VIRGINIA:

      In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Tuesday, the 30th day of March,
2004.


Dennis Mitchell Orbe,                                    Appellant,

 against            Record No. 040598
                    Circuit Court No. CH-04-419-1

Gene M. Johnson, Director, Virginia
  Department of Corrections, et al.,                     Appellees.


          Upon an appeal from an order and a judgment rendered by
     the Circuit Court of the City of Richmond on the 10th and 12th
     days of March, 2004.


     Appellant's motion to proceed in forma pauperis is granted.

     By order dated February 12, 2004, the Circuit Court of York

County directed that the sentence of death imposed upon Dennis

Mitchell Orbe ("Orbe") be carried out on March 31, 2004.   On March

5, 2004, Orbe filed a Bill of Complaint for Declaratory Judgment

and Injunctive Relief in the Circuit Court of the City of Richmond

seeking an adjudication that the particular method of

implementation of lethal injection employed by the Commonwealth and

anticipated to be utilized in his execution "constitutes cruel and

unusual punishment and violates due process of law under Article I,

Sections 9 and 11, of the Constitution of Virginia."    Additionally,

Orbe requested the issuance of a permanent injunction "barring [the

Commonwealth] from carrying out [his] execution using a protocol

that will cause unnecessary pain."   In a separate motion, Orbe
requested the issuance of a temporary restraining order and

preliminary injunction "to protect the status quo ante" and

enjoining the Commonwealth from carrying out Orbe's execution on

March 31, 2004.   In pleadings before this Court, Orbe states that

he makes no federal constitutional claims in this action.

       On March 10, 2004, the Circuit Court of the City of Richmond

denied Orbe's Motion for Preliminary Injunction holding that it was

"without jurisdiction to grant the motion, pursuant to Virginia

Code § 53.1-232.1," that Orbe's claim "is a habeas corpus claim and

does not lie in a declaratory judgment proceeding," and that even

"if the court had jurisdiction and declaratory judgment was the

proper proceeding, the court would find that [Orbe] could not

demonstrate a likelihood of success on the merits."   By order dated

March 12, 2004, the Circuit Court of the City of Richmond dismissed

the entire Bill of Complaint, holding that Orbe's claim "is a

habeas corpus claim which does not lie in a declaratory judgment

proceeding, and that [the court] is without jurisdiction to

consider habeas corpus claims brought by persons sentenced to death

pursuant to Virginia Code § 8.01-654(C)."

       On March 22, 2004, Orbe filed his notice of appeal from the

denial of a preliminary injunction and from the dismissal of the

entire Bill of Complaint. On appeal, Orbe asserts:

  1.     The circuit court erred in denying a preliminary injunction
         on the ground that it supposedly lacked jurisdiction to do
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         so under Code § 53.1-232.1.
  2.     The circuit court erred in denying a preliminary injunction
         on the ground that the issue in Plaintiff's bill of
         complaint for declaratory judgment supposedly was a habeas
         corpus claim.
  3.     The circuit court erred in denying a preliminary injunction
         on the ground that Plaintiff could not demonstrate a
         likelihood of success on the merits.
  4.     The circuit court erred in dismissing the complaint on the
         ground that the Plaintiff's bill of complaint was a second
         or successive habeas petition.

       Orbe requests this Court to remand the declaratory judgment

action to the trial court for trial and to issue a preliminary

injunction or remand to the trial court with directions to enter

such an injunction prohibiting the Commonwealth from "carrying out

Orbe's execution using their current protocol."

       Orbe's bill of complaint is not a claim for habeas relief.

See Dennis Mitchell Orbe v. William Page True, Warden, decided

today.   Orbe's action is one for declaratory judgment.    However, it

may not be sustained.   Because Orbe is deemed to have selected

lethal injection rather than electrocution, he has waived any

challenge to the constitutionality of lethal injection under the

Constitution of Virginia.   Orbe's claim is based upon Article I,

Sections 9 and 11, of the Constitution of Virginia.   He

specifically disclaims any federal constitutional claims.    Under

Virginia law, he cannot use a declaratory judgment action to decide

an issue he has waived by prior act.

       Pursuant to the provisions of Code § 53.1-234, Orbe had the

                                   3
right to choose whether his execution will be by lethal injection,

as it is administered in Virginia, or by electrocution.   If the

condemned prisoner has not made a choice by at least fifteen days

prior to the scheduled execution, the statute provides that the

method of execution shall be by lethal injection.   Under these

circumstances, the condemned prisoner may affirmatively choose

electrocution, affirmatively choose lethal injection, or choose the

statutory consequences of a failure to specify, namely, lethal

injection.    In any case, it is the condemned prisoner's choice.

     We have previously held that execution of prisoners by

electrocution does not violate the Eighth Amendment's prohibitions

against cruel and unusual punishment. Bell v. Commonwealth, 264 Va.

172, 202, 563 S.E.2d 695, 715 (2002),cert. denied, 537 U.S. 1123

(2003);   Ramdass v. Commonwealth, 246 Va. 413, 419, 437 S.E.2d 566,

569 (1993), vacated in part on other grounds, 512 U.S. 1217 (1994),

cert. denied after remand, 514 U.S. 1085 (1995); Stockton v.

Commonwealth, 241 Va. 192, 215, 402 S.E.2d 196, 209-10 (1991);

Martin v. Commonwealth, 221 Va. 436, 439, 271 S.E.2d 123, 125

(1980); Hart v. Commonwealth, 131 Va. 726, 743-44, 109 S.E. 582,

587 (1921).   We take this occasion to hold that execution of

prisoners by electrocution also does not violate Article I,

Sections 9 and 11, of the Constitution of Virginia.

     When a condemned prisoner has a choice of method of execution,


                                   4
the inmate may not choose a method and then complain of its

unconstitutionality, particularly when the constitutionality of the

alternative method has been established.   In Stewart v. LaGrand, a

case involving a challenge to execution by lethal gas, the Supreme

Court of the United States held that

          Walter LaGrand, by his actions, has waived his claim that
          execution by lethal gas is unconstitutional. At the time
          Walter LaGrand was sentenced to death, lethal gas was the
          only method of execution available in Arizona, but the
          State now provides inmates a choice of execution by
          lethal gas or lethal injection, see Ariz. Rev. Stat. §13-
          704(B) (creating a default rule of execution by lethal
          injection). Walter LaGrand was afforded this choice and
          decided to be executed by lethal gas. On March 1, 1999,
          Governor Hull of Arizona offered Walter LaGrand an
          opportunity to rescind this decision and select lethal
          injection as his method of execution. Walter LaGrand,
          again, insisted that he desired to be executed by lethal
          gas. By declaring his method of execution, picking
          lethal gas over the state's default form of execution −
          lethal injection − Walter LaGrand has waived any objection
          he might have to it.

526 U.S. 115, 119 (1999).

     Orbe's circumstances are legally indistinguishable from those

presented to the United States Supreme Court in LaGrand.    As

previously discussed, under Code § 53.1-234, Orbe could have chosen

electrocution or he could have chosen lethal injection.    Instead,

he chose to allow the statutory default provisions to apply.     The

Commonwealth did not make his choice.   The Commonwealth only

provided the choices for him, including the choice of allowing the

default provisions to apply.   Orbe has waived any right he may have

                                  5
to complain about lethal injection as it is administered in

Virginia.

       The effect of his waiver removes Orbe's claims from those that

may be properly considered by declaratory judgment under Virginia

law.   Declaratory judgment proceedings were not available at common

law.   This statutory cause of action is dependent upon "cases of

actual controversy."   Code § 8.01-184.   Declaratory judgment is not

intended to provide advisory opinions.    Erie Ins. Group v. Hughes,

240 Va. 165, 170, 393 S.E.2d 210, 212 (1990). Orbe's waiver of the

right to contest the constitutionality of lethal injection as it is

administered in Virginia removes the requirement of "actual

controversy" from the case.   Simply stated, Orbe has no cognizable

cause of action.

       Additionally, a declaratory judgment action is not a

substitute for an appeal or collateral attack upon conviction.

Declaratory judgment "does not provide a means whereby previous

judgments by state or federal courts may be reexamined, nor is it a

substitute for appeal or post conviction remedies."    Shannon v.

Sequeechi, 365 F.2d 827, 829 (10th Cir. 1966).    "A declaratory

judgment action is not part of the criminal appellate process."

State v. Brooks, 728 N.E.2d 1119, 1122 (Ohio Ct. App. 1999).       The

issue Orbe presents in his declaratory judgment action should have




                                   6
been raised before the trial court in Orbe's criminal case and on

direct appeal from that judgment.

     While the trial court erred in characterizing Orbe's claim as

one for habeas corpus rather than declaratory judgment, the trial

court did not err in dismissing the action.   It is unnecessary to

address each of Orbe's assignments of error because they are

predicated upon the legitimacy of the underlying declaratory

judgment action itself.   Orbe's appeal from the judgment orders of

the trial court dated March 10, 2004 and March 12, 2004 is denied.

All of Orbe's other motions attendant to this appeal are denied.

_______________

JUSTICE LACY, with whom JUSTICE KOONTZ joins, dissenting.

     In denying the petition for appeal, the majority states that

Orbe’s circumstances are “legally indistinguishable” from that in

Stewart v. LaGrand, 526 U.S. 115 (1999).   In my opinion, the

circumstances are both factually and legally different.

     Unlike LaGrand, where the issue was whether death by the

administration of any poisonous gas was cruel and inhuman

punishment, Orbe is complaining that the specific chemical protocol

of the lethal injection to be used is the constitutional offender,

not lethal injection per se.   Moreover, the defendant in LaGrand

affirmatively elected the specific method of execution of which he

then complained.   Contrary to the view taken by the majority, Orbe


                                    7
did not elect a method of execution.

     The majority’s rationale is that by not exercising his right

to select the method of execution, Orbe effectively selected his

method of execution and, thus, waived his right to challenge the

constitutionality of that method.       I disagree.

     Code § 53.1-234, in pertinent part, states:      “The method of

execution shall be chosen by the prisoner.      In the event the

prisoner refuses to make a choice at least fifteen days prior to

the scheduled execution, the method of execution shall be by lethal

injection.”   The majority would add language to the statute to the

effect that if “the prisoner refuses to make a choice . . . he

shall be deemed to have selected lethal injection.”      “But, courts

are not permitted to add language to a statute nor are they

permitted to accomplish the same result by judicial

interpretation.”   Shackleford v. Commonwealth, 262 Va. 196, 213,

547 S.E.2d 899, 909 (2001) (internal quotation marks omitted); see

also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365

(2001).   Rather, when the language of a statute is unambiguous,

courts are bound by the plain meaning of that language and may not

assign a construction that amounts to holding that the General

Assembly did not mean what it actually has stated.      Williams v.

Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003).

     The plain meaning of Code § 53.1-234 is that where the


                                    8
prisoner fails to make the selection between the two available

methods of execution within the required time, the Commonwealth

makes the selection of the method of execution.   In the absence of

an affirmative act by the prisoner, there can be no waiver of the

right to challenge the constitutionality of the method of

execution.   Were this not the case, then the rationale expressed by

the majority would result in the inability of a prisoner to

challenge this statute under any circumstances.   Accordingly, I

would hold that Orbe has not waived his right to challenge the

constitutionality of the method of his execution.

     The majority further holds that “a declaratory judgment action

is not a substitute for an appeal or collateral attack upon

conviction.”   While I agree that this is a correct statement of the

law with regard to declaratory judgments, the majority misconstrues

Orbe’s request for declaratory judgment.   Orbe expressly states

that he is not challenging the legality of his conviction and

sentence, but rather that he is challenging the specific chemical

protocol of the lethal injection to be used to carry out that

sentence.

     Similarly, the majority’s assertion that “[t]he issue Orbe

presents in his declaratory judgment action should have been raised

before the trial court in Orbe’s criminal case and on direct appeal

from that judgment,” is unavailing in my opinion.   I recognize that


                                  9
in LaGrand, the Court held that the defendant’s failure to raise

the question of the constitutionality of lethal gas as a method of

execution was barred by his failure to raise that claim at the time

of his direct appeal.   However, at the time of LaGrand’s trial,

lethal gas was the only method of execution in use in Arizona.

LaGrand, 526 U.S. at 117.   The Court further noted that

     there was sufficient debate about the constitutionality
     of lethal gas executions that Walter LaGrand cannot show
     cause for his failure to raise this claim. Arguments
     concerning the constitutionality of lethal gas have
     existed since its introduction as a method of execution
     in Nevada in 1921. In the period immediately prior to
     Walter LaGrand’s direct appeal, a number of states were
     reconsidering the use of execution by lethal gas, and two
     United States Supreme Court Justices had expressed their
     views that this method of execution was unconstitutional.
     In addition, lethal gas executions have been documented
     since 1937, when San Quentin introduced it as an
     execution method, and studies of the effect of execution
     by lethal gas date back to the 1950s.

LaGrand, 526 U.S. at 119-20 (internal citations omitted).

     Here, the record shows that the debate about the efficacy of

the specific chemical protocol of the lethal injection has only

recently arisen.   Moreover, the Commonwealth only provided Orbe

with the particulars of the protocol less than a month ago.    Thus,

even assuming that Orbe could have raised his challenge to the

method of execution at trial, but see People v. Bradford, 929 P.2d

544, 578 (Cal. 1999) (holding that a challenge on direct appeal to

the legality of the method of execution for a death sentence must

be “rejected out of hand” because it does not challenge “the
                                  10
validity of the sentence itself”), under these circumstances I

would hold that there was “cause and prejudice to excuse the

default,” LaGrand, 526 U.S. at 117, arising from his failure to do

so.

      In the case of Nelson v. Campbell, 347 F.3d 910 (11th Cir.),

cert. granted, ___ U.S. ___, 124 S.Ct. 835 (2003), presently on

review before the United States Supreme Court, the principal issue

to be determined is whether a prisoner may challenge the method of

his execution through a civil proceeding.   While I recognize that

the issues in Nelson relate to federal law and the federal

constitution, the similarity of that case to the circumstances and

procedures here are undeniable.

      Given that “[t]he awesome severity of a sentence of death

makes it qualitatively different from all other sanctions,”

Satterwhite v. Texas, 486 U.S. 249, 262 (1987) (Marshall, J.

concurring), and cognizant of the fact that the forthcoming

decision in Nelson may inform our decision, I believe that the

proper course in this case would be to grant the appeal and award a

stay of execution, so that the Court might have time to more fully

explore the issues raised herein.    Accordingly, I respectfully

dissent.

      This order shall be certified to the said circuit court.

                               A Copy,

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     Teste:



        Patricia H. Krueger, Clerk




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