On Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. CA-89-00442-R.
Widener, Wilkinson, and Wilkins, Circuit Judges.
As is the present way with most capital cases, at least in this circuit, this case has been litigated line by line and letter by letter for about 12 years. The initial conviction was appealed to the Supreme Court of Virginia and certiorari was denied by the U.S. Supreme Court. A state habeas corpus proceeding took the same course. A federal habeas corpus proceeding was decided adversely to Waye by this court in 871 F.2d 18 (4th Cir. 1989), and certiorari was denied by the Supreme Court on June 19, 1989. During the course of all these proceedings, Waye was represented by competent and able attorneys, skilled not only in criminal practice but in the aspects thereof relating to capital punishment. Even now, any claim that counsel has been ineffective is especially denied in Waye's papers presently before the court.
On June 5, 1989, the state trial court set Waye's execution for August 30, 1989, which date remains in effect. It is this date.
On July 18, 1989, Waye filed, pro se, the present petition. Upon the state court's being advised by Waye's then present attorney, J. Lloyd Snook, III, Esq., who had represented Waye for some 10 years, that he intended to file no more papers for he did not know of any stone that had been left unturned, the district court appointed Waye's present counsel on August 17, 1989, who filed the present amended petition for habeas corpus on August 28, 1989, only two days prior to Waye's scheduled execution date. In the meantime, present counsel had filed a motion under Rule 60(b) in the district court, the effect of which was to seek review of our previous decision in this case referred to above and reported as Waye v. Townley, 871 F.2d 18 (4th Cir. 1989). The appeal taken in that case was argued this morning orally in a telephone conference call and is affirmed by separate opinion, Waye v. Townley, 884 F.2d 762 (4th Cir. 1989). Consolidated for argument with No. 89-4007 was the present case. The district court heard this case at about 8:00 p.m. on August 29, 1989, and announced its decision at about 8:30 a.m. this date. We received its order some 3 hours later and scheduled oral argument by telephone conference call immediately. We now affirm the judgment of the district court.
The points made by the petitioner in the present petition for habeas corpus are briefly summarized below. For convenience, we follow the order listed by the district court in its opinion which was the order in the federal petition. The state petition filed the same day had the same points, but the order was changed.
A. The Commonwealth fostered false impressions from the evidence.
B. The psychiatrist testifying for Waye at his trial was incompetent in that he did not put enough emphasis on any diminished capacity of Waye, who, it is now claimed, has an I.Q. of about 78.
C. There is an impermissible risk that race was a factor in Waye's sentencing.
D. The sentencing instructions concerning mitigating evidence were erroneous.
E. The sentencing report contains improper material.
F. There was evidence in the case, or remarks were made, regarding the character of the victim.
G. The Commonwealth withheld material evidence that Waye was under the influence of drugs or alcohol ...