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Giarratano v. Procunier

decided: December 7, 1989.


Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge CA-83-185-N.

Hall and Wilkins, Circuit Judges, and Butzner, Senior Circuit Judge.

Author: Butzner

BUTZNER, Senior Circuit Judge:

Joseph S. Giarratano, a Virginia prisoner under sentence of death, appeals the district court's denial of his petition for a writ of habeas corpus, asserting the following claims:

I. Mr. Giarratano has alleged facts which demonstrate (A) that he was incompetent to stand trial since he could not consult with counsel in the way the circumstances of his case required that he be able to, and (B) that his competence to stand trial was not adequately explored -- due to the defaults of the persons charged with evaluating his competence, or of defense counsel, or both -- and thus, the district court's summary dismissal of these claims cannot be sustained.

II. Psychiatric testimony introduced against Mr. Giarratano at the sentencing phase of his trial to prove his "future dangerousness" was constitutionally inadmissible, and this court should address this claim on its merits notwithstanding trial counsel's failure to object.

III. The finding of "future dangerousness" as the sole aggravating circumstance in Mr. Giarratano's case failed to suitably direct and limit his sentencer's discretion.

IV. The sentencer utilized the indisputably mitigating evidence of Mr. Giarratano's mental and physical illness as aggravating evidence to support the finding of future dangerousness, in violation of the Eighth and Fourteenth Amendments.

We find no cause for reversal of the judgment of the district court. We also affirm the court's order denying relief under Federal Rule of Civil Procedure 60(b).


In 1979, at a bench trial in the Circuit Court of the City of Norfolk, Giarratano was convicted of the rape and murder of Michelle Kline and the murder of her mother. After committing the crimes, Giarratano traveled by bus to Jacksonville, Florida. In the bus station, he surrendered to a policeman and confessed to the crimes. Upon being returned to Norfolk he again confessed. After he attempted to commit suicide, the trial court ordered that he be removed from the local jail and examined at Central State Hospital. There Dr. Miller M. Ryans found no evidence of mental illness or feeblemindedness and concluded that he was competent to stand trial. Dr. Ryans also found that at the time of the offense he was not mentally ill.

Giarratano pleaded not guilty by reason of insanity. The trial court found him guilty, and at the request of his counsel sent him to the Forensic Clinic of the University of Virginia Hospital. The court directed the clinic to address for the purpose of sentencing whether Giarratano committed the offenses under the influence of extreme mental or emotional disturbance and whether his capacity to appreciate the criminality of his conduct or to conform to the requirements of the law was significantly impaired.

At sentencing, Dr. Ryans and the director of the clinic, Dr. Robert C. Showalter, testified. The trial court found as an aggravating factor the probability "that Giarratano would commit criminal acts of violence that would constitute a continuing threat to society" and concluded that the evidence of stress and reduced control was insufficient to mitigate the penalty. It sentenced Giarratano to death. The Supreme Court of Virginia in Giarratano v. Commonwealth, 220 Va. 1064, 266 S.E.2d 94 (1980), recounts in detail the evidence supporting the trial court's judgment.


Giarratano, represented by new counsel, sought a writ of habeas corpus from the Circuit Court of the City of Norfolk. In an opinion and order entered May 26, 1981, the state habeas court summarily dismissed allegations challenging the constitutionality of the state's capital murder sentencing procedures both facially and as applied to Giarratano. The court conducted an evidentiary hearing on the allegation of ineffective assistance of counsel. In an opinion and order dated November 13, 1981, the state habeas court ruled that Giarratano's trial ...

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