.23 of 70 or less before score Accordingly, because proceedings”). ther its motion to dismiss Virginia filed After allege sufficient facts failed to Walton alleged petition, Walton habeas func- that his intellectual demonstrating filing that separate in a the first time 18, 70 or less before he turned tioning was supports his claim score of 77 his test Wal- properly the district court dismissed Flynn once the Effect mental retardation claim. ton’s mental retardation error of measurement” and the “standard Assuming that the into account. is taken IV. consider this properly could

district court Walton does representation, post-petition above, we con- For the reasons stated this “standard error explain not what evidence clude that there is substantial why it should reduce measurement” is or finding that the district court’s supporting or less. score to 70 particular his mentally incompetent, is not standard mea- only speculate that this can has failed we also determine (which health ex- a mental surement error sufficiently a claim that he is state to either raise can take into account pert mentally Virginia under law. retarded IQ by score as much given lower a test Therefore, judgment we affirm the 322) actually see id. at low- points, as five district court. enough to meet given ered his score of AFFIRMED mental retardation standard.24 Virginia’s conclusory, speculative allegations do Such WILKINSON, Judge, Circuit the district court’s dismissal preclude concurring: v. claim. See United States of Walton’s (4th Cir.2004) Roane, forbids the Amendment “[T]he 378 F.3d only of those who are unaware of speculative allegations execution (concluding they are about to suffer petition granting do not warrant habeas it.” v. evidentiary hearing why they are to suffer Ford petitioner an 399, 422, claim); Wainwright, pursue further Fisher Unit- (4th Cir.1963) (Powell, J., States, 91 L.Ed.2d 335 ed 317 F.2d concurring part concurring in the insanity, that “bald assertions of (stating experts supporting alleges from his Walton also that he was tested two materials years Although other times several after he turned 18 retardation claim. not nec- mental below 70. Al- and that both test results are essary ruling, for our we note that the though these test results are relevant to Wal- directly expert in the record contra- evidence functioning, see ton's more recent intellectual speculative dicts the current assertion Wal- Walker, 399 F.3d at 323 n. Walton does not mentally retarded. For in- ton that he is allege scores demonstrate that his that these stance, expert Walton's trial testified that functioning intellectual would have been com- likely 77 “most is an Walton's test score of with a score of 70 or less before he mensurate intelligence” underestimate of his and that turned 18. "certainly J.A. 192 Walton is not retarded.” addition, added). (emphasis Dr. Mills tes- Although Walton attached to his second mentally retarded tified that Walton is not petition expert habeas affidavits and other IQ at and that he would estimate Walton's supporting his mental incom- documents Also, although around 80. Dr. General ini- claim, clearly petence as he was allowed to do appeared tially thought Governing under Rule of the Rules Section retarded, opined Wal- she later States 2254 Cases in the United District (2003), any to ton is not retarded. Courts Walton failed attach

179 upon precisely place to inter- what took here. As the Judges called judgment). may majority recognizes, not en- the district pret Eighth Amendment court was metaphysical inquiries in under the gage position in the best to evaluate Walton’s interpretation, but state, of constitutional guise applied mental and it the Powell test they responsi- abdicate their may neither exceedingly in an thorough careful and express content to an bility provide It evidentiary fashion. conducted two guarantee. constitutional hearings, testimony heard from Walton multiple himself as witnesses for wqll appreciates Powell test The him, side who each had interviewed judicial does not countenance Constitution step commissioning took the additional a forays inherently philosophical into arenas. psychiatric examination of its Judge own. Amendment Eighth Nowhere does the majority opinion Shedd’s in reflects its own that a defendant understand the mandate fashion the care in conscientious taken way in a before he particular end of life court, weighty by matter trial may pro- be executed. The amendment concur in it in full. death, and it certain- vides no definition of ly judges does not license discover one. WILLIAMS, Judge, concurring: Circuit beyond competence That task is well our authority, religious and is best left to fully I concur in the opinion. majority’s scientists, leaders, philosophers, and the separately, I write and with all respect due of individual belief. The private recesses dissent, in my good colleagues to ex- multiplicity of views on this most sensitive plain why proposed I believe the dissent’s subjects guarantees and intimate of all but determining sanity test be executed any definition of death —even one as flawed. would The dissent hold seemingly generic physical as “the end of Constitution, matter, legal as a re- “the respect many fail to the views of life”-—-will quires that a condemned inmate under- may way. not see death in this who stand that execution will result the end physical Applica- of his life.” Post at 183. time, At the same Justice Powell’s test prevent Virginia tion of this test recognizes Eighth Amendment executing from the district Walton —whom provide meaningful independent must court has found understands that he is check on the coercive exercise state executed, why going he is to be cannot occur if power. This executed, and that his execution will cause simply formality any a rote devoid of actu- Johnson, die, him to v. see Walton capaci- al into a mental insight defendant’s (W.D.Va.2004) F.Supp.2d ty. ability magic The mere to recite words —unless the district court finds that also “punishment,” such as “death” and for ex- that his execution will “understand^] ample, is insufficient itself to demon- the end of his life.” Post [cause] comprehension significant strate view, this additional test my at 183. imposed. sanction to be significant from two deficiencies. suffers subjective question is how to avoid First, death, formula and non-inclusive definition of with- neither Justice Powell’s legal tion of the test in Ford v. Wain allowing competency out to become a 399, 106 meaningless concept. wright, Justice Powell 477 U.S. S.Ct. (1986), adop by requiring L.Ed.2d 335 nor the Court’s

sought to resolve this tension (albeit dicta) objec- Penry of that test under the Amendment an tion tive, inquiry particular Lynaugh, into a individualized (1989), abrogated on other competence.

defendant’s mental That is L.Ed.2d 180 the Eighth the focus of by Virginia, spite Atkins v. 536 state-centric

grounds U.S. Amendment, 304, 2242, 122 153 L.Ed.2d 335 test is unsup- S.Ct. the dissent’s (2002), required any that a death-row inmate by statutory analogue. It is ported asserts, death to “the end true, understand mean that in as the addi- dissent Rather, cases physical life.” these re- law, seeking from state guidance tion to case, majority has the in this quired, as their courts must render own “federal “[ ] that the condemned inmate be aware judgment regarding constitutional limita- to suffer is] of the about [he by at tions on execution.” Post 186. But Ford, is] suffer it.” [he relying judgment, on its the own dissent (Powell, 422, J., at S.Ct. 2595 U.S. that, test ultimately, reveals its' is its concurring part concurring the not own—and Ford’s—creation. Penry, at judgment); U.S. Second, deciding even if were we apply existing 2934. Rather than slate, case on a clean the dissent’s test precedent, the dissent Supreme Court re- (1) fails to for the fact both account precedent. And to the extent writes many understand death non-scientific argues that test should the dissent its be requires terms courts evaluate interpretation of Ford and seen as not meaning of the such non-scientific under- rewriting, post interpreta- at the its noted, standings. As the dissent would tion is without basis. None of the cases sane, that to be must person hold under- test, post cites in support the dissent of its his death in scientific purely stand terms: -186, “death,” purports at 184 to define my “the end of life.” In physical [one’s] much less to define it “the end of as [one’s] view, this account definition fails to for the Instead, physical life.” each of those cases that, fact the (or depending on orientation of implies) only states that the defendant Weltanschauung, perfectly one’s sane must understand the “nature” of the death just can person understand death —not the penalty and the “nature” of the death afterlife, that it but terms penalty is causes death. Not one death itself—in wholly religious, the cases “examined ... are precisely poetic, metaphysi- whether (or thereof), the inmate must that the understand exe- cal some combination and that cution will mean the end of his do not involve a underpinning scientific at life,” post at 186: Not one of the dissent’s just give likely all. To one the innumer- quotes any from those cases contain lan- examples, who, Solipsist, able think of the guage to that effect. A that has test not many years study, after of academic comes any appeared or case law in statute including things, to believe all his own years since Ford decided can hard- body, merely posited are by illusions ly as “obvious” as the dissent claims. mind. eternal Does he view death on the Post at 186. not, If dissent’s scientific terms? is he therefore insane? I cannot

Moreover, subscribe to deviation from Justice Pow- that a the view condemned inmate in- doubly ell’s formulation is inappropriate in simply sane because he does Eighth view Amendment context—an area through death scientific that “must the dissent’s lens. meaning of law draw its from Indeed, given many diverse evolving decency visions of standards of death, nature of the progress maturing society” inquiry, mark the of a abstract and the primarily by legislation evidenced “the state-centric nature Amendment, Atkins, enacted see country’s legislatures.” At- 311— kins, 311-12, 122 S.Ct. 2242 not believe do that we (internal omitted). (not quotation judges marks De- federal to mention we inferior- judges) deciding should be the ones religious, poetic, court mates’ or metaphysical inmate under whether a condemned who views of death and the afterlife. a Does stands that he is to die must under Christian Apostles’ Creed, who recites the stand more about his death in order to be its claim to the “resurrection of the Atkins, sane. body,” see death as the of physical end Cf. (“To the extent there is serious Wilder, life? What of Thornton whose disagreement about the execution of men Emily in given Our Town is opportuni- the offenders, tally retarded it is in determin ty to relive her twelfth birthday despite ing which offenders are in fact retard her death? What of a member of any [Therefore,] ed.... we leave to the number of religions, Eastern whose belief developing appropriate the task of State[s] presupposes reincarnation although ways to enforce the constitutional restric life, death is the of physical end this it is upon tion execution of sentences.” [their] not the of physical end life? And what (internal omitted)).1 quotation marks of the Solipsist, whose presuppose views attempts

The dissent to buttress its test that he not even does have a life? by claiming on happens its focus what to A test that could a finding insanity base of “physical” the inmate’s life at death is on such views seems far afield from the justifiable punish- “[execution because is a Eighth prohibition Amendment’s of the ex- wrought [solely] upon body.” ment the ecution of the insane. realize, Post 187. The dissent fails to suggests dissent should be “[i]t however, that this statement is itself a crystal clear that this case is not about the metaphysical punish- one. Execution is a orientation of Walton’s Weltanshauung “body” ment inflicted on the alone [and is not about it] [Walton’s] reli- being insofar as one sees a human as gious philosophical or views about the aft- else, comprised “body” something of erlife.” Post at 187. forAs the dissent’s such as “soul” or “mind.” But take out the point, first I agree could not more. Un- dualism, just easily and it could as be said less, however, my dissenting colleagues be- “per- execution is a legal lieve that their test apply only should here, course, My goal son.” is not to case, point affords the metaphysics, debate but to demonstrate purchase. dissent no If a legal test found- that the dissent’s narrow view of what it in a hypothetical ers case that could come justice means to die fails to do to those before the court—as dissent’s would in themselves,

who do not view the world in the case of a condemned inmate who did live, they implications which or the their not understand his death in scientific precisely ultimate fate in the same manner fact, view, my good terms —this is a my colleagues in dissent. reject reason to the test. In addition to its failure to account for many point, agree the fact do not As for the dissent’s second I understand terms, death on scientific that this case should dissent’s test not be about Walton’s requires inquiry into condemned in- Unfortunately, views about the afterlife. clear, suggest impending 1. To be I do not that we federal stand about his death in order to judges provide arguments are not well-suited to a defini- sane. These are different en- Rather, tirely: pertains running tion of "death” in all areas of law. I first define, suggest legal system that we are not well-suited to well-oiled account for must every purposes, people stop living, Amendment what the fact that while the penal- pertains condemned inmate who is we aware of the second to matters on which have ty precisely special authority insight. he is about to suffer must under- no must be or “die” defendant that re- “execution” however, test it is the dissent’s understanding concepts Why capable matters. of such quires examination But fact that words refer. ultimate those ground its which would the dissent else not lead me to this instinct does share that remand is warranted conclusion (1) deciding that we should be “he either believed that: believe the facts that Walton content of these abstract particular his the to and be with could come back life dis- concepts or that the and and contentious (emphasis at added honeys,” post 189 (2) omitted), accurately captures -Ap- them. test marks sent’s quotation internal Ford, then, I that the dis- him conclude plying ... to make going “electrocution findings that knows strong- trict court’s something or ... come back to life and that going that he is to be “executed” er,” added and inter- (emphasis at 189 post (3) omitted); him to “die”— will cause “he his execution nal marks quotation necessarily al- that indicate Walton findings that would might special powers have concepts capable understanding of the to after execu- was him to come back low life the and to which these words refer-satisfied tion,” (emphasis at added post jaware (4) omitted); that be requirement “[ marks quotation internal woman,” to at 190 the he is about suffer.” post back as a might “come (Powell, J., quotation internal (emphasis added and in the omitted); concurring part concurring in and and means “[death marks ably dem- [your] judgment). majority As the has rest you s]Ieep [the] that life for record, onstrated, in you,” post the evidence the ... comes to see until someone testimony sup- quota- expert particular, the (emphasis added and internal omitted). I cannot hold ports finding, actual such a marks The dissent’s tion requires revealing Eighth than what it the Amendment analysis is more or is not about.2 more. asserts this case is sure, I share the instinct To be WILKINS, Judge, dissenting: Chief for a vision

undergirds the dissent’s search In the face of substantial evidence everyone must hold order of death that Percy understand understand the Levar Walton does not considered sane: be death, word, be that his execution will mean his meaning person of a must life, physical the end of his understanding concept defined as capable of majority opinion Judge Williams’ con that word refers. To understand which “chair,” position currence take the that an individu meaning of the word for exam- may al to be executed ple, person capable must be of under- found object Wainwright, under Ford v. standing concept of “an used for (or similar). (1986), Likewise, 2595, 91 L.Ed.2d 335 sitting” something Notably meaning understanding.1 without such an to understand the words rely my point suggests that does strates dissent's test would re- 2. The dissent —the very quire the courts to make these Walton's views of the'afterlife as “evidence of district types judgments regarding a religious metaphysical of sensitive value [beliefs]” Walton's may inmate’s views of the afterlife in view condemned but rather as "evidence that Walton place. interruption the first merely of his death as a brief life,” physical and that it would re- current Judge suggests to make the factu- Williams’ concurrence mand for the district court executing "prevent Virginia views wish to from al determination of whether Walton's Ante, any at 179. Lest reader be the former or latter. Post at 188. Walton.” reveal remark, however, it is suggestion, simply confused the concurrence’s This demon- majority opinion any person may phys- who be unaware that from the absent ical life is to end. holding other than explanation for this say respect doesn’t it.” With “Ford majority opinion additionally states of what the purely legal question that even if such an understanding is re- requires Amendment quired, “the record contains ample evi- executed, I hold that an individual’s establishing dence ... that Walton under- fact of understanding of the execution stands his execution will mean the end Ante, rudimentary physical must include at least a com- life.” at 175 n. 17. I dispute do not there is evidence prehension that execution will mean his may support this record that such a find- death, defined as the end of his ing, just majority as the opinion does not life. there dispute ample is evidence to my nothing position. There is new about (For support contrary finding. example, a dispute is no that the Constitution There the record indicates that Walton can re- capital punish- the prohibits imposition cite, prompting, after that he is to be inmate understands that ment unless the However, executed for murder. and that to he is to be executed be has also stated that execution his will allow - ante, executed means to die. See at 174 telephone, motorcycle, him to “have a a Contrary my colleagues as- to what (inter- job Burger King.” and a J.A. 367 sert, rewriting of It a this is not a Ford. omitted).) nal quotation marks This is not simple recognition that the constitutional point. point the is that the district (“Do question you your understand that court has never assessed the evidence itas die?”) you execution will cause cannot specific question relates to the of whether meaningfully answered unless the con- understands that his execution will “to physical demned understands what die” means. mean the end of his life. case, ordinary

In the an inmate who un- Constitution, legal Because the as a mat- and mean dying derstands what execution ter, requires that a condemned un- inmate will also understand that execution will derstand that execution will result in the physical mean the end of his life. But life, end of his and because there who, by there are no doubt some reason of finding a factual regarding has never been defect, mental illness or do not understand here, whether this standard is met the despite being proper this able to utter the Eighth Amendment demands we va- prompted. incantation when the When judgment cate the of the district court and question a legitimate record raises remand for reconsideration a condemned inmate whether understands society A competence be executed. means, what “to die” the district court is rejected unequivocally has the execution of pre- inhuman,” Ford, obliged to resolve issue. This is “savage the insane as and case, cisely today’s such a and the effect of can accept 477 U.S. at 106 S.Ct. a I holding permit is to the execution of no less.2 therefore dissent. here, emphasizing only quires

worth that I would remand I have no doubt that we—as well finding by single factual the district as the State —share a firm conviction that no appeal finding that on court and would put individual should be to death in violation highly the deferential be reviewed under of the Constitution. “clear error” standard. In the event that it is determined that Walton understands what "to concurring opinion Judge states Williams’ means, proceed. die” his execution (or (incorrectly) that I have rewritten Ford majority and I are divided While the with Eighth respect re- to what the Amendment view, competency only one relevant to the I. death. prisoner’s the to be executed—is dispute here that Walton There is no Powell, concurrence, stated Justice and sentenced convicted properly rule as follows: the constitutional Similarly, murders. death for three brutal connec- perceives If the defendant dispute that since sentenc- there is no punish- and his his crime tion between deeper deeper fallen and ing, has ment, goal of the criminal the retributive illness. The issue before into mental if defen- only And law is satisfied. questions court concerns en banc approach- death is is aware dant faced answered court that must be prepare pass- himself for his ing can he determining whether Wal- the task of I that the Accordingly, would hold ing. to be executed. While ton is the execu- Eighth Amendment forbids agree that the test for majority and only of those who are unaware tion under the Amendment they to suffer are about whether an individual understands they to suffer it. are why,3 I would he is to be executed (Powell, J., con- Id. at understanding of hold that an individual’s concurring judg- in the curring part must include the un- the fact of execution ment). meaning in this Justice Powell’s mean his derstanding that execution will goal of passage is clear: the retributive death, physical as the end of his defined satisfied if the capital punishment is life. understands that his execution prisoner physical life. Accord Martin will end A. 1523, F.Supp. 686 1569 Dugger, v. (“An (S.D.Fla.1988) part essential of the prisoner’s up- That awareness of his a society imposes on a defen- punishment coming execution should include such is to make the defendant realize and dant clear, first, understanding is fundamental concept that he will die for live with the in which the members of from the manner Accordingly, did.... if retribution what he stated the constitutional the Ford Court by the death of a con- is to be served on the execution of the insane. prohibition prisoner the at prisoner, demned must recognized society’s plurality abhor- realization.”). least have this inflicting penalty of the death on one rence language, indicating apprecia- him an prevents whose mental illness from Similar of his “implications” prisoner’s the of his tion that a awareness “comprehending” Ford, 417, understanding include the 477 U.S. at 106 execution must punishment., physi- means the end of his (plurality opinion). 2595 There can execution S.Ct. life, and no the first and foremost cal is found numerous federal be doubt and, my “implication” of state court decisions before after execution— interpretation Eighth require that is “without the Amendment cannot less have crafted an Ante, Ford). rudimentary comprehension than a of the end basis” in at 180. Far from Ford, doing rewriting merely I I am result of execution. am what deciding constitutionally obligated to do: majority opinion competency agree the that the whether the under proper competency the under- test for to be executed includes fundamental Amendment counsel, physical ability to standing that death means the end of includes neither an assist ante, 172, ability “prepare ques- ... Ford addresses this see nor life. To tion, extent spiritually passing,” supports my Ford for his id. view. To the extent question, does not address the I believe that 172-173. Mitchell, added)); Jermyn, v. See, 250 F.3d Commonwealth v. e.g., Scott Ford. (6th Cir.2001) (1995) (af- 371, (holding 821, 1011, Pa. 652 A.2d 823-24 1013-14 appropriately defined as firming lower court conclusion that understand the capacity to “the mental was to be executed petitioner it was penalty alia, the death because, nature inter his mental illness did of (emphasis add upon the convict” imposed understanding him from preclude omitted)); ed; marks quotation internal penalty); see “implications” of the death Collins, 871, 876-77 v. 13 F.3d Barnard Balkcom, 9, 20 n. also Solesbee v. (5th Cir.1994) prob (denying certificate 457, 3, 70 94 L.Ed. 604 finding on state court cause based able (Frankfurter, J., dissenting) (stating that “comprehend[ed] the na petitioner death, the test of in- sentence “[a]fter ” (internal quota his execution ture ... can “un- sanity prisoner” is whether the omitted)); Amaya-Ruiz v. tion marks derstand,” alia, impending inter “the fate (D.Ariz. Stewart, F.Supp.2d (internal quotation awaits him” which 2001) compe that Arizona defines (noting omitted)). marks pris tency executed terms Indeed, ability vel non to prisoner’s that the awareness oner’s means the end comprehend that execution death); Perry, 502 State v. murder deciding factor of his life was the (La.1986) (holding that Lou So.2d cases. post-Ford competency in two an individual who will not execute isiana State, 75, 437 Singleton v. 313 S.C. S.E.2d capacity to understand “lacks (1993), that the the court concluded State, 655 So.2d penalty”); Billiot death Singleton, incompetent petitioner, (Miss.1995) (holding that 15-16 did not understand be executed because he Ford, prisoner must competent under punishment”: “the nature of the of what it understanding rational “have a that he Singleton completely is unaware executed”); v. Fen to Grammer means be in chair. dying of the electric capable is (In Grammer), Neb.744, 178 re 104 ton protective “genes” and His reliance on (1920) N.W.624, (holding that demon 626 counsel’s inability respond to to his re strating incompetence to be executed than a anything with other questions showing petitioner that the “does quires a Singleton’s fail- are indicative of yes-no understand, of under incapable and is not ” the reason or to understand either ure (em ... standing, impending fate punishment. the nature of his Scott, added)); 92 Ohio State v. phasis State, v. 215 Miss. Musselwhite Accord (2001) 11, (per N.E.2d 13 St.3d 363; (holding that 60 So.2d curiam) defines com (observing that Ohio incompetent to be executed petitioner was capaci under Ford as “the mental petency schizophrenia ren- his catatonic because the death ty to understand the nattire of account of [the] him unable to “take dered the imposed upon it was penalty and the electric being of “taken to significance” added; quota internal (emphasis convict” chair”). contrast, Fifth in the Circuit State, omitted)); v. Bingham tion marks (5th Collins, F.2d 58-59 (1946) Garrett 305,169 P.2d 82 Okla.Crim. Cir.1992) curiam), that the (per concluded exam purpose competency of (stating that to be executed petitioner is to determine prior ination to execution that his deceased though he believed even public with it would be consistent “whether toxic him from the protect aunt would away the decency propriety to take during lethal used of the chemicals enough effects who was not sane person life of a ” the court reasoned injection. The being (emphasis realize what was done executed, of is able to state that he is to be “comprehend[ed] the nature petitioner (internal that to execut- penalty,” quotation may id. at 59 but not understand be the omitted), although physical marks because he be- the end of his life— ed means die, recognized not for the conclusion of the provides lieved he would no basis to end his purpose majority opinion the of the execution was that the existence of such compo- understanding life. is not critical executed. competency nent of majority opinion contends these cases stand for the “unremarka- concurrence asserts Judge Williams’ ... the condemned proposition ble any inquiry into whether a condemned inmate understand that he will die as must inmate understands that death means the Ante, for his crimes.” at 175. physical end of life is because improper concurrence makes the Judge Williams’ through the states is not mandated agree. I cannot The lan- same claim. legislation. thought, not have would abundantly guage of cases makes it these however, that it would occur to the states simply clear that the test for something legislate pro as obvious as Moreover, narrow. neither the so hibiting an execution when an inmate is so con- majority opinion Judge nor Williams’ cannot the comprehend insane that he seriously dispute currence can the “I meaning-of the statement am in Singleton courts Garrett examined Surely, legisla die.” even the absence precisely question at issue here— tion not force this court to allow whether the inmate must understand that execution of an individual who believed execution will mean the end of his go get that “to die” meant “to an ice cream deciding competency. life—in Moreover, objective cone.” while evidence legislation certainly the form of rele Indeed, today’s holding is “consistent in identifying prevailing Eighth vant Garrett,” ante, 18, only n. standards, Supreme Amendment Court majority opinion, insofar as the like the abundantly has made it clear that in the Garrett, finding court would affirm the analysis, final the federal courts must ren Otherwise, competence. majority judgment regarding der their own consti opinion appreciate significance fails to tutional limitations execution. See At analysis and decision that case. 304, 312-13, Virginia, kins v. finding though In Garrett even (2002). 2242, 153 L.Ed.2d die, he believed that he would not the explicitly rejected Fifth Circuit counsel’s short, that, In implicit would hold in contention that incompetent Garrett was Eighth the rule that the Amendment for- “fully because he was not aware of the bids the execution of one who does not consequences penalty.” of the death Gar- executed, understand that he is to be is the rett, 951 at Importantly, F.2d the corresponding requirement the con- compe- court concluded that Garrett was prisoner demned must understand that to actually tent because he understood that physical be executed means to have one’s him execution could cause to “suffer life ended. (internal quotation death.” id. at 59 marks omitted). B. precise- Garrett thus addressed ly question that the has never been ad- Judge concurring opinion criti- Williams’ in dressed the district court this case. my framing necessary Eighth cizes of the rarity particular inquiry “purely of the circum- Amendment scientific.” Ante, However, inquiry stances of this case—in which the inmate the is understands that his exe- the whether Walton terms because in “scientific” phrased physical end of his life concerned with cution will mean the Eighth Amendment the (or, to understand ability prefer, if the concurrence would this the inmate’s him happen to reality of what will life), of can physical physical regardless whether he a punish- Execution is execution. during any meaning or does ascribe to that event. executing in body; wrought upon the ment Further, concurrence Judge Williams’ inmate, is con- the state a condemned my may maintains that view physical bringing about solely with cerned understand that his execution will re- death, inflicting any punishment not with death is based on physical sult Wal- afterlife. carry over into the may support In of ton’s view of the afterlife. physi- that the end of his believes One who contention, this the concurrence relies concern, for what- not cause for cal life is my passages citation to several the rec- indeed, reason, may not fear ever death — indicating that Walton believes that his ord it—and this would may even welcome physical life will continue after his execu- Eighth the Amendment. no concern of ante, However, I cite tion. See at 181. incompetent to be execut- An inmate is not passages not as evidence of Walton’s these simply “understand[s] because he ed religious metaphysical regarding views terms, wholly physical than death” other death, meaning of his but rather as Amend- ante, Eighth at 180. What may view death as that Walton evidence is a condemned concerned with ment is interruption of his current merely a brief concept that ability grasp inmate’s words, pas- these physical life. other stop his heart to beat- will cause execution may not under- sages indicate that Walton activity to cease. ing and his brain physical an end to his stand that death is concurrence that The insistence may court determine life. The district into requires inquiry “the dissent’s test pas- concurrence’s view of these that the poetic, or religious, inmates’ condemned correct, and that Walton’s state- sages is after- of death and the metaphysical views metaphysical ideas about ments reflect his ante, life,” on its conflation rests But, are these statements life after death. reality of understanding to the infer- reasonably susceptible also (what re- Amendment death understand the does not ence many people fact that quires) with the We, appel- death. as an physical reality be- meaning goes attach to death court, position in a to resolve late are not of the heartbeat. the mere cessation yond precisely why question; factual this is evi- questions The two are different —as required. remand is concurrence’s own discus- dent from the sion, solely what concerned which is (if character groups a fictional different II. considered admittedly dead can be

who is view, in the record my the evidence “the about events after “group”) believe (one yet to question presents a substantial life,” ante, at physical of this end court) toas by the district be answered It point. entirely beside the latter exe- that his understands whether Walton this ease is not crystal clear that should be death, ie., end of his cution will mean of Weltan- about the orientation Walton’s of a sub- The existence life. anyone’s religious shatmng; it is not about for a is a sufficient basis question stantial the afterlife views about philosophical or court for factual to the district thereof; remand it not about the or absence ques- concerning particular findings at all. It is about “meaning of death” Bell, psychiatrist 209 F.3d the observations of Anand tion. See Coe (6th Cir.2000). To hold otherwise is to Pandurangi, who testified that Walton’s though send Walton to his execution even understanding proceedings concern- may comprehend ill to he be too ing upcoming extremely execution was happening. what is Regarding present cog- limited. ability, Pandurangi nitive Dr. said General, Psychiatrist Patricia who exam- could not nature of understand the April two ined Walton on occasions the Ford the caveat May hearing, [that] concluded that Walton was “with “floridly no psychotic” insight you and “had him can teach that.... can ham- [Y]ou going into what was on around him.” J.A. Now, in ... period. mer it for a short (internal omitted). quotation 304-05 marks later, gone.” minutes Id. at Dr. it’s Dr. General further noted that Walton did Pandurangi stated Walton could not upcom- not “seem to be concerned with his comprehend the fact that execution would ing During execution date.” Id. mean his death any “[i]n sustained sort of May meeting, had stated that 381; way.” Id. at see id. at he to Dr. was be executed. General (“[H]e’s this, not able to understand testified: keep any way or it his mind in sustained I I presume that what had asked him time, over some ... period including of was, about was he aware that he was minutes.”). Similarly, executed, going to be and he said he was March 2004 hearing, Pandurangi Ford Dr. going to be executed. I asked further estimated that Walton had the understand- him he knows what that means? And if ing eight-year-old of a six or but that he ” I replied, explained “No. So further capable of a brief factual understand- that it put meant that he would be to ing you of execution: give it to him or “[I]f death, said, and he “Yes.” ... And when you it, if press register, he can and for that I asked him if he knew he would be moment, fleeting, he can hold it. If I tell death, put ... peo- he said ... some him, You’ve given been the death sen- ple had told him ... that he had killed tence,’ say, he will ‘The death sentence.’ people. some registers He it.... But when comes to added).4 Id. at 311-12 (emphasis On cross that, implications any of further discus- examination, responded Dr. General to the it, sion of there don’t think he under- question your impression “is it that [Wal- stands that.” Id. at Dr. 975-76. Pandu- understood that put ton] he would be rangi concluded, “I say [Walton] “Yes, death?” saying, after further ability does not have the prepare him- questioning” and that ques- “[w]ith the in any meaningful self [way].... [He’s] tions” Walton put “understood he would be thinking not preparation death and redirect, to death.” Id. at 344. On Dr. death way. He seems to thinking agreed General with Walton’s counsel that motorcycle, like he can ride a somebody Walton did understand what execution will come see him....” Id. at 978. meant until explained she it to him.

Dr. General’s Dr. testimony Pandurangi regarding had also testified meaning have the conception the term “execu- Walton’s Among death. oth- tion” explained to him is consistent with er Dr. things, Pandurangi noted that far expressing regarding After her concerns moved from her duties on death row. state, Walton’s mental Dr. General was re- (internal quotation you.” see Id. at 964 that he insisted as Walton back omitted). get [elec- and marks plead guilty “to wanted he could “come back so that chair” tric] Gur, Dr. who testimony Ruben honeys.” Id. at with his life and be July again 1999 and examined Walton (internal marks quotation 106 S.Ct. 6, 2003, that May 5 and also indicates omitted). his discussions Based on that may not understand execution Walton Walton, by getting “indicated who of his life: means the end man,” Pandurangi chair, Dr. he would be I whether he [Walton] asked [W]hen “thinks that somehow opined Walton ... could tell me where he stands now ... to make him going electrocution that he’s about to impression or make him come back powerful more hearing, have his there have been at something stronger.” Id. life allegations people that he’s killed some (internal quotation marks omitted). Dr. interview with During his that he

Pandurangi, indicated him, “Well, I that’s not what Pm told powers” might “special have you My understanding told. is that had to life after execu- him to come back allow convicted, you were the trial and tion, unalterably fixed although he was not to death.” you and that were sentenced (internal quotation Id. at 365 on this idea. you, “I don’t gives And that’s when he omitted). And, tes- Pandurangi Dr. marks I even know.” know. don’t “some delusional had tified on both and push I tried to further visits regarding thinking in his mind” type him in I explain graphic terms as death, simultaneously acknowl- in that he meant, I asked him if could what it and penalty imminence of the death edged the said, me, he repeat he could after stating that he wanted nevertheless while that, him to “Yes.” And I asked do shopping ... mall” good [i]n to “look said, “I’m to be executed.” he have a tele- thought that he could said, right. you And do And I “That’s job motorcycle, Burger and a phone, happens you get understand what when (internal quotation King. Id. at 366-67 executed?” omitted). According to Dr. Pandu- marks said, “I know.” And he don’t things “both are rangi, thought time,” leading Dr. at the same possible said, “Well, you I die.” to conclude that Walton Pandurangi “Yes, I says, die.” He very temporary thing.” “a death as viewed it means that you “Do understand what Id. at 366. you die?” hearing, Ford Dr. At the March 2004 says, ‘Yes.” And he regarding his recent Pandurangi testified said, “Well, I what does it mean?” And time, At that Dr. of Walton. observations could not Pandurangi you’re found that Walton dead.” says, He “It means prison was in consistently state said, going to right.... “That’s What’s say, ‘They found me (e.g., did “[Walton] then?” happen And then he sort of guilty, people.’ three guilty or T don’t know quickly, added execution, said, I’m going ” And he “After 961). was unable to not.’ Id. Burger King.” aget hap- was or what explain what execution testified that Dr. Gur further death, J.A. 440-41. say “Sleep than to pened at other date his execution could state comes to while Walton life ... until some-one for rest of 23, 2003, “they your tion stick a needle in arm or May as he did know what actually something,” agreed Dr. Gur also stated and he then with the year was. “[y]ou that die” at that comprehend suggestion that cannot “the rami- State’s Walton However, during if at may point. fications of what occur he’s execut- Id. 522-23. you explain “I could it to him this same cross-examination ed”: think Walton parrot questions able to statements unable to answer about what and he will be him, is, responding “I know” you you that feed but come back ten electrocution don’t and see that there isn’t much or “I don’t even know.” Id. at 523-24. minutes later at left out of all that effort.” Id. 455-56. court, expert appointed by psy- And, acknowledged Dr. that while Gur Mills, chiatrist Mark was directed to exam- die,” ... “understands that he will Walton “(1) regarding ine Walton whether Walton questioned whether Walton “under- by that punished understands he is to be death,” noting primary stands that his con- execution; and whether Walton under- that he could “come back cern was why being punished.” stands he is Id. at woman.” Id. at 459. 869; the district court specifically restrict- testimony during July Walton’s questions only. ed Dr. Mills to these hearing Ford also indicates Walton, Based on his examination of Dr. may not that his execution understand will “yes” Mills answered to both of those example, result in his death. For questions. Id. 897-99. Walton told Dr. “I answered don’t know. I don’t that it Mills did not matter how he was even know” when asked what his execution (electrocution injection); executed or lethal meant, date and “I don’t think so” when Dr. why, when Mills asked “He said some- you date, asked “If have an execution does end, thing like it’s or it’s the end.” Id. you mean have been sentenced to Dr. 899. Mills described Walton’s un- death?” Id. at 506-07. Walton was also derstanding of “simple, maybe death as say happen unable to what would himto even childlike. I believe there’s your going sentence of death was “[i]f enough things there that he understands out, you be carried if were going to be very they are than different executed.” Id. at “If 507. When asked ultimately are now.” Id. at 902. Dr. Mills executed, you you were could come back to concluded that “the standard for execution earth? you prison? Could be back in that, sufficiently sadly, low Mr. Walton you responded, Could be out?” Walton “I enough meets standard. He knows don’t know. I don’t know. don’t know judge’s questions meet the to him.” Id. procedure goes.... how the I don’t know added). (emphasis Dr. Mills acknowl- if I prison could be back in or not.” Id. at however, edged, previous- Walton had Nor could Walton state he had ly been unable to articulate his under- been hearing sentenced to death. After noted, standing of execution and “I think I testimony examination, Walton’s on direct may him caught good day.” have on a Id. stated, “[0]bviously the district court if the at 947-48. Dr. Mills also stated that he testimony, Court credits his he’s not com- might “pushed” have ques- more on some petent.” Id. at Despite this state- reports tions if he had had the of other ment, the district court did not discuss doctors at the time of his examination. Id. credibility in finding Walton’s its decision Ultimately, at 924. the most Dr. Mills to be executed. say could was that appeared sure, To testimony some of Walton’s meet the criteria articulated the district may indicated that he day understand that his court on that Dr. Mills examined short, execution will mean his death. For exam- him. Dr. Mills’ assessment of ple, during injec- Walton stated that lethal present does not majority certainty that unequivocal America, STATES of UNITED for it.. claims

opinion Plaintiff-Appellee, view, conflicting evidence be- my regarding court district fore the v. that his execution understand ability to ALVARADO, Constanza Samuel life of his the end will result Defendant-Appellant. question to consider obliged the court compe- ruling on Walton’s specifically No. 04-4969. not The court did executed.

tency to be Appeals, United States Court of the district so, opinion however. do Fourth Circuit. it considered reveals that court knew question of whether Walton narrow Jan. Argued by execution punished he was to be 13, 2006. Decided March Although people. three the murders of for testimony that Dr. Mills’ court noted execution was that his recognized “Walton ” Johnson, end,’ v. ‘an ‘the end’ or (E.D.Va.2004), F.Supp.2d into inquire specifically

court did re- to which Walton the “end”

whether physical life. end of his

ferred was the in the evi- conflict the substantial

Given under- regarding whether

dence mean his execution will that his

stands

death, upon the incumbent I believe was finding on specific to make court

district question. hold that Wal- point not at this

I would Ford. under actually incompetent

ton is rather, narrowness concern, is with the

My court by the district inquiry made that Walton possibility substantial

and the mean his execution will not know that

does respectfully physical life. of his

the end

dissent.5 TRAXLER, MOTZ, MICHAEL,

Judges join in this

KING, and GREGORY

dissenting opinion. because cannot be executed claim that he Judge Motz's reasons set forth in

5. For the retarded, Virginia, Johnson, v. see Atkins panel, see Walton opinion for the 304, 321, Cir.2005), (4th I would 294-97 407 F.3d (2002). L.Ed.2d 335 of Walton’s further consideration remand

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: Mar 9, 2006

Citation: 440 F.3d 160

Docket Number: 04-19

Court Abbreviation: 4th Cir.