440 F.3d 160 | 4th Cir. | 2006
Lead Opinion
Affirmed by published opinion. Judge Shedd wrote the opinion, in which Judge WIDENER, Judge WILKINSON, Judge NIEMEYER, Judge LUTTIG, Judge WILLIAMS, and Judge DUNCAN joined. Judge WILKINSON wrote a separate concurring opinion. Judge WILLIAMS wrote a separate concurring opinion. Chief Judge WILKINS wrote a dissenting opinion, in which Judge MICHAEL, Judge MOTZ, Judge TRAXLER, Judge KING, and Judge GREGORY joined.
OPINION
In 1996, Percy Levar Walton murdered three people in Danville, Virginia. Walton pled guilty to the crimes and was sentenced to death in Virginia, state court. Over the next several years, Walton directly appealed his conviction and then filed both state and federal habeas petitions, all of which were unsuccessful. In 2003, after the state court scheduled his execution date for the second time, Walton filed his second federal habeas petition wherein he asserted that he is both mentally incompetent and mentally retarded and, therefore, his execution is precluded under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (prohibiting the execution of insane inmates), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (prohibiting the execution of mentally retarded inmates). The district court denied Walton’s habeas petition, and we now affirm.
We hold that the district court applied the proper legal standard in deciding that Walton is mentally competent to be executed, and its findings of fact are not clearly erroneous. We further hold that the district court properly dismissed Walton’s mental retardation claim because his habe-as petition fails to state sufficient facts demonstrating that he is mentally retarded under Virginia law.
I.
Walton murdered three people, an elderly couple and a younger man, in their homes in two separate incidents during November 1996.
Although the physical evidence alone overwhelmingly established Walton’s guilt, Walton also admitted to several other jail inmates that he committed the murders, and he described the graphic details of the murders to his cellmate. We previously recounted the facts of Walton’s crimes in greater detail in our opinion deciding Walton’s first federal habeas petition. See Walton v. Angelone, 321 F.3d 442, 446-49 (4th Cir.2003).
With the assistance of counsel, Walton pled guilty to all three murders, three counts of robbery, one count of burglary, and six counts of using a firearm in the commission of a felony. Walton indicated that he wanted to plead guilty because the “chair is for killers.” Id. at 454. After determining that Walton would likely commit additional criminal acts that would constitute a continuing serious threat to society, the Circuit Court for the City of Danville sentenced Walton to death.
Walton then began the long process of challenging his conviction and sentence on both direct and collateral review in state
After the district court denied Walton relief in his first habeas petition, Walton sought a certificate of appealability from this court. As to Walton’s claims that he was not competent to plead guilty and that his counsel was ineffective for failing to adequately raise the issue during the state trial court proceedings, we reviewed the extensive evidence regarding what Walton’s counsel knew about Walton’s mental condition during the trial court proceedings. Id. at 453-57. As we explained, shortly after Walton was indicted, the state court appointed a psychiatrist to assess Walton. Walton told the psychiatrist that he would be able to come back to life shortly after his execution with the same name but a new spirit. Walton also said that he would be able to resurrect his dead family members upon his return. Id. at 454 n. 12. This psychiatrist opined that Walton was competent to stand trial because Walton understood the proceedings against him and understood that, if convicted of capital murder, he could be executed in the electric chair or by lethal injection. Id. at 455-56. The state court appointed a second psychiatrist to assess Walton. The second psychiatrist also opined that Walton was competent because he understood the nature of the proeeed-ings against him and could assist his counsel. Id. at 456.
After conferring with these psychiatrists, Walton’s trial counsel decided against using a mental incompetence strategy at trial because, among other reasons, the testimony of the two psychiatrists would not have been helpful, Walton had told at least two of his fellow inmates that he intended to “play crazy,” and just a few months earlier Walton had stood trial for burglary and grand larceny and his competence to stand trial was not at issue then. Id. at 458.
After reviewing this evidence, we denied Walton’s certificate of appealability, concluding that “we harbor no doubt” that Walton was competent to plead guilty and that the assistance provided by Walton’s counsel was “more than reasonable.” Id. at 460-61. The United States Supreme Court denied Walton’s petition for a writ of certiorari. Walton v. Johnson, 539 U.S. 950, 123 S.Ct. 2626, 156 L.Ed.2d 642 (2003).
Thereafter, the Danville Circuit Court rescheduled Walton’s execution date for May 28, 2003.
The district court dismissed Walton’s mental retardation claim without an evi-dentiary hearing, concluding that Walton failed to forecast evidence that his alleged mental retardation originated before the age of 18 — a required element under Virginia law. Walton v. Johnson, 269 F.Supp.2d 692, 700 (W.D.Va.2003). On the issue of mental competence, however, the district court determined that an evidentia-ry hearing was warranted. Id. at 694.
The district court heard extensive evidence regarding Walton’s mental competence during two days of testimony. On the first day, vastly conflicting testimony was presented. Walton’s retained experts, Drs. Anand Pandurangi and Reuben Gur, testified that Walton is suffering from schizophrenia and has borderline delusional ideas about his ability to come back to life after his execution.
When Dr. Gur, the director of neuropsy-chology at the University of Pennsylvania, asked Walton what death meant, Walton responded, “It means you’re dead.” J.A. 441. Walton proceeded to explain, however, that after his execution he would “come back as a better person” and would “get a Burger King.” J.A. 441. Walton also told Dr. Gur that he had received a letter informing him of his May 28, 2003, execution date: “Yes, I have the letter, and I have an execution date.” J.A. 442. Dr. Gur testified that Walton said that execution means dying, but Walton’s main concern is that after his death he will come back as a woman. Based on his interviews with Walton, Dr. Gur concluded that although Walton “was able to discuss the method of execution in a seemingly rational fashion, [he] ... failed to comprehend that at the end of the procedure he will no longer be alive.” J.A. 466.
Walton also presented the testimony of Dr. Patricia General, a psychiatrist employed to assess Virginia inmates, who assessed Walton shortly before his scheduled
Walton also testified on the first day of the evidentiary hearing. He responded to many of the questions — even simple questions — by repeatedly saying, “I don’t know, I don’t even know.” This was the same response that he had used in varying degrees in interviews with all of the mental health experts who assessed him. Although Walton acknowledged that he had received a death sentence, he waffled in his answers about whether he had been given an execution date. When asked if he knew what would happen to him when he dies, Walton said that he did not know and that the question was “hard.” J.A. 508. Walton also denied knowing why the state was going to execute him, and he professed to having no recollection of the elderly couple he murdered. Walton acknowledged that execution by lethal injection involved having a needle stuck into your arm and that “you die,” but he denied knowing what would happen in the electric chair. J.A. 523.
Virginia’s evidence offered a different view of Walton’s mental condition. Shortly before his second scheduled execution date in May 2003, Walton was transferred to Greensville Correctional Center where Virginia’s electric chair is located. Allen Glasgow, a rehabilitation counselor at Greensville who conducts intake reviews when condemned inmates arrive at the facility, interviewed Walton when he arrived. Glasgow thought that Walton communicated well during their meeting, and he did not recall Walton ever using the phrase “I don’t know. I just don’t know” during the entire intake interview. During their interview, Glasgow discussed with Walton several documentary forms: a visitors list, an attorney list, a telephone call list, and a disposition of final remains designation form. Walton filled out the visitors list in his own handwriting with names and addresses from memory. Walton correctly wrote the name of his lawyer on the attorney list, but then indicated that he did not know her address. Glasgow explained that the final remains form was meant for Walton to select a person to dispose of his remains after his execution. Glasgow asked Walton if he understood the final remains form, Walton said that he understood it, and it was Glasgow’s impression that Walton did understand it. Walton told Glasgow that he wanted to put his mother’s name on the final remains form.
Virginia also presented the testimony of Dr. Alan Arikian, a psychiatrist employed to provide mental health service to Virginia inmates. Dr. Arikian began seeing Walton in 1999, several months before Drs. Pandurangi and Gur began seeing Walton. Unlike Drs. Pandurangi and Gur, who were retained to assess Walton regarding his claim that he is mentally incompetent, Dr. Arikian initially saw Walton regarding complaints made against him for disruptive behavior on his cellblock. According to Dr. Arikian, Walton exhibited no distur
As Walton’s December 1999 execution date drew near, however, Walton began to use the phrase “I don’t know. I just don’t know” in his conversations with Dr. Ariki-an even in response to simple matters. After Walton’s December 1999 execution date was stayed, Dr. Arikian did not see Walton again until 2003, shortly before his second scheduled execution date. Although Walton had become more subdued and less inclined to’ engage in conversation, Dr. Arikian does not believe that Walton is suffering from schizophrenia and instead believes Walton’s symptoms are more consistent with a person who has become completely indifferent, who “plays with each of us as the spirit moves him.... Some people he will respond to and some he won’t.” J.A. 578. Dr. Arikian testified that he believes that Walton understands that he will be executed as a result of being convicted of murder. When confronted with the directly opposing views of Drs. Pandu-rangi and Gur, Dr. Arikian responded: “I think we’re at opposite ends of the spectrum on that.... I think far from not having an understanding of what’s going on, I think [Walton] has a full understanding of what’s going on.” J.A. 579.
After hearing the divergent testimony regarding Walton’s mental competence, the district court decided to appoint a neutral expert to interview Walton and assess his mental condition. The district court attempted to obtain an expert agreeable to both sides by having each side appoint a psychiatrist who in turn advised the court on suitable neutral candidates. These two psychiatrists ultimately recommended Dr. Mark Mills, a highly qualified forensic psychiatrist, and the district court adopted their recommendation. Virginia later objected to the appointment of Dr. Mills after coming to believe that he could not be neutral because of his personal opposition to the death penalty. Virginia also noted that Walton’s counsel had previously retained Dr. Mills in another similar death penalty case. Walton’s counsel responded by assuring the district court that Dr. Mills could render objective opinions in Walton’s case. The district court overruled Virginia’s objection to the appoints ment of Dr. Mills and requested, based on its interpretation of Ford v. Wainwright, that Dr. Mills assess Walton and consider two issues: (1) whether Walton understands that he is to be punished by execution; and (2) whether Walton understands that his punishment is a consequence of his having been convicted of murdering three people.
After Dr. Mills interviewed Walton and submitted his report, the district court held a second evidentiary hearing. At the hearing, Dr. Mills testified that he found Walton to be “odd,” of low intelligence but
Dr. Mills asked Walton about his religious views and his understanding of death. Walton responded that he believes that he will go to heaven and then come back in some form and be able to see his family. While Dr. Mills believes Walton has a very firm and clear belief in an “afterlife,” he does not believe that Walton is a person who is going to prepare for his death. J.A. 925. Even though Dr. Mills found Walton’s answers about death to be simple and even childlike, Dr. Mills nevertheless stated that he believes that Walton understands that after his death “things are going to be very different than they are now.” J.A. 902. Walton also told Dr. Mills that he prefers to live in prison for the rest of his life rather than be beaten to death. Dr. Mills admitted that he is philosophically opposed to the death penalty and that he would have preferred to find Walton not competent to be executed. Nevertheless, Dr. Mills stated that he “clearly believe[s]” that Walton understands that he is in prison for killing three people and that he will be executed as punishment for these crimes. J.A. 930.
The district court also allowed Walton to call Dr. Pandurangi to testify again because he had reassessed Walton a few days before the second hearing. Dr. Pan-durangi’s experience with Walton was different from Dr. Mills’ experience. Whereas Walton was able to volunteer to Dr. Mills that he was sentenced to be executed for killing three people, Walton told Dr. Pandurangi at the start of their interview that he did not know what the status of his case was. Dr. Pandurangi proceeded to inform Walton that he had pled guilty to killing three people and that he had been given a death sentence. In the next few moments, Walton was able to repeat this information when asked. However, about twenty minutes later, Dr. Pandurangi again asked Walton about his legal status, but this time Walton reverted to saying that he did not know. Although Dr. Pan-durangi stated that he does not think that Walton is overtly mentally retarded, he does believe that Walton thinks on the level of a child. When asked whether Walton would prepare for his death, Dr. Pan-durangi said that such a question would be difficult for him to answer but that he does not believe that Walton would be able to “wish[] people goodbye, turn[] off emotional relations, if he has any little belongings, who would get what.” J.A. 978. Based on his updated assessment, Dr. Pandurangi testified that he continues to believe that Walton suffers from schizophrenia. However, Dr. Pandurangi agrees with Dr. Mills that diagnosing an inmate
After both sides rested, the district court allowed final arguments. In addition to arguing other grounds for relief that were stated in Walton’s habeas petition, Walton’s counsel asserted for the first time that Walton, is not competent to be executed because he is “unable to spiritually prepare for his death.” J.A. 995.
In a thorough opinion, the district court denied habeas relief on Walton’s mental incompetence claim, concluding that “Walton both understands that he is to be executed and that his execution is punishment for his conviction for murder.” Walton v. Johnson, 306 F.Supp.2d 597 (W.D.Va.2004). Walton now appeals.
II.
We first consider Walton’s mental incompetence claim. Walton argues that the district court erred by failing to follow the proper legal standard under Ford v. Wainwright. In the alternative, Walton argues that the district court’s factual determination that he understands that he has been sentenced to death for murdering three people is clearly erroneous.
A.
Walton first argues, based primarily on Ford, that the district court erred by using an incorrect test to determine his competency to be executed. We find Walton’s reliance on Ford misplaced.
The petitioner in Ford began exhibiting peculiar behavior after being sentenced to death for murder/ Ford’s lawyers retained mental health experts to assess his mental competence. After interviewing Ford, one expert opined that Ford “had no understanding of why he was being executed [and] made no connection between the homicide of which he had been convicted and the death penalty.” Ford, 477 U.S. at 403, 106 S.Ct. 2595. Based on this expert’s opinion, Ford’s lawyers sought a reprieve from the death penalty based on Ford’s incompetence.
At the time of Ford’s appeal — and still today — Florida law prohibited the execution of an inmate if he “does not have the mental capacity to understand the nature of the death penalty and why it was imposed on him.” FLA. STAT. ANN. § 922.07(3) (1985 & 2005). The Florida governor, who at that time had sole authority under Florida law to determine whether a death row inmate was competent to be executed,
In a fractured opinion, the five-member majority — consisting of a four-member plurality and a separate concurrence by Justice Powell — agreed on three matters: (1) the Eighth Amendment forbids the states from executing the insane, id. at 409-10, 418,106 S.Ct. 2595; (2) the Florida governor’s failure to consider the opinions of Ford’s psychiatrist violated his due process rights, id. at 413-16, 423-24, 106 S.Ct. 2595; and (3) Ford was entitled to an evidentiary hearing in federal district court. Id. at 418, 424-25, 106 S.Ct. 2595. In sum, the majority concluded that Florida failed to consider adequately all the evidence bearing on the question of whether Ford was competent under the Florida legal standard, i.e., whether Ford had “the mental capacity to understand the nature of the death penalty and the reasons why it was imposed on him.” Id. at 412, 106 S.Ct. 2595. The majority, however, did not decide that Florida’s legal standard for determining mental incompetence was inadequate. To the contrary, the four-member plurality recognized that Florida’s statute properly did not permit the execution of the insane. Id. at 408-09,106 S.Ct. 2595 n. 2. The plurality’s concern was not with Florida’s statutory incompetence standard — the same standard used by the district court in Walton’s case — but rather was with the district court’s failure to consider Ford’s evidence demonstrating his alleged insanity. In concurrence, Justice Powell agreed, stating:
[Ford’s] claim of insanity plainly fits within [Florida’s statutory] standard. According to [Ford’s] proffered psychiatric examination, [Ford] does not know that he is to be executed, but rather believes that the death penalty has been invalidated. If this assessment is correct, [Ford] cannot connect his execution to the crime for which he was convicted. Thus, the question is whether [Ford’s] evidence entitles him to a hearing in Federal District Court on his claim.
Id. at 422-23, 106 S.Ct. 2595 (emphasis added) (internal citations omitted).
In this case, it is clear that the district court provided Walton all the process he was due under Ford. Whereas in Ford the petitioner was provided no hearing and the governor and- the district court failed to consider Ford’s evidence demonstrating his alleged incompetence, the distxict court in this case heard all the evidence presented by Walton and Virginia. The district court went even further and appointed another expert' — one endorsed by Walton — to provide yet another assessment of Walton’s mental state. There is no question that the district court diligently protected the right of Walton to explore fully the issue of his competence to be executed.
The first component of Walton’s proposed competency test is that a condemned inmate must be able to comprehend that he is sentenced to death and the reason why. Virginia asserts that this narrow inquiry constitutes the proper legal test to determine competency for execution, and we agree. Although the Ford plurality did not specifically set out to create a Constitutional definition for mental incompetence, the plurality did give several rationales for its primary holding that the Eighth Amendment prohibits the execution of the insane. One of its rationales is that the retributive value of executing a condemned inmate is thwarted if he “has no comprehension of why he has been singled out and stripped of his fundamental right to life.” Id. at 409, 106 S.Ct. 2595. The plurality further stated that it “is no less abhorrent today than it has been for centuries to exact in penance the life of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications.” Id. at 417, 106 S.Ct. 2595. Justice Powell implicitly adopted this particular rationale in his concurrence when he proposed his test for determining competency: “I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” Id. at 422, 106 S.Ct. 2595. Justice Powell’s proffered test represents the only ground on which a majority of the Court agreed regarding the standard for determining mental competence to be executed, and we are bound by it. See Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (stating that when there are multiple rationales given by different justices to support one judgment “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds”).
Walton next argues that an inmate must be able to assist in his defense throughout the competency determination process. Walton’s counsel candidly and correctly conceded at oral argument that only four members of the Ford Court would have required that an inmate be able to assist his counsel to be deemed competent for execution. The plurality would have added this requirement based on the common-law premise that “had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution.” Ford, 477 U.S. at 407, 106 S.Ct. 2595. Justice Powell found only slight merit for such a requirement because “[m]odern practice provides far more extensive review of convictions and sentences than did the common law, including not only direct appeal but ordinarily both state and federal collateral review. ... It is thus unlikely indeed that a defendant today could go to his death with knowledge of undiscovered trial error that might set him free.” Id. at 420, 106 S.Ct. 2595.
The procedural history of Walton’s numerous challenges to his sentence and conviction provides a good example of the exhaustive modern safeguards and procedures available to condemned inmates. Since 1997, Walton has pursued several rounds of direct and collateral review-— always represented by counsel — in both state and federal court to test the validity of his conviction and sentence. All of these challenges failed, and Walton, now in his second federal habeas proceeding, makes no further attack on his sentence or conviction. The only remaining issue is whether Walton is competent to be executed, and we conclude that there is no Constitutional requirement
Last, Walton proposes that competency for execution requires that a condemned inmate have the capacity to prepare himself mentally and spiritually for his passing to “another world.” Walton’s Brief p. 32. We conclude that Ford mandates no such requirement. Justice Powell — who provided the fifth vote in Ford— did not require that an inmate have the capacity to prepare mentally and spiritually for his passing in his two-part test. To the contrary, Justice Powell clearly stated that “I would hold that the Eighth Amendment forbids the exe-cution only of those who are unaware of the punishment they are about to suffer and why they are to
In determining whether Walton is competent to be executed, the district court specifically examined whether Walton understands that he is to be punished by execution and whether he understands why he is to be punished. Walton, 306 F.Supp.2d at 601. Because the district court faithfully followed Justice Powell’s two-part test, we conclude that the district court employed the proper legal test in making its competency determination.
B.
Walton also argues that, even applying the Powell two-part test, the district court clearly erred in finding him competent to be executed. Walton contends that the evidence overwhelmingly demonstrates his incompetence. We disagree.
We review factual findings by the district court under the clearly erroneous standard set forth in Federal Rule of Civil Procedure 52(a). Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir.2003); Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n. 18 (4th Cir.1992). Our scope of review is narrow; we do not exercise de novo review of fac-tual findings or substitute our version of the facts for that found by the district court. Jiminez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir.1995).
The parties presented vastly conflicting evidence whether Walton understands that his execution will result in his death. After considering all of the evidence submitted by the parties, the district court sought yet another professional opinion by appointing a neutral expert, Dr. Mills, who Walton strongly endorsed as an objective expert. When Dr. Mills met with Walton, Walton was able to volunteer that he was going to be executed for killing three people and that his execution would be “an end” or “the end.” J.A. 899. When Dr. Mills asked Walton about his religious views and his understanding of death, Walton said that he believes that he will go to heaven and then come back in some form and be able to see his family. Dr. Mills believes Walton has a very firm and clear belief in an “afterlife,” but that Walton would prefer to live in prison for the rest of his life rather than be killed. J.A. 925. In sum, Dr. Mills, who is personally opposed to the death penalty and would have preferred to find Walton incompetent, stated that he clearly believes that Walton understands that he is in prison for killing three people and that he will be executed as punishment for these crimes.
Other evidence presented by Virginia confirms Dr. Mills’ ultimate opinion that Walton is competent to be executed. For instance, Virginia presented the testimony of Dr. Arikian, á psychiatrist who has assessed hundreds of prisoners during his career and who saw Walton several times more than any of the other experts who testified. Dr. Arikian stated that he believes that Walton understands that he is going to be executed for his crimes. When confronted with the opposing view of Dr. Pandurangi, who admittedly has had very little experience with prisoners, Dr. Ariki-an replied: “I think we’re at opposite ends of the spectrum on that.... I think far from not having an understanding of what’s going on, I think [Walton] has a full understanding of what’s going on.” J.A. 579.
After reviewing the evidence in its entirety and the district court’s findings of fact, we are far from being left with the “definite and firm conviction that a mistake has been committed.” United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. 525. To the contrary, the district court considered the divergent evidence presented by both sides and the neutral testimony of Dr. Mills,
In sum, we conclude that the district court employed the proper legal test and its findings of fact are not “plainly wrong,” see Jiminez, 57 F.3d at 379. Thus, we affirm the district court’s judgment that Walton is competent to be executed.
III.
Walton also argues that the district court erred by dismissing his claim that he cannot be executed because he is mentally retarded as defined under Virginia law. We disagree.
In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment prohibits the execution of the mentally retarded, concluding that “death is not a suitable punishment for a mentally retarded criminal.” 536 U.S. at 321, 122 S.Ct. 2242. The Court, however, left to the states the task of developing appropriate procedures to determine whether an inmate who claims to be mentally retarded is in fact mentally retarded. Id. at 317, 122 S.Ct. 2242. Virginia responded by enacting its statutory definition of mental retardation that requires, among other elements, that the condemned inmate’s disability originate before the age of 18 and be characterized by “significantly subaver-age intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean.” VA. CODE ANN. § 19.2-264.3:1.1(A)(I). The Virginia Supreme Court, consistent with the standards of the American Psychiatric Association, has determined that this standardized measure corresponds to an IQ score of 70 or less. Johnson v. Commonwealth, 267 Va. 53, 591 S.E.2d 47,
The district court dismissed Walton’s mental retardation claim, concluding that “Walton has not satisfied the statutory definition of mental retardation under Virginia law.” Walton, 269 F.Supp.2d at 700-01. Because the district court disposed of Walton’s mental retardation claim by granting the state’s motion to dismiss, our review is de novo. Walker, 399 F.3d at 319. In determining whether Walton has properly stated a claim for relief in his petition, we must decide whether Walton “has set forth facts that, if true, would demonstrate that he is mentally retarded under Virginia law.” Id. at 320.
A review of Walton’s habeas petition reveals that he fails to allege facts demonstrating that he is mentally retarded under Virginia law.
After Virginia filed its motion to dismiss Walton’s habeas petition, Walton alleged for the first time in a separate filing that his test score of 77 supports his claim of mental retardation once the Flynn Effect and the “standard error of measurement” is taken into account. Assuming that the district court could properly consider this post-petition representation, Walton does not explain what this “standard error of measurement” is or why it should reduce his particular score to 70 or less. Walton can only speculate that this standard measurement error (which a mental health expert can take into account to either raise or lower a given IQ test score by as much as five points, see id. at 322) actually lowered his given score of 77 enough to meet Virginia’s mental retardation standard.
IV.
For the reasons stated above, we conclude that there is substantial evidence supporting the district court’s finding that Walton is not mentally incompetent, and we also determine that Walton has failed to sufficiently state a claim that he is mentally retarded under Virginia law. Therefore, we affirm the judgment of the district court.
AFFIRMED
. Walton's first execution date was December 16, 1999. The district court stayed that execution date to allow Walton to file his first federal habeas petition. Walton, 321 F.3d at 452.
. No Virginia court has passed on Walton's claim that he is mentally retarded. By the time Walton first advanced this claim, he had already completed both his direct appeal and state habeas petition. Virginia’s mental retardation statute, which was enacted after the
. Walton also claimed in his first federal ha-beas petition that he was incompetent to be executed, but the district court and this court refused to address this issue as premature because there was no pending execution date. See Walton, 321 F.3d at 452, 467 n. 21; Walton v. Angelone, 2002 WL 467142 (W.D.Va. 2002) (unpublished). In this second federal habeas petition, the district court determined, based on Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), that Walton was not barred from arguing mental incompetence because that petition was not second or successive. Walton, 269 F.Supp.2d at 696.
. Walton also called other lay witnesses whose testimony suggested that Walton is not competent. For instance, one of Walton's jailers testified that Walton sometimes talks about an imaginary person in his cell, has strong body odor because he refuses to shower, and does not have a television or radio in his cell to occupy his time.
. Dr. Mills did not definitively diagnose Walton's psychiatric disorder because making such a diagnosis was not within the scope of the district court’s instruction to him. However, Dr. Mills stated that he did not believe that making a diagnosis was necessary to answer the court's questions, because making such a diagnosis and determining competency are two separate issues that must be assessed differently.
. Walton did not assert his inability to prepare for passing as a basis to prohibit his execution in his state habeas petition or in either his first or second federal habeas petitions.
. After Ford, the Florida legislature enacted FLA. R. CRIM. P. 3.811, which abrogated the governor's sole authority to determine competence by giving condemned inmates the right to seek a competence determination in Florida state court.
. Walton suggests that the district court improperly limited his counsel to asking the expert witnesses specifically whether Walton understands that he is to be executed for killing three people. Contrary to Walton’s suggestion, the district court prevented Walton's counsel only from asking Dr. Mills, who also holds a law degree, his impressions of the district court's interpretation of the proper legal standard to determine mental incompetence, a clearly improper line of questioning. The district court otherwise permitted Walton's counsel to question the experts on a wide range of factual topics, including wheth
. Unlike Florida, Virginia has no statutory test for determining whether a condemned inmate is competent to be executed, so our review is limited to whether the test used by the district court satisfies the Constitutional standard.
. A statement by Justice Powell in Ford and another statement by Justice Marshall in a subsequent case suggest that Ford does not actually establish a substantive test for determining incompetence. In his concurrence, Justice Powell specifically stated that the "Court’s opinion does not address ... the meaning of insanity” in the context of being competent to be executed. Ford, 477 U.S. at 418, 106 S.Ct. 2595 (emphasis added). In a subsequent opinion dissenting from the denial of a petition for a writ of certiorari, Justice Marshall, the author of the Ford plurality opinion, asserted that the Ford Court did not establish the test for competence to be executed. Rector v. Bryant, 501 U.S. 1239, 1241, 111 S.Ct. 2872, 115 L.Ed.2d 1038 (1991). Despite these comments, however, the actual discussion of rationales and the overlapping agreement on one of the rationales in both the Ford plurality opinion and Justice Powell’s concurrence and also the Supreme Court’s subsequent acknowledgment of Justice Powell’s proffered test (albeit in dicta) as the appropriate standard, see Penry v. Lynaugh, 492 U.S. 302, 333, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ("[U]nder Ford v. Wainwright ... someone who is 'unaware of the punishment they are about to suffer and why they are to suffer it’ cannot be executed”), ovemded on other grounds by Atkins v. Virgi
. See, e.g, ARIZ. REV. STAT. § 13-4021(B) (2005) (" '[MJentally incompetent to be executed’ means that due to a mental disease or defect a person who is sentenced to death is presently unaware that he is to be punished for the crime of murder or that he is unaware that the impending punishment for that crime is death.”); GA. CODE ANN. § 17-10-60 (2005) ("As used in this article, the term 'mentally incompetent to be executed’ means that because of a mental condition the person is presently unable to know why he or she is being punished and understand the nature of the punishment”); LA. REV. STAT. ANN. § 15:567.1(b) (2005) ("A person is not competent to proceed to execution when a defendant presently lacks the competence to understand that he is to be executed, and the reason he is to suffer that penalty”); OHIO REV. CODEANN. § 2949.28(A) (2005) (stating that 'insane’ means that the convict in question does not have the mental capacity to understand the nature of the death penalty and why it was imposed upon the convict”); UTAH CODE ANN. § 77-19-201 (2005) (stating that 'incompetent to be executed’ means that, due to mental condition, an inmate is unaware of either the punishment he is about to suffer or why he is to suffer it”); WYO. STAT. ANN. § 7-13-901(a)(V) (Michie 2005) (stating that " 'requisite mental capacity' means the ability to understand the nature of the death penalty and the reasons it was imposed”). Other states have adopted Justice Powell’s two-part test by case law. See, e.g., Baird v. State, 833 N.E.2d 28, 30 (Ind.2005), cert. denied, - U.S. -, 126 S.Ct. 312, 163
. Some states specifically require (in addition to Justice Powell's test) that an inmate be able to assist counsel to be deemed competent to be executed. See, e.g., MISS. C ODE ANN. § 99-19-57(2)(b) (2005); N.C. GEN. STAT. § 15A-1001(a) (2005); Singleton v. State, 313 S.C. 75, 437 S.E.2d 53, 58 (1993); State v. Harris, 114 Wash.2d 419, 789 P.2d 60, 66 (1990). The fact that some states have deemed it appropriate to provide greater protections than the federal Constitutional minimum is perfectly consistent with federalism principles. Virginia is not, however, one of the states that require an inmate be able to assist counsel to be deemed competent to be executed.
. At least one other circuit court has specifically rejected this requirement. See Coe v. Bell, 209 F.3d 815, 826 (6th Cir.2000) (“We agree that a prisoner’s ability to assist in his defense is not a necessary element to a determination of competency to be executed”).
. In support of his argument, Walton primarily focuses on Justice Powell's statement that "only if the defendant is aware that his death is approaching can he prepare himself for his passing.” Ford, 477 U.S. at 422, 106 S.Ct. 2595. Read in its context, it is clear that Justice Powell did not include this as a required element of his test. Justice Powell made his two-part test explicitly clear ("I would hold”) and excluded any mention of requiring that a condemned inmate be capable of preparing for his passing. In other words, while preparing for passing might well be a salutary result of satisfying Justice Powell's test, it is not a required element of the test. Justice Powell noted that "most” people would value the "opportunity" to prepare for their passing, but he also stated that the Florida statutory standard, which requires only that the inmate have the "mental capacity to understand the nature of the death penalty and why it was imposed” on him, "appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition.” Ford, 477 U.S. at 421-22, 106 S.Ct. 2595.
. The dissent states that it is undisputed that "Walton has fallen deeper and deeper into mental illness.” Dissent, infra at p. 184. This comment has no real legal significance. Whether Walton is mentally ill is not the relevant question before us. As both Drs. Pandurangi and Mills stated, whether an inmate is mentally ill is a different concept from whether an inmate is mentally incompetent to be executed. Moreover, we are obliged to consider only the evidence of Walton's mental condition that the district court considered. At oral argument, Walton’s counsel stated that, assuming he loses his current challenge, Walton would not be precluded from later contesting his execution if he demonstrates that his condition has deteriorated. The issue of whether such a challenge would be allowed is not before us, and we do not address it.
. The dissent states that "Dr. Mills' assessment of j/Valton’s competency does not present the unequivocal certainty that the majority opinion claims for it." Dissent, infra at p. 191. Contrary to the dissent’s characterization, we do not suggest — nor do we need to— that Dr. Mills' testimony is unequivocal. This statement by the dissent is either irrelevant or reflects a misunderstanding of our standard of review. As a reviewing court, we are required to determine if there is sufficient evidence to support the district court's findings of fact. While we do not suggest that Dr. Mills’ testimony presents “unequivocal certainty,” Dr. Mills' firm opinion that Walton is competent, along with the other testimony presented by Virginia, provides more than ample support for fhe district court's finding that Walton understands that he is going to be executed and will die as punishment for his crimes.
. Even applying the substantive requirement of the dissent’s new test — that the condemned inmate must understand that death "means the end of one’s physical life” — the record contains ample evidence, as the dissent correctly concedes, establishing that Walton understands that his execution will mean the end of his physical life. Walton told Dr. Pan-durangi that "[pleople who die go to the graveyard.” J.A. 425. Walton told Glasgow that he wanted his mother to be responsible for disposing of his remains after his execution. Walton told Dr. Mills that he prefers electrocution for his execution, which is consistent with Walton’s statement at the time of his sentencing that "the chair is for killers.” Walton also told Dr. Mills he would prefer to live the rest of life in prison rather than be killed. Dr. Mills interpreted Walton's comment to mean that, in considering the alternatives between life and death, Walton "would like to live.” J.A. 909. When Dr. Mills specifically asked Walton if he knew that he might well be scheduled to die, Walton replied, “Yes.” J.A. 910. When Dr. Mills asked Walton what he wanted for his last meal, Walton showed no confusion about what Dr. Mills meant by the question and answered quickly and clearly.
. In fact, in many of the cases cited by the dissent, the reviewing court' — like the majority does in this case — upholds the finding by the lower court over contested facts that the condemned inmate understood that he would die as punishment for his crimes. See, e.g., Billiot v. State, 655 So.2d 1, 8 (Miss.1995) (affirming the lower court’s finding that the condemned inmate was competent to be executed even though one expert testified that the inmate "does not have a rational understanding of the proceedings; ... rationally he can’t connect what he was tried for and ... the penalty and his actions. He can’t relate those. And he ... believes that he will never be executed”); Barnard v. Collins, 13 F.3d 871, 877 (5th Cir.1994) (denying habeas relief based on the state court's finding that the condemned inmate "knew that he was going to be executed and why he was going to be executed — precisely the finding required by the Ford standard of competency”) (emphasis added). Moreover, our holding is consistent with Garrett v. Collins, 951 F.2d 57 (5th Cir.1992). In that case, Garrett did not believe that his execution would result in his death because he thought that his dead aunt would protect him from the harmful effects of the lethal injection. Id. at 58-59. Garrett did understand, however, that it was possible for him to die when the needle is stuck into his arm. Id. at 59. Although Garrett argued that he was not competent to be executed under Ford, the Fifth Circuit found that Garrett met the Ford test because he understood the nature of the death penalty and its implications. Id. at 59.
. That a person believes that he will have an "afterlife,” however strange his views of that "afterlife” may be, necessarily suggests he believes his existing life will end.
. This does not mean that a condemned inmate must submit a score of 70 or less from an IQ test taken before he turned 18. Walker, 399 F.3d at 323 n. 7 (4th Cir.2005). Nevertheless, there must be some competent allegation that the inmate’s intellectual functioning would have fallen below this standard before he turned 18. See VA. CODE ANN. § 19.2-264.3:1.1(A),(B)(3).
. Both Drs. Pandurangi and Gur began seeing Walton shortly before his first execution date in December 1999. Although these experts were retained before the Supreme Court announced the categorical ban on executing mentally retarded inmates in Atkins, whether Walton is mentally retarded was a factor that could have been considered under Virginia law in a capital murder case even before the categorical ban on the execution of mentally retarded condemned inmates was established by the Supreme Court in Atkins. See Atkins v. Commonwealth, 260 Va. 375, 534 S.E.2d 312, 320 (2000), rev’d on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Washington v. Commonwealth, 228 Va. 535, 323 S.E.2d 577, 586-87 (1984); see also Penry v. Lynaugh, 492 U.S. 302, 337-38, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (''[T]he sentencing body must be allowed to consider mental retardation as a mitigating circumstance in making the individualized determination whether death is the appropriate punishment in a particular case”), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Nevertheless, Drs. Pandurangi and Gur have never opined that Walton is mentally retarded.
.The premise of the "Flynn Effect” is that IQ scores increase over time and that IQ tests that are not renormed to take into account rising IQ levels will overstate a testtaker’s IQ score. Walker, 399 F.3d at 322. Walton actually alleged in his petition that his score after being adjusted for the "Flynn Effect” would be as low as 72 (not 74 as he now alleges), but he has now abandoned that position.
. Walton also alleges that he was tested two other times several years after he turned 18 and that both test results are below 70. Although these test results are relevant to Walton's more recent intellectual functioning, see Walker, 399 F.3d at 323 n. 7, Walton does not allege that these scores demonstrate that his intellectual functioning would have been commensurate with a score of 70 or less before he turned 18.
. Although Walton attached to his second habeas petition expert affidavits and other documents supporting his mental incompetence claim, as he was clearly allowed to do under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (2003), Walton failed to attach any materials from his experts supporting his mental retardation claim. Although not necessary for our ruling, we note that the only expert evidence in the record directly contradicts the current speculative assertion by Walton that he is mentally retarded. For instance, Walton's trial expert testified that Walton's test score of 77 “most likely is an underestimate of his intelligence” and that Walton is "certainly not retarded.” J.A. 192 (emphasis added). In addition, Dr. Mills testified that Walton is not mentally retarded and that he would estimate Walton's IQ at around 80. Also, although Dr. General initially thought that Walton appeared to be mentally retarded, she later opined that Walton is not mentally retarded.
Concurrence Opinion
concurring:
“[T]he Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” Ford v. Wainwright, 477 U.S. 399, 422, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Powell, J., concurring in part and concurring in the
The Powell test appreciates that the Constitution does not countenance judicial forays into inherently philosophical arenas. Nowhere does the Eighth Amendment mandate that a defendant understand the end of life in a particular way before he may be executed. The amendment provides no definition of death, and it certainly does not license judges to discover one. That task is well beyond our competence and authority, and is best left to religious leaders, scientists, philosophers, and the private recesses of individual belief. The multiplicity of views on this most sensitive and intimate of subjects all but guarantees that any definition of death — even one as seemingly generic as “the end of physical life”- — -will fail to respect the views of many who may not see death in this way.
At the same time, Justice Powell’s test recognizes that the Eighth Amendment must provide a meaningful independent check on the coercive exercise of state power. This cannot occur if competency is simply a rote formality devoid of any actual insight into a defendant’s mental capacity. The mere ability to recite magic words such as “death” and “punishment,” for example, is insufficient by itself to demonstrate comprehension of the significant sanction to be imposed.
The question is how to avoid a subjective and non-inclusive definition of death, without allowing competency to become a meaningless concept. Justice Powell sought to resolve this tension by requiring under the Eighth Amendment an objective, individualized inquiry into a particular defendant’s mental competence. That is precisely what took place here. As the majority recognizes, the district court was in the best position to evaluate Walton’s mental state, and it applied the Powell test in an exceedingly careful and thorough fashion. It conducted two evidentiary hearings, heard testimony from Walton himself as wqll as multiple witnesses for each side who had interviewed him, and took the additional step of commissioning a psychiatric examination of its own. Judge Shedd’s majority opinion reflects in its own conscientious fashion the care taken in this weighty matter by the trial court, and I concur in it in full.
Concurrence Opinion
concurring:
I concur fully in the majority’s opinion. I write separately, and with all due respect to my good colleagues in dissent, to explain why I believe the dissent’s proposed test for determining sanity to be executed is flawed. The dissent would hold that “the Constitution, as a legal matter, requires that a condemned inmate understand that execution will result in the end of his physical life.” Post at 183. Application of this test would prevent Virginia from executing Walton — whom the district court has found understands that he is going to be executed, why he is going to be executed, and that his execution will cause him to die, see Walton v. Johnson, 306 F.Supp.2d 597, 600 (W.D.Va.2004) — unless the district court also finds that Walton “understand^] that his execution will [cause] the end of his physical life.” Post at 183. In my view, this additional test suffers from two significant deficiencies.
First, neither Justice Powell’s formulation of the legal test in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), nor the Court’s adoption of that test (albeit in dicta) in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other
Moreover, deviation from Justice Powell’s formulation is doubly inappropriate in the Eighth Amendment context — an area of law that “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society” as primarily evidenced by “the legislation enacted by the country’s legislatures.” Atkins, 536 U.S. at 311-12, 122 S.Ct. 2242 (internal quotation marks omitted). Despite the state-centric focus of the Eighth Amendment, the dissent’s test is unsupported by any statutory analogue. It is true, as the dissent asserts, that in addition to seeking guidance from state law, “federal courts must render their own judgment regarding constitutional limitations on execution.” Post at 186. But by relying on its own judgment, the dissent reveals that, ultimately, its' test is its own — and not Ford’s — creation.
Second, even if we were deciding this case on a clean slate, the dissent’s test both (1) fails to account for the fact that many understand death on non-scientific terms and (2) requires courts to evaluate the meaning of such non-scientific understandings. As noted, the dissent would hold that to be sane, a person must understand his death in purely scientific terms: “the end of [one’s] physical life.” In my view, this definition fails to account for the fact that, depending on the orientation of one’s Weltanschauung, a perfectly sane person can understand death — not just the afterlife, but death itself — in terms that are wholly religious, poetic, or metaphysical (or some combination thereof), and that do not involve a scientific underpinning at all. To give just one of the likely innumerable examples, think of the Solipsist, who, after many years of academic study, comes to believe that all things, including his own body, are merely illusions posited by his eternal mind. Does he view death on the dissent’s scientific terms? If not, is he therefore insane? I cannot subscribe to the view that a condemned inmate is insane simply because he does not view death through the dissent’s scientific lens. Indeed, given the many diverse visions of death, the abstract nature of the inquiry, and the state-centric nature of the Eighth Amendment, see Atkins, 536 U.S. at 311— 12, 122 S.Ct. 2242, I do not believe that we federal judges (not to mention we inferior-
The dissent attempts to buttress its test by claiming its focus on what happens to the inmate’s “physical” life at death is justifiable because “[execution is a punishment wrought [solely] upon the body.” Post at 187. The dissent fails to realize, however, that this statement is itself a metaphysical one. Execution is a punishment inflicted on the “body” alone only insofar as one sees a human being as comprised of “body” and something else, such as “soul” or “mind.” But take out the dualism, and it could just as easily be said that execution is a punishment of the “person.” My goal here, of course, is not to debate metaphysics, but to demonstrate that the dissent’s narrow view of what it means to die fails to do justice to those who do not view themselves, the world in which they live, or the implications their ultimate fate in precisely the same manner as my colleagues in dissent.
In addition to its failure to account for the fact that many do not understand death on scientific terms, the dissent’s test requires an inquiry into condemned inmates’ religious, poetic, or metaphysical views of death and the afterlife. Does a Christian who recites the Apostles’ Creed, with its claim to the “resurrection of the body,” see death as the end of his physical life? What of Thornton Wilder, whose Emily in Our Town is given the opportunity to relive her twelfth birthday despite her death? What of a member of any number of Eastern religions, whose belief in reincarnation presupposes that although death is the end of this physical life, it is not the end of his physical life? And what of the Solipsist, whose views presuppose that he does not even have a physical life? A test that could base a finding of insanity on such views seems far afield from the Eighth Amendment’s prohibition of the execution of the insane.
The dissent suggests that “[i]t should be crystal clear that this case is not about the orientation of Walton’s Weltanshauung [and that it] is not about [Walton’s] religious or philosophical views about the afterlife.” Post at 187. As for the dissent’s first point, I could not agree more. Unless, however, my dissenting colleagues believe that their legal test should apply only in Walton’s case, this point affords the dissent no purchase. If a legal test founders in a hypothetical case that could come before the court — as the dissent’s would in the case of a condemned inmate who did not understand his death in scientific terms — this fact, in my view, is a good reason to reject the test.
As for the dissent’s second point, I agree that this case should not be about Walton’s views about the afterlife. Unfortunately,
To be sure, I share the instinct that undergirds the dissent’s search for a vision of death that everyone must hold in order to be considered sane: to understand the meaning of a word, a person must be capable of understanding the concept to which that word refers. To understand the meaning of the word “chair,” for example, a person must be capable of understanding the concept of “an object used for sitting” (or something similar). Likewise, to understand the meaning of the words “execution” or “die” a defendant must be capable of understanding the concepts to which those words refer. But the fact that I share this instinct does not lead me to believe either that we should be deciding the particular content of these abstract and contentious concepts or that the dissent’s test accurately captures them. -Applying Ford, then, I conclude that the district court’s findings that Walton knows that he is going to be “executed” and that his execution will cause him to “die”— findings that necessarily indicate Walton was capable of understanding the concepts to which these words refer-satisfied the requirement that Walton be “[ jaware of the punishment he is about to suffer.” 477 U.S. at 422, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment). As the majority has ably demonstrated, the evidence in the record, and the expert testimony in particular, supports such a finding, and I cannot hold that the Eighth Amendment requires more.
. To be clear, I do not suggest that we federal judges are not well-suited to provide a definition of "death” in all areas of law. Rather, I suggest that we are not well-suited to define, for Eighth Amendment purposes, what every condemned inmate who is aware of the penalty he is about to suffer precisely must understand about his impending death in order to be sane. These are different arguments entirely: the first pertains to the running of a well-oiled legal system that must account for the fact that people stop living, while the second pertains to matters on which we have no special authority or insight.
. The dissent suggests that it does not rely on Walton's views of the'afterlife as “evidence of Walton's religious or metaphysical [beliefs]” but rather as "evidence that Walton may view death as merely a brief interruption of his current physical life,” and that it would remand for the district court to make the factual determination of whether Walton's views reveal the former or the latter. Post at 188. This suggestion, however, simply demonstrates my point — the dissent's test would require the district courts to make these very types of sensitive value judgments regarding a condemned inmate’s views of the afterlife in the first place.
Dissenting Opinion
dissenting:
In the face of substantial evidence that Percy Levar Walton does not understand that his execution will mean his death, defined as the end of his physical life, the majority opinion and Judge Williams’ concurrence take the position that an individual may be found competent to be executed under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), without such an understanding.
There is nothing new about my position. There is no dispute that the Constitution prohibits the imposition of capital punishment unless the inmate understands that he is going to be executed and that to be executed means to die. See ante, at 174 - 175. Contrary to what my colleagues assert, this is not a rewriting of Ford. It is a simple recognition that the constitutional question (“Do you understand that your execution will cause you to die?”) cannot be meaningfully answered unless the condemned understands what “to die” means. In the ordinary case, an inmate who understands what execution and dying mean will also understand that execution will mean the end of his physical life. But there are no doubt some who, by reason of mental illness or defect, do not understand this despite being able to utter the proper incantation when prompted. When the record raises a legitimate question as to whether a condemned inmate understands what “to die” means, the district court is obliged to resolve that issue. This is precisely such a case, and the effect of today’s holding is to permit the execution of a person who may be unaware that his physical life is going to end.
The majority opinion additionally states that even if such an understanding is required, “the record contains ample evidence ... establishing that Walton understands that his execution will mean the end of his physical life.” Ante, at 175 n. 17. I do not dispute that there is evidence in this record that may support such a finding, just as the majority opinion does not dispute that there is ample evidence to support a contrary finding. (For example, the record indicates that Walton can recite, after prompting, that he is to be executed for murder. However, Walton has also stated that his execution will allow him to “have a telephone, a motorcycle, and a job at Burger King.” J.A. 367 (internal quotation marks omitted).) This is not the point. The point is that the district court has never assessed the evidence as it relates to the specific question of whether Walton understands that his execution will mean the end of his physical life.
Because the Constitution, as a legal matter, requires that a condemned inmate understand that execution will result in the end of his physical life, and because there has never been a factual finding regarding whether this standard is met here, the Eighth Amendment demands that we vacate the judgment of the district court and remand for reconsideration of Walton’s competence to be executed. A society that has unequivocally rejected the execution of the insane as “savage and inhuman,” Ford, 477 U.S. at 406, 106 S.Ct. 2595, can accept no less.
There is no dispute here that Walton was properly convicted and sentenced to death for three brutal murders. Similarly, there is no dispute that since his sentencing, Walton has fallen deeper and deeper into mental illness. The issue before the en banc court concerns only the questions that must be answered by a court faced with the task of determining whether Walton is competent to be executed. While the majority and I agree that the test for competency under the Eighth Amendment is whether an individual understands that he is to be executed and why,
A.
That a prisoner’s awareness of his upcoming execution should include such a fundamental understanding is clear, first, from the manner in which the members of the Ford Court stated the constitutional prohibition on the execution of the insane. The plurality recognized society’s abhorrence of inflicting the death penalty on one whose mental illness prevents him from “comprehending” the “implications” of his punishment., Ford, 477 U.S. at 417, 106 S.Ct. 2595 (plurality opinion). There can be no doubt that the first and foremost “implication” of execution — and, in my view, the only one relevant to competency to be executed — is the prisoner’s death.
Justice Powell, in concurrence, stated the constitutional rule as follows:
If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.
Id. at 422, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment). Justice Powell’s meaning in this passage is clear: the retributive goal of capital punishment is satisfied only if the prisoner understands that his execution will end his physical life. Accord Martin v. Dugger, 686 F.Supp. 1523, 1569 (S.D.Fla.1988) (“An essential part of the punishment society imposes on a defendant is to make the defendant realize and live with the concept that he will die for what he did.... Accordingly, if retribution is to be served by the death of a condemned prisoner, the prisoner must at least have this realization.”).
Similar language, indicating an appreciation that a prisoner’s awareness of his execution must include the understanding that execution means the end of his physical life, is found in numerous federal and state court decisions before and after
Indeed, the prisoner’s ability vel non to comprehend that execution means the end of his physical life was the deciding factor in two post-Ford competency cases. In Singleton v. State, 313 S.C. 75, 437 S.E.2d 53, 58 (1993), the court concluded that the petitioner, Singleton, was incompetent to be executed because he did not understand “the nature of the punishment”:
Singleton is completely unaware that he is capable of dying in the electric chair. His reliance on protective “genes” and his inability to respond to his counsel’s questions with anything other than a yes-no are indicative of Singleton’s failure to understand either the reason or the nature of his punishment.
Accord Musselwhite v. State, 215 Miss. 363; 60 So.2d 807, 809 (1952) (holding that petitioner was incompetent to be executed because his catatonic schizophrenia rendered him unable to “take account of [the] significance” of being “taken to the electric chair”). In contrast, the Fifth Circuit in Garrett v. Collins, 951 F.2d 57, 58-59 (5th Cir.1992) (per curiam), concluded that the petitioner was competent to be executed even though he believed that his deceased aunt would protect him from the toxic effects of the chemicals used during lethal injection. The court reasoned that the
The majority opinion contends that these cases stand only for the “unremarkable proposition ... that the condemned inmate must understand that he will die as punishment for his crimes.” Ante, at 175. Judge Williams’ concurrence makes the same claim. I cannot agree. The language of these cases makes it abundantly clear that the test for competency simply is not so narrow. Moreover, neither the majority opinion nor Judge Williams’ concurrence can seriously dispute that the courts in Singleton and Garrett examined precisely the question at issue here— whether the inmate must understand that execution will mean the end of his physical life — in deciding competency.
Indeed, today’s holding is “consistent with Garrett,” ante, at 175 n. 18, only insofar as the majority opinion, like the court in Garrett, would affirm the finding of competence. Otherwise, the majority opinion fails to appreciate the significance of the analysis and decision in that case. In finding Garrett competent even though he believed that he would not die, the Fifth Circuit explicitly rejected counsel’s contention that Garrett was incompetent because he was not “fully aware of the consequences of the death penalty.” Garrett, 951 F.2d at 58. Importantly, the court concluded that Garrett was competent because he actually understood that his execution could cause him to “suffer death.” id. at 59 (internal quotation marks omitted). Garrett thus addressed precisely the question that has never been addressed by the district court in this case.
The rarity of the particular circumstances of this case — in which the inmate is able to state that he is to be executed, but may not understand that to be executed means the end of his physical life— provides no basis for the conclusion of the majority opinion that the existence of such an understanding is not a critical component of competency to be executed.
Judge Williams’ concurrence asserts that any inquiry into whether a condemned inmate understands that death means the end of physical life is improper because it is not mandated by the states through legislation. I would not have thought, however, that it would occur to the states to legislate something as obvious as prohibiting an execution when an inmate is so insane that he cannot comprehend the meaning-of the statement “I am going to die.” Surely, even the absence of legislation would not force this court to allow the execution of an individual who believed that “to die” meant “to go get an ice cream cone.” Moreover, while objective evidence in the form of legislation is certainly relevant in identifying prevailing Eighth Amendment standards, the Supreme Court has made it abundantly clear that in the final analysis, the federal courts must render their own judgment regarding constitutional limitations on execution. See Atkins v. Virginia, 536 U.S. 304, 312-13, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
In short, I would hold that, implicit in the rule that the Eighth Amendment forbids the execution of one who does not understand that he is to be executed, is the corresponding requirement that the condemned prisoner must understand that to be executed means to have one’s physical life ended.
B.
Judge Williams’ concurring opinion criticizes my framing of the necessary Eighth Amendment inquiry as “purely scientific.” Ante, at 180. However, the inquiry is
The insistence of the concurrence that “the dissent’s test requires an inquiry into condemned inmates’ religious, poetic, or metaphysical views of death and the afterlife,” ante, at 181, rests on its conflation of the understanding of the physical reality of death (what the Eighth Amendment requires) with the fact that many people attach to death a meaning that goes beyond the mere cessation of the heartbeat. The two are different questions — as is evident from the concurrence’s own discussion, which is concerned solely with what different groups (if a fictional character who is admittedly dead can be considered a “group”) believe about events after “the end of this physical life,” ante, at 188, and the latter is entirely beside the point. It should be crystal clear that this ease is not about the orientation of Walton’s Weltan-shatmng; it is not about anyone’s religious or philosophical views about the afterlife or absence thereof; it is not about the “meaning of death” at all. It is about whether Walton understands that his execution will mean the end of his physical life (or, if the concurrence would prefer, this physical life), regardless of whether he can or does ascribe any meaning to that event.
Further, Judge Williams’ concurrence maintains that my view that Walton may not understand that his execution will result in his physical death is based on Walton’s view of the afterlife. In support of this contention, the concurrence relies on my citation to several passages in the record indicating that Walton believes that his physical life will continue after his execution. See ante, at 181. However, I cite these passages not as evidence of Walton’s religious or metaphysical views regarding the meaning of his death, but rather as evidence that Walton may view death as merely a brief interruption of his current physical life. In other words, these passages indicate that Walton may not understand that death is an end to his physical life. The district court may determine that the concurrence’s view of these passages is correct, and that Walton’s statements reflect his metaphysical ideas about life after death. But, these statements are also reasonably susceptible to the inference that Walton does not understand the physical reality of death. We, as an appellate court, are not in a position to resolve this factual question; this is precisely why remand is required.
II.
In my view, the evidence in the record presents a substantial question (one yet to be answered by the district court) as to whether Walton understands that his execution will mean his death, ie., the end of his physical life. The existence of a substantial question is a sufficient basis for a remand to the district court for factual findings concerning this particular ques
Psychiatrist Patricia General, who examined Walton on two occasions in April and May 2003, concluded that Walton was “floridly psychotic” and “had no insight into what was going on around him.” J.A. 304-05 (internal quotation marks omitted). Dr. General further noted that Walton did not “seem to be concerned with his upcoming execution date.” Id. at 307. During the May meeting, Walton had stated that he was going to be executed. Dr. General testified:
I presume that what I had asked him about was, was he aware that he was going to be executed, and he said he was going to be executed. I further asked him if he knows what that means? And he replied, “No. ” So I further explained that it meant that he would be put to death, and he said, “Yes.” And ... when I asked him if he knew why he would be put to death, ... he said ... some people had told him ... that he had killed some people.
Id. at 311-12 (emphasis added).
Dr. General’s testimony that Walton had to have the meaning of the term “execution” explained to him is consistent with the observations of psychiatrist Anand Pandurangi, who testified that Walton’s understanding of the proceedings concerning his upcoming execution was extremely limited. Regarding Walton’s present cognitive ability, Dr. Pandurangi said that Walton could not understand the nature of the Ford hearing, “with the caveat [that] you can teach him that.... [Y]ou can hammer it in ... for a short period. Now, 15 minutes later, it’s gone.” Id. at 380. Dr. Pandurangi stated that Walton could not comprehend the fact that execution would mean his death “[i]n any sustained sort of way.” Id. at 381; see id. at 422, 106 S.Ct. 2595 (“[H]e’s not able to understand this, or keep it in his mind in any sustained way over some period of time, including ... only 90 minutes.”). Similarly, at the March 2004 Ford hearing, Dr. Pandurangi estimated that Walton had the understanding of a six or eight-year-old but that he was capable of a brief factual understanding of execution: “[I]f you give it to him or if you press it, he can register, and for that moment, fleeting, he can hold it. If I tell him, You’ve been given the death sentence,’ he will say, ‘The death sentence.’ He registers it.... But when it comes to the implications of that, any further discussion of it, there I don’t think he understands that.” Id. at 975-76. Dr. Pandu-rangi concluded, “I would say [Walton] does not have the ability to prepare himself in any meaningful [way].... [He’s] not thinking of death and preparation for death that way. He seems to be thinking like he can ride a motorcycle, or somebody will come see him....” Id. at 978.
Dr. Pandurangi also testified regarding Walton’s conception of death. Among other things, Dr. Pandurangi noted that as far
At the March 2004 Ford hearing, Dr. Pandurangi testified regarding his recent observations of Walton. At that time, Dr. Pandurangi found that Walton could not consistently state why he was in prison (e.g., “[Walton] did say, ‘They found me guilty, three people.’ And then he sort of added quickly, T don’t know guilty or not.’ ” Id. at 961). Walton was unable to explain what execution was or what happened at death, other than to say “Sleep for rest of life ... until some-one comes to see you.” Id. at 964 (internal quotation marks omitted).
The testimony of Dr. Ruben Gur, who examined Walton in July 1999 and again on May 5 and 6, 2003, also indicates that Walton may not understand that execution means the end of his physical life:
[W]hen I asked [Walton] whether he could tell me where he stands now ... his impression was that he’s about to have his hearing, that there have been allegations that he’s killed some people
I told him, “Well, that’s not what Pm told. My understanding is that you had the trial and that you were convicted, and that you were sentenced to death.” And that’s when he gives you, “I don’t know. I don’t even know.”
I tried to push further on both visits and explain to him in as graphic terms as I could what it meant, and I asked him if he could repeat after me, and he said, “Yes.” And I asked him to do that, and he said, “I’m going to be executed.” And I said, “That’s right. And do you understand what happens when you get executed?”
And he said, “I don’t know.”
I said, “Well, you die.”
He says, “Yes, I die.”
“Do you understand what it means that you die?”
And he says, ‘Yes.”
And I said, “Well, what does it mean?” He says, “It means you’re dead.”
I said, “That’s right.... What’s going to happen then?”
And he said, “After execution, I’m going to get a Burger King.”
J.A. 440-41. Dr. Gur further testified that while Walton could state his execution date
Walton’s testimony during the July 2003 Ford hearing also indicates that Walton may not understand that his execution will result in his physical death. For example, Walton answered “I don’t know. I don’t even know” when asked what his execution date meant, and “I don’t think so” when asked “If you have an execution date, does that mean that you have been sentenced to death?” Id. at 506-07. Walton was also unable to say what would happen to him “[i]f your sentence of death was going to be carried out, if you were going to be executed.” Id. at 507. When asked “If you were executed, could you come back to earth? Could you be back in prison? Could you be out?” Walton responded, “I don’t know. I don’t know. I don’t know how the procedure goes.... I don’t know if I could be back in prison or not.” Id. at 509. Nor could Walton state why he had been sentenced to death. After hearing Walton’s testimony on direct examination, the district court stated, “[0]bviously if the Court credits his testimony, he’s not competent.” Id. at 512. Despite this statement, the district court did not discuss Walton’s credibility in its decision finding Walton competent to be executed.
To be sure, some of Walton’s testimony indicated that he may understand that his execution will mean his death. For example, Walton stated that during lethal injection “they stick a needle in your arm or something,” and he then agreed with the State’s suggestion that “[y]ou die” at that point. Id. at 522-23. However, during this same cross-examination Walton was unable to answer questions about what electrocution is, responding “I don’t know” or “I don’t even know.” Id. at 523-24.
The expert appointed by the court, psychiatrist Mark Mills, was directed to examine Walton regarding “(1) whether Walton understands that he is to be punished by execution; and (2) whether Walton understands why he is being punished.” Id. at 869; the district court specifically restricted Dr. Mills to these questions only. Based on his examination of Walton, Dr. Mills answered “yes” to both of those questions. Id. at 897-99. Walton told Dr. Mills that it did not matter how he was executed (electrocution or lethal injection); when Dr. Mills asked why, “He said something like it’s an end, or it’s the end.” Id. at 899. Dr. Mills described Walton’s understanding of death as “simple, maybe even childlike. I believe that there’s enough there that he understands things are going to be very different than they are now.” Id. at 902. Dr. Mills ultimately concluded that “the standard for execution is sufficiently low that, sadly, Mr. Walton meets that standard. He knows enough to meet the judge’s questions to him.” Id. (emphasis added). Dr. Mills acknowledged, however, that Walton had previously been unable to articulate his understanding of execution and noted, “I think I may have caught him on a good day.” Id. at 947-48. Dr. Mills also stated that he might have “pushed” more on some questions if he had had the reports of other doctors at the time of his examination. Id. at 924. Ultimately, the most Dr. Mills could say was that Walton appeared to meet the criteria articulated by the district court on the day that Dr. Mills examined him. In short, Dr. Mills’ assessment of Walton’s competency does not present the
In my view, the conflicting evidence before the district court regarding Walton’s ability to understand that his execution will result in the end of his physical life obliged the court to consider that question specifically in ruling on Walton’s competency to be executed. The court did not do so, however. The opinion of the district court reveals that it only considered the narrow question of whether Walton knew that he was to be punished by execution for the murders of three people. Although the court noted Dr. Mills’ testimony that “Walton recognized that his execution was ‘the end’ or ‘an end,’ ” Walton v. Johnson, 306 F.Supp.2d 597, 601 (E.D.Va.2004), the court did not specifically inquire into whether the “end” to which Walton referred was the end of his physical life. Given the substantial conflict in the evidence regarding whether Walton understands that his execution will mean his death, I believe it was incumbent upon the district court to make specific finding on this question.
I would not at this point hold that Walton is actually incompetent under Ford. My concern, rather, is with the narrowness of the inquiry made by the district court and the substantial possibility that Walton does not know that his execution will mean the end of his physical life. I respectfully dissent.
. Judge Williams’ concurrence suggests that I wish to "prevent Virginia from executing Walton.” Ante, at 179. Lest any reader be confused by the concurrence’s remark, it is
While the majority and I are divided with respect to what the Eighth Amendment requires here, I have no doubt that we — as well as the State — share a firm conviction that no individual should be put to death in violation of the Constitution.
. Judge Williams’ concurring opinion states (incorrectly) that I have rewritten Ford (or
. I agree with the majority opinion that the proper test for competency to be executed includes neither an ability to assist counsel, see ante, at 172, nor an ability to “prepare ... mentally and spiritually for his passing,” id. at 172-173.
. After expressing her concerns regarding Walton’s mental state, Dr. General was removed from her duties on death row.
. For the reasons set forth in Judge Motz's opinion for the panel, see Walton v. Johnson, 407 F.3d 285, 294-97 (4th Cir.2005), I would remand for further consideration of Walton’s claim that he cannot be executed because he is mentally retarded, see Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
