                                            Filed:   February 17, 1999

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 99-6048
                            (CA-98-800-3)



Mark A. Sheppard,

                                               Plaintiff - Appellant,

           versus


Mark L. Early, etc.,

                                                Defendant - Appellee.



                              O R D E R



    The court amends its opinion filed January 19, 1999, as

follows:
    On the cover sheet, section 1 -- the status is changed from

"UNPUBLISHED" to "PUBLISHED."

    On the cover sheeet, section 6 -- the status is changed to

begin "Affirmed by published opinion...."
    On page 2, section 2 -- the reference to use of unpublished
opinions as precedent is deleted.

                                       For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK A. SHEPPARD,
Plaintiff-Appellant,

v.

MARK L. EARLY, individually and in
his capacity as Attorney General of
                                                                  No. 99-6048
Virginia,
Defendant-Appellee,

and

COMMONWEALTH OF VIRGINIA,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-98-800-3)

Submitted: January 12, 1999

Decided: January 19, 1999

Before WILKINSON, Chief Judge, and WILKINS and
NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion,
in which Chief Judge Wilkinson and Judge Niemeyer joined.

_________________________________________________________________

COUNSEL

Steven D. Benjamin, BENJAMIN & DESPORTES, P.C., Richmond,
Virginia; Dana Johannes Finberg, Timothy Michael Kaine, MEZ-
ZULLO & MCCANDLISH, P.C., Richmond, Virginia, for Appellant.
Donald Richard Curry, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellee.

_________________________________________________________________




OPINION

WILKINS, Circuit Judge:

Mark A. Sheppard, a Virginia inmate sentenced to death for the
1993 murders of Richard A. and Rebecca W. Rosenbluth, brought this
action pursuant to 42 U.S.C.A. § 1983 (West Supp. 1998). Sheppard
argues that Va. Code Ann. § 53.1-232.1 (Michie 1998) violates his
right to equal protection guaranteed by the Fourteenth Amendment.
U.S. Const. amend. XIV, § 1. The basis of his claim is that the statute
requires the Commonwealth to set an execution date within approxi-
mately 60 to 70 days after receiving written notice that this court has
denied habeas corpus relief. This, he maintains, truncates the time
normally permitted for a petitioner to request certiorari and places
limitations on the amount of time the Supreme Court has to consider
that request. The district court granted the Commonwealth's motion
to dismiss and denied Sheppard's motion for preliminary injunction.
Sheppard now moves this court for expedited appeal and seeks rever-
sal of the decision of the district court dismissing his action. We grant
Sheppard's motion for expedited appeal and affirm.

I. Procedural Background

1. Sheppard was convicted of capital murder and sentenced to
death before a Virginia jury. His convictions and sentences were
affirmed on direct appeal before the Supreme Court of Virginia, and
the Supreme Court denied certiorari. See Sheppard v. Commonwealth,
464 S.E.2d 131, 141 (Va. 1995), cert. denied, 517 U.S. 1110 (1996).

                    2
2. In 1996, Sheppard sought and was denied postconviction relief
from the Supreme Court of Virginia.

3. In 1997, Sheppard filed a petition for a writ of habeas corpus
in the United States District Court for the Eastern District of Virginia.
See 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). The district court
denied relief on February 11, 1998 and denied Sheppard's motion to
alter or amend judgment in April 1998.

4. Following oral argument, this court affirmed the denial of
habeas relief on October 23, 1998; and on November 17, 1998, this
court denied rehearing and rehearing en banc.

5. The same day, the Attorney General of Virginia sent a letter
to the state trial court notifying it of our denial of habeas corpus relief
and seeking a hearing to set an execution date for Sheppard. Relying
on § 53.1-232.1, the Commonwealth requested that the hearing be
conducted within 10 days and that the execution be set within 60 days
thereafter.

6. The state trial court conducted a telephonic hearing on Novem-
ber 23, 1998. During this proceeding, the state trial court set an exe-
cution date of January 20, 1999.

7. This court subsequently denied a motion by Sheppard for a
stay of execution and mandate on November 25, 1998.

8. On December 22, 1998, Sheppard filed the present § 1983
action and a motion for a preliminary injunction in district court. The
Commonwealth filed a motion to dismiss on January 7, 1999. The
district court conducted a hearing on January 11, 1999. And, the fol-
lowing day, it entered an order granting the Commonwealth's motion
to dismiss and denying Sheppard's motion for preliminary injunction.

9. Sheppard filed a notice of appeal and a motion for expedited
appeal on January 12, 1999. The Commonwealth filed its response to
the motion on January 13, 1999.

II. Analysis

Va. Code Ann. § 53.1-232.1 provides in pertinent part:

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          In a criminal case where a sentence of death has been
          imposed, the trial court shall set an execution date when it
          is notified in writing by the Attorney General or the attorney
          for the Commonwealth, and the court finds that: . . . (iii) the
          United States Court of Appeals has affirmed the denial of
          federal habeas corpus relief or the time for filing a timely
          appeal in that court has passed without such an appeal being
          filed, or (iv) the Supreme Court of the United States has
          issued a final order after granting a stay in order to dispose
          of the petition for a writ of certiorari to review the judgment
          of the United States Court of Appeals.

          The trial court shall conduct a proceeding to set the date
          within ten days after receiving the written notice from the
          Attorney General or the attorney for the Commonwealth.
          The execution date shall be set by the trial court . . . shall be
          no later than sixty days after the date of the proceeding.

In sum, § 53.1-232.1 requires that an execution date be set within
60 to 70 days following the notification by the Attorney General or
the attorney for the Commonwealth of the decision of this court deny-
ing habeas corpus relief. Because Rule 13 of the Rules of the
Supreme Court of the United States provides for a 90-day period fol-
lowing a decision of a court of appeals in which to file a timely peti-
tion for certiorari, Sheppard maintains that § 53.1-232.1 violates his
Fourteenth Amendment right to equal protection by truncating the
time otherwise afforded to file a petition for certiorari. Further, Shep-
pard argues that he is deprived of equal protection because the execu-
tion date places time limitations on consideration by the Supreme
Court of a petition for certiorari not applicable to petitions by non-
capital petitioners.

The Equal Protection Clause guarantees that no State shall "deny
to any person within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, § 1. In a broad sense, "[t]he Equal Protec-
tion Clause requires every State to govern impartially." Karcher v.
Daggett, 462 U.S. 725, 748 (1983) (Stevens, J., concurring). The
Clause "does not take from the States all power of classification."
Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 271 (1979).
Instead, "[i]t simply keeps governmental decisionmakers from treat-

                     4
ing differently persons who are in all relevant respects alike."
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

In considering an equal protection challenge, we generally will pre-
sume the legislation at issue to be valid and will uphold the statute if
the classification it draws is rationally related to a legitimate purpose.
See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440
(1985). If, however, the statute employs a suspect class or burdens the
exercise of a constitutional right, we exercise strict scrutiny review,
upholding the statute only if it is narrowly tailored to serve a compel-
ling state interest. See id. As Sheppard recognizes, § 53.1-232.1 does
not classify on the basis of a suspect class. See Evans v. Thompson,
881 F.2d 117, 121 (4th Cir. 1989) (noting that death row prisoners
"are not a suspect class for equal protection purposes"). Furthermore,
defendants possess no constitutional right to file a petition for certio-
rari from the decision of this court denying habeas relief. See
Netherland v. Tuggle, 515 U.S. 951, 952 (1995) (per curiam);
Barefoot v. Estelle, 463 U.S. 880, 887-88 (1983). Therefore,
§ 53.1-232.1 is presumed to be valid if it is rationally related to a
legitimate state interest.

In assessing whether § 53.1-232.1 is rationally related to a legiti-
mate state interest, we must determine whether the goal the Common-
wealth sought to advance was legitimate and "whether it was
`reasonable for the lawmakers to believe that use of the challenged
classification would promote that purpose.'" Smith Setzer & Sons,
Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311,
1320 (4th Cir. 1994) (quoting Western & S. Life Ins. Co. v. State Bd.
of Equalization, 451 U.S. 648, 668 (1981)). The Commonwealth
undoubtedly possesses a legitimate state interest in the finality of its
criminal judgments and in executing sentence on those determined by
state law to be the most serious offenders. See Wood v. Bartholomew,
516 U.S. 1, 8 (1995) (per curiam). And, § 53.1-232.1 obviously fur-
thers that interest by requiring that an execution date be set soon after
the denial of habeas corpus relief by this court.

Nevertheless, Sheppard contends that § 53.1-232.1 is not rationally
related to a legitimate state interest because the statute applies only
to death row inmates and not to individuals who have been convicted
of non-capital crimes. Further, Sheppard maintains that because capi-

                     5
tal punishment is a uniquely absolute punishment, any distinction to
be drawn between capital and non-capital defendants should provide
a greater opportunity for counsel carefully to prepare a capital defen-
dant's petition for certiorari and for the Supreme Court fully to con-
sider that petition. These arguments, however, are insufficient to
sustain Sheppard's equal protection argument.

Capital and non-capital inmates are not similarly situated. Individu-
als who have been sentenced to serve a term of years in prison are in
the process of serving their sentences during the direct and collateral
review of their convictions and sentences. See Barefoot, 463 U.S. at
888. It is in their best interest to pursue relief as quickly as possible.
But, the Commonwealth cannot impose the death sentence on those
condemned to that punishment until, at the earliest, the conviction and
sentence have been upheld at the completion of the direct review pro-
cess. See id. For capital defendants, delay in pursuing each step of the
direct and collateral review process works to their benefit, and to the
detriment of the Commonwealth, by postponing imposition of sen-
tence. See id. The Commonwealth reasonably could conclude that
after the denial of habeas corpus relief by this court, further delay in
imposition of sentence is unwarranted and that the time for imposition
of sentence has come. See Calderon v. Thompson, 118 S. Ct. 1489,
1501 (1998) (explaining that when federal appeals court has denied
habeas relief, "[a] States interests in finality are compelling," "the
State is entitled to the assurance of finality," and the concept of "final-
ity acquires an added moral dimension"). Additionally, the Supreme
Court has recognized that capital defendants are not entitled to a stay
of execution to permit them the full time in which to file a petition
for certiorari or for Supreme Court review of that petition. See
Tuggle, 515 U.S. at 951-52; Barefoot, 463 U.S. at 888-89. For these
reasons, Sheppard's claim of a constitutional deprivation is without
merit.*
_________________________________________________________________

* In addition, the Commonwealth raises procedural bases to support its
position that the district court should be affirmed. All three are without
merit. First, Sheppard's action is not barred by the Eleventh Amendment,
see U.S. Const. amend. XI, or, second, by the Rooker-Feldman doctrine,
see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923).
Lastly, because the constitutionality of § 53.1-232.1 was not relevant to

                    6
III.

For the reasons set forth above, we conclude that Va. Code Ann.
§ 53.1-232.1 does not violate Sheppard's right to equal protection.
We grant the motion for expedited appeal and affirm the dismissal of
Sheppard's action.

AFFIRMED
_________________________________________________________________

whether Sheppard was entitled to a stay of execution or mandate under
the standards set forth by the Supreme Court in Barefoot, we neither
expressly nor impliedly rejected Sheppard's equal protection claim on
the merits in ruling on Sheppard's November 1998 motion for a stay of
execution and mandate pending certiorari. See United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993) (stating that the law of the case doctrine
"compels compliance on remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly decided by the
appellate court").

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