PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PERCY LEVAR WALTON, 

Petitioner-Appellant,

v.  No. 02-18

RONALD J. ANGELONE,

Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

(CA-99-940-7)

Argued: December 5, 2002

Decided: February 27, 2003

Before WILKINS, Chief Judge, MOTZ, Circuit Judge, and

HAMILTON, Senior Circuit Judge.

Dismissed by published opinion. Senior Judge Hamilton wrote the

opinion, in which Chief Judge Wilkins and Judge Motz joined. 

COUNSEL

ARGUED: Michelle Jill Brace, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia, for

Appellant. Robert Quentin Harris, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellee. ON BRIEF: Jennifer L. Givens, VIRGINIA CAPITAL

REPRESENTATION RESOURCE CENTER, Charlottesville, Vir-
ginia, for Appellant. Jerry W. Kilgore, Attorney General, OFFICE OF

THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. 

OPINION

HAMILTON, Senior Circuit Judge: 

On October 7, 1997, in the Circuit Court for the City of Danville,

Virginia, Percy Levar Walton pled guilty to four counts of capital

murder, Va. Code Ann. § 18.2-31, three counts of robbery, id. § 18.2-

58, one count of burglary, id. § 18.2-90, and six counts of using a firearm in the commission of a felony, id. § 18.2-53.1. Following a sentencing hearing in which the state trial court sat as the trier of fact,

the state trial court sentenced Walton to death on three of the capital

murder counts.1 After exhausting his state remedies, Walton filed a

petition for writ of habeas corpus in the United States District Court

for the Eastern District of Virginia, 28 U.S.C. § 2254,2 which, after

the case was transferred to the United States District Court for the

Western District of Virginia, the district court dismissed. Walton

seeks a certificate of appealability granting permission to appeal the

district court’s order dismissing his petition for writ of habeas corpus.

Because Walton has failed to make a substantial showing of the

denial of a constitutional right, 28 U.S.C. § 2253(c)(2), we deny his

application for a certificate of appealability and dismiss the appeal. 

I

A

As found by the Virginia Supreme Court on direct appeal, the facts

of this case are as follows:

1At the time of sentencing, one of the capital murder counts was dismissed by the state trial court. 

2Walton named Ronald Angelone, Director of the Virginia Department

of Corrections, as respondent. For ease of reference, we will refer to

respondent as "the Commonwealth" throughout this opinion. 

2 WALTON v. ANGELONE
On November 16, 1996, Barbara K. Case, who was in Mississippi, made a telephone call to her parents, Elizabeth and

Jessie Kendrick, who resided in Danville. Mrs. Case

informed her parents during this telephone conversation that

she planned to visit them during the approaching Thanksgiving holiday season. Mr. and Mrs. Kendrick agreed to meet

their daughter at an airport in Greensboro, North Carolina,

on November 25, 1996, three days before Thanksgiving, and

return to Danville for the holidays. Mrs. Case made several

attempts to reach her parents by telephone between November 16 and 25, 1996, but no one answered the telephone.

Mrs. Case did not consider her parents’ failure to answer the

telephone unusual because her parents "traveled a lot." 

When Mrs. Case arrived at the airport in Greensboro on

November 25, 1996, her parents failed to meet her. She

waited several hours, and then she became alarmed and disturbed. A woman at the airport gave Mrs. Case a ride to

Danville. 

When Mrs. Case arrived at her parents’ home in Danville,

their townhouse was dark, and their car was missing. Mrs.

Case then went to her aunt’s home, which is across the street

from her parents’ townhouse. Mrs. Case and her aunt went

to the Kendricks’ residence, but no one answered the door.

Mrs. Case spent the night of November 25, 1996, with her

aunt, and she contacted the Danville Police Department the

next morning. Several police officers arrived at Mr. and

Mrs. Kendricks’ townhouse and eventually entered the residence. The police officers found the body of Mr. Kendrick,

lying face down on a living room floor. Mr. Kendrick’s

hands were "clasped, and above his head, clinched

together." The police found the body of Mrs. Kendrick on

the floor in the den. A portion of her body was covered with

a sheet, and the upper portion of her body was wrapped in

a "pinkish-orange material." Mrs. Kendrick’s shirt had

"been rolled up, and then taped" and was loosely tied around

her neck with a slipknot. She had on undergarments below

WALTON v. ANGELONE 3
her waist, her pants had been cut from her body, and her

body had been dragged across the floor. 

Mr. Kendrick, who was 80 years old at the time of his murder, had been shot in the top of the head at close range. He

suffered a very large explosive type of wound where the

bullet entered his head. A "star-shaped appearance" and the

presence of soot on his head indicated that a muzzle of a gun

was pressed tightly against the top of Mr. Kendrick’s head

when the gun was discharged and that gases emitted from

the muzzle caused the skin around the entry point to "tear

and rip." Mr. Kendrick also suffered superficial non-lethal

cuts on the front of his neck and the palmar side of his left

wrist.

Mrs. Kendrick, who was 81 years old at the time of her

death, also suffered a tight contact gunshot wound to the top

of her head. Her shirt, which was fashioned into a slipknot

and tied around her neck, did not cause or contribute to her

death. 

The Kendricks were last seen alive on November 19, 1996,

when Mrs. Kendrick, accompanied by her husband, went to

a hospital in Danville. The police officers found the Kendricks’ car a short distance behind their townhouse. 

* * *

On November 28, 1996, Thanksgiving Day, Roxanne

Moore, who was in Greensboro, North Carolina, placed a

telephone call to the Danville Police Department. Ms.

Moore informed the police personnel that her brother,

Archie Moore, who lived at the Cabin Lake Apartment

Complex in Danville, was supposed to have met her at an

airport in Greensboro on November 27, 1996, but he failed

to appear. Ms. Moore informed the police personnel that

neither she nor her parents in North Carolina were able to

contact Archie Moore by telephone at his Danville apartment. 

4 WALTON v. ANGELONE
Danville police officers entered Archie Moore’s apartment

around 8:00 a.m. on November 28. While searching the

apartment, they found Archie Moore’s body in a closet

behind a suitcase. A plastic bag had been placed over Mr.

Moore’s head, and his feet were "propped up" against the

closet wall. There was a strong odor of cologne in the closet

and on the victim’s body. The cause of Mr. Moore’s death

was a gunshot wound to his head, immediately above his

left eye. A bullet was found on the floor in his apartment.

Shortly after Moore’s body was discovered, two witnesses

informed the Danville Police Department that they had

recently observed Walton driving Moore’s Ford Mustang

automobile. Other witnesses had also observed Walton

walking on a sidewalk from the area near Mr. and Mrs. Kendricks’ townhouse toward Cabin Lake on several occasions

between November 19 and November 26, 1996. 

Subsequently, the police found Moore’s Mustang, "parked

right across the street from [Walton’s] house." Walton lived

in a condominium with his parents a short distance from

Moore’s apartment and the Kendricks’ townhouse. 

Lieutenant Kenneth D. Fitzgerald, a Danville police detective, went to Walton’s home, spoke with Walton, and asked

him if he knew Moore. Walton denied that he knew Moore,

and he denied "ever [having] been in Archie Moore’s car."

Walton agreed to go to the police department for further

questioning. Detective Fitzgerald left Walton’s home and

later, Walton, accompanied by his father, went to the police

department. 

The police obtained a search warrant for Walton’s residence. During a search of Walton’s bedroom, police personnel found a silver metal box inside one of Walton’s boots.

The box contained a diploma and an "ATM card," both

bearing Archie Moore’s name. The police also found a set

of car keys; one key fit Moore’s Mustang and two other

keys fit locks on the doors of Moore’s apartment. The police

also found a ring, which contained a very distinctive letter

WALTON v. ANGELONE 5
"A," which was similar to a ring that Moore had been wearing before his death. 

When the police officers searched Moore’s car, they found

a box containing two dozen .32-caliber bullets as well as

keys that fit locks in the Kendricks’ car and home. The

police officers also found a plastic bag which contained a

"plastic sleeve" from a wallet. Jessie Kendrick’s driver’s

license and his "Knights of Columbus" card were inside the

"plastic sleeve." Walton’s fingerprints were identified on the

"plastic sleeve." Walton’s fingerprints were also found on

numerous items at various locations in Moore’s apartment

and car. 

When the police searched the Kendricks’ car, they found a

shotgun that had been stolen from the Kendricks’ townhouse. Walton’s fingerprint was found on the shotgun. A

knife, found in a toolbox in the trunk of the Kendricks’ car,

contained blood which matched Mr. Kendrick’s DNA. 

The police officers recovered two .32-caliber bullet cartridges that had been partially submerged near the shoreline

of Cabin Lake. The lake was drained, and the police officers

recovered a .32-caliber pistol that Mr. Kendrick had purchased in 1970. Ballistic tests conducted on a bullet that had

been removed from Mr. Kendrick’s head revealed that the

bullet "matched" the .32-caliber pistol recovered from the

lake and was consistent with the bullets that had killed

Moore and Mrs. Kendrick. The pistol contained four bullets

and two spent cartridges. The lead contained in the bullets

found in Moore’s car, the bullets recovered from the heads

of the victims, and the bullets in the revolver originated

from the same manufacturing source. 

While in jail awaiting trial for the capital murder charges

and related offenses, Walton admitted to several inmates

that "he had killed three people at Cabin Lake." Walton also

described the graphic details of the murders at length to

Lacy H. Johnson, with whom Walton shared a cell in the

Danville City Jail. 

6 WALTON v. ANGELONE
Walton v. Commonwealth, 501 S.E.2d 134, 136-38 (Va. 1998). 

B

On March 3, 1997, a City of Danville grand jury charged Walton

with the following offenses: (1) the capital murder of Archie Moore

in the commission of a robbery while armed with a deadly weapon,

Va. Code Ann. § 18.2-31(4); (2) the robbery of Moore, id. § 18.2-58;

and (3) the use of a firearm during the commission of the capital murder of Moore, id. § 18.2-53.1. On August 28, 1997, the City of Danville grand jury returned another indictment charging Walton with the

following eleven additional offenses: (1) the burglary of the Kendricks’ home, id. § 18.2-90; (2) the capital murder of Elizabeth Kendrick in the commission of a robbery while armed with a deadly

weapon, id. § 18.2-31(4); (3) the robbery of Elizabeth Kendrick, id.

§ 18.2-58; (4) the capital murder of Jessie Kendrick in the commission of a robbery while armed with a deadly weapon, id. § 18.2-31(4);

(5) the robbery of Jessie Kendrick, id. § 18.2-58; (6) capital murder

for the willful, deliberate, and premeditated killing of more than one

person within a three-year period, id. §§ 18.2-31(4), (8); (7) the use

of a firearm during the commission of the capital murder of Elizabeth

Kendrick, id. § 18.2-53.1; (8) the use of a firearm during the commission of the robbery of Elizabeth Kendrick, id.; (9) the use of a firearm

during the commission of the capital murder of Jessie Kendrick, id.;

(10) the use of a firearm during the commission of the robbery of Jessie Kendrick, id.; and (11) the use of a firearm during the commission

of the robbery of Moore, id.

On October 7, 1997, Walton pled guilty to all counts. At the plea

hearing, the state trial court questioned Walton and found that Walton’s guilty pleas were made voluntarily, intelligently, and knowingly. 

At the separate sentencing hearing, the state trial court heard evidence in aggravation and mitigation of the capital murder counts.

After considering the evidence and the arguments of counsel, the state

trial court stated orally that Walton’s conduct in each capital murder

involved depravity of mind and that his conduct associated with each

capital murder indicated that there is a probability that he will commit

criminal acts of violence that would constitute a continuing serious

WALTON v. ANGELONE 7
threat to society. However, the state trial court entered a sentencing

order which did not mention depravity of mind, but stated that there

is a probability that Walton would commit criminal acts of violence

that would constitute a continuing serious threat to society. The state

trial court fixed Walton’s punishment at death for three of the capital

murder counts and imposed three separate life sentences for each of

the three robbery counts, ten years’ imprisonment for the burglary

count, and three years’ imprisonment for each of the six firearms counts.3

On direct appeal, the Virginia Supreme Court affirmed the state

trial court’s judgment. Walton v. Commonwealth, 501 S.E.2d at 141.4

3At the sentencing hearing, the state trial court dismissed the capital

murder count charging Walton with the willful, deliberate, and premeditated killing of more than one person within a three-year period. 

4On direct appeal, Walton raised the following claims: 

I. The Trial Court erred when it admitted the photographs of the

victims as they were discovered at the crime scenes and of their

autopsies over defense objections that such photographs were so

prejudicial and inflammatory as to outweigh any probative value

in violation of Walton’s due process rights under the Fifth and

Fourteenth Amendments of the United States Constitution. 

II. The Trial Court erred in finding the stipulated evidence at the

guilt phase sufficient to convict Walton, even on his pleas of

guilty, in violation of his rights under the Fifth and Fourteenth

Amendments to the United States Constitution. 

III. The Trial Court erred in finding the Commonwealth’s evidence sufficient to prove, beyond a reasonable doubt, the statutory aggravator of future dangerousness in violation of Walton’s

rights under the Fifth and Fourteenth Amendments of the United

States Constitution, because, prior to these offenses, Walton had

no prior history of significant violent offenses. 

IV. The Trial Court erred in finding the Commonwealth’s evidence sufficient to prove, beyond a reasonable doubt, the statutory aggravator of vileness, in violation of Walton’s rights under

the Fifth and Fourteenth Amendments of the United States Constitution because the facts of the offenses do not establish torture,

depravity of mind or aggravated battery to the victims. 

V. The sentence of death was under the influence of passion,

prejudice or other arbitrary factor in violation of Walton’s Eighth

8 WALTON v. ANGELONE
With regard to Walton’s challenge to the sufficiency of the evidence

supporting the state trial court’s finding of future dangerousness, the

Virginia Supreme Court held

that the facts and circumstances surrounding these murders

are sufficient to support the trial court’s finding of future

dangerousness. Moreover, Walton’s criminal history also

supports the trial court’s finding of future dangerousness.

Walton had been convicted of statutory burglary and grand

larceny. He had also been convicted of resisting arrest and

assault and battery on a police officer. As a juvenile, Walton

was convicted of two different offenses of possession of a

firearm and one charge of assault and battery.

Walton v. Commonwealth, 501 S.E.2d at 139. On December 7, 1998,

the United States Supreme Court denied Walton’s petition for writ of

certiorari. Walton v. Virginia, 525 U.S. 1046 (1998). 

On February 5, 1999, Walton filed a state petition for writ of

habeas corpus in the Virginia Supreme Court.5 Because Walton’s

state habeas petition exceeded the court’s fifty-page limit, on March

9, 1999, the Virginia Supreme Court ordered Walton to file a habeas

petition not to exceed fifty pages. On March 30, 1999, Walton filed

a fifty-page habeas petition.6 Walton subsequently sought to add a

(Text continued on page 11)

and Fourteenth Amendment rights under the United States Constitution. 

VI. The sentence of death is excessive or disproportionate to the

penalty imposed in similar cases in violation of Walton’s Eighth

and Fourteenth Amendment rights under the United States Constitution. 

5The Virginia Supreme Court has exclusive jurisdiction over habeas

corpus petitions filed by prisoners "held under the sentence of death."

Va. Code Ann. § 8.01-654(c)(1). 

6

 Walton’s March 1999 state habeas petition contained the following

claims: 

I. Walton was incompetent to stand trial or plead guilty; 

II. The state trial court failed to employ adequate procedures to

determine Walton’s competency; 

WALTON v. ANGELONE 9
III. Walton’s guilty pleas were not knowing, intelligent, and

voluntary; 

IV. Walton was not afforded appropriate expert assistance; 

V. Walton’s rights under Brady v. Maryland, 373 U.S. 83

(1963), and Kyles v. Whitley, 514 U.S. 419 (1995), were

violated; 

VI. Walton’s rights under Massiah v. United States, 377 U.S.

201 (1964), were violated; 

VII. Walton’s rights under Napue v. Illinois, 360 U.S. 264

(1959), were violated; 

VIII. Walton’s counsel rendered ineffective assistance: 

(A) Regarding Walton’s mental health: 

1. Counsel unreasonably failed to ensure that a proper

competency evaluation was conducted; 

2. Counsel unreasonably failed to ensure that a competency hearing was held; 

3. Counsel unreasonably failed to ensure that a competency finding was made by the state trial court; 

4. Counsel unreasonably failed to adequately investigate

and present all information relevant to Walton’s competency; 

5. Counsel unreasonably failed to adequately investigate

and present all necessary and relevant information

regarding the knowing, voluntary, and intelligent

nature of Walton’s guilty plea and to ensure that the

state trial court conducted a proper colloquy; 

6. Counsel unreasonably failed to adequately investigate

and present all necessary and relevant information

regarding Walton’s mental state at the time of the

crime; 

7. Counsel unreasonably failed to adequately investigate

and present all necessary and relevant information

regarding Walton’s mental state during the sentencing

phase; 

10 WALTON v. ANGELONE
claim under Ford v. Wainwright, 477 U.S. 399 (1986), that he is

incompetent to be executed.7

The Virginia Supreme Court denied relief in a one-page unpublished order. Applying the rule in Slayton v. Parrigan, 205 S.E.2d 680

(Va. 1974) (claims not raised at trial and/or on direct appeal are not

cognizable on state habeas), the Virginia Supreme Court refused to

consider claims I, II, IV, V, VI, VII, and IX. Applying the rule in

Anderson v. Warden, 281 S.E.2d 885 (Va. 1981) (an accused who

enters a guilty plea is bound by his representations at trial), the Virginia Supreme Court refused to consider claims III, VIII(A) (except

8. Counsel unreasonably failed to ensure that Walton’s

rights to access to a psychiatrist under Ake v. Oklahoma, 470 U.S. 68 (1985), were appropriately

asserted and afforded; 

9. Counsel unreasonably failed to adequately advise

Walton regarding his guilty plea; and 

10. Counsel unreasonably failed to move to withdraw

Walton’s guilty pleas; 

(B) In other respects at trial: 

1. Counsel unreasonably failed to effectively crossexamine Lacy Johnson; 

2. Counsel unreasonably failed to protect Walton’s Sixth

Amendment rights under Massiah; 

3. Counsel unreasonably stipulated to evidence in the

Commonwealth’s proffer; and 

4. Counsel unreasonably failed to object to the prosecutor’s inappropriate re-direct examination of Lacy

Johnson. 

(C) On appeal. 

IX. The death penalty is unconstitutional. 

7Walton had raised a Ford claim as claim VIII in his oversized state

habeas petition filed on February 5, 1999. When he filed his fifty-page

state habeas petition on March 30, 1999, Walton abandoned the Ford

claim. 

WALTON v. ANGELONE 11
for subpart 10), and VIII(B). The Virginia Supreme Court denied

claims VIII(A)(10) and VIII(C) on the merits. The Virginia Supreme

Court also denied Walton leave to add the Ford claim. 

On September 8, 1999, Walton filed a petition for rehearing,

accompanied by two affidavits and a neuropsychological evaluation,

none of which previously had been proffered to the Virginia Supreme

Court. On September 10, 1999, the Commonwealth filed a motion to

strike the factual material attached to the petition for rehearing

because it was untimely. On November 5, 1999, the Virginia Supreme

Court granted the Commonwealth’s motion to strike and denied Walton’s petition for rehearing. 

On November 19, 1999, the state trial court scheduled Walton’s

execution for December 16, 1999, pursuant to the provisions of Virginia Code § 53.1-232.1. On December 13, 1999, however, the United

States District Court for the Eastern District of Virginia, without

objection by the Commonwealth, stayed Walton’s execution in order

to allow him to file a federal habeas petition. On December 17, 1999,

the case was transferred to the United States District Court for the

Western District of Virginia. 

Meanwhile, Walton sought review of the Virginia Supreme Court’s

denial of state habeas relief, asking the Supreme Court of the United

States to determine whether Virginia’s system of habeas corpus

review as applied to death-row inmates such as Walton violates the

Due Process Clause of the Fourteenth Amendment. The petition for

certiorari was denied. Walton v. Taylor, 529 U.S. 1076 (2000). 

On March 24, 2000, Walton filed a federal habeas petition. Walton’s federal habeas petition contained the same claims as Walton’s

state petition, except claim IX was renumbered as claim X. As new

claim IX, Walton alleged that he is incompetent to be executed. 

On March 26, 2001, the district court ordered an evidentiary hearing on claim I and four subparts of claim VIII(A). At the hearing on

May 16, 2001, however, the district court announced that it would

hear evidence relating only to the performance prong of the four Sixth

Amendment ineffective assistance of counsel claims. The district

court indicated it would hear evidence on the substantive competency

12 WALTON v. ANGELONE
claim and the prejudice prong of the ineffective assistance claims only

if it first found deficient performance. 

The district court issued its opinion on March 27, 2002. The district

court held that all claims barred under Slayton were defaulted and that

Walton failed to establish cause and/or prejudice to excuse those

defaults. Relying on Royal v. Taylor, 188 F.3d 239 (4th Cir. 1999),

and Burket v. Angelone, 208 F.3d 172 (4th Cir. 2000), the district

court declined to give effect to the Anderson procedural bar. Consequently, it addressed claims III, VIII(A), and VIII(B) de novo, ultimately denying them on the merits. The district court further ruled

that the Virginia Supreme Court’s decision on claim VIII(C) was not

contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). Finally, based on Stewart v. MartinezVillareal, 523 U.S. 637 (1998), it dismissed claim IX without prejudice as premature. 

On June 24, 2002, the district court denied Walton’s motion for

reconsideration. Walton noted his timely appeal to this court on July

22, 2002. Thereafter, Walton filed a timely application for a certificate of appealability. 

II

To be entitled to a certificate of appealability, a petitioner must

make "a substantial showing of the denial of a constitutional right."

28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the United States

Supreme Court clarified § 2253’s requirements. 529 U.S. 473, 483-84

(2000). To make the required showing, the petitioner must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’" Id. at 484 (quoting Barefoot v. Estelle,

463 U.S. 880, 893 & n.4 (1983)). 

A

Walton raises two claims related to his competency. The first is a

substantive competency claim, which alleges that Walton was not

WALTON v. ANGELONE 13
competent to plead guilty or stand trial. The second is an ineffective

assistance of counsel claim, wherein Walton argues that his

trial/appellate counsel, Lawrence Gott, was constitutionally ineffective for failing to raise the issue of competency before the state trial

court and/or on direct appeal. 

1

The facts relating to Walton’s competency claims are as follows.

After Walton was arrested on November 28, 1996, Gott, the Public

Defender for the City of Danville since March 1990, was appointed

as counsel for Walton.8 Following his appointment, Gott obtained

extensive background information about Walton, including information provided by family members and information provided by Walton in a thirty-nine page questionnaire. Walton denied any family

history of mental illness or that he had ever been diagnosed or

received any attention for psychological, mental, or emotional problems. Walton also denied experiencing symptoms of mental or emotional difficulties. In its opinion dismissing Walton’s habeas petition,

the district court found "no hint of irrationality in Walton’s answers."

On January 30, 1997, Gott filed a "Motion for Expert Assistance"

seeking appointment of a mental health expert pursuant to Virginia

Code § 19.2-264.3:1 to assist the defense in the preparation and presentation of mitigation evidence. Less than one week later, the state

trial court appointed Dr. Stanton E. Samenow, a licensed clinical psychologist.9

 The state trial court directed Dr. Samenow to submit a

report to Gott concerning Walton’s "history and character" and "mental condition at the time of the offense." 

8Phyllis Mosby, another attorney with the Danville Public Defender’s

Office, was also appointed to assist Walton. However, Gott essentially

was the lead counsel in the case. 

9Dr. Samenow expressed in this case and in other cases a somewhat

novel theory (in that it is not largely accepted by his colleagues) regarding mental illness and criminals. Although Gott was not pleased with Dr.

Samenow’s appointment, Gott and Samenow had a good working relationship. 

14 WALTON v. ANGELONE
In February 1997, Gott recorded several instances of strange

behavior by Walton. For example, notes written by Gott’s staff indicated that Walton did not appear at times to understand what his attorneys told him or that he just did not like what they were saying, and

he sometimes displayed nervous laughter and drumming. In one conversation, Gott noted that Walton said he could not be seen if he

closed his eyes and he described groups within the jail which he called "the mob" and the "one times" that he could move between with

impunity. Walton once called Gott’s office and told Gott’s secretary

that he was Percy Gunn (his father) and the "King of Hearts."10 Walton also repeatedly told Gott that he wanted a bond hearing and a

speedy trial at which his innocence would be proven. 

Gott forwarded his notes concerning Walton’s strange behavior,

along with other information that he and his staff had collected about

Walton, to Dr. Samenow, and informed Dr. Samenow about Walton’s

strange behavior. Dr. Samenow interviewed and evaluated Walton in

Alexandria, Virginia on March 12-14, 1997, and later interviewed

Walton and members of Walton’s family in Danville on April 29, 1997.11

In July 1997, Walton indicated that he wanted to plead guilty

because the "chair is for killers" and because he did not "want to

make [a] bad name for [his] family." Walton expressed to Gott the

belief that, if he was executed, he would be able to return to life

10During this time frame, Walton repeatedly telephoned the public

defender’s office demanding attention from the attorneys. On one occasion after Walton told the secretary that he was thinking about suicide,

two attorneys showed up at the jail and found Walton in "good spirits"

wanting a bond hearing. When asked about the suicide threat, "Walton

said he just said it to say it." 

11Dr. Samenow’s August 22, 1997 report sets forth in detail Walton’s

upbringing. According to the report, Walton had a normal upbringing up

until his teens when, according to his mother, his personality changed

because he became involved with peers who used drugs and alcohol.

Walton was expelled from school in the tenth grade because he had two

different charges for possession of a firearm. Following his expulsion

from school, Walton spent a month at Natural Bridge Juvenile Correctional Center. Because Walton created no problems and had no institutional offenses at the center, Dr. Samenow observed that Walton, in a

"structured situation," was able to impress others. 

WALTON v. ANGELONE 15
immediately and resurrect other dead family members. Walton also

acted out the murders in great detail in Gott’s presence. Because Walton had admitted his guilt, Gott arranged to have Dr. Samenow see

Walton again to evaluate him for sanity at the time of the offenses.

Dr. Samenow saw Walton again on July 11 and 14, 1997, and

noted a marked change in Walton’s "demeanor and mode of expression." Walton’s behavior was "different" on Friday, July 11, 1997,

and Dr. Samenow described Walton’s speech as "run-on," "not

responsive" to the subject of discussion, "unintelligible, at least to

me," profane, and violent. 

On Monday, July 14, 1997, Walton’s behavior was "a mixture."

Walton was "more responsive to very specific questions, but then he

would again go off the track." For the first time, Walton related a

belief he "read . . . in the Bible," that after he died he would "come

back as a new person." Dr. Samenow described Walton’s belief as

coming back to life within "a day or something" of his execution with

the same name, but with "a different spirit."12

Following his July interviews, Dr. Samenow sent a letter to the

state trial court stating that Walton’s mental state seemed to be "much

different" than when he visited him earlier. According to Dr. Samenow, Walton seemed "less rational." Dr. Samenow wrote: 

This man articulated his thoughts in ways that I simply

could not comprehend. Sometimes I could not understand

his pressured flow of speech. At other times, I could understand the words, but the thoughts did not appear to be logical or coherent. He simply would go off on a tangent

seemingly irrelevant to what we were discussing. 

12Gott discussed Walton’s post-execution beliefs with Dr. Samenow

before trial, and Dr. Samenow did not voice any concerns to Gott about

delusional behavior or about Walton’s competence at that time. Specifically, Dr. Samenow told Gott that "somebody could have strongly held

beliefs or opinions that may not be in the mainstream, but that didn’t

make them invalid for that person’s perspective, and they could still be

competent to proceed in a legal process." 

16 WALTON v. ANGELONE
Because of Walton’s "apparent decompensation, and his reportedly

being involved in fights in the detention center in Danville," Dr.

Samenow considered Walton "imminently dangerous to himself and

others" and he recommended that Walton "be placed in a secure psychiatric hospital where he can be observed for a further determination

of his mental state and until he is no longer a danger to himself and

others." 

Gott immediately petitioned the state trial court to hospitalize Walton in a state "forensic mental health facility" under Virginia Code

§ 19.2-169.6(1) (authorizing a court to order that an incarcerated

defendant receive emergency pre-trial hospitalization if the court

finds by "clear and convincing evidence" that the defendant "is mentally ill and immediately dangerous to self or others in the opinion of

a qualified mental health professional," and "requires treatment in a

hospital rather than a jail in the opinion of a qualified mental health

professional"). Although Gott requested that Dr. Samenow characterize Walton as mentally ill, Dr. Samenow refused because, at the time,

Dr. Samenow could not diagnose Walton as mentally ill, but believed

that hospitalization was the best option. Without a supporting diagnosis of mental illness, the state trial court declined to commit Walton

to a hospital. 

Approximately three weeks later, Gott moved for a competency

evaluation, stating that there was "probable cause" to believe that

Walton lacked "substantial capacity to understand the proceeding

against him or to assist counsel in the preparation of his defense."

Gott requested that the state trial court "direct the evaluation be done

in-patient." Gott attached a copy of the letter Dr. Samenow had sent

to the state trial court in July 1997. Gott viewed his motion as a "back

door way to get him to a hospital." 

On August 22, 1997, the state trial court ordered another evaluation

by another mental health expert to determine Walton’s "capacity to

understand the proceedings against him and assist his attorney in his

own defense" and to determine whether Walton "was affected by

mental disease or defect" when he allegedly committed the murders.

On the same day, Dr. Samenow prepared a report detailing his findings and conclusions.13 The report, described by the district court as

13Dr. Samenow’s conclusions were based on his interviews with Walton, tests he administered to Walton, including the Wechsler Adult IntelWALTON v. ANGELONE 17
"drafted like a running commentary contemporaneous to the various

evaluations," described some of Walton’s strange behavior. Following

a narration of the March and April 1997 interviews, Dr. Samenow

stated that Walton was "competent to stand trial." According to Dr.

Samenow:

[Walton] understood that a capital murder charge can result

in the death penalty "by electric chair or needle." He could

identify his lawyers by name, knew their role, and he understood precisely what he was being charged with. He also

knew that evidence is required to convict him. And he differentiated between what he thought he would be charged

with and what he would not be charged with. 

Moreover, Dr. Samenow noted that Walton stated that he had a strong

case, a good lawyer, and believed he would be found not guilty. 

However, on the final page of his report, Dr. Samenow stated that

Walton, in July 1997, "was quite different in demeanor and mode of

expression from the earlier interviews." Dr. Samenow was uncertain

"what the dramatic change was attributable to." Dr. Samenow rhetorically stated that, "if Mr. Walton were to predicate his responses to his

attorney upon a premise that death would bring him back to earth in

a new and better form, would this not interfere with his being able to

logically assist counsel in his own defense." Nevertheless, Dr. Samenow did not conclude that Walton was incompetent. At the federal

evidentiary hearing, Dr. Samenow explained that, had he only interviewed Walton in July 1997, he would have concluded that Walton

was not competent. However, he had also interviewed Walton in

March and April 1997 and concluded then that Walton was compeligence Test, the Bender-Gestalt Test, and the Thematic Apperception

Test, interviews with Walton’s mother, grandmother, maternal aunt, little

league coach, principal, friend, paternal grandfather, paternal aunt, paternal stepmother, and a rehabilitation counselor who had counseled Walton, and a host of documents, including Walton’s school records, records

from the state trial court file, discovery provided by the Commonwealth,

Walton’s detention center records from an earlier detention, and the

questionnaire Walton completed for Gott. 

18 WALTON v. ANGELONE
tent. Dr. Samenow explained that, because he had these two "snapshots" of Walton, he only could call Walton’s competency into

question. 

Pursuant to the state trial court’s August 22, 1997 order, Dr. Miller

Ryans, a board-certified psychiatrist specializing in forensic psychiatry, conducted a forensic evaluation of Walton on September 10,

1997. The evaluation was conducted in Dr. Ryans’ private office

without restraints. According to Dr. Ryans, Walton "was neat and

clean in appearance, cooperative, friendly and presented no problems

in communication." Walton was "alert," "oriented as to person, time

and place," and "was able to give all data of personal identification

and general information consistent with [a] high school student, with

no evidence of psychosis, or extreme mood swings." Dr. Ryans did

observe, however, that Walton falsely denied his guilt and that,

"throughout the interview, . . . Walton would display an inappropriate

laugh, which was not consistent with the material being discussed."

In his report to the state trial court, dated September 11, 1997, Dr.

Ryans found that Walton was competent to stand trial. In reaching

this conclusion, Dr. Ryans found that Walton had a satisfactory

understanding of the proceedings against him and a "workable level

of ability to assist in his own defense." Dr. Ryans further found that

Walton, not only had an understanding of the charges against him, but

also had an understanding of the roles of the judge, the jury, the Commonwealth’s attorney, and the witnesses. Dr. Ryans sent a separate

letter to Gott in which he noted that he found Walton "competent to

plead and assist [Gott]."14

When Gott met with Walton on September 30, 1997, Walton was

"loud" and refused to cooperate. Walton said that he wanted the

"chair" but did not state specifically whether he wanted to plead guilty

or not guilty. When Gott spoke with Walton the next morning, however, Walton was "calm and collected." After Gott explained the

"time delays built into the system and the number of years it would

14At the federal evidentiary hearing, Dr. Ryans testified that Walton’s

unusual behavior with Dr. Samenow might have been attributable to

malingering, the long-term effects of cocaine use, his limited intellectual

functioning, and stress. 

WALTON v. ANGELONE 19
take before execution [Walton] still wanted to [plead guilty] and get

‘the chair’ and go out like a man." Walton signed a typed statement

in which he professed to understand the charges against him as well

as "all possible defenses" to those charges. In the statement, Walton

made his wishes plain: 

My attorney has told me that he wants to try to negotiate

(work out) a Life Sentence instead of a Death Sentence. I

have told my attorney that I want to plead guilty and get a

Death Sentence. 

Walton signed a jury trial waiver form and a guilty plea questionnaire.

Gott read the questions on the guilty plea questionnaire to Walton,

recorded Walton’s answers, and Walton signed the questionnaire. 

On October 7, 1997, Walton pled guilty to all charges against him.

The state trial court questioned Walton at length. Walton affirmed

that he understood the charges against him, that his attorneys had

explained what the Commonwealth must prove in order to convict

him of those charges, that he had discussed any possible defenses that

he might have, that he decided to plead guilty, that he was pleading

guilty freely and voluntarily, that he was pleading guilty because he

was, in fact, guilty, that he was waiving his right to trial by jury, that

he was waiving his right not to incriminate himself, that he was waiving his right to confront and cross-examine his accusers, that he was

waiving his right to defend himself, that no one had forced him to

plead guilty or threatened him in any way, that no one had made any

promises of any kind, that he understood that the court could impose

multiple death sentences, that he was satisfied with the services of his

attorneys, that his attorneys had gone over the guilty plea questionnaire with him in advance, that he understood all of the questions, and

that he understood the state trial court’s questions. Following the plea

colloquy the state trial court found as follows: 

Let the record show, the Court has inquired of the defendant, Percy Levar Walton, as to his understanding of the

nature of the charges against him . . . the freeness and voluntariness of his pleas of guilty to the charges . . . to his understanding of his waiver of his right to be tried by a jury

20 WALTON v. ANGELONE
. . . his waiver of his right to appeal decisions of this Court

. . . as to his understanding of the limits of punishment,

which might be imposed upon the convictions of these

offenses. The Court hereby finds, as a matter of fact, that the

defendant has tendered a plea of guilty to each of the

charges . . . has done so freely, voluntarily, intelligently, and

with a full knowledge and understanding of the consequences. 

The state trial court then accepted Walton’s guilty pleas. 

Despite Walton’s prior statements about wanting to be executed, he

did not stop Gott from presenting arguments and a case for a life sentence. The state trial court conducted the sentencing phase of the case

on October 29-31, 1997, allowing two days of evidence and a day for

argument. Gott’s sentencing phase strategy was to "accurately portray

Walton as a young man who, although he had committed three murders, nevertheless had taken responsibility for his actions by pleading

guilty and who, in the relatively recent past, had been such a good

young man that upstanding citizens of the community were willing to

speak on his behalf despite what he had done." In furtherance of this

trial strategy, the defense called Walton’s little league coach, some of

his school teachers, two of his aunts, one of his former counselors at

a juvenile correctional center, and his grandmother.15 In general, these

witnesses testified that Walton was a mild-mannered, polite, quiet,

and respectful man. Walton’s former counselor also testified as to

Walton’s progress and good behavior during Walton’s short stay at

Natural Bridge Juvenile Correctional Center. This latter evidence

allowed Gott to argue to the state trial court that Walton responded

well "to the treatment that was there offered to him at the time, so

much so that his stay was relatively short." 

For a couple of reasons, Gott chose this trial strategy over a mental

illness strategy. First, "there was no available mental health evidence

that would have been helpful and certainly none that would have

15According to Gott, he did not call Walton’s mother to the stand

because Walton was once charged with assaulting his mother and

because Walton’s mother recently had been charged and convicted of

embezzlement. 

WALTON v. ANGELONE 21
made a difference." Second, through his numerous conversations with

Walton’s family members, Gott never received any information pertaining to any family history of mental illness. Third, Gott was "unaware of anything Dr. Ryans could have testified to that would have

been helpful to Walton, and I certainly did not want to have Dr.

Ryans cross-examined about Walton’s false denials of guilt." Fourth,

Gott did not like the idea of calling Dr. Samenow as a witness, not

only because "his testimony generally would not have been helpful,

but also because I knew from past experience in a capital case (Calvin

Swann) that the prosecutor could elicit much adverse information

from him on cross-examination." Fifth, Gott was aware that Walton

had told at least two fellow inmates that he intended to "play crazy."

Indeed, Walton, following his July 1997 interviews with Dr. Samenow, told a fellow inmate that he just went to Alexandria for a psychiatric evaluation and "played crazy all weekend." Finally, Gott was

aware that, in March 1997, Walton had stood trial in Danville for burglary and grand larceny committed in September 1996 and that neither his competency to stand trial nor his sanity at the time of the

offenses was an issue in that case. Indeed, Gott consulted with Walton’s attorney in that case, who informed him that "Walton had done

nothing but ‘blow smoke,’ i.e., lie to him, throughout his representation of Walton." 

During the sentencing phase of the trial, Walton laughed, smiled,

and waved to family members. Gott advised Walton to keep his head

down or focus on a spot. During a victim impact statement made by

one of the Kendrick grandchildren, the victim noted that she hoped

the state trial court had noticed Walton’s smiles and laughter over the

course of the proceedings. 

At the end of the second day of evidence, the Commonwealth presented as rebuttal evidence the testimony of two jail deputies who

described some of Walton’s violent conduct in jail. One of the rebuttal witnesses testified that Walton had stated that he wished he had

killed his own mother. 

After this rebuttal testimony, the state trial court took a brief recess.

Gott met with Walton in the holding cell to discuss what would happen the next day and Walton became "very adamant and stubborn"

about refusing to return to the courtroom. Dr. Samenow and Walton’s

22 WALTON v. ANGELONE
family tried to persuade Walton to return, but he adamantly refused

to go back into the courtroom. 

The state trial court asked Dr. Samenow to "do something," so Dr.

Samenow met with Walton. Walton stated that he "had been disrespected" and simply refused to return. When all attempts failed, deputies maced Walton and returned him to the courtroom in shackles. The

state trial court asked Dr. Samenow what Walton’s behavior meant,

and Dr. Samenow told the state trial court that Walton simply was

scared, "He felt it was everything coming all at once finally, and he

was scared." Dr. Samenow never expressed any concern about Walton’s competence. 

2

Walton contends that he was not competent to plead guilty or stand

trial. More specifically, he argues that he lacked the capacity to

understand the nature and purpose of the proceedings against him, to

consult with counsel, and to assist in preparing his defense. Walton

raised this claim in his state habeas petition. The Virginia Supreme

Court dismissed this claim under Slayton because the claim could

have been raised at trial and/or on direct appeal. In his federal habeas

petition, Walton raised an identical incompetency claim and the district court held, following an evidentiary hearing, that this claim was

defaulted under Slayton and went on to reject Walton’s assertions of

cause and prejudice. 

As established in Slack, to secure a certificate of appealability on

a claim that the district court denied pursuant to procedural grounds,

Walton must demonstrate both (1) "that jurists of reason would find

it debatable whether the petition states a valid claim of the denial of

a constitutional right" and (2) "that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484. In conducting this two-prong test, we

may proceed first "to resolve the issue whose answer is more apparent

from the record and arguments." Id. at 485. 

The Due Process Clause of the Fourteenth Amendment prohibits

states from trying and convicting mentally incompetent defendants.

Pate v. Robinson, 383 U.S. 375, 384-86 (1966). The test for determinWALTON v. ANGELONE 23
ing competency is whether a defendant "has sufficient present ability

to consult with his lawyer with a reasonable degree of rational understanding . . . and whether he has a rational as well as a factual understanding of the proceedings against him." Dusky v. United States, 362

U.S. 402, 402 (1960). Competency claims can raise issues of both

procedural and substantive due process. 

For example, a defendant may make a procedural competency

claim by alleging that the trial court failed to hold a competency hearing after the defendant’s mental competency was put in issue. To prevail, the defendant must establish that the trial court ignored facts

raising a "bona fide doubt" regarding the defendant’s competency to

stand trial. Pate, 383 U.S. at 384-86. Even if a defendant is mentally

competent at the beginning of the trial, the trial court must continually

be alert for changes which would suggest that he is no longer competent. Drope v. Missouri, 420 U.S. 162, 180 (1975). Although there are

"no fixed or immutable signs which invariably indicate the need for

further inquiry to determine fitness to proceed," proof "of a defendant’s irrational behavior, his demeanor at trial, and any prior medical

opinion on competence to stand trial are all relevant." Id.

On the other hand, a defendant may make a substantive competency claim by alleging that he was, in fact, tried and convicted while

mentally incompetent. Pate, 383 U.S. at 384-86; Dusky, 362 U.S. at

402. In contrast to a procedural competency claim, however, a defendant raising a substantive claim of incompetency is entitled to no presumption of incompetency and must demonstrate his incompetency

by a preponderance of the evidence. Burket, 208 F.3d at 192. "‘Not

every manifestation of mental illness demonstrates incompetence to

stand trial; rather, the evidence must indicate a present inability to

assist counsel or understand the charges.’" Id. (quoting United States

ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)).

Similarly, "neither low intelligence, mental deficiency, nor bizarre,

volatile, and irrational behavior can be equated with mental incompetence to stand trial." Burket, 208 F.3d at 192. 

After carefully reviewing the record, we harbor no doubt that Walton was competent to appear in court and plead guilty on October 7,

1997 and at the sentencing phase of his case. First, throughout the

trial proceedings, Walton "acted in a manner exhibiting competence."

24 WALTON v. ANGELONE
Id. For example, prior to his pleas of guilty, Walton executed a twopage guilty plea questionnaire, which outlined the contours of his

plea. At the plea hearing, the state trial court conducted an extensive

colloquy with Walton concerning the voluntariness and intelligence of

his guilty pleas. Walton’s replies to the state trial court’s questions

were clear and responsive. Walton repeatedly demonstrated his understanding of the charges and the trial proceedings. Indeed, in the colloquy with the state trial court, Walton acknowledged that he had

discussed his guilty pleas with his attorneys, that he understood the

nature of the charges against him, that he had discussed the elements

of each of the offenses with his attorneys, that his counsel had

explained the elements of each of the offenses to him, that he was

pleading guilty because he was, in fact, guilty, that he was waiving

certain constitutional rights, and that he understood the possible sentences he could receive. His responses reflect "a sophisticated understanding of the proceeding." Id.

Second, although Walton’s behavior in July 1997 and during a portion of the sentencing phase of the case was of concern to Gott and

Dr. Samenow, neither Dr. Samenow nor Dr. Ryans indicated that

Walton was incompetent. The thorough evaluations by the mental

health experts provide powerful evidence that Walton was competent

to appear in court and plead guilty on October 7, 1997 and at the sentencing phase of his case. Id. at 193-94 (that the petitioner and prosecution’s mental health experts did not indicate that petitioner was

incompetent was probative of the fact that petitioner was competent).

Indeed, the potent strength of these thorough mental health evaluations understandably led Gott to decline to raise the issue of Walton’s

competency with the state trial court. Id. at 192-93 (that counsel did

not raise the issue of competency provided powerful evidence that

petitioner was competent). 

In summary, we have carefully reviewed all of the evidence pertaining to Walton’s competency at the time of his guilty pleas and at

the sentencing phase of his case. The record reflects that Walton was

competent at the time of his guilty pleas and at the sentencing phase

of his case. Accordingly, because we cannot conclude that "reasonable jurists" would find the question of whether Walton was competent at the time of his guilty pleas and/or at the sentencing phase of

the case "debatable," Slack, 529 U.S. at 484, we deny Walton’s

WALTON v. ANGELONE 25
request for a certificate of appealability on his substantive competency claim.16

3

Walton also argues that Gott was constitutionally ineffective for

failing to raise the issue of competency before the state trial court

and/or on direct appeal. Walton raised this claim in his state habeas

petition and the Virginia Supreme Court held that this claim was procedurally barred under Anderson. The district court declined to give

effect to the Anderson procedural bar17 and rejected this claim on the

merits. 

The Sixth Amendment provides in relevant part: "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The

Supreme Court has held that the Sixth Amendment guarantees to all

criminal defendants the right to effective assistance of counsel. Strickland, 466 U.S. at 686. 

In general, claims of ineffective assistance of counsel are covered

by the familiar two-part test established in Strickland. Under that test,

the petitioner first must show that his counsel’s performance fell

below an objective standard of reasonableness. Id. at 687. Second, the

petitioner must establish prejudice by showing "a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different." Id. at 694. 

Walton’s claim fails under both prongs of Strickland. With respect

to the reasonableness of counsel’s performance, the record reflects

that counsel’s performance was more than reasonable. First, following

his appointment, Gott, through interviews with Walton and members

of Walton’s family, obtained extensive background information about

Walton, including information Walton provided to Gott in a thirty16Having concluded that Walton has failed to establish the first prong

of the Slack test, we need not address whether the district court was correct in its procedural bar ruling. Slack, 529 U.S. at 484-85. 

17Of note, before this court, the Commonwealth has waived any reliance on Anderson as a ground for dismissal of any of Walton’s claims.

26 WALTON v. ANGELONE
nine page questionnaire. In the questionnaire, Walton denied any family history of mental illness or that he had ever been diagnosed or

received any attention for psychological, mental, or emotional problems. Walton also denied experiencing symptoms of mental or emotional difficulties.

Second, Gott obtained a court-appointed mental health expert and

documented information for his expert to consider in assessing Walton’s mental health status. Dr. Samenow found that Walton was competent, but expressed concerns to Gott about a "different" Walton in

July 1997. In light of this information, Gott investigated and pursued

available avenues to obtain additional evaluations. His diligent efforts

paid a dividend when the state trial court ordered a competency evaluation. 

Third, once a competency evaluation was ordered, Gott provided

Dr. Ryans with Dr. Samenow’s report, which set out Walton’s problematic upbringing and lifestyle and his observations of Walton’s

conduct that had precipitated the evaluation. The report also alerted

Dr. Ryans to the odd behavior which had been observed. After a thorough evaluation of Walton, Dr. Ryans unequivocally opined that Walton was competent to stand trial. 

Fourth, despite Walton’s behavior in the courtroom during the sentencing phase of the trial, Dr. Samenow never suggested to Gott, let

alone to anyone else, that Walton was incompetent. Rather, Dr. Samenow explained that Walton "felt it was everything coming all at once

finally, and he was scared." In short, the record leaves no doubt that

counsel’s performance concerning Walton’s competency was more

than reasonable. 

With respect to the prejudice prong, Walton was not prejudiced by

Gott’s decision not to raise the issue of Walton’s competency. The

record in this case indisputably demonstrates that Walton was competent at the time of his guilty pleas and at the sentencing phase of his

case and, therefore, was not prejudiced by Gott’s decision not to raise

the competency issue. Accordingly, "reasonable jurists" could not disagree with the district court’s determination that Gott was not constitutionally ineffective for failing to raise the issue of competency

before the state trial court. Slack, 529 U.S. at 484. Therefore, we deny

WALTON v. ANGELONE 27
Walton’s request for a certificate of appealability on his claim that

Gott was constitutionally ineffective for failing to raise the issue of

competency before the state trial court. 

B

Walton also claims that his guilty pleas were not knowing, intelligent, and voluntary. Walton alleged in his state habeas petition not

only that his guilty pleas were not knowing, intelligent, and voluntary

in light of legal incompetence, but also that they were not knowing,

intelligent, and voluntary in light of his mental illness and his delusions about the consequences of a death sentence. The Virginia

Supreme Court applied the rule in Anderson and refused to consider

Walton’s claim. Walton alleged again in his federal habeas petition

that his guilty pleas were not knowing, intelligent, and voluntary. The

district court declined to give effect to the Anderson procedural bar

and rejected this claim on the merits. 

The standard for determining whether a guilty plea is constitutionally valid is whether the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the

defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970). In

applying this standard, courts look to the totality of the circumstances

surrounding the guilty plea, id., granting the defendant’s solemn declaration of guilt a presumption of truthfulness. Henderson v. Morgan,

426 U.S. 637, 648 (1976) (plurality opinion). 

In this case, the state trial court conducted an extensive colloquy

with Walton to ensure that Walton’s pleas of guilty were made knowingly, intelligently, and voluntarily. Absent clear and convincing evidence to the contrary, Walton is bound by the representations he made

during the plea colloquy. Fields v. Attorney General of State of Maryland, 956 F.2d 1290, 1299 (4th Cir. 1992). Walton has presented no

evidence of sufficient evidentiary force, e.g., evidence that he was

forced, coerced, threatened, or improperly induced into pleading

guilty, Brady v. United States, 397 U.S. 742, 755 (1970) (holding that

a guilty plea is made knowingly and intelligently if the defendant is

fully aware of the direct consequences of his guilty plea and was not

induced by threats [or promises to discontinue improper harassment],

misrepresentation, including unfulfilled or unfulfillable promises, or

28 WALTON v. ANGELONE
by promises that are by their nature improper as having no relationship to the prosecutor’s business, e.g., bribes), to demonstrate that his

representations were untruthful or involuntary. Walton is, therefore,

bound by his representations. Fields, 956 F.2d at 1299. Furthermore,

Walton’s familiarity with the criminal justice system provides further

support for the conclusion that he knowingly, intelligently, and voluntarily pled guilty. Cf. United States v. DeFusco, 949 F.2d 114, 117

(4th Cir. 1991) (holding that district courts are to be given a wide

degree of discretion in deciding the best method to inform and ensure

a defendant’s understanding of the charges and, to that end, may consider the defendant’s personal characteristics). Finally, there is no evidence in the record to suggest that Walton’s guilty pleas were

rendered involuntary on account of incompetence. Walton’s competency was fully explored by Dr. Samenow and Dr. Ryans and these

experts never gave any indication that a mental illness or disturbance

impeded Walton’s ability to knowingly, intelligently, and voluntarily

plead guilty. Accordingly, "reasonable jurists" could not disagree with

the district court’s determination that Walton’s guilty pleas were

knowing, intelligent, and voluntary. Slack, 529 U.S. at 484. Therefore, we deny Walton’s request for a certificate of appealability on his

claim that his guilty pleas were not knowing, intelligent, and voluntary. 

C

Walton claims that he was denied constitutionally effective assistance of counsel when Gott failed to object to the appointment of Dr.

Samenow. Walton presented this claim in his state habeas petition and

again in his federal habeas petition. Invoking Anderson, the Virginia

Supreme Court refused to consider the claim. The district court

declined to give effect to the Anderson procedural bar and rejected the

claim on the merits. 

The gist of Walton’s argument is that, had Gott objected to the

appointment of Dr. Samenow, the state trial court would have

appointed another expert, another more qualified expert would have

determined that Walton was schizophrenic, and this fact, taken

together with other mitigating evidence, would have convinced the

state trial court that life without parole was a sufficient and appropriate punishment. The legal authority supporting Walton’s argument is

WALTON v. ANGELONE 29
Ake and Virginia Code § 19.2-264.3:1. Under Ake, a defendant has

the right to the assistance of a mental health expert if the defendant

makes a showing to the trial court that his mental state is at issue in

his defense of the charges or if, in arguing future dangerousness in the

sentencing phase, the prosecution uses expert psychiatric testimony.

470 U.S. at 82-83 (noting that the need for the assistance of a psychiatrist is "readily apparent" either when "the defendant is able to make

an ex parte threshold showing to the trial court that his sanity is likely

to be a significant factor in his defense" or "when the State presents

psychiatric evidence of the [capital] defendant’s future dangerousness" during the sentencing phase). Virginia Code § 19.2-264.3:1 provides the mechanism for extending the services Ake may require and

also provides that expert assistance is available to assist in the investigation and presentation of mitigating evidence. 

According to Dr. Samenow’s testimony at the federal evidentiary

hearing, "[c]rime resides with the individual, . . . environmental factors can make crime easier or more difficult to commit, [but] the origin of crime is within the individual." Consequently, according to Dr.

Samenow, environmental factors do not cause crime, rather what

causes crime is how a defendant "choose[s] to deal with whatever

life’s circumstances are." Furthermore, Dr. Samenow "downplay[s]

. . . the existence of mental illness as being something that motivates

the defendant." Thus, in Dr. Samenow’s opinion, "a defendant, even

if he otherwise may be diagnosed as mentally ill, is able to make

choices about his conduct." 

Because of his professional views, Dr. Samenow understands "why

a defense attorney might not think that I was the best person in terms

of the search for mitigating factors, given the positions that I’ve taken

through what I have written." Dr. Samenow’s novel theory (in that it

is not largely accepted by his colleagues) regarding mental illness and

criminals led Judge Murnaghan to observe that:

Dr. Stanton Samenow’s professed and public views make

him incompetent to aid a defendant in finding and presenting mitigating factors at a defendant’s sentencing phase.

. . . He has abandoned sociologic, psychologic, and mental

illness explanations for criminal behavior and holds the

view that most diagnoses of mental illness in criminals

30 WALTON v. ANGELONE
resulted from the criminal’s fabrications. . . . Dr. Samenow’s

published works state that circumstances have nothing to do

with criminal violations and that providing the criminal with

an opportunity to present excuses deferred him and us further and further from change. . . . Dr. Samenow’s views

obviate his ability to evaluate mitigating factors relating to

the history or character of a criminal defendant because he

is of the opinion that no mitigating factors exist.

Ramdass v. Angelone, 187 F.3d 396, 411 n.1 (4th Cir. 1999)

(Murnaghan, J., concurring in part and dissenting in part) (internal

quotation marks omitted). 

At the federal evidentiary hearing, Gott acknowledged that he

would not have chosen Dr. Samenow as his expert in the case "if he

had his druthers," but he did acknowledge that he had a good working

relationship with Dr. Samenow. Gott had read a treatise written by Dr.

Samenow and recognized that Dr. Samenow held views which were

not, in his (Gott’s) opinion, defendant-friendly. 

In this case, Walton was not prejudiced by Gott’s failure to object

to the appointment of Dr. Samenow. To show prejudice, Walton must

demonstrate that the state trial court and/or the Virginia Supreme

Court "would have either removed Dr. Samenow upon objection or

appointed an additional expert upon request." Ramdass, 187 F.3d at

410. As in Ramdass, Walton cannot meet this standard. First, Walton

had no constitutional right to insist on the appointment of any particular expert. Ake, 470 U.S. at 83; Wilson v. Green, 155 F.3d 396, 401-

02 (4th Cir. 1998) (holding that the Constitution does not entitle a

criminal defendant to the effective assistance of an expert witness).

Second, Dr. Samenow’s August 1997 report demonstrates that his

conclusions concerning the relationship between mental illness and

crime had no effect on his evaluation of Walton. Dr. Samenow’s

views did not prevent him from thoroughly investigating Walton’s

background and conducting psychological testing to assist Gott.

Moreover, Dr. Samenow’s views would not have prevented him from

determining whether Walton was schizophrenic. Indeed, Dr. Samenow found no indication, and later refused to conclude, that Walton

was mentally ill. This view was never disputed by Dr. Ryans, a psychiatrist who apparently does not share Dr. Samenow’s views on the

WALTON v. ANGELONE 31
relationship between mental illness and crime. Finally, evidence concerning Walton’s mental illness was not logically consistent with

Gott’s defense strategy to "portray Walton as a young man who,

although he had committed three murders, nevertheless had taken

responsibility for his actions by pleading guilty and who, in the relatively recent past, had been such a good young man that upstanding

citizens of the community were willing to speak on his behalf despite

what he had done." Accordingly, "reasonable jurists" could not disagree with the district court’s determination that Walton was not

deprived of constitutionally effective assistance of counsel when Gott

failed to object to the appointment of Dr. Samenow. Slack, 529 U.S.

at 484. Therefore, we deny Walton’s request for a certificate of

appealability on his claim that he was deprived of constitutionally

effective assistance of counsel when Gott failed to object to the

appointment of Dr. Samenow. 

D

Walton also claims that Gott unreasonably failed to investigate and

present mitigating mental health evidence. Walton raised this claim

on state habeas and in his federal habeas petition. Invoking Anderson,

the Virginia Supreme Court refused to consider the claim. The district

court declined to give effect to the Anderson procedural bar and

rejected the claim on the merits. 

Specifically, Walton asserts that Gott failed to pursue a sentencing

strategy to show that Walton was a schizophrenic who could be

treated with medication to reduce his dangerousness and that it was

his mental illness that accounted for his behavior at sentencing. As

noted above, Gott’s strategy was to "portray Walton as a young man

who, although he had committed three murders, nevertheless had

taken responsibility for his actions by pleading guilty and who, in the

relatively recent past, had been such a good young man that upstanding citizens of the community were willing to speak on his behalf

despite what he had done." In Gott’s opinion, this strategy was Walton’s best chance for avoiding the death penalty. Gott presented several witnesses, including family and community members, who

portrayed Walton in this light. Gott also entered into evidence testimony from one of Walton’s former counselors, who testified as to

Walton’s progress and good behavior during Walton’s short stay at

32 WALTON v. ANGELONE
Natural Bridge Juvenile Correctional Center. This latter evidence

allowed Gott to argue to the state trial court that Walton responded

well "to the treatment that was there offered to him at the time, so

much so that his stay was relatively short." 

In this case, Walton cannot show that Gott’s performance fell

below an objective standard of reasonableness. Strickland, 466 U.S.

at 687. First, through his numerous conversations with Walton and his

family members, Gott never received any information pertaining to

any family history of mental illness or that Walton suffered from a

mental illness. Second, neither Dr. Samenow nor Dr. Ryans suggested

that Walton suffered from a mental illness. Third, there were problems with placing Dr. Ryans on the stand because Walton had falsely

informed Dr. Ryans that he was not guilty. Fourth, a mental health

defense opened up the door to the Commonwealth placing into evidence that Walton had told at least two fellow inmates that he

intended to "play crazy." Indeed, Walton, following his July 1997

interviews with Dr. Samenow, told a fellow inmate that he just went

to Alexandria for a psychiatric evaluation and "played crazy all weekend." Fifth, Gott was aware that, in March 1997, Walton had stood

trial in Danville for burglary and grand larceny committed in September 1996 and that neither his competency to stand trial nor his sanity

at the time of the offenses was an issue in that case. Indeed, Gott consulted with Walton’s attorney in that case, who informed him that

"Walton had done nothing but ‘blow smoke,’ i.e., lie to him, throughout his representation of Walton." Finally, the only basis for Walton’s

concrete allegations of mental illness or schizophrenia is found in the

expert opinions he obtained after Walton’s trial and direct appeal and

after the state habeas petition was dismissed. Walton attempted to

offer an affidavit from Dr. Ruben Gur (a neuropsychologist) and a

neuropsychological report from Dr. Jeffrey Kreutzer (a neurologist)

to support his allegations of mental illness. The Virginia Supreme

Court granted the Commonwealth’s motion to strike these materials

because they were presented too late. In the district court, Walton

resubmitted these documents, along with a report from Dr. Anand

Pandurangi (a psychiatrist), to bolster his claim of mental illness.18

18Drs. Gur and Kreutzer evaluated Walton about two years after the

trial and administered a battery of neuropsychological tests, some

WALTON v. ANGELONE 33
Because the Virginia Supreme Court’s evidentiary ruling was not

so extreme as to result in the denial of a constitutionally fair proceeding, we cannot consider Dr. Gur’s affidavit and Dr. Kreutzer’s report.

Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993). Moreover, 28

U.S.C. § 2254(e)(2) obviously bars our consideration of Dr. Pandurangi’s report. 

In any event, Walton’s proffered mental health evidence does not

make Gott’s tactical decision constitutionally unreasonable. First,

Gott was not required to shop for a more favorable expert. Poyner v.

Murray, 964 F.2d 1404, 1419 (4th Cir. 1992). Second, Gott was entitled to rely on the information he obtained from Dr. Samenow and Dr.

Ryans. Pruett v. Thompson, 996 F.2d 1560, 1574 (4th Cir. 1993).

Third, we have repeatedly acknowledged the deference due to the

strategic decisions made by trial counsel. See, e.g., Truesdale v.

Moore, 142 F.3d 749, 755 (4th Cir. 1998) (reasonable strategic decision to avoid evidence of brain damage which was inconsistent with

defense strategy and a double-edged sword); Bunch v. Thompson, 949

F.2d 1354, 1363-64 (4th Cir. 1991) (strategic decision to avoid negative psychiatric testimony reasonable). Consequently, even though

Gott’s chosen sentencing strategy (Walton was a young, remorseful

man who was capable of doing well in confinement) had its own pitfalls (Walton’s criminal history and recent altercations in the Danville

Detention Center), Gott’s decision concerning the sentencing strategy

was an objectively reasonable one, and, therefore, Walton cannot

demonstrate that Gott’s representation was constitutionally deficient.19

Accordingly, "reasonable jurists" could not disagree with the district

designed to diagnose schizophrenia. They also interviewed Walton and

reviewed his medical, psychological, educational, and legal records.

According to these experts, "Percy Walton suffers from severe chronic

schizophrenia, probably of a paranoid or disorganized type. . . . The evidence also indicates that Mr. Walton was suffering from schizophrenia

at the time of the offense." Dr. Pandurangi confirmed this diagnosis. 

19We note that Walton’s behavior during the sentencing phase of the

case made it more difficult for the defense to portray Walton as a young,

remorseful man who was capable of doing well in confinement. However, we cannot conclude that Gott’s decision to stick with his chosen

sentencing strategy renders his performance constitutionally deficient. 

34 WALTON v. ANGELONE
court’s determination that Gott did not unreasonably fail to investigate and present mitigating mental health evidence. Slack, 529 U.S.

at 484. Therefore, we deny Walton’s request for a certificate of

appealability on his claim that Gott unreasonably failed to investigate

and present mitigating mental health evidence.20

III

For the reasons stated herein, we deny Walton’s application for a

certificate of appealability and dismiss the appeal.21

DISMISSED

20Walton also claims that he was deprived of constitutionally effective

assistance of counsel on direct appeal. Walton alleged in his state habeas

petition and again in his federal habeas petition that Gott was constitutionally ineffective on appeal. The Virginia Supreme Court summarily

denied this Sixth Amendment claim on the merits. The district court held

that this decision was not contrary to and did not involve an unreasonable

application of clearly established federal law. We have reviewed this

claim and conclude that "reasonable jurists" could not disagree with the

district court’s determination that the Virginia Supreme Court’s decision

on this claim was not contrary to and did not involve an unreasonable

application of clearly established federal law. Slack, 529 U.S. at 484.

Therefore, we deny Walton’s request for a certificate of appealability on

this claim. 

21We note that Walton does not, for obvious reasons, press his claim

that he is incompetent to be executed, as that claim, at this time, is premature. Cf. Martinez-Villareal, 523 U.S. at 644-45 (petitioner’s claim

that he was incompetent to be executed, raised for the second time after

his first claim was dismissed as premature, was not a "second or successive" petition under the AEDPA). 

WALTON v. ANGELONE 35