Walton v. Johnson ( 2006 )

ON REHEARING EN BANC
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PERCY LEVAR WALTON, 
Petitioner-Appellant,
v.
 No. 04-19
GENE M. JOHNSON, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CA-03-347-7)
Argued: October 27, 2005
Decided: March 9, 2006
Before WILKINS, Chief Judge, and WIDENER, WILKINSON,
NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
TRAXLER, KING, GREGORY, SHEDD, and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge Widener, Judge Wilkinson, Judge Niemeyer, Judge Lut-
tig, 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.
2 WALTON v. JOHNSON
COUNSEL
ARGUED: Jennifer Leigh Givens, VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellant. Robert Quentin Harris, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia, for Appellee. ON BRIEF: F. Nash Bilisoly,
VANDEVENTER BLACK, L.L.P., Norfolk, Virginia, for Appellant.
Jerry W. Kilgore, Attorney General of Virginia, Richmond, Virginia,
for Appellee.
OPINION
SHEDD, Circuit Judge:
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 execu-
tion is precluded under Ford v. Wainwright, 477 U.S. 399 (1986)
(prohibiting the execution of insane inmates), and Atkins v. Virginia,
536 U.S. 304 (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 dis-
trict court properly dismissed Walton’s mental retardation claim
because his habeas 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.
WALTON v. JOHNSON 3
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 Wal-
ton’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 mur-
ders, 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 soci-
ety, 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 and federal
court. Our first federal habeas opinion exhaustively details the exten-
sive procedural history and the claims made in Walton’s numerous
prior proceedings. See Id. at 450-52. In both his state and federal
habeas petitions, Walton challenged his conviction and sentence on
the ground, among many others, that he was not mentally competent
to plead guilty.
After the district court denied Walton relief in his first habeas peti-
tion, 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 men-
tal 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 under-
4 WALTON v. JOHNSON
stood 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 psychia-
trist also opined that Walton was competent because he understood
the nature of the proceedings 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 Wal-
ton’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 (2003).
Thereafter, the Danville Circuit Court rescheduled Walton’s
execution date for May 28, 2003.1 Walton chose electrocution as
the form of execution. Just three days before this execution date,
the district court granted Walton’s request for a stay of execution. A
panel of this court granted Walton’s request to file a second habeas
petition to allow him to claim (for the first time in any proceeding)
that he cannot be executed because he is mentally retarded. In this
second federal petition, Walton makes no further attack on his
conviction. Walton’s only remaining claims are that he cannot be
executed because (1) he is mentally retarded;2 and (2) he is mentally
1
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.
2
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
WALTON v. JOHNSON 5
3
incompetent.
The district court dismissed Walton’s mental retardation claim
without an evidentiary hearing, concluding that Walton failed to fore-
cast evidence that his alleged mental retardation originated before the
age of 18 — a required element under Virginia law. Walton v. John-
son, 269 F. Supp. 2d 692, 700 (W.D. Va. 2003). On the issue of men-
tal competence, however, the district court determined that an
evidentiary 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 suf-
fering from schizophrenia and has borderline delusional ideas about
his ability to come back to life after his execution.4 For instance, Wal-
ton told Dr. Pandurangi, chairman of the Division of Inpatient Psychi-
atry at the Medical College of Virginia, that, despite his impending
mental retardation statute, which was enacted after the Supreme Court
announced its prohibition on the execution of mentally retarded inmates
in Atkins, provides that habeas petitioners who have already "completed
both a direct appeal and a [state] habeas corpus proceeding . . . shall not
be entitled to file any further habeas petitions in the [Virginia] Supreme
Court and [the petitioner’s] sole remedy shall lie in federal court." VA.
CODE ANN. 8.01-654.2.
3
Walton also claimed in his first federal habeas 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 execu-
tion date. See Walton, 321 F.2d 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 (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.
4
Walton also called other lay witnesses whose testimony suggested
that Walton is not competent. For instance, one of Walton’s jailers testi-
fied 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.
6 WALTON v. JOHNSON
death sentence, he wanted a motorcycle, a telephone, and to look
good at the mall. In their discussion about death, Walton told him that
"[p]eople who die go to the graveyard . . . but everybody comes
back." J.A. 425. Despite Walton’s responses acknowledging that
death does occur, Dr. Pandurangi ultimately opined that Walton does
not comprehend that he is going to be executed and will die for mur-
dering three people.
When Dr. Gur, the director of neuropsychology at the University
of Pennsylvania, asked Walton what death meant, Walton responded,
"It means you’re dead." J.A. 441. Walton proceeded to explain, how-
ever, 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, exe-
cution 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 psy-
chiatrist employed to assess Virginia inmates, who assessed Walton
shortly before his scheduled 2003 execution date. Dr. General testi-
fied that Walton never exhibited any type of delusional behavior in
her presence during their three interviews, but he was confused and
largely unable to answer any of her questions during their first ses-
sion. Dr. General’s initial impression was that Walton appeared flor-
idly psychotic, but she did not believe she had a sufficient basis to
prescribe him any medication. In their second interview, Dr. General
asked Walton why he was going to be put to death. Walton responded
that "some people had told him . . . that he had killed some people."
J.A. 311-12. After Dr. General’s third and last interview with Walton,
it was Dr. General’s impression that Walton, after receiving an expla-
nation of what execution means, understood that he is going to die
because he had been convicted of murder.
Walton also testified on the first day of the evidentiary hearing. He
responded to many of the questions — even simple questions — by
WALTON v. JOHNSON 7
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 rehabilita-
tion counselor at Greensville who conducts intake reviews when con-
demned 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 docu-
mentary 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 attor-
ney 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 psy-
chiatrist 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
8 WALTON v. JOHNSON
his claim that he is mentally incompetent, Dr. Arikian initially saw
Walton regarding complaints made against him for disruptive behav-
ior on his cellblock. According to Dr. Arikian, Walton exhibited no
disturbance of thought or mental illness of any kind when he first saw
him. Walton did not use the phrase "I don’t know. I don’t even know"
in their first session. When Dr. Arikian asked Walton about his dis-
ruptive behavior, Walton said, "Well, I just enjoy playing around with
folks. I enjoy messing with them." J.A. 553. Dr. Arikian met with
Walton several more times during the months leading up to his first
scheduled execution date in December 1999. In the early sessions,
Walton carried on normal conversations with Dr. Arikian. In one con-
versation, Walton said that old people were expendable and that they
should expect to be killed if they tried to keep him from taking their
things that he wanted. Walton also said that he thought that
"[e]xecution is the same as murder," and he seemed disappointed
when Dr. Arikian did not express support for his comment. J.A. 556.
Although Walton denied that he was on death-row, Dr. Arikian did
not believe Walton’s denial because it seemed inconsistent with the
rest of their conversation.
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. Arikian 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 sub-
dued 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.
Pandurangi and Gur, Dr. Arikian responded: "I think we’re at oppo-
site 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 under-
standing 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
WALTON v. JOHNSON 9
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 dis-
trict 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 Vir-
ginia’s objection to the appointment of Dr. Mills and requested, based
on its interpretation of Ford v. Wainwright, that Dr. Mills assess Wal-
ton 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 not mentally retarded, and probably suffering from a significant
psychiatric disorder, quite possibly schizophrenia.5 According to Dr.
Mills, a person suffering from schizophrenia can, nevertheless, be
"competent to stand trial, competent to make a will, [and] competent
to be executed." J.A. 916. Notwithstanding Walton’s cognitive limita-
tions, Dr. Mills stated that Walton was able to volunteer that he was
in prison for murdering three people and that he was sentenced to be
executed. Walton correctly informed Dr. Mills that he had selected
electrocution for his execution. When Dr. Mills mentioned that many
people would consider lethal injection preferable, Walton said that it
did not matter because execution was "an end" or "the end." J.A. 899.
5
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.
10 WALTON v. JOHNSON
Dr. Mills asked Walton about his religious views and his understand-
ing 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 fam-
ily. 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 exe-
cuted. 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. Pandurangi’s experience with Walton was differ-
ent from Dr. Mills’ experience. Whereas Walton was able to volun-
teer 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 pro-
ceeded to inform Walton that he had pled guilty to killing three peo-
ple 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. Pandurangi 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. Pandurangi 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 emo-
tional 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 with schizophrenia does not necessarily mean that the inmate
WALTON v. JOHNSON 11
is mentally incompetent to be executed. Dr. Pandurangi also admitted
that he has very little experience in making the type of competency
assessment he was being called on to make in this case.
After both sides rested, the district court allowed final arguments.
In addition to arguing other grounds for relief that were stated in Wal-
ton’s habeas petition, Walton’s counsel asserted for the first time that
Walton is not competent to be executed because he is "unable to spiri-
tually prepare for his death." J.A. 995.6
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 punish-
ment for his conviction for murder." Walton v. Johnson, 306 F. Supp.
2d 598 (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
6
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.
12 WALTON v. JOHNSON
of which he had been convicted and the death penalty." Ford, 477
U.S. at 403. 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 pro-
hibited 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 exe-
cuted,7 appointed three psychiatrists to assess Ford. After interview-
ing Ford in the same 30-minute interview, all three state-appointed
psychiatrists concluded, consistent with the requirements of the Flor-
ida statute, that Ford was able "to understand the nature of the death
penalty and the reasons why it was imposed upon him." Ford, 477
U.S. at 403-04. Although Ford’s lawyers submitted their psychia-
trist’s report attesting that Ford was incompetent to be executed under
the Florida standard, the governor, who had previously publicly
announced that he would not consider materials filed in support of a
prisoner’s suggestion of incompetence, apparently did not accept the
report for review. Id. at 413, 424. Instead, the governor denied Ford’s
request for relief without explanation and signed a death warrant.
Ford filed a federal habeas petition, but the district court denied the
petition without a hearing. Id. at 404. After the circuit court affirmed,
the Supreme Court granted Ford’s petition for certiorari.
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; (2) the Florida
governor’s failure to consider the opinions of Ford’s psychiatrist vio-
lated his due process rights, id. at 413-16, 423-24; and (3) Ford was
entitled to an evidentiary hearing in federal district court. Id. at 418,
424-25. In sum, the majority concluded that Florida failed to consider
adequately all the evidence bearing on the question of whether Ford
7
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 determina-
tion in Florida state court.
WALTON v. JOHNSON 13
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. 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 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 statu-
tory] 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 invali-
dated. 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 (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
district 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 dis-
trict court diligently protected the right of Walton to explore fully the
issue of his competence to be executed.8
8
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 ask-
14 WALTON v. JOHNSON
Walton, however, argues that the district court erred by not follow-
ing the substantive test in Ford for determining whether a condemned
inmate is competent to be executed. In particular, Walton argues that
an inmate is competent to be executed only if he is able to: (1) com-
prehend that he is to be executed as punishment for his crime; (2)
assist his counsel during the competency proceeding; and (3) prepare
for his death in some meaningful manner.9
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 execu-
tion, 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.
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 men-
tal illness prevents him from comprehending the reasons for the pen-
alty or its implications." Id. at 417. Justice Powell implicitly adopted
this particular rationale in his concurrence when he proposed his test
for determining competency: "I would hold that the Eighth Amend-
ment forbids the execution only of those who are unaware of the pun-
ishment they are about to suffer and why they are to suffer it." Id. at
422. Justice Powell’s proffered test represents the only ground on
ing 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 whether they believe Walton is able to
prepare for his death.
9
Unlike Florida, Virginia has no statutory test for determining whether
a condemned inmate is competent to be executed, so our review is lim-
ited to whether the test used by the district court satisfies the Constitu-
tional standard.
WALTON v. JOHNSON 15
which a majority of the Court agreed regarding the standard for deter-
mining mental competence to be executed, and we are bound by it.
See Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (stating that
when there are multiple rationales given by different justices to sup-
port 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").10
Justice Powell’s two-part test to determine competency to be exe-
cuted has been widely recognized or adopted as the appropriate test
for determining mental competence to be executed. The Supreme
Court has cited Justice Powell’s test with approval, see Penry v.
Lynaugh, 492 U.S. 302, 333 (1989), overruled on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002), and Congress followed Jus-
tice Powell’s test in enacting its statutory test for determining compe-
tency, see 18 U.S.C. § 3596 (c) ("A sentence of death shall not be
10
A statement by Justice Powell in Ford and another statement by Jus-
tice Marshall in a subsequent case suggest that Ford does not actually
establish a substantive test for determining incompetence. In his concur-
rence, Justice Powell specifically stated that the "Court’s opinion does
not address . . . the meaning of insanity" in the context of being compe-
tent to be executed. Ford, 477 U.S. at 418 (emphasis added). In a subse-
quent 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 (1991). Despite these
comments, however, the actual discussion of rationales and the overlap-
ping agreement on one of the rationales in both the Ford plurality opin-
ion 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 (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"), overruled on other grounds by Atkins v. Virginia,
536 U.S. 304 (2002), convince us that the Ford Court effectively adopted
Justice Powell’s proffered two-part test as the Constitutionally minimum
standard for determining mental competence to be executed. See United
States v. Fareed, 296 F.3d 243, 247 (4th Cir. 2002) (stating that the cir-
cuit court can be bound by Supreme Court dicta almost as firmly as
Supreme Court holdings).
16 WALTON v. JOHNSON
carried out upon a person who, as a result of mental disability, lacks
the mental capacity to understand the death penalty and why it was
imposed on that person"). In addition, all four federal circuit courts
that have addressed competency to be executed have recognized Jus-
tice Powell’s proffered test as the appropriate standard by which to
determine competence. See, e.g., Scott v. Mitchell, 250 F.3d 1011,
1014 (6th Cir. 2001) (concluding that the standard established in
"Ohio’s Ford statute," i.e., "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," appropriately defines incom-
petence to be executed); Massie v. Woodford, 244 F.3d 1192, 1195
n.1 (9th Cir. 2001) (citing Ford for the proposition 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"); Fearance v. Scott, 56 F.3d 633, 640 (5th Cir. 1995) (recognizing
that the Ford standard requires only that an inmate "know the fact of
his impending execution and the reason for it"); Rector v. Clark, 923
F.2d 570, 572 (8th Cir. 1991) (stating that "according to Ford, we
must examine two factors in assessing petitioner’s competency to be
executed: (1) whether petitioner understands that he is to be punished
by execution; and (2) whether petitioner understands why he is being
punished"). Moreover, most states that have a statutory definition of
competency for execution use Justice Powell’s two-part test.11 Last,
11
See, e.g, ARIZ. REV. STAT. § 13-4021(B) (2005) ("‘[M]entally incom-
petent to be executed’ means that due to a mental disease or defect a per-
son 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 impend-
ing 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 pres-
ently 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. CODE ANN.
§ 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
WALTON v. JOHNSON 17
although the dissent asserts that the district court’s findings of fact are
not sufficient, it also agrees that Justice Powell’s test is the appropri-
ate competency standard. Dissent, infra at p. 35 ("I agree that the test
for competency under the Eighth Amendment is whether an individ-
ual understands that he is to be executed and why").
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. 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.
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 collat-
eral review — always represented by counsel — in both state and fed-
eral 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 exe-
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 Pow-
ell’s two-part test by case law. See, e.g., Baird v. State, 833 N.E.2d 28,
30 (Ind. 2005), cert. denied, 74 U.S.L.W. 3211 (Oct. 3, 2005); Van Tran
v. State, 6 S.W.3d 257, 266 (Tenn. 1999).
18 WALTON v. JOHNSON
cuted, and we conclude that there is no Constitutional requirement12
under Ford that Walton be able to assist counsel to be deemed compe-
tent to be executed.13
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 suffer it." Ford, 477 U.S. at 422(emphasis added).14 Therefore, we conclude that the Eighth Amend-
12
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. CODE ANN. § 99-19-57(2)(b) (2005); N.C. GEN.
STAT. § 15A-1001(a) (2005); Singleton v. State, 437 S.E.2d 53, 58 (S.C.
1993); State v. Harris, 789 P.2d 60, 66 (Wash. 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.
13
At least one other circuit court has specifically rejected this require-
ment. 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").
14
In support of his argument, Walton primarily focuses on Justice Pow-
ell’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. 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 sat-
isfying Justice Powell’s test, it is not a required element of the test. Jus-
tice 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.
WALTON v. JOHNSON 19
ment does not require that an inmate have the capacity to prepare for
his passing to be deemed competent to be executed.
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 dis-
trict court faithfully followed Justice Powell’s two-part test, we con-
clude 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).15 Instead, "[i]f the district court’s account of the
evidence is plausible in light of the record viewed in its entirety, the
15
The dissent states that it is undisputed that "Walton has fallen deeper
and deeper into mental illness." Dissent, infra at p. 35. This comment has
no real legal significance. Whether Walton is mentally ill is not the rele-
vant 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 dis-
trict 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.
20 WALTON v. JOHNSON
court of appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have weighed the evidence
differently." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985). Thus, facts found by the district court are conclusive on
appeal "unless they are plainly wrong." Jiminez, 57 F.3d at 378-79.
A factual finding by the district court may be reversed only if, "al-
though there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mis-
take has been committed." United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948).
The parties presented vastly conflicting evidence whether Walton
understands that his execution will result in his death. After consider-
ing 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 volun-
teer 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 incom-
petent, 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, Vir-
ginia presented the testimony of Dr. Arikian, a 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 oppos-
ing view of Dr. Pandurangi, who admittedly has had very little experi-
ence with prisoners, Dr. Arikian replied: "I think we’re at opposite
ends of the spectrum on that. . . . I think far from not having an under-
WALTON v. JOHNSON 21
standing 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. To the contrary, the district court considered the
divergent evidence presented by both sides and the neutral testimony
of Dr. Mills,16 and there is substantial evidence in the record to sup-
port the district court’s finding that "Walton understands that he is in
prison and has received an execution sentence for murdering three
individuals [and that] Walton understands that to be executed means
he will die." Walton, 306 F. Supp. 2d at 600.
Even though the district court — after thoroughly considering the
evidence — specifically found that Walton understands that he will
die as punishment for his crimes, the dissent insists that the Ford test
requires more. In particular, the dissent would create a new "require-
ment" that the district court must also specifically determine whether
the condemned inmate "understand[s] that to be executed means to
have one’s physical life ended." Dissent, infra at p. 39. In an attempt
to add legitimacy to this new "requirement," the dissent asserts that
other courts have required "precisely" such a specific finding. Id. at
38-39. Contrary to the dissent’s contention, none of the cases it cites
(or any case that we have found) supports the dissent’s new "require-
ment" that a court determining competency for execution must specif-
ically decide whether the condemned inmate understands that to be
16
The dissent states that "Dr. Mills’ assessment of Walton’s compe-
tency does not present the unequivocal certainty that the majority opinion
claims for it." Dissent, infra at p. 46. Contrary to the dissent’s character-
ization, we do not suggest — nor do we need to — that Dr. Mills’ testi-
mony 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 sup-
port the district court’s findings of fact. While we do not suggest that Dr.
Mills’ testimony presents "unequivocal certainty," Dr. Mills’ firm opin-
ion that Walton is competent, along with the other testimony presented
by Virginia, provides more than ample support for the district court’s
finding that Walton understands that he is going to be executed and will
die as punishment for his crimes.
22 WALTON v. JOHNSON
"executed means to have one’s physical life ended."17 Instead, these
cases stand for the unremarkable proposition, which we have adopted,
that the condemned inmate must understand that he will die as pun-
ishment for his crimes.18 In this case, the district court, faced with
17
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 dis-
sent correctly concedes, establishing that Walton understands that his
execution will mean the end of his physical life. Walton told Dr. Pandu-
rangi that "[p]eople 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 electro-
cution 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 consider-
ing 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.
18
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 con-
demned 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 harm-
ful 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 impli-
cations. Id. at 59.
WALTON v. JOHNSON 23
vastly conflicting evidence, found by a preponderance of the evidence
that "Walton understands that he is sentenced to die by execution" for
his crimes and, even more precisely, that Walton "understands that to
be executed means that he will die." Walton, 306 F. Supp. 2d at 600-
01 (emphasis added). Ford does not require more.
In asserting that Walton may not understand that his execution will
end his physical life, the dissent points primarily to the comments that
Walton has made about being able to "come back to life after execu-
tion." Dissent, infra at p. 43. While many of Walton’s beliefs about
the "afterlife" might strike others as odd or unrealistic, they are not
inconsistent with the district court’s finding that "Walton understands
that to be executed means he will die." Walton, 306 F. Supp. 2d at 600.19
Moreover, some of Walton’s recent statements of what he believes
will happen after his death are no more unrealistic than the statements
Walton made to his psychiatrist and attorney during the state trial pro-
ceedings. During his recent interview in 2004, Walton told Dr. Mills
that he believed that he would go to heaven but would return and be
able to see his relatives. During the state trial proceedings in 1997,
Walton stated that he would come back to life shortly after his execu-
tion and would be able to resurrect his dead relatives. A panel of this
court, after considering Walton’s 1997 statement, nevertheless ruled
in Walton’s first federal habeas proceeding that "we harbor no doubt
that Walton was competent to appear in court and plead guilty." Wal-
ton, 321 F.3d at 460. Because the standard for competency to plead
guilty, which, similar to the standard for competency to be executed,
requires that the defendant understand, among other things, the "con-
sequences of the proceedings against him," see, 18 U.S.C. § 4241;
Godinez v. Moran, 509 U.S. 389, 396 (1993), Walton’s recent com-
ments about his "afterlife" clearly do not suggest incompetence any
more than his similar comments did during his first federal habeas
proceeding.
In sum, we conclude that the district court employed the proper
legal test and its findings of fact are not "plainly wrong," see Jiminez,
19
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.
24 WALTON v. JOHNSON
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, con-
cluding that "death is not a suitable punishment for a mentally
retarded criminal." 536 U.S. at 321. 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 men-
tally retarded. Id. at 317. 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 subaverage intellectual func-
tioning as demonstrated by performance on a standardized measure of
intellectual functioning administered in conformity with accepted pro-
fessional 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 corre-
sponds to an IQ score of 70 or less. Johnson v. Commonwealth, 591
S.E.2d 47, 59 (Va. 2004), vacated on other grounds, No. 03-10877,
2005 WL 516756 (U.S. Mar. 7, 2005); see also, Walker v. True, 399
F.3d 315, 322 (4th Cir. 2005) ("On a properly normed IQ test only
scores of 70 or lower are two standard deviations below the mean").
Thus, Walton can be deemed mentally retarded under Virginia law
only if he establishes, among other requirements, that his intellectual
functioning would have corresponded to an IQ score of 70 or less
before he turned 18. See Walker, 399 F.3d at 320.20
20
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).
WALTON v. JOHNSON 25
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 retar-
dation 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.21
Walton alleges that he scored 90 on an IQ test in 1996, shortly before
he turned 18. Although Walton claims that "[l]ittle is known" about
how this testing was conducted and whether it can be considered reli-
able, he does not allege that this testing somehow tends to prove that
he is mentally retarded, i.e, that his score on this test was actually 70
or less. Walton also alleges that he received an IQ score of 77 when
his trial expert tested him a few months after he turned 18. Walton
contends, however, that this score of 77 should be reduced to a score
of 74 because of the "Flynn Effect."22 Accepting these allegations in
21
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 exe-
cuting 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, 534 S.E.2d 312, 320 (Va.
2000), rev’d on other grounds, Atkins v. Virginia, 536 U.S. 304 (2002);
Washington v. Commonwealth, 323 S.E.2d 577, 586-87 (Va. 1984); see
also Penry v. Lynaugh, 492 U.S. 302, 337-38 (1989) ("[T]he sentencing
body must be allowed to consider mental retardation as a mitigating cir-
cumstance 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 (2002). Nevertheless, Drs.
Pandurangi and Gur have never opined that Walton is mentally retarded.
22
The premise of the "Flynn Effect" is that IQ scores increase over
time and that IQ tests that are not re-normed 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.
26 WALTON v. JOHNSON
Walton’s habeas petition as true, Walton still does not state a claim
that he is mentally retarded because Virginia law requires that intel-
lectual functioning be commensurate with a score of 70 or less before
age 18.23
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 measure-
ment 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.24 Such conclusory, speculative
allegations do not preclude the district court’s dismissal of Walton’s
claim. See United States v. Roane, 378 F.3d 382, 400 (4th Cir. 2004)
23
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 commen-
surate with a score of 70 or less before he turned 18.
24
Although Walton attached to his second habeas petition expert affi-
davits 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.
WALTON v. JOHNSON 27
(concluding that speculative allegations in a habeas petition do not
warrant granting the petitioner an evidentiary hearing to further pur-
sue his claim); Fisher v. United States, 317 F.2d 352, 354 (4th Cir.
1963) (stating that "bald assertions of insanity, unsubstantiated by a
recital of credible facts, would justify dismissal without further pro-
ceedings"). Accordingly, because Walton failed to allege sufficient
facts demonstrating that his intellectual functioning was 70 or less
before he turned 18, the district court properly dismissed Walton’s
mental retardation claim.
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
WILKINSON, Circuit Judge, 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 (1986) (Pow-
ell, J., concurring in part and concurring in the judgment). Judges cal-
led upon to interpret the Eighth Amendment may not engage in
metaphysical inquiries under the guise of constitutional interpretation,
but neither may they abdicate their responsibility to provide content
to an express constitutional guarantee.
The Powell test appreciates that the Constitution does not counte-
nance 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 amend-
ment 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
28 WALTON v. JOHNSON
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 defini-
tion 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 con-
ducted two evidentiary hearings, heard testimony from Walton him-
self as well 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.
WILLIAMS, Circuit Judge, 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 exe-
cuted is flawed. The dissent would hold that "the Constitution, as a
legal matter, requires that a condemned inmate understand that execu-
tion will result in the end of his physical life." Post at 35. Application
of this test would prevent Virginia from executing Walton — whom
the district court has found understands that he is going to be exe-
cuted, 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
WALTON v. JOHNSON 29
(W.D. Va. 2004) — unless the district court also finds that Walton
"understand[s] that his execution will [cause] the end of his physical
life." Post at 33. In my view, this additional test suffers from two sig-
nificant deficiencies.
First, neither Justice Powell’s formulation of the legal test in Ford
v. Wainwright, 477 U.S. 399 (1986), nor the Court’s adoption of that
test (albeit in dicta) in Penry v. Lynaugh, 492 U.S. 302 (1989), abro-
gated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002),
required that a death-row inmate understand death to mean "the end
of his physical life." Rather, these cases required, as has the majority
in this case, that the condemned inmate be "[ ]aware of the punish-
ment [he is] about to suffer and why [he is] to suffer it." Ford, 477
U.S. at 422 (Powell, J., concurring in part and concurring in the judg-
ment); Penry, 492 U.S. at 333. Rather than apply existing Supreme
Court precedent, the dissent rewrites that precedent. And to the extent
the dissent argues that its test should be seen as an interpretation of
Ford and not its rewriting, post at 34, the interpretation is without
basis. None of the cases the dissent cites in support of its test, post
at 36-38, purports to define "death," much less to define it as "the end
of [one’s] physical life." Instead, each of those cases states (or
implies) only that the defendant must understand the "nature" of the
death penalty and that the "nature" of the death penalty is that it
causes death. Not one of the cases "examined precisely . . . whether
the inmate must understand that the execution will mean the end of
his physical life," post at 38: Not one of the dissent’s quotes from
those cases contain any language to that effect. A test that has not
appeared in any statute or case law in the 20 years since Ford was
decided can hardly be as "obvious" as the dissent claims. Post at 39.
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 (internal quotation marks omitted). Despite the state-
centric focus of the Eighth Amendment, the dissent’s test is unsup-
ported 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 exe-
30 WALTON v. JOHNSON
cution." Post at 39. But by relying on its own judgment, the dissent
reveals that, ultimately, its test is its own — and not Ford’s — cre-
ation.
Second, even if we were deciding this case on a clean slate, the dis-
sent’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 ori-
entation of one’s Weltanschauung, a perfectly sane person can under-
stand 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 Solip-
sist, 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 con-
demned 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, I do not believe that we federal judges (not to mention we
inferior-court judges) should be the ones deciding whether a con-
demned inmate who understands that he is going to die must under-
stand more about his death in order to be sane. Cf. Atkins, 536 U.S.
at 317 ("To the extent there is serious disagreement about the execu-
tion of mentally retarded offenders, it is in determining which offend-
ers are in fact retarded. . . . [Therefore,] we leave to the State[s] the
task of developing appropriate ways to enforce the constitutional
restriction upon [their] execution of sentences." (internal quotation
marks omitted)).1
1
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
WALTON v. JOHNSON 31
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 "[e]xecution is a punishment wrought [solely] upon the
body." Post at 40. The dissent fails to realize, however, that this state-
ment is itself a metaphysical one. Execution is a punishment inflicted
on the "body" alone only insofar as one sees a human being as com-
prised 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 dis-
sent.
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 East-
ern 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
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.
32 WALTON v. JOHNSON
afterlife." Post at 40. 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, however,
it is the dissent’s test that requires examination of such matters. Why
else would the dissent ground its ultimate conclusion that remand is
warranted on the facts that Walton believed that: (1) "he could come
back to life and be with his honeys," post at 43 (emphasis added and
internal quotation marks omitted), (2) "electrocution is . . . going to
make him . . . come back to life or something stronger," post at 43
(emphasis added and internal quotation marks omitted); (3) "he might
have special powers that would allow him to come back to life after
execution," post at 43 (emphasis added and internal quotation marks
omitted); (4) he might "come back as a woman," post at 45 (emphasis
added and internal quotation marks omitted); and (5) "[death means
that you s]leep for [the] rest of [your] life . . . until someone comes
to see you," post at 43 (emphasis added and internal quotation marks
omitted). The dissent’s actual analysis is more revealing than what it
asserts this case is or is not about.2
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
2
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 inter-
ruption of his current physical life," and that it would remand for the dis-
trict court to make the factual determination of whether Walton’s views
reveal the former or the latter. Post at 41. This suggestion, however, sim-
ply 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.
WALTON v. JOHNSON 33
the meaning of the word "chair," for example, a person must be capa-
ble 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 "[ ]aware of the punishment he is about
to suffer." 477 U.S. at 422 (Powell, J., concurring in part and concur-
ring in the judgment). As the majority has ably demonstrated, the evi-
dence in the record, and the expert testimony in particular, supports
such a finding, and I cannot hold that the Eighth Amendment requires
more.
WILKINS, Chief Judge, 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 compe-
tent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986),
without such an understanding.1 Notably absent from the majority
opinion is any explanation for this holding other than "Ford doesn’t
1
Judge Williams’ concurrence suggests that I wish to "prevent Virginia
from executing Walton." Ante, at 28. Lest any reader be confused by the
concurrence’s remark, it is worth emphasizing that I would only remand
for a single factual finding by the district court and that on appeal this
finding would be reviewed under the highly deferential "clear error"
standard. In the event that it is determined that Walton understands what
"to die" means, his execution would proceed.
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.
34 WALTON v. JOHNSON
say it." With respect to the purely legal question of what the Eighth
Amendment requires for competency to be executed, I would hold
that an individual’s understanding of the fact of execution must
include at least a rudimentary comprehension that execution will
mean his death, defined as the end of his physical life.
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 21-22. Contrary to what my col-
leagues assert, this is not a rewriting of Ford. It is a simple recogni-
tion 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 ordi-
nary 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 ques-
tion as to whether a condemned inmate understands what "to die"
means, the district court is obliged to resolve that issue. This is pre-
cisely 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 under-
standing is required, "the record contains ample evidence . . . estab-
lishing that Walton understands that his execution will mean the end
of his physical life." Ante, at 22 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 sup-
port a contrary finding. (For example, the record indicates that Walton
can recite, after prompting, that he is to be executed for murder. How-
ever, 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 (inter-
nal 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.
WALTON v. JOHNSON 35
Because the Constitution, as a legal matter, requires that a con-
demned 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, can accept no less.2 I therefore
dissent.
I.
There is no dispute here that Walton was properly convicted and
sentenced to death for three brutal murders. Similarly, there is no dis-
pute 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 exe-
cuted and why,3 I would hold that an individual’s understanding of
the fact of execution must include the understanding that execution
will mean his death, defined as the end of his physical life.
2
Judge Williams’ concurring opinion states (incorrectly) that I have
rewritten Ford (or have crafted an interpretation that is "without basis"
in Ford). Ante, at 29. Far from rewriting Ford, I am merely doing what
I am constitutionally obligated to do: deciding whether competency
under the Eighth Amendment includes the fundamental understanding
that death means the end of physical life. To the extent Ford addresses
this question, it supports my view. To the extent Ford does not address
the question, I believe that the Eighth Amendment cannot require less
than a rudimentary comprehension of the end result of execution.
3
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
17, nor an ability to "prepare . . . mentally and spiritually for his pass-
ing," id. at 18-19.
36 WALTON v. JOHNSON
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 constitu-
tional prohibition on the execution of the insane. The plurality recog-
nized society’s abhorrence of inflicting the death penalty on one
whose mental illness prevents him from "comprehending" the "impli-
cations" of his punishment. Ford, 477 U.S. at 417 (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 fol-
lows:
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 for-
bids the execution only of those who are unaware of the
punishment they are about to suffer and why they are to suf-
fer it.
Id. at 422 (Powell, J., concurring in part and concurring in the judg-
ment). Justice Powell’s meaning in this passage is clear: the retribu-
tive goal of capital punishment is satisfied only if the prisoner
understands that his execution will end his physical life. Accord Mar-
tin v. Dugger, 686 F. Supp. 1523, 1569 (S.D. Fla. 1988) ("An essen-
tial 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 exe-
cution means the end of his physical life, is found in numerous federal
and state court decisions before and after Ford. See, e.g., Scott v.
WALTON v. JOHNSON 37
Mitchell, 250 F.3d 1011, 1013-14 (6th Cir. 2001) (holding that com-
petency is appropriately defined as "the mental capacity to understand
the nature of the death penalty and why it was imposed upon the con-
vict" (emphasis added; internal quotation marks omitted); Barnard v.
Collins, 13 F.3d 871, 876-77 (5th Cir. 1994) (denying certificate of
probable cause based on state court finding that petitioner "compre-
hend[ed] the nature . . . of his execution" (internal quotation marks
omitted)); Amaya-Ruiz v. Stewart, 136 F. Supp. 2d 1014, 1018 (D.
Ariz. 2001) (noting that Arizona defines competency to be executed
in terms of the prisoner’s awareness that the punishment for murder
is death); State v. Perry, 502 So. 2d 543, 564 (La. 1986) (holding that
Louisiana will not execute an individual who "lacks the capacity to
understand the death penalty"); Billiot v. State, 655 So. 2d 1, 15-16
(Miss. 1995) (holding that to be competent under Ford, a prisoner
must "have a rational understanding of what it means to be exe-
cuted"); Grammer v. Fenton (In re Grammer), 178 N.W. 624, 626
(Neb. 1920) (holding that demonstrating incompetence to be executed
requires a showing that the petitioner "does not understand, and is
incapable of understanding, . . . his impending fate" (emphasis
added)); State v. Scott, 748 N.E.2d 11, 13 (Ohio 2001) (per curiam)
(observing that Ohio defines competency under Ford as "the mental
capacity to understand the nature of the death penalty and why it was
imposed upon the convict" (emphasis added; internal quotation marks
omitted)); Bingham v. State, 169 P.2d 311, 315 (Okla. Crim. App.
1946) (stating that purpose of competency examination prior to exe-
cution is to determine "whether it would be consistent with public
decency and propriety to take away the life of a person who was not
sane enough to realize what was being done" (emphasis added));
Commonwealth v. Jermyn, 652 A.2d 821, 823-24 (Pa. 1995) (affirm-
ing lower court conclusion that the petitioner was competent to be
executed because, inter alia, his mental illness did not preclude him
from understanding the "implications" of the death penalty); see also
Solesbee v. Balkcom, 339 U.S. 9, 20 n.3 (1950) (Frankfurter, J., dis-
senting) (stating that "[a]fter sentence of death, the test of insanity is
whether the prisoner" can "understand," inter alia, "the impending
fate which awaits him" (internal quotation marks omitted)).
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, 437 S.E.2d 53, 58 (S.C.
38 WALTON v. JOHNSON
1993), the court concluded that the petitioner, Singleton, was incom-
petent 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 any-
thing other than a yes-no are indicative of Singleton’s fail-
ure to understand either the reason or the nature of his
punishment.
Accord Musselwhite v. State, 60 So. 2d 807, 809 (Miss. 1952) (hold-
ing that petitioner was incompetent to be executed because his cata-
tonic 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 exe-
cuted even though he believed that his deceased aunt would protect
him from the toxic effects of the chemicals used during lethal injec-
tion. The court reasoned that the petitioner "comprehend[ed] the
nature of the penalty," id. at 59 (internal quotation marks omitted),
because although he believed he would not die, he recognized that the
purpose of the execution was to end his life.
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 22.
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 22
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 deci-
sion in that case. In finding Garrett competent even though he
WALTON v. JOHNSON 39
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 compe-
tent 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 under-
stand 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 legis-
lation. 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 leg-
islation would not force this court to allow the execution of an indi-
vidual who believed that "to die" meant "to go get an ice cream cone."
Moreover, while objective evidence in the form of legislation is cer-
tainly relevant in identifying prevailing Eighth Amendment standards,
the Supreme Court has made it abundantly clear that in the final anal-
ysis, the federal courts must render their own judgment regarding
constitutional limitations on execution. See Atkins v. Virginia, 536
U.S. 304, 312-13 (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
40 WALTON v. JOHNSON
30. However, the inquiry is phrased in "scientific" terms because the
Eighth Amendment is concerned only with the inmate’s ability to
understand the physical reality of what will happen to him during exe-
cution. Execution is a punishment wrought upon the body; in execut-
ing a condemned inmate, the state is concerned solely with bringing
about physical death, not with inflicting any punishment that may
carry over into the afterlife. One who believes that the end of his
physical life is not cause for concern, for whatever reason, may not
fear death—indeed, he may even welcome it—and this would be no
concern of the Eighth Amendment. An inmate is not incompetent to
be executed simply because he "understand[s] death" in other than
wholly physical terms, ante, at 30. What the Eighth Amendment is
concerned with is a condemned inmate’s ability to grasp the concept
that execution will cause his heart to stop beating and his brain activ-
ity to cease.
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 31, 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 41, and the latter is entirely beside the point. It should be crys-
tal clear that this case is not about the orientation of Walton’s Weltan-
shauung; 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 execu-
tion 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 physi-
cal 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
WALTON v. JOHNSON 41
continue after his execution. See ante, at 31. 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 cor-
rect, 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 ques-
tion (one yet to be answered by the district court) as to whether Wal-
ton understands that his execution will mean his death, i.e., the end
of his physical life. The existence of a substantial question is a suffi-
cient basis for a remand to the district court for factual findings con-
cerning this particular question. See Coe v. Bell, 209 F.3d 815, 821
(6th Cir. 2000). To hold otherwise is to send Walton to his execution
even though he may be too mentally ill to comprehend what is hap-
pening.
Psychiatrist Patricia General, who examined Walton on two occa-
sions 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
42 WALTON v. JOHNSON
be put to death, . . . he said . . . some people had told him
. . . that he had killed some people.
Id. at 311-12 (emphasis added).4 On cross examination, Dr. General
responded to the question "is it your impression that [Walton] under-
stood that he would be put to death?" by saying, "Yes, after further
questioning" and that "[w]ith the questions" Walton "understood he
would be put to death." Id. at 344. On redirect, Dr. General agreed
with Walton’s counsel that Walton did not understand what execution
meant until she explained it to him.
Dr. General’s testimony that Walton had to have the meaning of
the term "execution" explained to him is consistent with the observa-
tions 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 ("[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. Pandurangi concluded,
"I would say [Walton] does not have the ability to prepare himself in
any meaningful [way] . . . . [He’s] not thinking of death and prepara-
tion for death that way. He seems to be thinking like he can ride a
motorcycle, or somebody will come see him . . . ." Id. at 978.
4
After expressing her concerns regarding Walton’s mental state, Dr.
General was removed from her duties on death row.
WALTON v. JOHNSON 43
Dr. Pandurangi also testified regarding Walton’s conception of
death. Among other things, Dr. Pandurangi noted that as far back as
1997, Walton insisted that he wanted "to plead guilty and get the
[electric] chair" so that he could "come back to life and be with his
honeys." Id. at 410 (internal quotation marks omitted). Based on his
discussions with Walton, who "indicated that by getting the chair, he
would be a man," Dr. Pandurangi opined that Walton "thinks that
somehow electrocution is . . . going to make him more powerful or
make him come back to life or something stronger." Id. at 411 (inter-
nal quotation marks omitted). During his interview with Dr. Pandu-
rangi, Walton indicated that he might have "special powers" that
would allow him to come back to life after execution, although he
was not unalterably fixed on this idea. Id. at 365 (internal quotation
marks omitted). And, Dr. Pandurangi testified that Walton had "some
delusional type of thinking in his mind" regarding death, in that he
simultaneously acknowledged the imminence of the death penalty
while nevertheless stating that he wanted to "look good . . . [i]n the
shopping mall" and thought that he could have a telephone, a motor-
cycle, and a job at Burger King. Id. at 366-67 (internal quotation
marks omitted). According to Dr. Pandurangi, Walton thought "both
things are possible at the same time," leading Dr. Pandurangi to con-
clude that Walton viewed death as "a very temporary thing." Id. at
366.
At the March 2004 Ford hearing, Dr. Pandurangi testified regard-
ing 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, ‘I don’t know guilty or not.’" Id. at
961). Walton was unable to explain what execution was or what hap-
pened 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
44 WALTON v. JOHNSON
his hearing, that there have been allegations that he’s killed
some people . . .
I told him, "Well, that’s not what I’m told. My under-
standing is that you had the trial and that you were con-
victed, 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 as May 23, 2003, he did not know what year it actually
WALTON v. JOHNSON 45
was. Dr. Gur also stated that Walton cannot comprehend "the ramifi-
cations of what may occur if he’s executed": "I think you could
explain it to him and he will be able to parrot statements that you feed
him, but you come back ten minutes later and see that there isn’t
much left out of all that effort." Id. at 455-56. And, while Dr. Gur
acknowledged that Walton "understands that . . . he will die," he ques-
tioned whether Walton "understands death," noting that his primary
concern was that he could "come back as a woman." Id. at 459.
Walton’s testimony during the July 2003 Ford hearing also indi-
cates 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 exe-
cuted." 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, "[O]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 Wal-
ton 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, Wal-
ton 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 under-
stands that he is to be punished by execution; and (2) whether Walton
46 WALTON v. JOHNSON
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 stan-
dard. 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 unequivocal
certainty that the majority opinion claims for it.
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 ques-
tion 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.
WALTON v. JOHNSON 47
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.5
Judges Michael, Motz, Traxler, King, and Gregory join in this dis-
senting opinion.
5
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 (2002).