Orbe v. Johnson

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Wednesday, the 31st day of
March, 2004.

Dennis Mitchell Orbe, Appellant,

against Record No. 040673

Gene M. Johnson, Director, Virginia
Department of Corrections, et al., Appellees.

Upon an appeal from a judgment rendered by the Circuit
Court of the City of Richmond.

Appellant did not move to proceed in forma pauperis.

Nonetheless, we grant him the right to do so.

Yesterday, the Court denied Dennis Mitchell Orbe's Petition for

Appeal from a dismissal of his Bill of Complaint for Declaratory

Judgment and Injunctive Relief in the Circuit Court of the City of

Richmond. Orbe v. Johnson, et al., Record No. 040598 (March 30,
2004). The Court denied his petition for rehearing today. His

prior action sought an adjudication that the particular method of

implementation of lethal injection employed by the Commonwealth and

anticipated to be utilized in his execution "constitutes cruel and

unusual punishment and violates due process of law under Article I,

Sections 9 and 11, of the Constitution of Virginia." Additionally,

Orbe requested the issuance of a permanent injunction "barring [the

Commonwealth] from carrying out [his] execution using a protocol

that will cause unnecessary pain." In a separate motion, Orbe

requested the issuance of a temporary restraining order and

preliminary injunction "to protect the status quo ante" and

enjoining the Commonwealth from carrying out Orbe's execution
currently scheduled to be carried out at 9:00 p.m. tonight. Orbe

raised no federal constitutional questions in his prior appeal. We

dismissed the appeal for the reasons stated in the order.

Orbe has filed another Bill of Complaint for Declaratory

Judgment and Injunctive Relief in the Circuit Court of the City of

Richmond. The trial court denied the request for injunctive relief

and dismissed the Bill of Complaint for Declaratory Judgment.

Orbe appeals the adverse judgment of the trial court

maintaining that "[t]he circuit court erred in denying a temporary
restraining order and dismissing Orbe's federal constitutional

claims." The trial court did not err in refusing to grant

injunctive relief that would stay Orbe's execution. Pursuant to

Code § 53.1-232.1, "[o]nce an execution date is scheduled, a stay of

execution may be granted by the trial court or the Supreme Court of

Virginia only upon a showing of substantial grounds for habeas

corpus relief." The "trial court" referred to in Code § 53.1-232.1

is the sentencing court, in this case, the Circuit Court of York

County. The Circuit Court of the City of Richmond does not have the

power to issue an injunction staying Orbe's execution. While a

court ordinarily has the power to issue orders necessary to preserve

its own jurisdiction, that power has been expressly limited by the

General Assembly when the subject matter is the stay of an already

scheduled execution. Additionally, Orbe does not demonstrate

"substantial grounds for habeas corpus relief." Rather, he has

filed an action for declaratory judgment.

Additionally and independently, as more fully explained below,

Orbe may not maintain an action for declaratory judgment under
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Virginia law. Consequently, relief ancillary to an improper bill of

complaint cannot be granted. A declaratory judgment action is not a

substitute for an appeal or collateral attack upon conviction.

Declaratory judgment "does not provide a means whereby previous

judgments by state or federal courts may be reexamined, nor is it a

substitute for appeal or post conviction remedies." Shannon v.

Sequeechi, 365 F.2d 827, 829 (10th Cir. 1966). "A declaratory

judgment action is not part of the criminal appellate process."

State v. Brooks, 728 N.E.2d 1119, 1122 (Ohio Ct. App. 1999). The
issue Orbe presents in his declaratory judgment action should have

been raised before the trial court in Orbe's criminal case and on

direct appeal from that judgment.

Also and independently, declaratory judgment does not lie under

Virginia law when there is no actual controversy. Orbe has removed

the actual controversy by his selection of the method of execution.

Pursuant to the provisions of Code § 53.1-234, Orbe had the right to

choose whether his execution will be by lethal injection, as it is

administered in Virginia, or by electrocution. If the condemned

prisoner has not made a choice by at least fifteen days prior to the

scheduled execution, the statute provides that the method of

execution shall be by lethal injection. Under these circumstances,

the condemned prisoner may affirmatively choose electrocution,

affirmatively choose lethal injection, or choose the statutory

consequences of a failure to specify, namely, lethal injection. In

any case, it is the condemned prisoner's choice.

We have previously held that execution of prisoners by

electrocution does not violate the Eighth Amendment's prohibitions
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against cruel and unusual punishment. Bell v. Commonwealth, 264 Va.

172, 202, 563 S.E.2d 695, 715 (2002), cert. denied, 537 U.S. 1123

(2003); Ramdass v. Commonwealth, 246 Va. 413, 419, 437 S.E.2d 566,

569 (1993), vacated in part on other grounds, 512 U.S. 1217 (1994),

cert. denied after remand, 514 U.S. 1085 (1995); Stockton v.

Commonwealth, 241 Va. 192, 215, 402 S.E.2d 196, 209-10 (1991);

Martin v. Commonwealth, 221 Va. 436, 439, 271 S.E.2d 123, 125

(1980); Hart v. Commonwealth, 131 Va. 726, 743-44, 109 S.E. 582, 587

(1921). When a condemned prisoner has a choice of method of
execution, the inmate may not choose a method and then complain of

its unconstitutionality, particularly when the constitutionality of

the alternative method has been established.

In Stewart v. LaGrand, a case involving a challenge to

execution by lethal gas, the Supreme Court of the United States held

that:

Walter LaGrand, by his actions, has waived his claim that
execution by lethal gas is unconstitutional. At the time
Walter LaGrand was sentenced to death, lethal gas was the only
method of execution available in Arizona, but the State now
provides inmates a choice of execution by lethal gas or lethal
injection, see Ariz. Rev. Stat. § 13-704(B) (creating a default
rule of execution by lethal injection). Walter LaGrand was
afforded this choice and decided to be executed by lethal gas.
On March 1, 1999, Governor Hull of Arizona offered Walter
LaGrand an opportunity to rescind this decision and select
lethal injection as his method of execution. Walter LaGrand,
again, insisted that he desired to be executed by lethal gas.
By declaring his method of execution, picking lethal gas over
the state's default form of execution − lethal injection −
Walter LaGrand has waived any objection he might have to it.

526 U.S. 115, 119 (1999).

Orbe's circumstances are legally indistinguishable from those

presented to the United States Supreme Court in LaGrand. As

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previously discussed, under Code § 53.1-234, Orbe could have chosen

electrocution or he could have chosen lethal injection. Instead, he

chose to allow the statutory default provisions to apply. The

Commonwealth did not make his choice. The Commonwealth only

provided the choices for him, including the choice of allowing the

default provisions to apply. Orbe has waived any right he may have

to complain about lethal injection as it is administered in

Virginia.

The effect of his waiver removes Orbe's claims from those that
may be properly considered by declaratory judgment under Virginia

law. Declaratory judgment proceedings were not available at common

law. This statutory cause of action arises only "[i]n cases of

actual controversy." Code § 8.01-184. Declaratory judgment is not

intended to provide advisory opinions. Erie Ins. Group v. Hughes,

240 Va. 165, 170, 393 S.E.2d 210, 212 (1990). Orbe's waiver of the

right to contest the constitutionality of lethal injection as it is

administered in Virginia removes the requirement of "actual

controversy" from the case. Simply stated, Orbe has no cognizable

cause of action under Virginia law.

In his prior Bill of Complaint for Declaratory Judgment, Orbe

based his claims entirely upon Article I, Sections 9 and 11 of the

Constitution of Virginia. He presents virtually the same claims in

this declaratory judgment action except that he bases his claims

upon the Eighth and Fourteenth Amendments of the United States

Constitution. We find his claims without merit.

In summary, Orbe may not maintain an action for declaratory

judgment under Virginia law because he may not use declaratory
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judgment as a substitute for appeal or habeas corpus. He should

have raised these issues before the trial court during his criminal

trial and on appeal from his conviction. Additionally and as an

independent basis for this Court's judgment, Orbe waived any right

he may have had to challenge lethal injection as it is administered

in Virginia because he had a choice among lethal injection,

electrocution, or the default of lethal injection provided by

statute upon his refusal to specify. For this reason there is no

controversy upon which declaratory judgment may properly lie.

Finally, and independently, the trial court did not err in refusing

to grant injunctive relief staying the execution. The Circuit Court

of the City of Richmond has no jurisdiction under Code § 53.1-232.1

to grant such relief.
Orbe's appeal from the judgment order of the trial court dated

March 31, 2004 is denied. His request that this Court enter a stay

of execution is denied.

_______________

JUSTICE LACY, with whom JUSTICE KOONTZ joins, dissenting.

We would grant the appeal and proceed in the manner and for the

reasons expressed in the dissent filed in Orbe v. Johnson, et al.,

Case No. 040598, filed March 30, 2004.

This order shall be certified to the said circuit court.

A Copy,

Teste:

Patricia H. Krueger, Clerk

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