Morva v. Davis

Filing 117

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 9/12/14. (mka)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
WILLIAM CHARLES MORVA,
No. 1205820,
Petitioner,
v.
KEITH W. DAVIS, Warden
Sussex I State Prison,
Respondent.

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) Civil Action No. 7:13cv283
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) By: Michael F. Urbanski
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United States District Judge
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MEMORANDUM OPINION
This matter is before the court on the motion of petitioner William Charles Morva to find
him incompetent and to stay these proceedings pending his restoration to competency. Motion to
Find Morva Incompetent and Stay Proceedings Pending His Restoration, Dkt. # 57. Petitioner
requests an evidentiary hearing on his competency motion. Morva’s Request for a Hearing and
Memorandum in Support, Dkt. # 76. Respondent opposes these requests. Warden’s Opposition to
Morva’s Motion to Stay, Dkt. # 62; Warden’s Opposition to Morva’s Motion for Hearing, Dkt.
# 77. Following a psychiatric evaluation by forensic psychiatrist Donna Schwartz-Watts, M.D. on
August 21, 2014, Morva filed a supplemental motion. Second Supplement to Morva’s Motion to
Find Morva Incompetent and Stay Proceedings Pending His Restoration, Dkt. # 112.
Morva was charged by the Commonwealth of Virginia with the capital murder of Derrick
McFarland, a security guard at Montgomery Regional Hospital, on August 20, 2006, and Corporal
Eric Sutphin, of the Montgomery County Sheriff’s Office, on August 21, 2006. The
Commonwealth contended that Morva, a pretrial detainee at the Montgomery County Jail, sought
medical attention for leg and forearm injuries on the evening of August 19, 2006. Montgomery

County Sherriff’s Deputy Russell Quesenberry transported Morva in waist chains to the hospital but
did not secure the arm Morva claims to have injured. Following treatment and before heading back
to the jail, Morva asked to use the bathroom at the hospital’s emergency room. Using a metal toilet
paper holder he removed from the wall, Morva beat Quesenberry unconscious and took his police
pistol. The Commonwealth alleged that Morva exited the bathroom and encountered the unarmed
hospital security guard, Derrick McFarland. Morva shot McFarland in the face at close range and
fled. On the morning of August 21, 2006, during the course of the ensuing manhunt, Morva
encountered Corporal Eric Sutphin on the Huckleberry Trail, a local greenway in Montgomery
County. The Commonwealth alleged that Sutphin’s police pistol was holstered when Morva shot
him in the back of the head. Both Quesenberry and Supthin died from their gunshot wounds.
A jury convicted Morva of all charges, including three counts of capital murder, following a
six day jury trial conducted in the Circuit Court of Washington County in March 2008.1 Morva
raised a number of issues on direct appeal, all of which were rejected by the Virginia Supreme Court
in its decision of September 18, 2009. Morva v. Commonwealth, 278 Va. 329, 683 S.E.2d 553
(2009). Morva filed a petition for writ of habeas corpus in state court on December 3, 2010, which
the Virginia Supreme Court dismissed on April 12, 2013. Morva v. Warden of the Sussex I State
Prison, 285 Va. 511, 741 S.E.2d 761 (2013).
Morva filed a Notice of Intent to File a Petition for a Writ of Habeas Corpus in federal court
on June 17, 2013, and the court appointed counsel on June 26, 2013. Morva filed an initial habeas
Petition on September 19, 2013 and an Amended Petition on December 18, 2013. Also on
December 18, 2013, Morva filed the pending motion that he be found incompetent and the habeas
1

Morva was convicted of capital murder while in custody, Va. Code § 18.2-31(3), capital murder of a lawenforcement officer, Va. Code § 18.2-31(6), capital murder of more than one person within a three-year period, Va.
Code § 18.2-31(8), assaulting a law-enforcement officer, Va. Code § 18.2-57(C), escape, Va. Code § 18.2-478, and
two counts of use of a firearm in the commission of a murder, Va. Code § 18.2-53.1. After finding the aggravating
factors of vileness and future dangerousness, the jury fixed Morva’s sentence at death for each of the three capital
murder convictions and sixteen years’ imprisonment for the remaining convictions. The trial court sentenced Morva
in accordance with the jury verdict.

2

proceedings stayed. On February 23, 2014, Morva filed a motion for a hearing on his motion to find
him incompetent and to stay the habeas case.2
On July 18, 2014, the court conducted a hearing on Morva’s request to proceed pro se and
for substitution of counsel, which motions were denied. At the hearing, Morva, who had previously
refused to meet with court appointed forensic psychiatrist Donna Schwartz-Watts, agreed to meet
with her. An evaluation session was scheduled, and Morva’s counsel was granted leave of court to
file a Second Amended Petition on or before September 8, 2014.
In the Second Amended Petition filed on September 8, 2014, Morva raises the same twelve
claims raised in his Amended Petition.3 With two exceptions, all of the claims raised in the Second
Amended Petition were raised either on direct appeal or in Morva’s state habeas petition. Those
exceptions are Claims IV and VIIIB, which present questions of law. “Given the backward-looking,
record-based nature,” Ryan v. Gonzales, 133 S.Ct. 696, 704 (2013), of Morva’s habeas claims, the
court concludes that there is no need for a stay or competency evaluation. Because of the nature of
the claims that Morva has raised, his counsel can “provide effective representation . . . regardless of
the petitioner’s competence.” Id. Accordingly, Morva’s motion to stay and for a competency
evaluation is DENIED.
I.
Morva’s federal habeas counsel assert in the motion that they have not been “able to gain
sufficient trust with Morva to obtain his assistance with the investigation and presentation of his

2

Each of these petitions and motions were filed by Morva’s court appointed habeas counsel. Morva has himself
filed a number of handwritten documents with the court. Morva has filed a motion to proceed pro se, Dkt. # 45, a
motion for leave to file a habeas petition within one year, Dkt. # 46, a motion for substitution of counsel, Dkt. # 47,
and his own pro se petition for writ of habeas corpus. Dkt. # 61. Each of these pro se motions has been denied, and
Morva’s competing pro se habeas petition has been dismissed without prejudice as he is represented by counsel.
Morva has also written several letters to the court. Dkt. #s 25, 26, 37, 48, and 74.
3

Indeed, the Second Amended Petition makes only two changes to the Amended Petition. Footnote one of the
Second Amended Petition states that the Second Amended Petition changes only the final paragraph of the
procedural history and pages 138-140 of Claim IX.

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federal habeas claims.” Dkt. # 57, at 1. Counsel argue that Morva exhibits signs of serious mental
illness and that his condition has declined, rendering him unwilling and/or incapable of assisting
with his federal habeas case.
Federal habeas counsel argue that they have been severely hampered by the absence of any
assistance from Morva. For roughly ten weeks prior to the filing of the Amended Petition on
December 18, 2013, Morva “severed all communications with his appointed counsel. Mr. Morva
did not call, refused visits and refused mail.” Dkt. #112, at 2. Although Morva resumed
communications in February, 2014, counsel indicate that “[h]e was still uncooperative for that and
subsequent phone calls, and remains so. Mr. Morva no longer refuses mail, but has refused all visits
except Mr. Sheldon’s August 21, 2014, visit for the evaluation.” Id. Counsel recount that during the
August 21, 2014 evaluation, Morva “insisted he could never work with appointed counsel and
alleged that his court appointed attorneys were receiving bribes to botch his appeals.” Id. Morva’s
counsel conclude that “there is no doubt that Mr. Morva has a serious mental illness and the
evidence is overwhelming that he is unable to assist counsel and therefore incompetent.” Id.4
In the Psychiatric Evaluation appended to Morva’s supplemental motion, Dr. SchwartzWatts concludes that Morva meets “the diagnostic criteria for a Delusional Disorder, persecutory
type.” Psychiatric Evaluation, Dkt. # 112-1, at 6. Dr. Schwartz-Watts indicated that Morva “does
not meet the diagnostic criteria for schizophrenia at this time. His thought processes were
organized and he is not hallucinating. There are no records that indicate he has hallucinated.” Id.
Dr. Schwartz-Watts’ Psychiatric Evaluation contains the following opinion:

4

In support of the original motion, Morva’s counsel included the opinion of Dr. Schwartz-Watts, at that time formed
solely on the basis of a review of records concerning Morva. Dr. Schwartz-Watts attempted to interview Morva on
November 19, 2013 at the Sussex I State Prison, but Morva refused to meet with her. At a hearing conducted on
July 18, 2014, Morva agreed to an evaluation by Dr. Schwartz-Watts, provided it was recorded. Dr. Schwartz-Watts
conducted her evaluation on August 21, 2014, and prepared a written Psychiatric Evaluation dated September 7,
2014.

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Mr. Morva is not able to assist his attorneys. He reports they are
being bribed and are attempting to “botch his appeals.” He also
reports he does not feel safe with them. Delusional Disorders are
difficult to treat, however Mr. Morva has reportedly never been
treated with medication.
Id. With regard to Morva’s mental state, Dr. Schwartz-Watts makes the following recommendation:
Although delusional disorders are less likely to respond to
antipsychotic medication, Mr. Morva has not been previously treated.
His mental status may improve with treatment.
Id.
Morva’s counsel argue that in order to establish deficient performance of counsel under
Strickland v. Washington, 466 U.S. 668, 691 (1984), it is “necessary and critical to discuss with
Morva the relationship, if any, he had with his trial and state post-conviction lawyers.” Id. Counsel
continue:
Morva will also need to be able to relate whether prior counsel asked
for historical information concerning his mental health, medical and
family history, whether prior counsel asked Morva to sign releases of
information, whether prior counsel consulted with Morva about the
details of the claim that federal habeas counsel are first raising, and
what additional defenses would have been available at trial. Or, if
none of this happened, Morva needs to be able to explain that his
prior counsel sought no information from him, presented no facts to
him, failed to consult him concerning relevant issues, or sought no
waiver of presentation from Morva. All of this information is
necessary to prove the first prong of an ineffective assistance of
counsel claim under Strickland.
Dkt. # 57, at 22.
Morva’s counsel argue that “claims IX-XII[ ], involving trial counsel’s failure to sufficiently
investigate and present evidence to Morva’s mental health experts and the court, are highly fact
dependent, went undeveloped in state habeas, and will remain only partially developed unless and
until this Court stays the proceedings and allows the prison to restore Morva’s competence.” Id. at
21.
In the supplemental motion, Morva’s counsel add:
5

Prior counsel failed to use information provided by Mr. Morva
regarding abuse and threats he claimed he suffered at the jail because
of the difficulty of determining whether these were delusions,
exaggerations or facts. Mr. Morva has insisted that he was shackled
and dropped on his face by deputies at the jail, dislocating his jaw,
that he was burned by a deputy with a cigarette, and that deputies and
law enforcement threatened him with beatings and even death. Not
only are these facts compelling, if true, for several of Mr. Morva’s
sentencing claims, but would have been entirely consistent with trial
counsel’s strategy. In addition, a non-delusional Mr. Morva would
have presented a far different visage to the jury than the Charles
Manson-like cold hearted, long-bearded unapologetic defendant. If
Mr. Morva is medicated, he will likely be able and willing to show the
remorse that his trial counsel so desperately needed and wanted him
to show at trial.
Dkt. # 112, at 3. Because there is “great hope that Morva will be restored in a short time with
reasonable treatment,” id., his counsel argue that the case be stayed until he can be restored to
competency.
In his opposition, Keith W. Davis, the Warden of Sussex I State Prison (“Warden”),
responds that Morva has not demonstrated that he is incompetent, and that even if he was
incompetent, “[g]iven the backward-looking, record-based nature of most federal habeas
proceedings, counsel can generally provide effective representation to a habeas petitioner regardless
of the petitioner’s competence.” Ryan v. Gonzales, 133 S. Ct. at 705.
II.
In Ryan v. Gonzales, the Supreme Court defined the “outer limits”5 of a district court’s
discretion to grant an evidentiary hearing and stay habeas proceedings based on a petitioner’s
competence. The opinion in Ryan stemmed from the Court’s consideration of two federal death
penalty habeas proceedings, one from Arizona and one from Ohio.
In the Arizona case concerning Valencia Gonzales, the Court reversed the decision of the
Ninth Circuit Court of Appeals, which, in turn, had overturned a district court’s denial of a motion
5

The Court noted that “[f]or purposes of resolving these cases, it is unnecessary to determine the precise contours of
the district court’s discretion to issue stays. We address only its outer limits.” Id. at 708.

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to stay pending a competency evaluation. The Court concluded that as “all of Gonzales’ properly
exhausted claims were record based or resolvable as a matter of law, irrespective of Gonzales’
competence,” the district court did not abuse its discretion in denying the stay “because a stay is not
generally warranted when a petitioner raises only record-based claims subject to 28 U.S.C.
§ 2254(d).” 133 S.Ct. at 708. The Court reasoned:
As previously noted, review of such claims “is limited to the record
that was before the state court that adjudicated the claim on the
merits.” [Cullen v.] Pinholster, 131 S.Ct. at 1398. Accordingly, any
evidence that a petitioner might have would be inadmissible. Ibid.
(“[T]he record under review is limited to the record in existence at
the same time – i.e., the record before the state court”). Because
federal habeas is “a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error correction
through appeal,” the types of errors redressable under § 2254(d)
should be apparent from the record. Harrington v. Richter, 131 S.Ct.
770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5
(1979) (Stevens, J., concurring in judgment)). Counsel can read the
record.
Id.
In the Ohio case concerning Sean Carter, the Court vacated the judgment of the Sixth
Circuit Court of Appeals and remanded the case to ascertain whether Carter could pursue one claim.
Unlike in Gonzales, the district court in Carter concluded that four of Carter’s claims could
potentially benefit from Carter’s assistance. As three of these claims were adjudicated on the merits
in state postconviction proceedings, they were subject to review under § 2254(d). Noting that “[a]ny
extrarecord evidence that Carter might have concerning these claims would therefore be
inadmissible, . . . [c]onsequently, these claims do not warrant a stay.” Id. at 709 (citation omitted).
As regards the fourth claim, the Court could not determine from the record whether it had been
exhausted. “If that claim was exhausted, it too would be record based. But even if Carter could
show that the claim was both unexhausted and not procedurally defaulted, an indefinite stay would

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be inappropriate.” Id. The Court remanded the case to the district court for resolution of this one
claim.
Under the framework set forth in Ryan, the court will consider Morva’s request for a stay
vis-à-vis each of his federal habeas claims.6
III.
Morva’s federal habeas petition raises twelve claims, nearly all of which were raised
previously, either on direct appeal or in his state habeas petition. Only claims Claim IV and VIIIB
are new. Both of those claims, however, present issues of law as to which Morva’s present
competence is immaterial.
In Claim IV, Morva contends that trial counsel were ineffective for stipulating that he was
imprisoned and in lawful custody on August 20, 2006. Morva argues that the Commonwealth of
Virginia charged him with killing hospital security guard McFarland in violation of Virginia Code
§ 18.2-31(3), requiring the Commonwealth to prove that he was “confined as a prisoner in a local or
state correctional facility . . . or while in custody of an employee thereof” at the time of McFarland’s
death. Morva argues that at the time McFarland was killed, he was neither confined nor in custody.
On this purely legal issue, the facts are undisputed. Morva was being held in pretrial detention at the
Montgomery County Jail awaiting trial on burglary and related charges. In the early morning hours
of August 20, 2006, Morva was taken to Montgomery Regional Hospital for medical treatment in
the custody of Deputy Quesenberry. Morva beat Deputy Quesenberry unconscious with a
bathroom toilet paper dispenser, and while exiting the hospital, killed the unarmed McFarland with
Deputy Quesenberry’s gun. Morva contends that he was neither in a correctional facility nor in

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Although Morva has requested an evidentiary hearing on his motion to stay, the court does not believe such a
hearing is needed. The court has reviewed the voluminous record from the trial court, direct appeal and state
habeas. The court also has reviewed the September 7, 2014 Psychiatric Evaluation prepared by Dr. Schwartz-Watts.
Given the record in this case, there is no need for any additional evidence or argument on the motion to stay.
Accordingly, the request for an evidentiary hearing, Dkt. # 76, is DENIED.

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custody at the time he shot McFarland, and that trial counsel were ineffective for stipulating that he
was in custody. In essence, Morva argues that because he had beaten Deputy Sheriff Quesenberry
unconscious, he was no longer in his custody. Morva argues that because he had escaped when
McFarland was killed, he could not have been convicted under Va. Code § 18.2-31(3). Morva argues
that he was:
[P]rejudiced by trial counsel’s error because if trial counsel had
refused the stipulation, either a motion to strike this capital charge by
the defense would have been successful or the jury could not have
found Morva guilty of the capital murder of Mr. McFarland. And if
the jury found Morva not guilty of the capital murder of McFarland it
could have also tipped the scales in Morva’s favor in the jury’s
selection of punishment for the other capital charges: the killing of
Mr. Sutphin and the killing of more than one person in a three year
period.
Second Amended Petition, Dkt. # 111, at 70. Morva also asserts that state habeas counsel were
ineffective for not raising this claim. Regardless, Claim IV only involves a question of law and may
be determined based on the trial record. As such, under Ryan v. Gonzales, Morva’s present
competence bears no relevance to this claim.
In Claim VIIIB, Morva contends that trial counsel were ineffective and should have objected
to the jury instructions and verdict forms given and asked the trial court to instruct the jury not to
double or triple count the aggravating factors that enabled the jury to find Morva eligible for a death
sentence. Morva argues that the format of the verdict forms required the jury to consider the
aggravating factors of vileness and future dangerousness nine times, resulting in over emphasis being
placed on these factors in the jury’s final selection of punishment. Morva also notes in his federal
habeas petition that state habeas counsel were ineffective for failing to raise this claim. As with
Claim IV, Claim VIIIB presents a record-based question of law as to which Morva’s present
competence has no bearing.

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IV.
The Supreme Court of Virginia has addressed the remainder of Morva’s claims, either on
direct appeal or in connection with his state habeas petition. All of these claims are either record
based or resolvable as a matter of law. As such, Morva’s competence at this point has no relevance
to the court’s consideration of those claims.
In Claim I, Morva contends that the state court’s denial of a risk assessment expert on the
issue of future dangerousness violated his rights under the Eighth and Fourteenth Amendments.
Prior to trial, Morva moved for the appointment of a forensic psychologist, Dr. Mark D.
Cunningham, to provide rebuttal testimony on the issue of the continuing threat aggravating factor.
Morva believed that this evidence was necessary to be able to respond to the prosecution’s claim
that he would pose a continuing threat of serious violence because his case involved a jailbreak and
the ensuing killings of two security/law enforcement officers. The trial court denied Morva’s
motion, and the issue was considered on the merits and rejected by the Virginia Supreme Court on
direct appeal. In his federal habeas petition, Morva argues that the Virginia Supreme Court’s
decision flies in the face of United States Supreme Court precedent and that the issue of
dangerousness was obviously relevant to the defense of his capital case. The state court’s decision
to exclude this evidence is plainly a question of law. As such, under Ryan v. Gonzales, Morva’s
federal habeas counsel “can provide effective representation . . . regardless of the petitioner’s
competence.” 133 S.Ct. at 705.
Morva’s current competence likewise has no bearing on Claim II, concerning whether his
trial counsel were ineffective for failing to object that his restraints were visible during trial. On this
point, Morva has argued, both in his federal and state habeas petitions, that certain jurors saw his leg
restraints and a bulge under his clothing. In Claim IIA, Morva contends that the presence of visible
restraints violated due process. The Supreme Court of Virginia held that this claim, raised in
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Morva’s state habeas petition, was barred because it was not raised on direct appeal. Claim IIB
alleges ineffective assistance of counsel for failing to object to visible restraints. This claim was dealt
with on the merits by the Virginia Supreme Court on state habeas. Regardless, the issue presented
in Claim II is both record based and a question of law. Morva’s current competence has no bearing
on this claim.
The same is true for Claim III, in which Morva contends that the exclusion of potential trial
juror Mary Blevins violated the United States Constitution. This issue was raised on direct appeal in
state court and was addressed by the Virginia Supreme Court on the merits. Claim III is both record
based and an issue of law, as to which Morva’s current competence is irrelevant.
In Claim V, Morva contends that his trial counsel were ineffective for failing to investigate
and challenge forensic and other evidence relating to the shootings. As to this issue, raised in his
state habeas petition and dealt with on the merits by the Virginia Supreme Court, Morva contends
that his trial counsel were ineffective in cross-examination and argument in not emphasizing
McFarland’s dark SWAT team/paramilitary style uniform and in not pursuing the inconsistencies in
Blacksburg Police Officer Brian Roe’s testimony concerning the circumstances of Corporal
Sutphin’s death, particularly with regard to whether Corporal Sutphin’s holster was snapped shut at
the time he was killed. Morva’s current competence is irrelevant as to the entirely record-based
inquiry as regards trial counsel’s handling of the evidence concerning the shootings.
Claim VI was likewise raised in Morva’s state habeas petition and addressed by the Virginia
Supreme Court on the merits. In this claim, Morva argues that his trial counsel were ineffective for
failing to investigate and present evidence as to the conditions at the Montgomery County Jail that
would have supported an imperfect self-defense claim. Morva contends that statistics show that the
Montgomery County Jail was operating at nearly three times the Virginia Department of Corrections
Rated Operating Capacity and that the jail’s expenditure of funds on inmate medical services shows
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that its ability to provide adequate medical services was even more deficient. Morva contends that
the lack of medical care markedly affected him, principally due to pronounced, life-long problems
with his digestive system. Contrary to the Commonwealth’s argument that Morva’s escape was due
to his scheduled criminal trial, Morva contends that his escape was precipitated by his fear and
paranoia regarding his physical state. He contends that his trial counsel were ineffective for failing
to present an imperfect self-defense, which would have mitigated the offense from murder to
voluntary manslaughter. The federal habeas petition makes clear that Morva’s intense fear and
paranoia were established several times at trial through the testimony of his mother, his
gastroenterologist, Dr. Mark Ringold, and forensic psychiatrist Dr. Bruce Jeffrey Cohen. Morva’s
counsel argue that trial counsel were ineffective in not investigating and introducing evidence
regarding jail conditions and thus missed the opportunity to present evidence and argue for the
applicability of imperfect self-defense. Morva’s petition states as follows:
Had counsel argued imperfect self-defense, it is probable that the
outcome of Morva’s case would have been different. Even if the jury
concluded that Morva’s fear was unreasonable, it is possible that at
least one juror may have found that although Morva’s belief that his
life was in danger may have been unfounded, it was sincerely held.
Morva’s mental state was a question of fact to be decided by the jury,
Darnell v. Commonwealth, 370 S.E.2d 717, 720-21 (Va. Ct. App.
1988), and if even a single juror believed Morva’s fear was real, had
the instruction been given, Morva would have been convicted of
voluntary manslaughter instead of murder.
This reasonable
probability is sufficient to undermine confidence in the outcome of
Morva’s trial. Strickland, 466 U.S. at 694 (1984).
Dkt. # 111, at 84-85. The court can assess whether Morva’s counsel were ineffective from the trial
court record. Moreover, Morva argues that the Virginia Supreme Court’s rejection of this claim
during state habeas review was an unreasonable application of federal law. Thus, as to this claim as
well, Morva’s present competence is immaterial.
Claim VII concerns whether Jury Instruction 8A was contrary to and an unreasonable
application of clearly established federal law. This instruction stated that “You may infer that every
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person intends the natural and probable consequences of his acts.” Morva contends that this
instruction runs afoul of the holding in Sandstrom v. Montana, 442 U.S. 510 (1979), where the
Court held that a jury instruction to the effect of “the law presumes that a person intends the
ordinary consequences of his voluntary acts,” id. at 512, violated the defendant’s right to due process
of law. Id. at 524. On direct appeal, the Virginia Supreme Court rejected Morva’s contention
regarding Jury Instruction 8A, concluding that “this jury instruction concerns only a permissive
inference as opposed to a constitutionally improper presumption.” Morva v. Commonwealth, 278
Va. at 342, 683 S.E.2d at 561. Regardless, Morva’s present competence has no bearing on the issue
of the constitutionality of Jury Instruction 8A.
The same is true as regards Claim VIIIA, in which Morva contends that trial counsel were
ineffective for not objecting to the duplicative charging and verdict forms on the basis that his third
death sentence, imposed for killing more than one person in a three year period, was impermissibly
derivative under Claggett v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), as the killings that
made up that offense were themselves capital offenses. On state habeas, the Virginia Supreme
Court rejected the claimed Claggett violation, finding it barred as it was not raised at trial or on
direct appeal. The Virginia Supreme Court considered Morva’s other double jeopardy challenges to
be frivolous and that counsel were not ineffective for failing to raise them. Morva v. Warden, 285
Va. at 519, 741 S.E.2d at 788. Again, Morva’s present competence is irrelevant to these recordbased questions of law.
Claim IX, alleging that trial counsel failed to adequately investigate and present available
mitigation evidence at the sentencing phase, presents a closer question. In this claim, Morva asserts
that “trial counsel conducted an unreasonable and inadequate investigation of Morva’s childhood
and family background, as well as substantial evidence from lay witnesses of Morva’s mental illness;
counsel failed to provide this information to mental health experts in order to ensure an accurate
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and reliable diagnosis; and counsel failed to adequately present all of the available mitigating
evidence in the capital sentencing hearing.” Dkt. # 111, at 100.
This issue was addressed in great length in Morva’s state habeas petition, and much of the
state habeas appendix is directed to this issue. In both his state and federal habeas petitions, Morva
recounts his father’s traumatic experiences surviving the Holocaust, World War II, Soviet repression
in Hungary, and flight as a refugee following the failed Hungarian Revolution of 1956. Likewise,
state and federal habeas counsel fault Morva’s trial counsel for their deficient investigation of his
mother’s multi-generational history, including the mental illness and alcoholism of his maternal
grandmother. In each petition, habeas counsel address at great length the deplorable conditions of
his upbringing, including horrendous hygiene, poor nutrition and physical and mental abuse.
Mirroring the state petition, the federal habeas petition alleges that Morva “spent his childhood in
terror; his environment was unpredictable and controlling. The only thing he knew with certainty
was his father’s relentless abuse and violence.” Dkt. # 111 at 118-19. The federal habeas petition
summarizes trial counsel’s failure to investigate his background as follows:
Trial counsel did not conduct interviews or try to obtain any records
that were relevant to the history of either Will’s paternal or maternal
side of the family. They conducted little or no investigation of his
immediate family, much less a multi-generational family history.
They collected only medical and incarceration records related to Will.
Their failure to collect other documents was compounded by their
failure to elicit family history from mitigation witnesses.
None of Will’s family members testified at his capital murder trial.
Defense witnesses who mentioned Will’s home life had no direct
experience of it and made only sparse and unsubstantiated
comments. Their testimony provided only a pale shadow of Will’s
history and background: “I got the impression he had some
problems with his father,” JA 2194; Will’s father had “a thick accent”
and “wanted him to take a lot of advanced classes,” JA 2199; “as far
as I can tell from looking back at it, he never really liked to go
home,” JA 2224; after the death of Will’s father, he worried about his
mother because “she was currently living out of her car . . . He had a
lot of respect for his father. . .”, JA 2257-58. No one testified who
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had direct experience with Will’s family or knowledge of the
complexities of his family situation.
Trial counsel’s inadequate investigation deprived jurors of extensive,
relevant, and accurate information about Morva’s history,
background, and character – evidence that explained how he
developed or that diminished his moral culpability. Trial counsel
failed to sufficiently investigate people who could have provided
meaningful insight into his home life, even though Will specifically
told counsel to talk to some of them. SHA 7, 16-17, 33-34, 88, 13839, 147, 174, 186-87, 205-06, 213-14, 216-17, 258-59, 331, 411, 41415, 425, 430-32, 442, 485, 450-51.
Counsel also unreasonably failed to obtain information from friends
and family about the symptoms of Morva’s apparent descent into
mental illness, which, if reviewed by the trial experts, would have
raised “plenty of ‘red flags’ pointing” to a more serious mental illness.
Rompilla v. Beard, 545 U.S. 374, 392 (2005). In addition to
supporting an accurate mental health diagnosis, the evidence
discussed in this claim was not adequately investigated and presented
in mitigation.
Dkt. # 111, at 120-21. The state habeas petition described trial counsel’s failings in this way:
Counsel’s inadequate investigation of Will’s multi-generational history
deprived jurors of a complex, multifaceted description of Morva as a
human being and prejudiced him. Will was a product of his
environment, and his caretakers’ backgrounds and limitations directly
affected Will. An adequate investigation of Will’s family and cultural
history was necessary for jurors to have an accurate understanding of
Will’s culture, background, and life story. This is precisely the kind
of evidence that the Supreme Court has identified as powerfully
mitigating. Had such an understanding been provided, there is a
reasonable probability at least one juror would have chosen life
without parole as an appropriate sentence.
Morva v. Warden, No. 102281, Amended Petition for Writ of Habeas Corpus, at 64.
Morva also asserts in his federal habeas petition that his trial counsel failed to prepare his
mental health expert witnesses with adequate information to reach and support a proper diagnosis.
The petition recounts at some length Morva’s delusional and aberrant views that modern civilization
was destroying the world and that he was chosen to save the innocent from the destructive forces in
the world.
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Morva, believing that the fate of the world was literally at stake and
that he was in imminent danger of death, concluded that drastic
measures were required. He escaped jail in order to regain strength
and return to his efforts to protect the innocent people and combat
the destructive forces, the mission he was called to complete. When
the destructive forces tried to stop him, he defended himself. It was
imperative that he be free in order to save the Earth.
Dkt. # 111, at 127.
Further, Morva contends that his trial counsel, aware of Morva’s mental health problems,
failed to pass this information on to the mental health experts.
Specifically, trial counsel recognized early on that Morva exhibited
mental health problems and requested an evaluation for competency
to stand trial and appointment of two mental health experts. JA 4-9,
552-60. Despite the inadequate quality of trial counsel’s mitigation
investigation, their cursory interviews with Morva’s family and friends
uncovered pertinent information. In further violation of the Sixth
and Fourteenth Amendments, Strickland v. Washington, 466 U.S.
668 (1984), counsel unreasonably failed to advise the appointed
mental health experts of this information, failed to provide the
mental health expert with notes of the witness interviews, and failed
to arrange for these witnesses to speak directly with the mental health
experts. It was, therefore, unreasonable for counsel not to provide
these experts with the information necessary to make accurate and
informed diagnoses.
Reasonable counsel would have investigated this information further
and discovered information that would have assisted the appointed
mental health experts in making an informed and accurate diagnosis
and explaining that diagnosis to the jurors. Had counsel provided
even the minimal information they had obtained to a mental health
expert, there is a reasonable probability that the mental health experts
would have made an Axis I diagnosis as addressed above.
Dkt. # 111, at 128-29.
The state habeas petition devotes substantial attention to these alleged failings, and the state
habeas appendix is replete with evidence of Morva’s family history, background, upbringing and
mental state. In fact, nearly all of Volume I of the appendix to the state habeas petition, consisting

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of 501 pages, concerns these issues.7 Much of the remaining eight volumes of the state habeas
appendix also concern Morva’s background, family and medical history.
Morva contends that the record supports the conclusion that he was mentally ill, and his
counsel were ineffective for not presenting this evidence at the sentencing stage.
Equipped with a diagnosis of delusional disorder, a major mental
illnesses and a DSM V axis I disorder, and the family and social
history and symptoms supporting the diagnosis, competent counsel
would have been able to explain to the jurors how Morva’s criminal
actions were directly related to and a product of his mental illness – a
circumstance far beyond his control that diminishes his moral
culpability. . . . In addition, rather than Morva’s violence being the
product of a depraved and evil mind, trial counsel could have had an
explanation for the jury that Morva’s mental illness was a but-for
cause of the violence, reducing his moral culpability and providing a
strong argument for life in prison rather than a death sentence. . . .
Further, trial counsel could have asked the trial court for intervention
and treatment. Treatment would have led to a client who would have
presented an entirely different visage. Instead of the Charles Masonesque unshaven and unremorseful client, Morva would have been
able to show the jury who he was without the full effect of his mental
illness: a thoughtful, peaceful and remorseful person.
There is a reasonable probability that if all of the available family
history, social history, and evidence of mental illness had been
provide[d] to Morva’s trial experts and presented to a jury that the
result would have been at least one juror would have voted to
sentence Morva to life without the possibility of parole.
Dkt. # 111, at 140-41.
The court has reviewed the trial court record, the state habeas pleadings, including all nine
volumes of the state habeas appendix, and the opinions of the Virginia Supreme Court on direct
appeal and state habeas. As noted, much of the state habeas petition focused on trial counsel’s
alleged failure to investigate and present mitigation evidence, especially concerning Morva’s family
history and mental health condition. Given the large volume of information on this subject
presented in connection with the state habeas petition, including the detailed affidavit of forensic
7

A few of the affidavits in this volume of the state habeas appendix concern post-trial communications with jurors.

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clinical psychologist Dale G. Watson, Ph.D., the court is plainly able on this record to assess
whether trial counsel provided ineffective assistance of counsel under Strickland during the
sentencing phase of Morva’s capital trial. Thus, given the depth and breadth of the record on this
issue developed during the state habeas proceeding, and the court’s ability to review that information
and the mitigation evidence presented at trial, the court cannot conclude that Morva’s present
competence can have a material impact on this claim under the appropriate standard of review set
forth in 28 U.S.C. § 2254(d).
Claim X asserts that trial counsel were ineffective for failing to ensure that Morva was
provided with constitutionally adequate expert assistance under the standard set forth by the
Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985). In Ake, the Supreme Court held that
“when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a
significant factor at trial, the State must, at a minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and
presentation of the defense.” Id. at 83. Further, in a capital case, an indigent defendant is entitled to
such assistance at the sentencing stage. “In such a circumstance, where the consequence of error is
so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State
so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony
of the psychiatrist, and to assistance in preparation at the sentencing phase.” Id. at 84. Although
Morva had the benefit of the assistance of two expert witnesses at the sentencing phase of his trial,
Dr. Scott Bender, a neuropsychologist, and Dr. Bruce Cohen, a forensic psychiatrist, he argues that
he was denied due process because the expert witnesses were objective, as opposed to acting in his
best interest.8 Morva argues that “[t]his self-imposed non-advocacy role improperly denied Morva

8

Morva’s argument stems from an identical sentence in the Confidentiality Statement of Dr. Cohen’s Capital
Sentencing Evaluation and Dr. Bender’s Neuropsychological Evaluation Report, stating as follows: “He was
informed that the goal of the evaluation would be to prepare a report that sought objectivity rather than to act in his

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constitutionally-guaranteed expert assistance in the identification, development, and presentation of
evidence that would cast Morva’s history, character, background, and mental condition in the light
most favorable to the defendant, within the bounds of science.” Dkt. # 111, at 146. The Virginia
Supreme Court rejected this claim in the state habeas petition, noting that “Morva was entitled to,
and received, ‘access to [ ] competent’ mental health experts to ‘conduct an appropriate examination
and assist in evaluation, preparation, and presentation of” Morva’s defense, as required by Ake v.
Oklahoma, 470 U.S. 68, 84 (1985).” Morva v. Warden, 285 Va. at 522, 741 S.E.2d at 790. The
Virginia Supreme Court noted that “Morva proffers no authority for his contention that the experts
appointed to assist Morva should be biased in Morva’s favor.” Id. Morva’s contention in Claim X
is both record based and a question of law. Morva’s present competence is of no moment to this
claim.
In Claim XI, Morva contends that counsel were ineffective for failing to investigate and
present powerful mitigation evidence that Morva had saved a man’s life and helped the
Commonwealth prosecute the man’s assailant. The Virginia Supreme Court rejected this argument
raised in Morva’s state habeas petition, concluding that the evidence was “double-edged” as it
showed “that Morva had become increasingly anti-social leading up to the murders, had expressed
his disdain for law-enforcement, and felt justified in his criminal behavior.” Morva v. Warden, 285
Va. at 520, 741 S.E.2d at 789. The court noted that such tactical decisions should not be secondguessed in habeas corpus and did not constitute deficient performance. Morva argues that the state
habeas decision was an unreasonable determination of the facts and an unreasonable application of
Strickland. The nature of the claimed mitigation evidence is set out in the state habeas petition. As
such, the court’s inquiry into whether counsel were ineffective for failing to investigate and present

best interest.” Appendix to Petition for Writ of Habeas Corpus State Habeas filed by Morva in the Virginia
Supreme Court, Vol. VI, at 2465, 2483.

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this mitigation evidence is entirely record based. Morva’s present competence does not bear on this
issue.
Finally, in Claim XII, Morva challenges the Virginia Supreme Court’s conclusion on direct
appeal that the trial court did not err in denying Morva’s motion to strike vileness as an aggravating
factor for the imposition of the death penalty. On direct appeal, the Virginia Supreme Court found
vileness to be met from Morva’s depravity of mind. The court defined depravity of mind as “a
degree of moral turpitude and psychical debasement surpassing that inherent in the definition of
ordinary legal malice and premeditation.” Morva v. Commonwealth, 278 Va. at 352, 683 S.E.2d at
566. Summarizing the trial evidence, the court concluded as follows:
Morva’s words contained in a letter written from jail to his mother
described his planned intent to kill guards. Such planning is evidence
of Morva’s depravity of mind.
Morva viciously attacked a guard who had taken Morva to receive
medical attention, fracturing the guard’s face with a metal toilet paper
holder that Morva had removed from the wall. Neither of the men
killed by Morva posed a physical threat to him. Morva shot
MacFarland, who was passive and unarmed, in the face at point-blank
range; he shot Corporal Sutphin in the back of the head while
Sutphin’s gun was still holstered. Additionally, Morva had several
hours from the time he shot MacFarland to consider the
consequences of his actions before he shot Corporal Sutphin. This
fact indicates a lack of remorse or regret for his actions.
Id., 278 Va. at 353, 683 S.E.2d at 566-67 (citations omitted). As the issue presented in this claim
turns entirely on the evidence adduced at trial, Morva’s present competence is immaterial.
V.
In sum, the claims raised in Morva’s federal habeas petition turn on questions of law and/or
are entirely record based allowing the court to adjudicate them under the standard set forth in 28
U.S.C. §2254(d). Accordingly, Morva’s present competence is irrelevant to the court’s consideration
of his habeas petition. As such, his motion to stay this habeas petition pending evaluation of and
restoration of his competence is DENIED.
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A separate Order consistent with this Memorandum Opinion will be entered.
Entered: September 12, 2014

/s/ Michael F. Urbanski

Michael F. Urbanski
United States District Judge

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