Affirmed by Supreme Court on January 21, 1998.
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DOUGLAS MCARTHUR BUCHANAN, JR.,
Petitioner-Appellant,
v.
No. 96-4
RONALD J. ANGELONE, Director,
Virginia Department of Corrections;
COMMONWEALTH OF VIRGINIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-93-306-R)
Argued: October 30, 1996
Decided: December 30, 1996
Before HALL and ERVIN, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Senior Judge Butzner wrote the opin-
ion, in which Judge Hall and Judge Ervin joined.
_________________________________________________________________
COUNSEL
ARGUED: Gerald Thomas Zerkin, GERALD T. ZERKIN & ASSO-
CIATES, Richmond, Virginia, for Appellant. Katherine P. Baldwin,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellees. ON BRIEF: Donald R.
Lee, VIRGINIA CAPITAL REPRESENTATION RESOURCE CEN-
TER, Richmond, Virginia; Frank K. Friedman, WOODS, ROGERS
& HAZLEGROVE, P.L.C., Roanoke, Virginia, for Appellant. James
S. Gilmore, III, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
_________________________________________________________________
OPINION
BUTZNER, Senior Circuit Judge:
In 1988, Douglas McArthur Buchanan, Jr., was convicted of capital
murder in Virginia and sentenced to death. After exhausting his state
remedies, he petitioned the district court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his petition, he alleged numerous
constitutional defects in the state court proceedings. The district court
denied the petition. On appeal, Buchanan presents five issues for
review. After careful consideration of his contentions and the record,
we find no reversible error and affirm the district court's disposition.
I
On the afternoon of September 15, 1987, Buchanan murdered his
father, his stepmother, and his two half brothers. The Virginia
Supreme Court's opinion recounts the details of the crime. Buchanan
v. Commonwealth, 238 Va. 389, 394-96, 384 S.E.2d 757, 760-61
(1989).
Buchanan was charged with capital murder for the killing of "more
than one person as part of the same act or transaction." Va. Code Ann.
§ 18.2-31(7) (Michie 1996). In four separate indictments, the grand
jury also charged him with the first degree murder of each victim. In
addition, he was charged with four counts of use of a firearm in the
commission of a murder.
Buchanan pleaded not guilty to all charges. He was tried before a
jury in the Circuit Court for Amherst County, Virginia. The jury
found him guilty of capital murder for killing his father, four first
degree murders, and the firearm offenses. Following a separate hear-
2
ing, the jury sentenced Buchanan to death for the capital murder, to
life in prison for each of the first degree murders, and to a term of
imprisonment for the firearm offenses. The circuit court imposed the
recommended sentences.
Buchanan appealed to the Supreme Court of Virginia. The court
vacated the redundant conviction of first degree murder for the killing
of Buchanan's father and affirmed the other convictions and the
related sentences, including the death penalty. Buchanan, 238 Va. at
418, 384 S.E.2d at 774. The United States Supreme Court denied cer-
tiorari. Buchanan v. Virginia, 493 U.S. 1063 (1990).
Buchanan then petitioned for a writ of habeas corpus in the Circuit
Court of Amherst County. After the circuit court dismissed his peti-
tion, he appealed to the Supreme Court of Virginia, which also denied
the petition. The United States Supreme Court again denied certiorari.
Buchanan v. Murray, 506 U.S. 988 (1992).
Buchanan sought a writ of habeas corpus in federal district court,
which denied relief. On appeal, Buchanan now asserts five claims,
one relating to the competence of his trial counsel, three alleging
errors in his trial, and one challenging the adequacy of the Virginia
Supreme Court's appellate review.
II
Buchanan's first claim is that the sentencing jury was inadequately
instructed about mitigating evidence. With regard to mitigation, the
court told the jury: "[I]f you believe from all the evidence that the
death penalty is not justified, then you shall fix the punishment of the
defendant at life imprisonment." In addition, the statutory verdict
form required the jury to indicate that it had "considered the evidence
in mitigation of the offense."
At trial Buchanan asked the court to give a more detailed instruc-
tion on mitigation. Specifically, he asked the court to tell the jury that
it should consider as mitigating factors his youth, his clean criminal
record, and whether he was "under the influence of extreme mental
or emotional disturbance" when he committed the crime. Each of
3
these factors is designated as mitigating evidence by Virginia Code
§ 19.2-264.4 (Michie 1996). During the sentencing hearing Buchanan
submitted evidence supporting each factor, and Buchanan's counsel
was permitted to discuss the factors in his closing argument.
Buchanan now argues that the trial court's failure to instruct the
jury about the specific mitigating factors supported by his evidence
violated his constitutional rights in two ways. His first argument rests
on the Eighth Amendment. In his view, the trial court's nonspecific
instruction did not appropriately channel the jury's discretion so as to
avoid an arbitrary or capricious outcome.
The Eighth Amendment requires that a capital sentencing jury's
discretion be "guided and channeled by requiring examination of spe-
cific factors that argue in favor of or against imposition of the death
penalty, thus eliminating total arbitrariness and capriciousness in its
imposition." Proffitt v. Florida, 428 U.S. 242, 258 (1976). To accom-
plish this purpose, a capital sentencing jury must be properly
instructed. Walton v. Arizona, 497 U.S. 639, 653 (1990). However,
the Eighth Amendment does not require states to adopt specific stan-
dards for instructing juries on aggravating and mitigating circum-
stances. Zant v. Stephens, 462 U.S. 862, 890 (1983).
Guided by those constitutional principles, this court has previously
analyzed and rejected the argument now asserted by Buchanan. In
Clozza v. Murray, we held that Virginia's death penalty scheme sur-
vives constitutional scrutiny, despite its "failure to instruct the jury on
statutory mitigating factors." 913 F.2d 1092, 1105 (4th Cir. 1990). In
addition, this court has reviewed and approved the constitutionality of
jury instructions, used in other Virginia death penalty cases, that were
essentially identical to the instructions contested in this case. Jones v.
Murray, 947 F.2d 1106, 1119-20 (4th Cir. 1991); Briley v. Bass, 750
F.2d 1238, 1248-49 (4th Cir. 1984).
In its verdict, the jury, as required by Virginia Code § 19.2-264.4,
certified that it had "considered the evidence in mitigation of the
offense." In Jones, we concluded that"[b]y allowing the jury to con-
sider all relevant mitigating evidence, [Virginia's sentencing] proce-
dure . . . satisfied the requirement of the Eighth and Fourteenth
Amendments of individualized sentencing in capital cases." 947 F.2d
4
at 1120. In light of this precedent, Buchanan's Eighth Amendment
claim must fail.
Buchanan's second argument asserts a federal due process viola-
tion. According to Buchanan, the trial court's nonspecific mitigation
instruction was inconsistent with Virginia's death penalty sentencing
statute and, as a result, denied him the benefit of the Common-
wealth's statutory sentencing scheme. Buchanan argues that this
alleged violation of state law infringed his rights under the Due Pro-
cess Clause.
It is true, at least in the context of discretionary sentencing by a
jury, that denial of a state procedural right may rise to the level of a
federal due process violation. See Hicks v. Oklahoma, 447 U.S. 343,
346 (1980). However, there was no such violation in Buchanan's case
because, contrary to his assertion, the trial court's instruction was
consistent with the sentencing statute. The statute establishes a capital
defendant's right to present mitigating evidence during the sentencing
hearing. It neither imposes nor implies an obligation to instruct the
jury about specific mitigating factors. Va. Code Ann. § 19.2-264.4.
Our reading of the statute is consistent with the Virginia Supreme
Court's interpretation. It is clear from that court's decisions that the
statute does not require the trial court to list specific mitigating cir-
cumstances. See, e.g., LeVasseur v. Commonwealth, 225 Va. 564,
594-95, 304 S.E.2d 644, 661 (1983). Because the jury instructions in
this case were consistent with the sentencing statute, Buchanan's due
process argument must also fail.
III
The second claim advanced by Buchanan is that the trial court
impermissibly limited his ability to present mitigating evidence at the
sentencing hearing. This claim is based on the trial court's exclusion
of hearsay testimony offered by Buchanan's expert witness, Dr. Rob-
ert Brown.
Dr. Brown was Buchanan's principal mitigation witness. In prepa-
ration for trial, he performed a psychological evaluation of Buchanan
5
and extensively investigated his personal and family history. As part
of his investigation, he interviewed many of Buchanan's friends and
relatives.
Dr. Brown testified at trial that, in his expert opinion, Buchanan
was under extreme emotional stress at the time of the killings. He
went on to testify extensively about the evidence that supported his
conclusion. However, the trial court did not permit him to repeat
some of the statements made to him during the interviews he had con-
ducted. Sustaining the prosecution's hearsay objection, the judge
excluded all such statements made by individuals who had not
appeared at trial. Although the statements were excluded, the judge
offered to stay the proceedings and allow the individuals who had
made the statements to testify in person. Buchanan declined the offer.
Buchanan insists that application of the hearsay rule in this case
violated his constitutional right to present mitigating evidence. As
support for his position, he relies on Green v. Georgia, 442 U.S. 95
(1979).
Based on the "unique circumstances" present in Green, the Court
held that Georgia's admittedly proper application of its hearsay rule
during the sentencing phase of a death penalty trial violated the Due
Process Clause. 442 U.S. at 95-97. In that case, the trial court
excluded an out-of-court statement of a man who had already been
convicted of capital murder for his role in the killing for which the
defendant was being tried. The excluded statement, made spontane-
ously to a close friend, amounted to an admission that the declarant
alone was responsible for the killing. The Court found that "[t]he
excluded testimony was highly relevant to a critical issue in the pun-
ishment phase of the trial, [citation omitted], and substantial reasons
existed to assume its reliability." Id. at 97. Under those circumstances,
the Court held that "`the hearsay rule may not be applied mechanisti-
cally to defeat the ends of justice.'" Id. at 97 (quoting Chambers v.
Mississippi, 410 U.S. 284, 302 (1973)).
The exclusion of the hearsay statements offered by Dr. Brown does
not fit within the narrow exception recognized by Green. In Green,
the excluded statement strongly tended to show that the defendant
was innocent. In this case, the statements were offered only for the
6
purpose of providing additional support for Dr. Brown's conclusion
that Buchanan acted under extreme emotional stress. Even without the
proffered statements, Dr. Brown's testimony provided ample evi-
dence to explain his opinion. For this reason, the statements would
have had only cumulative probative value. After the trial court offered
to continue the case and summon the relatives and friends whom Dr.
Brown interviewed, Brown's attorney said: "I don't want to do that
Judge. We have enough. I just want to object to your not allowing it
in."
The excluded statements also lack the inherent reliability of the
statement excluded in Green. The statement in Green was against the
declarant's penal interest, made spontaneously to a close friend, and
the state itself had relied on the excluded testimony to convict the
declarant of capital murder. At Buchanan's trial, these compelling cir-
cumstances do not appear.
The evidence in this case discloses that the application of Virgin-
ia's hearsay rule did not rise to the level of a constitutional violation.
IV
Buchanan's third claim is that his trial counsel was ineffective
because he failed to take advantage of what Buchanan sees in retro-
spect as a certain opportunity to have avoided a death sentence.
Buchanan contends that, if he had pleaded guilty to the four first
degree murder indictments, the constitutional guarantee against dou-
ble jeopardy would have precluded any further prosecution based on
the same killings. This means, he argues, that the Commonwealth
could not have prosecuted the capital murder indictments. Because
Buchanan's sole objective throughout the criminal proceeding was to
avoid the death penalty, he claims that his trial counsel's failure to
recognize this opportunity deprived him of his Sixth Amendment
right to counsel.
Contrary to Buchanan's assertion, pleading guilty to the first
degree murder indictments would not have precluded the Common-
wealth from prosecuting the capital charges. The Supreme Court
addressed a nearly identical issue in Ohio v. Johnson, 467 U.S. 493
(1984). In that case, the defendant pleaded not guilty to the murder
7
and aggravated robbery charges against him and, at the same time,
pleaded guilty to the lesser included offenses of involuntary man-
slaughter and grand theft. The trial court accepted the guilty pleas,
sentenced the defendant, and then dismissed the murder and aggra-
vated robbery charges on double jeopardy grounds. Id. at 494. On
appeal, the Supreme Court of Ohio affirmed. The Supreme Court of
the United States reversed, holding that pleading guilty to the lesser
included offenses did not bar the state from prosecuting the greater
offenses since all of the charges were brought in a single prosecution.
Id. at 497-502.
Buchanan asserts that Johnson is inapplicable. He points out that
in Johnson all of the charges were brought in a single indictment. In
this case, on the other hand, Buchanan was charged with first degree
murder and capital murder in separate indictments.
The distinction drawn by Buchanan would not have made any dif-
ference. In Johnson, the Court found that permitting the state to pur-
sue the greater charges, even after the defendant pleaded guilty to the
lesser charges, did not implicate any of the interests protected by the
Double Jeopardy Clause. The Court noted that, by pleading guilty to
the lesser included offenses, the defendant "has not been exposed to
conviction on the charges to which he pleaded not guilty, nor has the
State had the opportunity to marshal its evidence and resources more
than once or to hone its presentation of its case through a trial." 467
U.S. at 501. The Court concluded that a defendant"should not be
entitled to use the Double Jeopardy Clause as a sword to prevent the
State from completing its prosecution on the remaining charges." Id.
at 502. While it is true that Johnson involved a single indictment with
multiple counts, the Court's reasoning applies equally to a case
involving multiple indictments brought in a single prosecution. By
itself, the fact that the Commonwealth charged Buchanan in separate
indictments does not constitute the type of "governmental overreach-
ing that double jeopardy is supposed to prevent." Id. at 502.
Buchanan argues that, under Virginia law, he had an absolute right
to plead guilty at any time to the entirety of any indictment against
him. He relies on Graham v. Commonwealth, 11 Va. App. 133, 137-
40, 397 S.E.2d 270, 273 (1990), but his reliance is misplaced. The
Virginia Court of Appeals explained that a plea of guilty to a lesser
8
included offense would not bar prosecution of a greater offense pend-
ing in the same prosecution:
The only discretion given to a court by the statute is the
right to refuse a plea of guilty to any lesser offense included
in the charge upon which the accused is arraigned. Here the
defendant wished to plead guilty to the whole of the indict-
ment, not to a lesser included offense.
Graham, 11 Va. App. at 137, 397 S.E.2d at 272.
Although the explanation in Graham is dictum, it was confirmed
in a subsequent case. The Virginia Court of Appeals held that plead-
ing guilty to a first degree murder indictment does not preclude the
simultaneous prosecution of a capital murder indictment involving the
same transaction. Rea v. Commonwealth, 14 Va. App. 940, 943-45,
421 S.E.2d 464, 466-68 (1992) (relying on Ohio v. Johnson, 467 U.S.
493).
Against this background, it is evident that Buchanan's right to
counsel was not violated. The Sixth Amendment right to counsel
guarantees effective assistance of counsel. Strickland v. Washington,
466 U.S. 668, 686 (1984). In order to establish deprivation of this
right, a criminal defendant must show both that counsel acted incom-
petently and that counsel's incompetence was prejudicial. Id. at 687.
Because there was no reason to believe that pleading guilty to the
first degree indictments would have barred prosecution of the capital
charges, the failure of Buchanan's counsel to recommend this course
of action cannot be labelled incompetent. Additionally, since
Buchanan could not have blocked prosecution of the capital charges
by pleading guilty to the lesser included offenses, pleading not guilty
did not prejudice him. For these reasons, we reject Buchanan's argu-
ment that his counsel was ineffective.
V
Next, Buchanan asserts that the Virginia Supreme Court's review
of his case was constitutionally inadequate in two respects. First, he
9
alleges that the court failed to consider the mitigating evidence he
offered. Second, he claims that the court did not conduct the propor-
tionality review required by Virginia statute in a rational manner. He
argues the first deficiency violated both his due process and Eighth
Amendment rights, while the second violated his due process rights.
According to Buchanan, the federal due process violations arise
because the Virginia Supreme Court improperly implemented the per-
tinent state statute.
The Eighth Amendment requires that the death penalty not be
imposed in an arbitrary or capricious manner. Godfrey v. Georgia,
446 U.S. 420, 428 (1980). Meaningful appellate review is an impor-
tant safeguard against improper imposition of the death penalty.
Parker v. Dugger, 498 U.S. 308, 321 (1991). Consistent with those
constitutional requirements, Virginia law directs the Common-
wealth's highest court to review the record in every death penalty
case to determine whether the sentence was "imposed under the influ-
ence of passion, prejudice or any other arbitrary factor." Va. Code
Ann. § 17-110.1.C.1 (Michie 1996).
The Virginia Supreme Court conducted the mandatory statutory
review in this case. The court engaged in an "independent review of
the record." By doing so, the court necessarily became aware of the
mitigating evidence Buchanan had presented. Nevertheless, the
court's examination "reveal[ed] nothing to suggest that the death pen-
alty was imposed . . . as the result of passion, prejudice, or arbitrari-
ness." Buchanan, 238 Va. at 418, 384 S.E.2d at 774. On collateral
review, federal courts are not required to re-examine a state court's
good faith findings. Cf. Walton, 497 U.S. at 656. Moreover, the dis-
trict court conducted its own independent review of the record and,
after specifically taking Buchanan's mitigating evidence into account,
concluded that the death penalty had not been imposed arbitrarily. For
these reasons, Buchanan cannot prevail on this point.
Also without merit is Buchanan's claim that the Virginia Supreme
Court's proportionality review was inadequate. Although the Virginia
capital sentencing statute requires a proportionality review, Virginia
Code § 17-110.1.C.2, the federal Constitution does not. Pulley v.
Harris, 465 U.S. 37, 50-51 (1984). Buchanan's claims of inadequacy
do not provide sufficient constitutional grounds to warrant a writ of
10
habeas corpus. Peterson v. Murray, 904 F.2d 882, 887 (4th Cir.
1990); Shaw v. Martin, 733 F.2d 304, 316-17 (4th Cir. 1984).
VI
Buchanan's final contention is that the trial court violated his fed-
eral due process rights by refusing to instruct the jury on second
degree murder. Among the assignments of error in his appeal to the
Supreme Court of Virginia, Buchanan argued that the trial court had
erred because it did not give an instruction on second degree murder
in compliance with Virginia law. After carefully reviewing the record,
the Virginia Supreme Court rejected this argument, concluding that a
second degree murder instruction was inappropriate because it lacked
evidentiary support. Buchanan, 238 Va. at 408-12, 384 S.E.2d at 769-
71 (citing Virginia cases). Buchanan, however, did not contend in his
direct appeal to the Virginia Supreme Court that the omitted instruc-
tion violated federal due process. As a result, the district court prop-
erly concluded that Buchanan had not met the exhaustion requirement
found in 28 U.S.C. § 2254. Failure to raise a federal claim in state
court bars federal review of the omitted claim. Duncan v. Henry, 115
S. Ct. 887, 888 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982).
Finding no error, we affirm the judgment denying Buchanan's peti-
tion for a writ of habeas corpus.
AFFIRMED
11