Editor’s note: This story has been updated.
The first Black man scheduled to be executed since the resumption of lethal injection on federal death row lost his appeal for a stay Friday when the 7th Circuit Court of Appeals found he had almost no chance of relief arguing his claims of ineffective assistance of counsel and that the judge who condemned him was an alcoholic.
Barring intervention of the Supreme Court of the United States, Christopher Andre Vialva is scheduled to be executed Thursday at the United States Federal Penitentiary in Terre Haute. He would be the seventh man executed at the federal prison since July, when the Department of Justice under President Donald Trump resumed lethal injections after a nearly two-decade hiatus.
Southern District of Indiana Chief Judge Jane Magnus-Stinson denied Vialva’s habeas corpus petition, and a panel of the 7th Circuit affirmed in a four-page per curium opinion.
Vialva was 19 when he and four younger teen accomplices in 1999 carjacked, robbed and killed an Iowa couple in Texas. He was convicted and sentenced to death in 2000 in Waco, Texas, by U.S. District Judge Walter S. Smith Jr.
Smith retired from the federal bench in 2016, leading the 5th Circuit Judicial Council to drop renewed investigations of sexual harassment and other claims against him that had resulted in a reprimand and a suspension from hearing new cases.
“The details of Vialva’s crimes do not matter for current purposes. Nor do the details of his current legal arguments. It is enough to identify the sort of contentions he presents,” the panel wrote in Christopher Andre Vialva v. T. J. Watson, 20-2710
“He maintains that he received ineffective assistance of counsel at trial because his lawyer had a conflict of interest. (While representing Vialva, counsel also was seeking an appointment as an Assistant United States Attorney.) He also contends that counsel conducted an inadequate investigation of his mental state and thus did not represent him competently during sentencing. Vialva maintains that the district judge suffered from alcoholism and should not have been allowed to preside at trial or impose sentence. These contentions may or may not be substantively valid, but Vialva’s problem in seeking relief under §2241 is that issues of these kinds are commonly entertained and resolved under §2255.
“Indeed, Vialva’s contentions were entertained and resolved under §2255. See United States v. Bernard and Vialva, 762 F.3d 467 (5th Cir. 2014); United States v. Vialva, 904 F.3d 356 (5th Cir. 2018). The fact that Vialva lost does not entitle him to another collateral attack under §2241. Nor does the fact that the Fifth Circuit resolved his collateral attacks by denying his requests for certificates of appealability. He maintains that the Fifth Circuit did not give his arguments the consideration they deserved, but we do not sit in judgment on the decisions of our sister circuits. That power belongs to the Supreme Court, which denied Vialva’s petitions for certiorari. Vialva v. United States, 136 S. Ct. 1155 (2016); Vialva v. United States, 140 S. Ct. 860 (2020).”
The panel further rejected Vialva’s arguments under the Suspension Clause, noting the Supreme Court has held that it does not entitle anyone to successive collateral attacks on a criminal judgment.
“A person who seeks a stay pending appeal must establish a material probability of success on the merits. A better-than-negligible chance will not do. See Nken v. Holder, 556 U.S. 418, 434 (2009); Illinois Republican Party v. Pritzker, No. 20- 2175 (7th Cir. Sept. 3, 2020), slip op. 4–5. Vialva has not established even a better-than-negligible chance of prevailing in his quest for another round of collateral review,” the panel concluded in denying the stay of execution.