UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH PATRICK PAYNE, SR.,
Petitioner-Appellant,

v.

J. D. NETHERLAND, Warden,
                                                                    No. 95-4016
Mecklenburg Correctional Center;
EDWARD W. MURRAY, Director;
MARY SUE TERRY, Attorney General;
COMMONWEALTH OF VIRGINIA,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CA-93-530-3)

Argued: June 3, 1996

Decided: August 19, 1996

Before WIDENER, WILKINS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Wilkins wrote the majority
opinion, in which Judge Widener concurred. Judge Michael wrote a
separate concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Paul Farid Khoury, WILEY, REIN & FIELDING, Wash-
ington, D.C., for Appellant. Thomas Drummond Bagwell, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee. ON BRIEF: Michael A.
Rotker, WILEY, REIN & FIELDING, Washington, D.C.; Donald R.
Lee, VIRGINIA CAPITAL REPRESENTATION RESOURCE CEN-
TER, Richmond, Virginia, for Appellant. James S. Gilmore, III,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Joseph Patrick Payne, Sr. appeals a decision of the district court
denying his petition for a writ of habeas corpus seeking relief from
his Virginia conviction for the capital murder of David Wayne Dun-
ford and his resulting sentence of death. See 28 U.S.C.A. § 2254
(West 1994). Finding no error, we affirm.

I.

On March 3, 1985, at approximately 6:30 a.m., inmates at the Pow-
hatan Correctional Center in Virginia were awakening. Although the
locks on the doors restricting the prisoners' movement during the
night had been released, inmate Dunford remained inside his cell.
Without warning, another inmate locked Dunford's door with a pad-
lock, threw flammable liquid into the cell, and ignited the liquid with
matches, resulting in a fire that burned over 70% of Dunford's body.
Following nine agonizing days during which he lay hospitalized,
Dunford died.

Prison officials soon came to believe that a conspiracy had existed
among the inmates to murder Dunford. As the investigation ensued,
inmate Robert Smith ultimately identified Payne, whose cell was

                    2
located near Dunford's, as the individual responsible for the acts that
resulted in Dunford's death.

During Payne's trial, the only "eyewitness" to testify was Smith; he
claimed to have seen Payne commit the murder. In his direct testi-
mony, Smith acknowledged that he had been involved in the planning
stages of the conspiracy, that he had multiple prior felony convictions,
and that he received a ten-year reduction in his sentence for testifying
against Payne and another coconspirator; other witnesses asserted that
Smith was a liar and a cheat. Two additional prosecution witnesses
implicated Payne in the conspiracy to murder Dunford and testified
that Payne planned to commit the murder. One of these witnesses was
so unstable that the prosecutor announced to the court prior to his tes-
timony that his mental stability was questionable. The remaining wit-
ness concluded his cross-examination by stating that Payne withdrew
from the conspiracy prior to the day of the murder. Consequently, it
is fair to conclude that the Commonwealth's case against Payne
hinged on whether the jury found Smith's testimony to be credible
and that Smith's credibility was thoroughly tested.

During the presentation of his defense, Payne offered the testimony
of another inmate, Frank Clements, who claimed to have seen Smith
commit the murder. He further testified that Payne was taking a
shower at the time of the murder. On cross-examination, however, the
prosecution was able to demonstrate that Clements' testimony dif-
fered in critical respects from the testimony he had provided in the
trial of one of Payne's coconspirators. Nevertheless, believing that the
prosecution's case against Payne was weak as a result of inmate testi-
mony of questionable veracity, the defense chose not to call addi-
tional inmate witnesses. Indeed, so confident was the defense that the
prosecution would fail that Payne rejected an offer--extended while
the jury was deliberating in the guilt phase of the trial--to permit him
to plead guilty and receive a sentence that would have been concur-
rent to the one he was presently serving. The jury nonetheless found
Payne guilty of the murder.

During the sentencing phase of the trial, the defense strategy was
to capitalize on the lingering doubt the defense believed certainly
must have existed in the jurors' minds. Consequently, Payne testified

                    3
that he had not committed the murder. He also introduced two psychi-
atric "reports" relevant to his future dangerousness.

In rebuttal, the prosecution presented the testimony of a psycholo-
gist, Dr. Arthur Centor, who was employed by the Commonwealth
and who had examined Payne regarding his competency to stand trial
pursuant to a court order entered in response to Payne's motion. Dr.
Centor testified that prior to the examination he explained to Payne
that the information provided would not be privileged and that the
doctor would be permitted to testify in court about it. In response to
a prosecution question concerning his opinion as to Payne's future
dangerousness based on his examination, Dr. Centor testified:

          In my opinion [Payne] shows a probability for committing
          criminal acts of violence, which would constitute a continu-
          ing serious threat to society. This is based on his past history
          going back to the age of [ten], going through previous con-
          victions, other related difficulties with the law, and the cir-
          cumstances of the present alleged crime.

J.A. 285. Payne was sentenced to death.

The Virginia Supreme Court affirmed Payne's conviction and sen-
tence on direct appeal, and the Supreme Court denied his petition for
a writ of certiorari. Payne v. Commonwealth, 357 S.E.2d 500, 509
(Va.), cert. denied, 484 U.S. 933 (1987).

Payne next sought collateral review in the Virginia courts, raising
a plethora of issues. With the exception of a number of his assertions
that he was deprived of effective assistance of counsel and his allega-
tions that he was denied due process by the prosecution's knowing
use of perjured testimony and also by its failure to disclose induce-
ments that had been offered in return for Smith's testimony, all of
Payne's claims were dismissed by the state habeas court.

Payne offered copious evidence in support of his remaining claims
during the forthcoming evidentiary hearing. He presented the testi-
mony of several inmates who asserted that they were eyewitnesses
and had seen Smith commit the murder. The testimony of these wit-

                    4
nesses was consistent to the extent that they all professed to have seen
Smith approach Dunford's cell, lock it, and throw liquid into it imme-
diately before the explosion. However, the testimony contained dis-
crepancies concerning what Payne, Clements, and Smith were
wearing that morning and whether Payne or another inmate had initi-
ated a conversation immediately prior to the murder. Payne also pres-
ented the testimony of several inmates who claimed that Smith had
boasted about committing the murder and had admitted that he
intended to lie during the trial to implicate Payne in order to receive
a reduction in sentence. In addition, Payne proffered a sixteen-page
affidavit, signed by Smith, in which he fully recanted his trial testi-
mony. Further, Payne presented evidence indicating that Smith had
received an additional five-year sentence reduction, the dismissal of
a forcible sodomy charge, and favorable parole consideration. Payne
also offered a wealth of evidence demonstrating that Smith was an
appalling and known prevaricator. Finally, Payne presented evidence
tending to show that defense counsel did little to prepare a case in
mitigation of punishment prior to the verdict in the guilt phase of the
trial.

The state habeas court found incredible the inmates' testimony
indicating that Smith was the perpetrator. It ruled that Smith's affida-
vit was inadmissible for the truth of the matter asserted therein and
noted that Smith stood by his trial testimony during the habeas hear-
ing, explaining that he had signed the affidavit only because he was
pressured to do so. Further, the state habeas court found that there had
been no undisclosed inducements or promises made to Smith in
exchange for his testimony. And, the state habeas court rejected
Payne's ineffective assistance claims, finding neither inadequate per-
formance nor prejudice. The Virginia Supreme Court denied review,
and the Supreme Court again denied a writ of certiorari, Payne v.
Thompson, 506 U.S. 1062 (1993).

Payne thereafter filed this § 2254 petition. The district court
refused to conduct an evidentiary hearing, held a number of Payne's
claims to be procedurally defaulted, and dismissed the petition after
finding the remaining claims to be without merit. Payne v. Thompson,
853 F. Supp. 932 (E.D. Va. 1994). Payne now appeals that decision.

                    5
II.

The principal argument Payne raises on appeal, in various forms,
is that he is factually innocent of Dunford's murder and that Smith
lied when implicating him during the trial. Payne maintains that the
district court erred in rejecting his claim that he was deprived of due
process, and therefore was entitled to habeas relief, because: (1)
Smith lied during his trial testimony, thereby rendering perjurious the
testimony employed to obtain his conviction; (2) the prosecution
knowingly used Smith's perjured testimony; and (3) the prosecution
failed to disclose various inducements provided to Smith for his testi-
mony. These arguments, however, lack merit.

The state habeas court found as facts--based, in part, upon the lack
of credibility exhibited by the inmate witnesses Payne presented dur-
ing the state habeas proceeding--that Smith did not commit perjury
during Payne's trial; that although Smith received additional favor-
able treatment, there were no undisclosed inducements offered or
promises made to Smith in return for his testimony; and that prosecu-
tors had no actual knowledge of perjury by Smith. Because fair sup-
port for these factual findings exists in the record, the district court
properly afforded them a presumption of correctness pursuant to 28
U.S.C.A. § 2254(d),1 and Payne failed to overcome this presumption.
See Sumner v. Mata, 455 U.S. 591, 591-93 (1982) (per curiam) (Sec-
tion 2254(d) plainly requires a federal habeas court to presume factual
findings made by a state court after a full and fair hearing on the mer-
its to be correct unless "not fairly supported by the record.");
Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (Section "2254(d)
gives federal habeas courts no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial court,
but not by them."); see also Stockton v. Virginia, 852 F.2d 740, 749
(4th Cir. 1988) (That a conviction is based on perjury is not sufficient
_________________________________________________________________
1 We refer to § 2254(d) as it existed prior to the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996. Because we con-
clude that habeas relief is inappropriate and that the district court must
be affirmed under the law in effect prior to the recent amendment, we do
not address the more demanding standards imposed upon Payne under
the new Act. See Sherman v. Smith, No. 94-6831, 1996 WL 397248, at
*10 n.1 (4th Cir. July 17, 1996) (en banc).

                    6
to warrant the grant of habeas relief; the prosecution must have
known the testimony was false.), cert. denied , 489 U.S. 1071 (1989).2

III.

Payne also contends that the district court erred in concluding that
he was not deprived of his Sixth Amendment right to effective assis-
tance of counsel. He maintains that his trial attorneys were ineffective
during the guilt and sentencing phases of his trial in failing to use all
information available to impeach Smith, to prepare for Clements' tes-
timony, to call additional witnesses, and to seek or present evidence
in mitigation of sentence.

This court reviews de novo Payne's claim that he received ineffec-
tive assistance of counsel. Strickland v. Washington, 466 U.S. 668,
698 (1984). After careful consideration, we find Payne's arguments
to be without merit. Counsel's performance did not fall below the
broad range of professionally competent assistance, and a reasonable
probability does not exist that the result of the proceeding would have
been different except for the errors alleged to have been committed
by counsel. See id. at 690, 694.
_________________________________________________________________

2 Payne further argues that because he is factually innocent of murder-
ing Dunford, he is entitled to a writ of habeas corpus. This claim also
lacks merit. As noted above, the state habeas court found incredible all
of the evidence to which Payne points in support of his claim. And, in
Herrera v. Collins, 506 U.S. 390, 400-02 (1993), the Supreme Court
indicated that federal habeas corpus has not been the traditional forum
for a claim of "actual innocence" as a stand-alone claim (as opposed to
a gate through which an otherwise procedurally-defaulted claim may be
adjudicated). Although the Court left open the possibility that "a truly
persuasive demonstration of `actual innocence' made after trial would
render the execution of a defendant unconstitutional, and warrant federal
habeas relief if there were no state avenue open to process such a claim,"
Payne's attempted showing of innocence falls far short of the "extraordi-
narily high" threshold showing necessary to trigger such relief. Id. at
417; Spencer v. Murray, 5 F.3d 758, 766 (4th Cir. 1993), cert. denied,
114 S. Ct. 1208 (1994).



                     7
IV.

Payne asserts that the testimony of prosecution witness Dr. Centor,
who testified during the sentencing phase of the trial that Payne
would be dangerous in the future, violated his Fifth Amendment priv-
ilege against compelled self-incrimination and his Sixth Amendment
right to assistance of counsel. In Estelle v. Smith, the Supreme Court
discussed a criminal defendant's Fifth and Sixth Amendment rights
in the context of the introduction during capital sentencing of psychi-
atric testimony that the defendant would pose a future danger. Estelle
v. Smith, 451 U.S. 454 (1981). The record demonstrated that the state
trial court had ordered that the defendant be evaluated; that the defen-
dant had not been given warnings set forth in Miranda v. Arizona, 384
U.S. 436, 467-73 (1966); and that his attorney had not known of the
examination. Estelle v. Smith, 451 U.S. at 456-60. Noting that the
psychiatrist "drew his conclusions largely from[the defendant's]
account of the crime during their interview," id. at 464, the Court
held:

          A criminal defendant, who neither initiates a psychiatric
          evaluation nor attempts to introduce any psychiatric evi-
          dence, may not be compelled to respond to a psychiatrist if
          his statements can be used against him at a capital sentenc-
          ing proceeding. Because [the defendant] did not voluntarily
          consent to the pretrial psychiatric examination after being
          informed of his right to remain silent and the possible use
          of his statements, the State could not rely on what[the
          defendant] said to [the psychiatrist] to establish his future
          dangerousness.

Id. at 468. Payne contends that his Fifth and Sixth Amendment rights
were violated because, as in Estelle v. Smith , he was not given
Miranda warnings or informed that his statements might be used to
establish future dangerousness during sentencing. 3
_________________________________________________________________
3 We assume the factual basis exists for these arguments although Dr.
Centor's trial testimony did not address this question and no court has
rendered a factual finding with respect to the issue. Because we conclude
that Payne's arguments lack merit in any event, we have no occasion to
remand for further proceedings to permit a resolution of this issue.



                    8
Payne's Fifth Amendment argument must fail, however, in light of
our recent decision in Savino v. Murray, 82 F.3d 593, 604 (4th Cir.
1996), cert. denied, No. 95-5164, 1996 WL 400267 (U.S. July 17,
1996), in which we rejected an Estelle v. Smith argument, reasoning
in part:

          In [Estelle v. Smith], the Court differentiated between a
          defendant who intends to introduce psychiatric evidence on
          his own behalf and one who "neither initiates a psychiatric
          evaluation nor attempts to introduce any psychiatric evi-
          dence." When a defendant asserts a mental status defense
          . . . , he may face rebuttal evidence from the prosecution
          taken from his own examination or he may be required to
          submit to an evaluation conducted by the prosecution's own
          expert. That defendant has no Fifth Amendment protection
          against the introduction of mental health evidence in rebuttal
          to the defense's psychiatric evidence. In essence, the defen-
          dant waives his [Fifth Amendment] right to remain silent--
          but not his [Sixth Amendment] right to notice--by indicat-
          ing that he intends to introduce psychiatric testimony.

Id. (citations omitted). Under this reasoning, when Payne introduced
the psychiatric evidence relating to his future dangerousness, he
waived his Fifth Amendment right to remain silent. See also Powell
v. Texas, 492 U.S. 680, 683-84 (1989) (per curiam); Buchanan v.
Kentucky, 483 U.S. 402, 421-24 (1987).

Payne also asserts that he was deprived of his Sixth Amendment
right to counsel because his attorneys believed that he would be
examined only for competency. A defendant is deprived of his Sixth
Amendment right to counsel if there is no effective opportunity for
the defendant to consult with his attorney concerning his right to
remain silent prior to a psychiatric examination, and such an opportu-
nity is effective only when the attorney is informed of the scope,
nature, and intended uses of the evaluation. Estelle v. Smith, 451 U.S.
at 469-71; Savino, 82 F.3d at 603-04. Since Payne requested the
examination, and thus had adequate notice that the examination would
occur, his Sixth Amendment rights were not violated as long as his
attorneys possessed adequate notice that information gained during
the competency examination could be used in rebuttal if he were to

                    9
introduce during sentencing psychiatric evidence relevant to future
dangerousness. We conclude that they did.

In Buchanan, the Supreme Court addressed a similar Sixth Amend-
ment claim and stated:

          Given our decision in [Estelle v. Smith], . . . counsel was
          certainly on notice that if, as appears to be the case, he
          intended to put on a "mental status" defense for petitioner,
          he would have to anticipate the use of psychological evi-
          dence by the prosecution in rebuttal. In these circumstances,
          . . . there was no Sixth Amendment violation.

Buchanan, 483 U.S. at 425. As in Buchanan, the decision of the
Supreme Court in Estelle v. Smith put Payne's attorneys on notice that
the introduction during capital sentencing of psychiatric evidence
addressing future dangerousness by the defense would permit the
prosecution to offer rebuttal evidence based upon Payne's statements
during the competency exam. Hence, Dr. Centor's testimony was not
obtained in violation of Payne's Sixth Amendment right.

Moreover, even if we were to conclude that the admission of Dr.
Centor's testimony violated Payne's Fifth and Sixth Amendment
rights, any error would be harmless. See Satterwhite v. Texas, 486
U.S. 249, 258 (1988); Savino, 82 F.3d. at 605. The jury did not find
that Payne would be dangerous in the future and did not impose the
death penalty on the basis of future dangerousness; the jury found
only the "vileness" aggravating factor. Under Virginia law, if the jury
finds one aggravating circumstance, it considers all of the evidence
adduced during the guilt and sentencing stages of trial to determine
whether a death sentence is appropriate. Tuggle v. Netherland, 79
F.3d 1386, 1393 (4th Cir. 1996), petition for cert. filed, No. 96-5364
(U.S. July 26, 1996). Since the vileness aggravating factor served to
support the death sentence, we must analyze the likelihood that an
Estelle v. Smith error had a substantial and injurious effect on the ver-
dict. Id. We conclude that it did not.

There is no reasoned argument that Dunford's murder was not vile:
He was burned alive in such a way that he lingered for days in agony
before his death. Further, Payne had been convicted of capital murder

                     10
previously and committed the instant offense while serving a life sen-
tence. Virtually no mitigating evidence was introduced. Further, Dr.
Centor's arguably improper testimony concerning Payne's future dan-
gerousness was all but cumulative of indisputably proper testimony
by the doctor to the effect that one who has already committed two
capital murders has a high probability of committing future criminal
acts of violence. Presented with all of the evidence from trial and sen-
tencing, and having accepted that Payne in fact committed this atro-
cious crime, the jury was not likely influenced by Dr. Centor's
allegedly improper testimony. See id. at 1393-96. Thus, we conclude
that any Estelle v. Smith error did not have a "`substantial and injuri-
ous effect or influence'" on the decision of the jury to impose a death
sentence. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)).4

V.

Payne's remaining claims that the state trial court failed to provide
an instruction defining torture and an instruction advising the jury that
it could impose a life sentence are procedurally defaulted. Payne
failed to object at trial and failed to assert any issue related to the jury
instructions on direct appeal. He first raised these issues in his state
habeas petition. The state habeas court dismissed the claims as proce-
durally defaulted for failure to raise them in the initial proceedings or
on direct appeal, citing Slayton v. Parrigan, 205 S.E.2d 680 (Va.
1974), cert. denied, 419 U.S. 1108 (1975). And, the Virginia Supreme
Court expressly found the claims procedurally barred. As a conse-
quence, this court may not address these issues absent cause and prej-
udice to excuse the default or a showing that a miscarriage of justice
would result from the failure to do so. Coleman v. Thompson, 501
_________________________________________________________________
4 We cannot accept the Commonwealth's argument that these claims
are procedurally defaulted. Payne objected to Dr. Centor's testimony at
trial and raised these exact claims in his direct appeal to the Virginia
Supreme Court. That court rejected the claims, reasoning that since the
jury had imposed the death sentence only on the basis of the vileness
aggravating factor and had not found Payne to be a future danger, the
arguments were moot. See Payne, 357 S.E.2d at 506. Further, the court
ruled that Estelle v. Smith was not controlling because Payne had
requested the psychological examination. Id.

                    11
U.S. 722, 750 (1991). Although Payne attempts to establish cause by
arguing that his attorneys were ineffective in failing to preserve these
issues, his failure to have alleged this ineffectiveness claim as a sepa-
rate issue during his state habeas proceeding prevents him from estab-
lishing cause on this basis. See Justus v. Murray, 897 F.2d 709, 714
(4th Cir. 1990). Further, Payne has failed to demonstrate actual inno-
cence. See Schlup v. Delo, 115 S. Ct. 851, 867-69 (1995).

VI.

For the reasons set forth above, we conclude that the district court
properly denied Payne's petition for a writ of habeas corpus. Accord-
ingly, we affirm.

AFFIRMED

MICHAEL, Circuit Judge, concurring:

I concur in the judgment and in all of the majority opinion except
for its discussion, ante at 8-9, of Estelle v. Smith, 451 U.S. 454
(1981). I respectfully disagree with the majority's conclusion that
Payne's Fifth Amendment rights were not violated when Dr. Centor
testified at the trial's penalty phase about whether Payne posed a risk
of future dangerousness.

Payne and his lawyers believed that Dr. Centor interviewed Payne
solely for the purpose of determining Payne's competency to stand
trial. And although Payne was told in general terms that statements
he made to Dr. Centor could be used against him, Payne was never
expressly told that his statements could be used to determine whether
he should get the death penalty.

During the prosecution's case-in-chief at the penalty phase of
Payne's trial, Dr. Centor testified about the results of his competency
examination of Payne and about statements Payne made to him during
that examination. Admission of this evidence was error because at the
time it was offered Payne "neither had asserted an insanity defense
nor had offered psychiatric evidence at trial." Buchanan v. Kentucky,
483 U.S. 402, 422 (1987). This evidence was properly allowed at

                     12
Payne's earlier competency hearing because Payne put his compe-
tency in issue and because his lawyers knew he was being examined
to determine competency. But "given the gravity" of a death sentence,
the evidence should not have been introduced at the trial's penalty
phase even though the evidence had earlier been used for the limited
purpose of determining competency. Estelle, 451 U.S. at 463 (1981).
The evidence did not become admissible simply because Payne's
competency had been in issue before trial, nor because Payne put the
state to its proof on the issue of whether the death penalty was appro-
priate. Estelle, 451 U.S. at 465. Unlike the accused in Savino v.
Murray, 82 F.3d 593, 604 (4th Cir. 1996), cert. denied, 1996 WL
400267 (U.S. July 17, 1996), Payne was not expressly warned "be-
forehand that any information he gave to the psychiatrist could be
used in the capital sentencing phase." Payne believed he was being
examined "for the limited, neutral purpose of determining his compe-
tency to stand trial, but the results of that inquiry were used by the
State for a much broader objective that was plainly adverse to" him.
Estelle, 451 U.S. at 465. The prosecution improperly used Payne's
"own statements, unwittingly made without an awareness that he was
assisting the State's efforts to obtain the death penalty." Id. at 466.
Thus, it was error to let Dr. Centor tell the jury about statements
Payne made to him during the competency examination.

I concur in the judgment, however, because I agree with the major-
ity's alternative analysis, see ante at 10-11, that the admission of Dr.
Centor's testimony was in any event harmless error. Thus, I believe
that the error did not have a substantial and injurious effect on the
jury's decision. The jury based its verdict of death on its finding that
Payne's crime was exceedingly vile.

                     13
