UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH PATRICK PAYNE, SR.,

Petitioner-Appellant,

v.

J. D. NETHERLAND, Warden,

No. 95-4016

Mecklenburg Correctional Center;

EDWARD W. MURRAY, Director;

MARY SUE TERRY, Attorney General;

COMMONWEALTH OF VIRGINIA,

Respondents-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CA-93-530-3)

Argued: June 3, 1996

Decided: August 19, 1996

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished opinion. Judge Wilkins wrote the majority

opinion, in which Judge Widener concurred. Judge Michael wrote a

separate concurring opinion.

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COUNSEL

ARGUED: Paul Farid Khoury, WILEY, REIN & FIELDING, Washington, D.C., for Appellant. Thomas Drummond Bagwell, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON BRIEF: Michael A.

Rotker, WILEY, REIN & FIELDING, Washington, D.C.; Donald R.

Lee, VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER, Richmond, Virginia, for Appellant. James S. Gilmore, III,

Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

WILKINS, Circuit Judge:

Joseph Patrick Payne, Sr. appeals a decision of the district court

denying his petition for a writ of habeas corpus seeking relief from

his Virginia conviction for the capital murder of David Wayne Dunford and his resulting sentence of death. See 28 U.S.C.A. § 2254

(West 1994). Finding no error, we affirm.

I.

On March 3, 1985, at approximately 6:30 a.m., inmates at the Powhatan Correctional Center in Virginia were awakening. Although the

locks on the doors restricting the prisoners' movement during the

night had been released, inmate Dunford remained inside his cell.

Without warning, another inmate locked Dunford's door with a padlock, threw flammable liquid into the cell, and ignited the liquid with

matches, resulting in a fire that burned over 70% of Dunford's body.

Following nine agonizing days during which he lay hospitalized,

Dunford died.

Prison officials soon came to believe that a conspiracy had existed

among the inmates to murder Dunford. As the investigation ensued,

inmate Robert Smith ultimately identified Payne, whose cell was

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located near Dunford's, as the individual responsible for the acts that

resulted in Dunford's death.

During Payne's trial, the only "eyewitness" to testify was Smith; he

claimed to have seen Payne commit the murder. In his direct testimony, Smith acknowledged that he had been involved in the planning

stages of the conspiracy, that he had multiple prior felony convictions,

and that he received a ten-year reduction in his sentence for testifying

against Payne and another coconspirator; other witnesses asserted that

Smith was a liar and a cheat. Two additional prosecution witnesses

implicated Payne in the conspiracy to murder Dunford and testified

that Payne planned to commit the murder. One of these witnesses was

so unstable that the prosecutor announced to the court prior to his testimony that his mental stability was questionable. The remaining witness concluded his cross-examination by stating that Payne withdrew

from the conspiracy prior to the day of the murder. Consequently, it

is fair to conclude that the Commonwealth's case against Payne

hinged on whether the jury found Smith's testimony to be credible

and that Smith's credibility was thoroughly tested.

During the presentation of his defense, Payne offered the testimony

of another inmate, Frank Clements, who claimed to have seen Smith

commit the murder. He further testified that Payne was taking a

shower at the time of the murder. On cross-examination, however, the

prosecution was able to demonstrate that Clements' testimony differed in critical respects from the testimony he had provided in the

trial of one of Payne's coconspirators. Nevertheless, believing that the

prosecution's case against Payne was weak as a result of inmate testimony of questionable veracity, the defense chose not to call additional inmate witnesses. Indeed, so confident was the defense that the

prosecution would fail that Payne rejected an offer--extended while

the jury was deliberating in the guilt phase of the trial--to permit him

to plead guilty and receive a sentence that would have been concurrent to the one he was presently serving. The jury nonetheless found

Payne guilty of the murder.

During the sentencing phase of the trial, the defense strategy was

to capitalize on the lingering doubt the defense believed certainly

must have existed in the jurors' minds. Consequently, Payne testified

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that he had not committed the murder. He also introduced two psychiatric "reports" relevant to his future dangerousness.

In rebuttal, the prosecution presented the testimony of a psychologist, Dr. Arthur Centor, who was employed by the Commonwealth

and who had examined Payne regarding his competency to stand trial

pursuant to a court order entered in response to Payne's motion. Dr.

Centor testified that prior to the examination he explained to Payne

that the information provided would not be privileged and that the

doctor would be permitted to testify in court about it. In response to

a prosecution question concerning his opinion as to Payne's future

dangerousness based on his examination, Dr. Centor testified:

In my opinion [Payne] shows a probability for committing

criminal acts of violence, which would constitute a continuing serious threat to society. This is based on his past history

going back to the age of [ten], going through previous convictions, other related difficulties with the law, and the circumstances of the present alleged crime.

J.A. 285. Payne was sentenced to death.

The Virginia Supreme Court affirmed Payne's conviction and sentence on direct appeal, and the Supreme Court denied his petition for

a writ of certiorari. Payne v. Commonwealth, 357 S.E.2d 500, 509

(Va.), cert. denied, 484 U.S. 933 (1987).

Payne next sought collateral review in the Virginia courts, raising

a plethora of issues. With the exception of a number of his assertions

that he was deprived of effective assistance of counsel and his allegations that he was denied due process by the prosecution's knowing

use of perjured testimony and also by its failure to disclose inducements that had been offered in return for Smith's testimony, all of

Payne's claims were dismissed by the state habeas court.

Payne offered copious evidence in support of his remaining claims

during the forthcoming evidentiary hearing. He presented the testimony of several inmates who asserted that they were eyewitnesses

and had seen Smith commit the murder. The testimony of these wit-

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nesses was consistent to the extent that they all professed to have seen

Smith approach Dunford's cell, lock it, and throw liquid into it immediately before the explosion. However, the testimony contained discrepancies concerning what Payne, Clements, and Smith were

wearing that morning and whether Payne or another inmate had initiated a conversation immediately prior to the murder. Payne also presented the testimony of several inmates who claimed that Smith had

boasted about committing the murder and had admitted that he

intended to lie during the trial to implicate Payne in order to receive

a reduction in sentence. In addition, Payne proffered a sixteen-page

affidavit, signed by Smith, in which he fully recanted his trial testimony. Further, Payne presented evidence indicating that Smith had

received an additional five-year sentence reduction, the dismissal of

a forcible sodomy charge, and favorable parole consideration. Payne

also offered a wealth of evidence demonstrating that Smith was an

appalling and known prevaricator. Finally, Payne presented evidence

tending to show that defense counsel did little to prepare a case in

mitigation of punishment prior to the verdict in the guilt phase of the

trial.

The state habeas court found incredible the inmates' testimony

indicating that Smith was the perpetrator. It ruled that Smith's affidavit was inadmissible for the truth of the matter asserted therein and

noted that Smith stood by his trial testimony during the habeas hearing, explaining that he had signed the affidavit only because he was

pressured to do so. Further, the state habeas court found that there had

been no undisclosed inducements or promises made to Smith in

exchange for his testimony. And, the state habeas court rejected

Payne's ineffective assistance claims, finding neither inadequate performance nor prejudice. The Virginia Supreme Court denied review,

and the Supreme Court again denied a writ of certiorari, Payne v.

Thompson, 506 U.S. 1062 (1993).

Payne thereafter filed this § 2254 petition. The district court

refused to conduct an evidentiary hearing, held a number of Payne's

claims to be procedurally defaulted, and dismissed the petition after

finding the remaining claims to be without merit. Payne v. Thompson,

853 F. Supp. 932 (E.D. Va. 1994). Payne now appeals that decision.

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II.

The principal argument Payne raises on appeal, in various forms,

is that he is factually innocent of Dunford's murder and that Smith

lied when implicating him during the trial. Payne maintains that the

district court erred in rejecting his claim that he was deprived of due

process, and therefore was entitled to habeas relief, because: (1)

Smith lied during his trial testimony, thereby rendering perjurious the

testimony employed to obtain his conviction; (2) the prosecution

knowingly used Smith's perjured testimony; and (3) the prosecution

failed to disclose various inducements provided to Smith for his testimony. These arguments, however, lack merit.

The state habeas court found as facts--based, in part, upon the lack

of credibility exhibited by the inmate witnesses Payne presented during the state habeas proceeding--that Smith did not commit perjury

during Payne's trial; that although Smith received additional favorable treatment, there were no undisclosed inducements offered or

promises made to Smith in return for his testimony; and that prosecutors had no actual knowledge of perjury by Smith. Because fair support for these factual findings exists in the record, the district court

properly afforded them a presumption of correctness pursuant to 28

U.S.C.A. § 2254(d),1 and Payne failed to overcome this presumption.

See Sumner v. Mata, 455 U.S. 591, 591-93 (1982) (per curiam) (Section 2254(d) plainly requires a federal habeas court to presume factual

findings made by a state court after a full and fair hearing on the merits to be correct unless "not fairly supported by the record.");

Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (Section "2254(d)

gives federal habeas courts no license to redetermine credibility of

witnesses whose demeanor has been observed by the state trial court,

but not by them."); see also Stockton v. Virginia, 852 F.2d 740, 749

(4th Cir. 1988) (That a conviction is based on perjury is not sufficient

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1 We refer to § 2254(d) as it existed prior to the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996. Because we conclude that habeas relief is inappropriate and that the district court must

be affirmed under the law in effect prior to the recent amendment, we do

not address the more demanding standards imposed upon Payne under

the new Act. See Sherman v. Smith, No. 94-6831, 1996 WL 397248, at

*10 n.1 (4th Cir. July 17, 1996) (en banc).

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to warrant the grant of habeas relief; the prosecution must have

known the testimony was false.), cert. denied , 489 U.S. 1071 (1989).2

III.

Payne also contends that the district court erred in concluding that

he was not deprived of his Sixth Amendment right to effective assistance of counsel. He maintains that his trial attorneys were ineffective

during the guilt and sentencing phases of his trial in failing to use all

information available to impeach Smith, to prepare for Clements' testimony, to call additional witnesses, and to seek or present evidence

in mitigation of sentence.

This court reviews de novo Payne's claim that he received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

698 (1984). After careful consideration, we find Payne's arguments

to be without merit. Counsel's performance did not fall below the

broad range of professionally competent assistance, and a reasonable

probability does not exist that the result of the proceeding would have

been different except for the errors alleged to have been committed

by counsel. See id. at 690, 694.

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2 Payne further argues that because he is factually innocent of murdering Dunford, he is entitled to a writ of habeas corpus. This claim also

lacks merit. As noted above, the state habeas court found incredible all

of the evidence to which Payne points in support of his claim. And, in

Herrera v. Collins, 506 U.S. 390, 400-02 (1993), the Supreme Court

indicated that federal habeas corpus has not been the traditional forum

for a claim of "actual innocence" as a stand-alone claim (as opposed to

a gate through which an otherwise procedurally-defaulted claim may be

adjudicated). Although the Court left open the possibility that "a truly

persuasive demonstration of `actual innocence' made after trial would

render the execution of a defendant unconstitutional, and warrant federal

habeas relief if there were no state avenue open to process such a claim,"

Payne's attempted showing of innocence falls far short of the "extraordinarily high" threshold showing necessary to trigger such relief. Id. at

417; Spencer v. Murray, 5 F.3d 758, 766 (4th Cir. 1993), cert. denied,

114 S. Ct. 1208 (1994).

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IV.

Payne asserts that the testimony of prosecution witness Dr. Centor,

who testified during the sentencing phase of the trial that Payne

would be dangerous in the future, violated his Fifth Amendment privilege against compelled self-incrimination and his Sixth Amendment

right to assistance of counsel. In Estelle v. Smith, the Supreme Court

discussed a criminal defendant's Fifth and Sixth Amendment rights

in the context of the introduction during capital sentencing of psychiatric testimony that the defendant would pose a future danger. Estelle

v. Smith, 451 U.S. 454 (1981). The record demonstrated that the state

trial court had ordered that the defendant be evaluated; that the defendant had not been given warnings set forth in Miranda v. Arizona, 384

U.S. 436, 467-73 (1966); and that his attorney had not known of the

examination. Estelle v. Smith, 451 U.S. at 456-60. Noting that the

psychiatrist "drew his conclusions largely from[the defendant's]

account of the crime during their interview," id. at 464, the Court

held:

A criminal defendant, who neither initiates a psychiatric

evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if

his statements can be used against him at a capital sentencing proceeding. Because [the defendant] did not voluntarily

consent to the pretrial psychiatric examination after being

informed of his right to remain silent and the possible use

of his statements, the State could not rely on what[the

defendant] said to [the psychiatrist] to establish his future

dangerousness.

Id. at 468. Payne contends that his Fifth and Sixth Amendment rights

were violated because, as in Estelle v. Smith , he was not given

Miranda warnings or informed that his statements might be used to

establish future dangerousness during sentencing. 3

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3 We assume the factual basis exists for these arguments although Dr.

Centor's trial testimony did not address this question and no court has

rendered a factual finding with respect to the issue. Because we conclude

that Payne's arguments lack merit in any event, we have no occasion to

remand for further proceedings to permit a resolution of this issue.

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Payne's Fifth Amendment argument must fail, however, in light of

our recent decision in Savino v. Murray, 82 F.3d 593, 604 (4th Cir.

1996), cert. denied, No. 95-5164, 1996 WL 400267 (U.S. July 17,

1996), in which we rejected an Estelle v. Smith argument, reasoning

in part:

In [Estelle v. Smith], the Court differentiated between a

defendant who intends to introduce psychiatric evidence on

his own behalf and one who "neither initiates a psychiatric

evaluation nor attempts to introduce any psychiatric evidence." When a defendant asserts a mental status defense

. . . , he may face rebuttal evidence from the prosecution

taken from his own examination or he may be required to

submit to an evaluation conducted by the prosecution's own

expert. That defendant has no Fifth Amendment protection

against the introduction of mental health evidence in rebuttal

to the defense's psychiatric evidence. In essence, the defendant waives his [Fifth Amendment] right to remain silent--

but not his [Sixth Amendment] right to notice--by indicating that he intends to introduce psychiatric testimony.

Id. (citations omitted). Under this reasoning, when Payne introduced

the psychiatric evidence relating to his future dangerousness, he

waived his Fifth Amendment right to remain silent. See also Powell

v. Texas, 492 U.S. 680, 683-84 (1989) (per curiam); Buchanan v.

Kentucky, 483 U.S. 402, 421-24 (1987).

Payne also asserts that he was deprived of his Sixth Amendment

right to counsel because his attorneys believed that he would be

examined only for competency. A defendant is deprived of his Sixth

Amendment right to counsel if there is no effective opportunity for

the defendant to consult with his attorney concerning his right to

remain silent prior to a psychiatric examination, and such an opportunity is effective only when the attorney is informed of the scope,

nature, and intended uses of the evaluation. Estelle v. Smith, 451 U.S.

at 469-71; Savino, 82 F.3d at 603-04. Since Payne requested the

examination, and thus had adequate notice that the examination would

occur, his Sixth Amendment rights were not violated as long as his

attorneys possessed adequate notice that information gained during

the competency examination could be used in rebuttal if he were to

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introduce during sentencing psychiatric evidence relevant to future

dangerousness. We conclude that they did.

In Buchanan, the Supreme Court addressed a similar Sixth Amendment claim and stated:

Given our decision in [Estelle v. Smith], . . . counsel was

certainly on notice that if, as appears to be the case, he

intended to put on a "mental status" defense for petitioner,

he would have to anticipate the use of psychological evidence by the prosecution in rebuttal. In these circumstances,

. . . there was no Sixth Amendment violation.

Buchanan, 483 U.S. at 425. As in Buchanan, the decision of the

Supreme Court in Estelle v. Smith put Payne's attorneys on notice that

the introduction during capital sentencing of psychiatric evidence

addressing future dangerousness by the defense would permit the

prosecution to offer rebuttal evidence based upon Payne's statements

during the competency exam. Hence, Dr. Centor's testimony was not

obtained in violation of Payne's Sixth Amendment right.

Moreover, even if we were to conclude that the admission of Dr.

Centor's testimony violated Payne's Fifth and Sixth Amendment

rights, any error would be harmless. See Satterwhite v. Texas, 486

U.S. 249, 258 (1988); Savino, 82 F.3d. at 605. The jury did not find

that Payne would be dangerous in the future and did not impose the

death penalty on the basis of future dangerousness; the jury found

only the "vileness" aggravating factor. Under Virginia law, if the jury

finds one aggravating circumstance, it considers all of the evidence

adduced during the guilt and sentencing stages of trial to determine

whether a death sentence is appropriate. Tuggle v. Netherland, 79

F.3d 1386, 1393 (4th Cir. 1996), petition for cert. filed, No. 96-5364

(U.S. July 26, 1996). Since the vileness aggravating factor served to

support the death sentence, we must analyze the likelihood that an

Estelle v. Smith error had a substantial and injurious effect on the verdict. Id. We conclude that it did not.

There is no reasoned argument that Dunford's murder was not vile:

He was burned alive in such a way that he lingered for days in agony

before his death. Further, Payne had been convicted of capital murder

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previously and committed the instant offense while serving a life sentence. Virtually no mitigating evidence was introduced. Further, Dr.

Centor's arguably improper testimony concerning Payne's future dangerousness was all but cumulative of indisputably proper testimony

by the doctor to the effect that one who has already committed two

capital murders has a high probability of committing future criminal

acts of violence. Presented with all of the evidence from trial and sentencing, and having accepted that Payne in fact committed this atrocious crime, the jury was not likely influenced by Dr. Centor's

allegedly improper testimony. See id. at 1393-96. Thus, we conclude

that any Estelle v. Smith error did not have a "`substantial and injurious effect or influence'" on the decision of the jury to impose a death

sentence. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)).4

V.

Payne's remaining claims that the state trial court failed to provide

an instruction defining torture and an instruction advising the jury that

it could impose a life sentence are procedurally defaulted. Payne

failed to object at trial and failed to assert any issue related to the jury

instructions on direct appeal. He first raised these issues in his state

habeas petition. The state habeas court dismissed the claims as procedurally defaulted for failure to raise them in the initial proceedings or

on direct appeal, citing Slayton v. Parrigan, 205 S.E.2d 680 (Va.

1974), cert. denied, 419 U.S. 1108 (1975). And, the Virginia Supreme

Court expressly found the claims procedurally barred. As a consequence, this court may not address these issues absent cause and prejudice to excuse the default or a showing that a miscarriage of justice

would result from the failure to do so. Coleman v. Thompson, 501

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4 We cannot accept the Commonwealth's argument that these claims

are procedurally defaulted. Payne objected to Dr. Centor's testimony at

trial and raised these exact claims in his direct appeal to the Virginia

Supreme Court. That court rejected the claims, reasoning that since the

jury had imposed the death sentence only on the basis of the vileness

aggravating factor and had not found Payne to be a future danger, the

arguments were moot. See Payne, 357 S.E.2d at 506. Further, the court

ruled that Estelle v. Smith was not controlling because Payne had

requested the psychological examination. Id.

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U.S. 722, 750 (1991). Although Payne attempts to establish cause by

arguing that his attorneys were ineffective in failing to preserve these

issues, his failure to have alleged this ineffectiveness claim as a separate issue during his state habeas proceeding prevents him from establishing cause on this basis. See Justus v. Murray, 897 F.2d 709, 714

(4th Cir. 1990). Further, Payne has failed to demonstrate actual innocence. See Schlup v. Delo, 115 S. Ct. 851, 867-69 (1995).

VI.

For the reasons set forth above, we conclude that the district court

properly denied Payne's petition for a writ of habeas corpus. Accordingly, we affirm.

AFFIRMED

MICHAEL, Circuit Judge, concurring:

I concur in the judgment and in all of the majority opinion except

for its discussion, ante at 8-9, of Estelle v. Smith, 451 U.S. 454

(1981). I respectfully disagree with the majority's conclusion that

Payne's Fifth Amendment rights were not violated when Dr. Centor

testified at the trial's penalty phase about whether Payne posed a risk

of future dangerousness.

Payne and his lawyers believed that Dr. Centor interviewed Payne

solely for the purpose of determining Payne's competency to stand

trial. And although Payne was told in general terms that statements

he made to Dr. Centor could be used against him, Payne was never

expressly told that his statements could be used to determine whether

he should get the death penalty.

During the prosecution's case-in-chief at the penalty phase of

Payne's trial, Dr. Centor testified about the results of his competency

examination of Payne and about statements Payne made to him during

that examination. Admission of this evidence was error because at the

time it was offered Payne "neither had asserted an insanity defense

nor had offered psychiatric evidence at trial." Buchanan v. Kentucky,

483 U.S. 402, 422 (1987). This evidence was properly allowed at

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Payne's earlier competency hearing because Payne put his competency in issue and because his lawyers knew he was being examined

to determine competency. But "given the gravity" of a death sentence,

the evidence should not have been introduced at the trial's penalty

phase even though the evidence had earlier been used for the limited

purpose of determining competency. Estelle, 451 U.S. at 463 (1981).

The evidence did not become admissible simply because Payne's

competency had been in issue before trial, nor because Payne put the

state to its proof on the issue of whether the death penalty was appropriate. Estelle, 451 U.S. at 465. Unlike the accused in Savino v.

Murray, 82 F.3d 593, 604 (4th Cir. 1996), cert. denied, 1996 WL

400267 (U.S. July 17, 1996), Payne was not expressly warned "beforehand that any information he gave to the psychiatrist could be

used in the capital sentencing phase." Payne believed he was being

examined "for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the

State for a much broader objective that was plainly adverse to" him.

Estelle, 451 U.S. at 465. The prosecution improperly used Payne's

"own statements, unwittingly made without an awareness that he was

assisting the State's efforts to obtain the death penalty." Id. at 466.

Thus, it was error to let Dr. Centor tell the jury about statements

Payne made to him during the competency examination.

I concur in the judgment, however, because I agree with the majority's alternative analysis, see ante at 10-11, that the admission of Dr.

Centor's testimony was in any event harmless error. Thus, I believe

that the error did not have a substantial and injurious effect on the

jury's decision. The jury based its verdict of death on its finding that

Payne's crime was exceedingly vile.

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