Charles S. Stamper v. Ellis B. Wright, JR., Warden, Greensville Correctional Center, 985 F.2d 553, 4th Cir. (1993)
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Scribd Government DocsCharles S. Stamper v. Ellis B. Wright, JR., Warden, Greensville Correctional Center, 985 F.2d 553, 4th Cir. (1993)
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Scribd Government Docs985 F.
2d 553
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Charles S. STAMPER, Petitioner-Appellant,
v.
Ellis B. WRIGHT, Jr., Warden, Greensville Correctional
Center, Respondent-Appellee.
No. 93-4000.
United States Court of Appeals,
Fourth Circuit.
Submitted: January 19, 1993
Decided: January 19, 1993
Appeal from the United States District Court for the Eastern District of
Virginia, at Richmond. James R. Spencer, District Judge. (CA-93-32-R)
Donald Robert Lee, Barry A. Weinstein, Virginia Postconviction
Assistance Project, Richmond, Virginia, for Appellant.
Thomas Drummond Bagwell, Assistant Attorney General, Office of the
Attorney General of Virginia, Richmond, Virginia, for Appellee.
E.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, HAMILTON, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
PER CURIAM:
OPINION
Charles Stamper, a Virginia prisoner sentenced to be executed at 11:00 p.m.,
January 19, 1993, appeals the district court's dismissal of his petition for a writ
of habeas corpus. His crimes are fully described in the opinion affirming his
conviction of three capital murders committed in the course of a robbery. See
Stamper v. Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied,
445 U.S. 972 (1980). Stamper unsuccessfully applied for writs of habeas corpus
in both state and federal courts. Among the issues he litigated were the
sufficiency of the evidence and competency of his trial attorneys, who elected
to rely on his defense of alibi rather than inform the jury that he had an
accomplice.
Stamper's current litigation commenced on January 15, 1993, when he filed a
petition for a writ of habeas corpus in the Supreme Court of Virginia. That
Court dismissed the petition on January 18, 1993. Late the same day Stamper
filed a petition in the district court. The warden moved to dismiss pursuant to
Federal Rules of Civil Procedure 12(b) and 56 and rule 4 of the Rules
Governing Section 2254 cases. The district court permitted him to proceed in
forma pauperis, dismissed the petition, and granted a certificate of probable
cause. We summarily affirm.
Stamper asserts that the Virginia Supreme Court violated the Eighth and
Fourteenth Amendments when it affirmed his death sentences despite evidence
presented on direct appeal that he is "innocent of the death penalty."
Stamper's claim fails on both procedural and substantive grounds. The Virginia
Supreme Court found that his claim is barred by procedural default under
Virginia Code 8.01-654(B)(2) which provides: "No writ shall be granted on
the basis of any allegation the facts of which petitioner had knowledge at the
time of filing any previous petition."
Stamper's claim is based on the opinion which the Supreme Court of Virginia
rendered in 1979. Nevertheless, Stamper has shown neither cause nor prejudice
for his failure to assert this claim. See Gomez v. United States District Court,
112 S. Ct. 1652 (1992); McCleskey v. Zant, 111 S. Ct. 1454 (1991); Murray v.
Carrier, 477 U.S. 478 (1986). His present petition is abuse of the writ. See rule
9(b) of the Rules Governing Section 2254 Cases.
Stamper's present claim is essentially a recasting of the contention, which was
previously made and rejected, that the evidence is insufficient to sustain the
verdict. The facts found by the Virginia Supreme Court are amply supported by
the record and binding upon us. See Stamper v. Muncie, 944 F.2d 170, 174-76
(4th Cir. 1991) (affirming the dismissal of Stamper's previous petition). As the
district court explained, Stamper has shown no constitutional error. He has
failed to prove that he is ineligible for the death penalty. See Sawyer v.
Whitley, 112 S. Ct. 2514, 2523 (1992); McCleskey, 111 S. Ct. at 1475.
7
The judgment of the district court is affirmed. The motion for a stay of
execution is denied. The clerk is directed to issue the mandate forthwith.
AFFIRMED
