Buchanan v. Gilmore

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOUGLAS MCARTHUR BUCHANAN, JR.,
Plaintiff-Appellee,

v.

JAMES S. GILMORE, III, Governor,
Commonwealth of Virginia, in his
No. 98-6380
individual and official capacities;
RONALD J. ANGELONE, Director,
Virginia Department of Corrections,
in his individual and official
capacities,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-98-146-3)

Submitted: March 17, 1998

Decided: March 18, 1998

Before ERVIN, Circuit Judge, and BUTZNER and HALL,
Senior Circuit Judges.

_________________________________________________________________

Vacated and reversed by published per curiam opinion.

_________________________________________________________________

COUNSEL

Katherine P. Baldwin, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellants. Gerald Thomas Zerkin, GER-
ALD T. ZERKIN & ASSOCIATES, Richmond, Virginia, for Appel-
lee.

_________________________________________________________________

OPINION

PER CURIAM:

Douglas McArthur Buchanan, Jr., is currently incarcerated under
sentence of death in the Commonwealth of Virginia. After the
Supreme Court denied Buchanan relief, Buchanan v. Angelone, 118
S. Ct. 757, 66 U.S.L.W. 4075 (U.S. Jan. 21, 1998) (No. 96-8400), his
execution was scheduled for March 18, 1998. On March 13, 1998,
Buchanan filed a petition in the United States District Court for the
Eastern District of Virginia against James S. Gilmore, III, Governor,
Commonwealth of Virginia, in his individual and official capacities,
and Ronald J. Angelone, Director, Virginia Department of Correc-
tions, in his individual and official capacities, pursuant to 42 U.S.C.
§ 1983. Buchanan sought a declaratory judgment, a temporary
restraining order, and injunctions against his execution until such time
as his application for clemency is subject to consideration and resolu-
tion by a lawfully empowered official of the Commonwealth who
does not suffer a conflict of interest and who can act upon the plain-
tiff's clemency petition consistent with due process of law. Having
examined the merits, we reverse the relief that the district court
granted and deny the stay of execution.

The power of clemency is conferred upon the Governor by the
Constitution of Virginia. Va. Const. art. V, § 12. The Lieutenant Gov-
ernor is authorized to act only if the Governor is"unable to discharge
the powers and duties of his office." Va. Const. art. V, § 16.

Buchanan alleges that inasmuch as the Governor served as Attor-
ney General of Virginia in prior proceedings concerning his case, he
is disqualified by a conflict of interest from considering his clemency
application.

After a hearing, the district court found good cause existed for the
delay in filing this action and denied the Commonwealth's motion to

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dismiss. The court granted a preliminary injunction enjoining the
defendants from executing Buchanan until further order of the district
court.

The Commonwealth filed a motion to vacate the stay of execution
and the injunction granted by the district court. Buchanan filed a
response at 9:57 a.m. on March 18, 1998.

I

Buchanan's § 1983 petition to the district court lacks merit for the
following reasons. Although Buchanan's current action is brought
under § 1983, the substance of his clemency petition which he has
filed in preliminary form is based on trial error. It recounts his unfor-
tunate upbringing and complains about the exclusion of mitigating
evidence at the sentencing phase that would depict the story of his
youth. In his proposed petition for clemency, he particularly assails
the trial court's exclusion of part of the testimony of Dr. Brown, his
expert witness. Dr. Brown was allowed to testify that Buchanan was
under extreme emotional distress at the time of the killings. He was
also allowed to testify about evidence in support of his conclusions.
However, the trial court did not permit him to recite interviews that
he had conducted among neighbors and members of the Buchanan
family. The trial court considered this evidence to be hearsay. Never-
theless, the trial court offered to stay the proceedings to allow the
individuals who made the statements to testify in person. Buchanan
declined the offer.

In his proposed petition for clemency, Buchanan raises the denial
of any instruction with respect to mitigation. This issue was raised
and rejected in Buchanan's appeal to the Supreme Court of the United
States. 118 S. Ct. 757.

In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Court held that
habeas corpus was the sole remedy for a prisoner seeking a release
from punishment. Buchanan's § 1983 action is in essence a petition
for a writ of habeas corpus. He seeks to have the Governor reconsider
error attributed to the trial court. He seeks a modification of his pun-
ishment from execution to life imprisonment. Arguably, he seeks the
invalidation of his death sentence for errors that occurred at trial. In

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this respect, his present claim for relief is a successive motion that is
barred by 28 U.S.C. § 2244.

II

In Pickens v. Tucker, 851 F. Supp. 363 (E.D. Ark.), aff'd 23 F.3d
1477 (8th Cir. 1994), the court held that inasmuch as only the Gover-
nor of Arkansas could grant clemency the rule of necessity applied.
Pickens' claim of conflict of interest because the Governor had for-
merly served as Attorney General was dismissed.

III

The stay granted by the district court is vacated, and the prelimi-
nary injunction is reversed. The district court is directed to dismiss
this action.

The mandate shall issue forthwith.

VACATED AND REVERSED

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