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.

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COUNSEL

Katherine P. Baldwin, OFFICE OF THE ATTORNEY GENERAL,

Richmond, Virginia, for Appellants. Gerald Thomas Zerkin, GER-
ALD T. ZERKIN & ASSOCIATES, Richmond, Virginia, for Appellee.

_________________________________________________________________

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 Corrections, 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 resolution by a lawfully empowered official of the Commonwealth who

does not suffer a conflict of interest and who can act upon the plaintiff'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 Governor 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 Attorney 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 unfortunate 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. Nevertheless, 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 punishment 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 Governor of Arkansas could grant clemency the rule of necessity applied.

Pickens' claim of conflict of interest because the Governor had formerly served as Attorney General was dismissed.

III

The stay granted by the district court is vacated, and the preliminary injunction is reversed. The district court is directed to dismiss

this action.

The mandate shall issue forthwith.

VACATED AND REVERSED

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