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Tony Albert MACKALL

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: December 9, 1986
Date of arrest: 3 days after
Date of birth: 1964
Victim profile: Mary Elizabeth Dahn, 31 (gas station cashier)
Method of murder: Shooting
Location: Prince William County, Virginia, USA
Status: Executed by lethal injection in February 10, 1998
 
 
 
 
 
 

Asking forgiveness from the family of his victim, Tony A. Mackall was executed Tuesday night for killing a gas station cashier during a 1986 holdup.

Mackall, 33, was put to death by injection at the Greensville Correctional Center. He was pronounced dead at 9:10 p.m. (easstern time) warden David Garraghty said.

"I know it is a hard thing to wind up without a mother, and I ask you to forgive me," Mackall said in a clear, calm voice moments before lethal chemicals began flowing into his body. "I'm sorry for what I have caused."

Mackall's statement was directed at the 2 daughters of the victim, who were believed to be attending the execution. Department of Corrections officials would not confirm that, however.

Gov. Jim Gilmore denied clemency for Mackall about 3 hours before the death sentence was carried out. Mackall's court appeals were exhausted last Friday when the U.S. Supreme Court denied a request to delay the execution.

"Upon a thorough review of Mr. Mackall's petition for clemency, the numerous court decisions regarding this matter, and the circumstances of this case, I decline to intervene," Gilmore said in a written statement.

Mackall was convicted of capital murder in the Dec. 9, 1986, robbery and shooting death of Woodbridge service station cashier Mary Elizabeth Dahn, 31.

Her husband and two young daughters were decorating the gas station for the holidays and Mrs. Dahn was working the cash register when Mackall entered the store, demanded money and shot her in the head.

After killing Mrs. Dahn and robbing the station of $515, Mackall drove to a nearby town house development and shot a man twice in the head while trying to steal his car. The man, Michael Keating, survived and testified against Mackall.

Mackall was sentenced to death in December 1987. His lawyers have been appealing since 1988, arguing that he suffered severe head trauma during a troubled childhood, had a low I.Q., and received poor legal help.

Mrs. Dahn's widower, Stephen Dahn, and one of her daughters, April, now 16, have said they plan to witness the execution. April was 5 years old when her mother was shot. She testified for the prosecution at Mackall's trial.

In a recent interview with the Potomac News, April said she wanted to watch the execution because "I was there when my Mom died, so, I don't know, I just want to be there. What he did was just not human."

 
 

Tony Albert Mackall

On December 18, 1987, Tony Mackall was sentenced to death for the 1986 murder of Mary Dahn.

Mackall was a poor man with low intelligence (the exact level of his intelligence is disputed with one psychiatrist stating that it is 64, and thus labeling him mentally retarded, and another placing him somewhat higher on the intelligence scale, putting him in the dull-normal range).

For the first few months after his arrest Mackall maintained that he had no memory of the day the murder took place. He could not afford a psychiatrist so the state-appointed doctor examined him. Due to his memory loss, the doctor could only fill out a partial report.

In October 1987, Mackall regained his memory and the doctor examined him again. He did not find any grounds for a defense of insanity and despite Mackall's request to be examined by another psychiatrist, the court ordered the trial to begin. During voir dire, the judge did not permit the defense counsel to question prospective jurors about whether any of their family members were cashiers (Mrs. Dahn was killed while at her job as a cashier).

The Appellate Court conceded that that question was relevant, however, denied Mackall's appeal on that issue because they felt that other questions had alluded to that fact. Also during voir dire, any potential juror who expressed an opposition to the death penalty was dismissed automatically.

However, Temple Barron, a prospective juror who gave "an affirmative answer to a confusing question as to the appropriateness of the death penalty" was permitted to remain on the jury. Another questionable juror, Sally Seesc, was permitted to serve despite the rape of her mother only nine months earlier. 

Mackall also appealed because he felt that the testimony of Mrs. Dahn's six-year-old daughter, April, a key witness for the prosecution, was planted. He argued "that six-year-old April's testimony was a recollection not of the events surrounding her mother's murder but rather of a recent conversation she had with the Commonwealth's Attorney, Mackall maintain[ed] that the Commonwealth failed to establish her ability to remember the events in question."

Mackall also asserted "that April gave no 'clear indication that she understood the difference between telling the truth and telling a lie.'" Despite his objections both the trial court and the appellate court permitted the testimony to stand. 

During the sentencing portion of the trial, the psychologist was not permitted to describe the hallucinations that Mackall had before she interviewed him. The admittance of the testimony of the psychologist regarding the hallucinations could have had a mitigating effect on the sentence yet the trial court did not allow it. The Appellate Court did not support the defense's argument and affirmed the sentence. 

Tony Mackall was executed on February 10, 1998.

 
 

Tony Mackall, 33, was executed by injection as members of Mary Elizabeth Dahn's family watched. "I know it is a hard thing to grow up without a mother, and I ask you to forgive me,'' Mackall said in a strong voice moments before lethal chemicals flowed into his body. "I know it is a hard thing to do, but I can only ask.''

The family watched in a room separate from the booth where press and official witnesses sit. Mrs. Dahn, 31, was the cashier at the Woodbridge gas station in December 1986 when Mackall showed up, demanded money and shot her in the head.

Her husband Stephen, the station manager, and their two young daughters, April and Julie, were decorating the station for the holidays. After killing Mrs. Dahn and taking $515, Mackall drove to a nearby neighborhood and an hour later shot Michael Keating twice in the head after taking his car keys and wallet at gun point.

Michael survived and testified against Mackall, who also apologized to Keating in his final statement. Mackall had been released from prison 2 months earlier and was AWOL from a prison halfway house run by the Washington metropolitan government. After his arrest, Mackall admitted to a fellow inmate that he committed the shootings.

ProDeathPenalty.com

 
 


 

Tony Albert Mackall is scheduled to die by injection Tuesday at the Greensville Correctional Center for the Dec. 9, 1986, slaying of a service station cashier in Prince William County.

The execution would be the 1st of the year for Virginia and 47th in the state since the death penalty was allowed to resume in 1976.

Mackall, who may be retarded, has an appeal pending in the U.S. Supreme Court and a clemency petition filed with Gov. Jim Gilmore the 1st to be considered by his administration.

In a related development, Virginians for Alternatives to the death penalty will sponsor a Death Penalty Awareness Day Tuesday with an 11:30 a.m. rally in front of the General Assembly Building in Richmond.

The date, said Henry Heller, director of the organization, was in part set to draw attention to Mackall's execution.

Mackall, 33, was sentenced to die for the murder of Mary E. Dahn, who was shot to death during a robbery at a gasoline station in the east end of the county.

Her husband, Stephen Dahn, the station manager, and her 5- and 6-year-old daughters were at the station when the shooting occurred.

According to court documents, Mackall fled the station and an hour later shot and wounded Michael P. Keating after taking his car keys and wallet at gun point.

Mackall had been released from prison 2 months earlier and was AWOL from a prison halfway house run by the Washington metropolitan government.  After his arrest, Mackall admitted to a fellow inmate that he committed the shootings.

According to a federal appeal filed on his behalf, Mackall's IQ was tested at 64, in the retarded range, though a later test showed him be in "the dull-normal range."  A person with an IQ of 69 or below is considered to be retarded.

11 of the 38 states that have capital punishment have barred the execution of retarded killers, according to the Death Penalty Information Center in Washington, which is opposed to capital punishment.

Since the death penalty resumed in Virginia, the state has executed 2 retarded men:  Morris Odell Mason, whose IQ tested in the 62 to 66 range; and Walter Milton Correll, who had an IQ of 68. Mason was executed June 25, 1985, and Correll on Aug. 30, 1989.

The clemency petition, written by Mackall's lawyer, Joseph N. Bowman, of Alexandria, notes that Mackall's IQ has been rated at 64 and 71 and that Mackall had suffered head injuries as a child, had poor impulse control and suffered from a learning disability.

"It seems that he has been institutionalized and neglected throughout his life," wrote Bowman.  "Tony was a problem child from a very early age.  His 1st encounter with official authority was at about age 8, and intermittently thereafter until the murder for which he has been sentenced to die," he said.

Bowman said that "at the sentencing phase of Tony Mackall's trial, the jury never heard any statement or evidence regarding Tony's remarkably low level of intelligence, his hallucinations and delusions, or his numerous documented cases of head trauma."

"He is exactly the sort of person that should receive some mercy from our society.  He should be given at least one break," Bowman urged Gilmore.

(source:  Richmond Times-Dispatch)

  


 

109 F.3d 957

Tony Albert MACKALL, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Virginia Department of Corrections;
Charles E. Thompson, Warden, Mecklenburg State Correctional Facility;
Commonwealth of Virginia, Respondents-Appellees.

No. 95-4018.

United States Court of Appeals,
Fourth Circuit.

Argued July 16, 1996.
Decided March 25, 1997.

Opinion Vacated On May 21, 1997.

Before MURNAGHAN and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed in part and reversed and remanded in part by published opinion. Judge ERVIN wrote the opinion, in which Judge MURNAGHAN and Senior Judge BUTZNER joined.

OPINION

ERVIN, Circuit Judge:

Virginia death-row inmate Tony Albert Mackall petitioned the district court for a writ of habeas corpus, claiming among other things that his trial counsel had been ineffective. The district court held that Mackall had defaulted that issue by failing to raise it in his first state habeas petition.

Mackall appeals, arguing that his representation in the first state habeas proceeding also was ineffective. Because state habeas corpus offered the first forum in which Mackall could challenge the effectiveness of his trial counsel, we hold that he was entitled to effective assistance of counsel in the first state habeas proceeding. Accordingly, if the district court finds on remand that Mackall's first state habeas counsel was ineffective, that finding will excuse his default.

I

* The facts underlying Mackall's conviction were summarized by the Virginia Supreme Court in its disposition of his original appeal. See Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759, 762-63 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989). Mackall's arguments on this appeal are not fact-based, so we do not recount the facts in this opinion.

On December 18, 1987, Mackall was convicted in the Circuit Court of Prince William County, Virginia, of robbery, displaying a firearm in a threatening manner, and capital murder. He was sentenced to two years imprisonment for the firearm count, life for the robbery, and death for the murder. The Virginia Supreme Court affirmed, id., 372 S.E.2d at 771, and the United States Supreme Court denied certiorari. Mackall v. Virginia, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989).

On March 13, 1989, Mackall filed in the Circuit Court a petition for a writ of habeas corpus. The court dismissed the petition on October 18, 1989, and Mackall did not appeal. Mackall filed the instant federal petition on October 10, 1991. In a supplement to the federal petition, filed on May 18, 1992, he raised for the first time several claims of ineffective assistance of counsel. Mackall filed a second state habeas petition on August 18, 1993, and the district court stayed the federal proceedings pending the state court's disposition.

The Circuit Court of Prince William County dismissed the second state petition on September 23, 1993, declaring:

[T]he claims raised in the instant petition which were not raised in Mackall's prior habeas corpus petition are barred by Virginia Code 8.01-654(B)(2).... [T]he claims in the instant petition that were raised in the prior petition are barred under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974)[, cert. denied sub nom., Parrigan v. Paderick, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975),] by Mackall's failure to appeal.

The Virginia Supreme Court denied Mackall's petition for appeal, and the United States Supreme Court again denied certiorari. 513 U.S. 904, 115 S.Ct. 268, 130 L.Ed.2d 186 (1994). The federal district court lifted its stay on November 17, 1994. It then denied Mackall's writ of habeas corpus and dismissed the action.

Mackall's appeal to this court consists of four primary points: (1) that a certificate of probable cause should be granted; (2) that his claim of ineffective assistance at trial was not defaulted due to his counsel's failure to raise it in his state habeas appeal, because his assistance in the state habeas proceedings also was ineffective; (3) that voir dire was constitutionally defective because Mackall was not allowed to ascertain the jurors' views on the death penalty; and (4) that the trial court improperly limited his introduction of mitigating evidence in the sentencing phase.

II

The Commonwealth contends that Mackall's appeal fails under the recently enacted Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA" or "the Act"). The relevant portions of the Act modify the Judicial Code's habeas corpus provisions. They include revisions to parts of Chapter 153, codified at 28 U.S.C. 2244, 2253-55; and a new Chapter 154, codified at 28 U.S.C. 2261-66.

The Act provides specifically that "[t]he ineffectiveness or incompetence of counsel during State or Federal post-conviction proceedings in a capital case shall not be a ground for relief." 28 U.S.C. 2261(e); accord 2254(i).

Perhaps more importantly, it abrogates the independence with which federal courts have reviewed habeas corpus claims since Brown v. Allen, 344 U.S. 443, 458, 73 S.Ct. 397, 407-08, 97 L.Ed. 469 (1953). See Bennett v. Angelone, 92 F.3d 1336, 1341-42 (4th Cir.1996). The Act allows a federal court to address an issue not decided on its merits in state court only if the petitioner's failure to raise the issue in state court was:

(1) the result of State action in violation of the Constitution or laws of the United States;

(2) the result of the Supreme Court's recognition of a new Federal right that is made retroactively applicable; or

(3) based on a factual predicate that could not have been discovered through the exercise of due diligence in time to present the claim for State or Federal post-conviction review.

28 U.S.C. 2264. And if a state court did address an issue's merits, the Act permits federal habeas corpus review only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law," or "was based on an unreasonable determination of the facts." Id. 2254(d). Consequently, as a threshold matter, we must determine the Act's bearing on this appeal.

To ensure that the Act's tighter restrictions deny federal hearings only to defendants who had adequate habeas corpus proceedings at the state level, see H.R.Rep. No. 23, 104th Cong., 1st Sess.1995, 1995 WL 56412, 139 Cong. Rec. S15020-01, *15047, 1993 WL 451824 (Nov. 4, 1993) (statement of Sen. Specter); 139 Cong. Rec. S14940-02, * S14943, 1993 WL 448500 (Nov. 3, 1993) (statement of Sen. Hatch), Congress conditioned Chapter 154's application on appropriate state provisions for appointment of competent counsel:

(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.

(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.

(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record--

(1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;

19

(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or

(3) denying the appointment of counsel upon a finding that the prisoner is not indigent.

28 U.S.C. 2261(a)-(c).

Virginia contends that its existing standards satisfy the Act's "opt-in" provisions. But the statute containing the Virginia standards, Va.Code 19.2-163.8, did not become effective until July 1, 1992--nearly three years after Mackall's first state habeas petition was dismissed. See Bennett, supra, at 1342 ("Although the parties dispute whether Virginia's system satisfies [the Act]'s requirements, this dispute is irrelevant because, whatever the merits of the Virginia system, it was not set up until after Bennett's Virginia habeas petition had been finally denied by the Virginia Supreme Court.").

Mackall filed his second petition after the statute was enacted, but the Virginia courts deemed all of its grounds defaulted by Mackall's failure to raise or appeal them in his first habeas proceeding. The merits of Mackall's state petitions, then, were never advocated by counsel appointed pursuant to Section 19.2-163.8.

To rule in Mackall's case that Section 19.2-163.8 satisfies the "opt-in" conditions would deny Mackall the very protection that Congress intended the "opt-in" provisions to ensure--representation by properly appointed counsel in at least one habeas corpus proceeding on the merits. Thus, without deciding whether the Virginia appointment procedures would satisfy the "opt-in" provisions in a case involving state proceedings initiated after 1992, we hold that Section 19.2-163.8 was enacted too late to impact Mackall. Mackall's federal petition, therefore, is not subject to Chapter 154's restrictions.

That conclusion does not end the inquiry. The failure of a state to "opt-in" preempts the application of Chapter 154 only; it does not affect the Act's amendments to Chapter 153. See Bennett, supra, at 1342-43. However, the AEDPA was not enacted until April 24, 1996, nearly six months after the district court disposed of Mackall's case and two days after he filed his opening brief in the Fourth Circuit. And, unlike Chapter 154, the amendments to Chapter 153 are not subject to a retroactivity clause. Cf. Pub.L. No. 104-132, 107(c), 110 Stat. 1214, 1226 ("Chapter 154 ... shall apply to cases pending on or after the date of enactment of this Act.").

Absent some indication that Congress intended the revisions to apply retroactively, see Landgraf v. USI Film Prods., 511 U.S. 244, 255-57, 114 S.Ct. 1483, 1492, 128 L.Ed.2d 229 (1994), we will not review the district court's disposition under standards that did not exist until after this appeal had divested the court of jurisdiction. Cf. Warner v. United States, 926 F.Supp. 1387, 1390 n. 4 (E.D.Ark.1996) (holding that, under Landgraf, presumption against retroactivity applies absent manifestation of congressional intent, particularly in light of express intent that Chapter 154 be retroactive). But see Leavitt v. Arave, 927 F.Supp. 394, 396 (D.Idaho 1996) (also citing Landgraf, but reaching opposite conclusion). Accordingly, we do not apply the portions of the Act amending Chapter 153.

III

The Supreme Court has held that a certificate of probable cause may be granted a habeas corpus petitioner only upon a "substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (citations omitted). A habeas corpus petitioner makes a "substantial showing of the denial of a federal right" when he shows that (1) the questions he raises are "debatable among jurists of reason"; (2) a court could decide the issues differently; or (3) the "questions are adequate to deserve encouragement to proceed further." Id. n. 4 (citations omitted). Finding that Mackall has met this standard as to each of his three claims, we grant him a certificate of probable cause on each of them.

* Mackall contends that he received ineffective assistance at trial and in his first habeas corpus proceeding. He acknowledges that the constitution generally does not guarantee effective assistance in habeas appeals. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (holding that habeas petitioner is not entitled to representation); Murray v. Giarratano, 492 U.S. 1, 2, 109 S.Ct. 2765, 2766, 106 L.Ed.2d 1 (1989) (applying Finley rule in capital case); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301-02, 71 L.Ed.2d 475 (1982) (ruling that there can be no ineffective assistance claim where no right to counsel). He contends, however, that an exception to the general rule should be recognized when, as in this case, the constitutional violation of which a defendant complains was not directly appealable.

Virginia courts do not permit claims of ineffective trial counsel to be raised on direct appeal. Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114, 124 n. 2 (1996); Roach v. Commonwealth, 251 Va. 324, 468 S.E.2d 98, 105 n. 4 (1996); Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698, 699-700 (1983). But both Mackall and the Commonwealth overlook a statutory exception that was operable at the time of Mackall's direct appeal. Virginia Code section 19.2-317.1, which was enacted in 1985, see Dowell v. Commonwealth, 3 Va.App. 555, 351 S.E.2d 915, 919 (1987), permitted defendants to raise ineffective assistance claims on direct appeal under certain circumstances:

A claim of ineffective assistance of counsel may be raised on direct appeal if assigned as error and if all matters relating to such issue are fully contained within the record of the trial.

19.2-317.1 (repealed 1990). When presented with claims of ineffective assistance, the Virginia Supreme Court routinely ruled that the claims were not directly appealable under the statute, because they could be resolved only by examining matters not "fully contained within the record of the trial." E.g., Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871, 886 n. 5 (Va.), cert. denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990); Mu'Min v. Commonwealth, 239 Va. 433, 389 S.E.2d 886, 898 (1990), aff'd 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991); Paris v. Commonwealth, 9 Va.App. 454, 389 S.E.2d 718, 720 n. 2 (1990); Brown v. Commonwealth, 8 Va.App. 126, 380 S.E.2d 8, 8 n. 1 (1989); Hill v. Commonwealth, 8 Va.App. 60, 379 S.E.2d 134, 139 (1989); Hoke v. Commonwealth, 237 Va. 303, 377 S.E.2d 595, 605 n. 4 (Va.), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 709 (1989), cert. denied, 502 U.S. 880 (1991); Grogg v. Commonwealth, 6 Va.App. 598, 371 S.E.2d 549, 550 n. 1 (1988); Payne v. Commonwealth, 5 Va.App. 498, 364 S.E.2d 765, 768-69 (1988); Payne v. Commonwealth, 233 Va. 460, 357 S.E.2d 500, 509 (Va.), cert. denied, 484 U.S. 933, 108 S.Ct. 308, 98 L.Ed.2d 267 (1987); Beaver v. Commonwealth, 232 Va. 521, 352 S.E.2d 342, 351-52 (Va.), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987); Correll v. Commonwealth, 232 Va. 454, 352 S.E.2d 352, 361 & n. 6 (Va.), cert. denied, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987); Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267, 287 (1986).

The court allowed a direct appeal only once, when the basis of the claim was not the trial attorney's performance, but a conflict of interest arising from his representation of two codefendants who testified against the appellant. Dowell, 351 S.E.2d at 919. Apparently because of its general inapplicability, the statute was repealed in 1990. See Browning v. Commonwealth, 19 Va.App. 295, 452 S.E.2d 360, 362 n. 2 (1994).

Mackall's ineffective-assistance argument is based entirely on his trial counsel's tactics. He challenges his attorney's failure to challenge a witness's identification of Mackall, failure to cross-examine the identifying witness, failure to point out another witness's statement that the perpetrator wore a mask, failure to object to allegedly irrelevant testimony, failure to cross-examine a jailhouse informant, failure to object to the prosecutor's summation, and failure to object to testimony beyond the scope of an expert witness's expertise. All of these grounds are performance-based--the type that, the Virginia Supreme Court uniformly ruled, is outside the scope of section 19.2-317.1. Consequently, Mackall's claim of ineffective assistance was not directly appealable.

In Coleman v. Thompson, another capital case that arose in Virginia, the petitioner asserted that the ineffectiveness of his state habeas appellate counsel constituted cause to excuse the procedural default of his ineffective trial-counsel claim. 501 U.S. 722, 755, 111 S.Ct. 2546, 2567-68, 115 L.Ed.2d 640 (1991). The Supreme Court disagreed. Citing the federalist principle of deference to state judgments, id. at 726, 111 S.Ct. at 2552, it reiterated its earlier holding in Murray v. Carrier that,

[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective ..., we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.

Id. at 752, 111 S.Ct. at 2566 (quoting Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986)). Coleman had no constitutional right to any representation in his state habeas appeal, the Court held, so his counsel on that appeal could not have been constitutionally ineffective. Id. at 755-57, 111 S.Ct. at 2567-69.

Coleman does not resolve the question in this case. The Court expressly relied on the fact that Coleman's claim had been advocated effectively in one forum--the state habeas trial--so it left open the question posed by Mackall:

Finley and Giarratano established that there is no right to counsel in state collateral proceedings. For Coleman to prevail, therefore, there must be an exception to the rule of Finley and Giarratano in those cases where state collateral review is the first place a prisoner can present a challenge to his conviction. We need not answer this question broadly, however, for one state court has addressed Coleman's claims: the state habeas trial court.

The effectiveness of Coleman's counsel before that court is not at issue here. Coleman contends that it was the ineffectiveness of his counsel during the appeal from that determination that constitutes cause to excuse his default. We thus need to decide only whether Coleman had a constitutional right to counsel on appeal from the state habeas trial court judgment . We conclude that he did not.

Id. at 755, 111 S.Ct. at 2567-68 (emphasis added).

The Supreme Court long has recognized a constitutional right to counsel in a defendant's first appeal as of right. Douglas v. California, 372 U.S. 353, 356-57, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963). There is a strong argument to be made that, with respect to any issues not directly appealable, that right extends to representation in the state habeas trial court. Cf. Coleman, 501 U.S. at 756, 111 S.Ct. at 2568 ("Coleman has had his 'one and only appeal,' if that is what a state collateral proceeding may be considered.").

But the question in this case is even narrower. The effectiveness of trial counsel, by its very nature, generally cannot be challenged in the original trial court. Thus, unlike other constitutional issues such as Miranda violations, unreasonable searches, double jeopardy, et cetera, ineffective assistance of counsel can be raised only on direct or collateral appeal.

To decide that a defendant claiming ineffective trial counsel is not entitled to representation in his first habeas corpus proceeding, in a state that does not allow trial counsel's effectiveness to be challenged on direct appeal, would be to conclude that the defendant is not entitled in any forum to an attorney's assistance in presenting a fundamental constitutional claim. We will not so hold. Accordingly, Mackall is entitled to a hearing to determine whether the evidence of his first habeas counsel's ineffectiveness constitutes a "substantial showing of the denial of a federal right."

B

Next, Mackall argues that the trial court erred by refusing to ask the jurors whether or not they held opinions on the death penalty and, if so, what their opinions were.1 He bases his argument in part on Wainwright v. Witt, in which the Supreme Court stated the standard for excluding jurors for cause based on their views about capital punishment: "That standard is whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985) (internal quotation omitted).

Mackall also relies heavily on Morgan v. Illinois, in which the Court ruled that a capital defendant is entitled to ask jurors whether, if they were to find a defendant guilty, they would "automatically vote to impose the death penalty no matter what the facts [we]re." 504 U.S. 719, 723, 735-36, 112 S.Ct. 2222, 2226, 2233-34, 119 L.Ed.2d 492 (1992).

We do not infer from Wainwright and Morgan a requirement that trial courts allow inquiries into jurors' views on the death penalty. Those decisions focus not on whether the jurors have opinions, or what those opinions are, but on whether the opinions the jurors hold, whatever they are, will inhibit their ability to follow the law. The trial judge in this case asked the jurors the following questions about the application of the death penalty:

(1) Do you have any opinion such as to prevent any of you from convicting anyone of an offense punishable with death?

(2) If you were to find the defendant guilty of capital murder, is there any juror who could never vote to impose the death penalty or would refuse to even consider its imposition in this case?

(3) If you were to sit as a juror in this case and the jury were to convict the defendant of capital murder, would you also be able to consider voting for a sentence less than death?

Those questions properly addressed the central question of Wainwright and Morgan--whether jurors can follow the law. Thus the trial judge did not abuse his discretion by refusing to ask the jurors what their opinions were.

C

Finally, Mackall contends that the trial court erred by excluding certain mitigating evidence--of prior drug use, hallucinations, and efforts to reform--and by limiting evidence of intelligence deficiency.2

He relies on Lockett v. Ohio, in which the Supreme Court held that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978). The Commonwealth contends that Mackall defaulted these arguments because, although he challenged the trial court's refusal to admit the evidence in Virginia courts and in the district court, he did not cite Lockett or the U.S. Constitution until this appeal.

Mackall responds, however, that he relied below on Virginia Code 19.2-264.4(B), which requires admission, "subject to the rules of evidence," of "any ... facts in mitigation of the offense." That statute, he argues, was enacted to implement the dictates of Lockett and other constitutional principles, see Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 149 & n. 6 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).

Therefore, he concludes, his argument of the factual basis for his claim, and his citation of authority derived from Lockett and other constitutional precedents, were sufficient to preserve the constitutional issues.

Both parties treated this issue as minor. They devoted to it only a small portion of their briefs, and neither even mentioned it at oral argument. More important than the volume of their discussions, both Mackall and the Commonwealth neglected the Supreme Court's development of the Lockett doctrine in the eighteen years since the original decision, and the uncertainty that remains regarding the interplay of constitutional principles and state rules of evidence. Compare, e.g., Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 2151, 60 L.Ed.2d 738 ("Regardless of whether the proffered testimony comes within Georgia's hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment."), with Romano v. Oklahoma, 512 U.S. 1, 12, 114 S.Ct. 2004, 2011, 129 L.Ed.2d 1 (1994) ("The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings.").

Finally, the insufficiency of the parties' attention is compounded by the absence of any consideration by the district court of the constitutional question. Consequently, we remand the issue to the district court for more thorough development in light of its ruling on the effectiveness of Mackall's representation.

IV

We reject Mackall's contentions that the state trial court erred in asking the questions about the application of the death penalty discussed in Part III B above. However, we remand for an evidentiary hearing on the effectiveness of Mackall's original state habeas counsel, and for more thorough development of the mitigative evidence question.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

*****

1

We need not resolve the voir dire question to reverse on the ineffective assistance ground. If we were not to resolve it, however, it probably would arise again regardless of the district court's verdict in the evidentiary hearing. Were the district court to find that Mackall's state trial representation was constitutionally defective, and order a new trial, Mackall might propose again the questions that are contested here. And, were the district court to rule against Mackall on the ineffective assistance issue, Mackall likely would file another appeal on the voir dire question. For judicial economy, therefore, we address it now

2

The mitigation question also is likely to arise again. Were Mackall granted a new trial based on his ineffective assistance claim, and convicted again, he might seek to introduce in the sentencing phase the same mitigative testimony that the original trial judge excluded. And, if the district court were to find that Mackall's representation was effective, Mackall might appeal once again to this court on the mitigation question. Nevertheless, for the reasons that follow, we elect not to address it

 
 

131 F.3d 442

Tony Albert MACKALL, Petitioner-Appellant,
v.
Ronald J. ANGELONE, Director, Virginia Department of Corrections;
Samuel V. Pruett, Warden, Mecklenburg State Correctional Facility;
Commonwealth of Virginia, Respondents-Appellees.

No. 95-4018.

United States Court of Appeals,
Fourth Circuit.

Argued Sept. 30, 1997.
Decided Dec. 18, 1997.
Certiorari Denied Feb. 6, 1998.

Before WILKINSON, Chief Judge, RUSSELL, WIDENER, MURNAGHAN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ joined. Senior Judge BUTZNER wrote a dissenting opinion, in which Judge MURNAGHAN joined.

OPINION

WILKINS, Circuit Judge:

Tony Albert Mackall appeals a decision of the district court denying his petition for a writ of habeas corpus,1 which challenged his Virginia conviction for capital murder and resulting death sentence. See 28 U.S.C.A. 2254 (West 1994).2 Mackall's request for a certificate of probable cause to appeal is granted because at least one judge on the panel concludes that Mackall "has made a substantial showing of the denial of a constitutional right." 4th Cir. R. 22(a).3 We conclude that the district court correctly held that Mackall was not entitled to habeas relief.4

I.

On the night of December 9, 1986, Mackall robbed a service station in Prince William County, Virginia and murdered the cashier on duty, Mary E. Dahn, by shooting her in the head. Mackall subsequently was convicted of capital murder in the commission of a robbery while armed with a dangerous weapon and was sentenced to death on the basis that he posed "a continuing serious threat to society."5 Va.Code Ann. 19.2-264.2 (Michie 1995).

The Supreme Court of Virginia affirmed on direct appeal, and the United States Supreme Court denied certiorari. See Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989).

In March 1989, Mackall filed his first petition for postconviction relief, asserting the following: (1) a pretrial lineup and an in-court identification were unnecessarily suggestive; (2) the trial court improperly refused to permit defense counsel to inquire into the views of the venire on the death penalty; (3) the trial court improperly excluded the mitigating testimony of Patricia Hollingsworth; and (4) trial counsel should have been permitted to withdraw due to a conflict of interest.

This petition was neither signed nor verified by Mackall and did not raise any claim of ineffective assistance of counsel. The state habeas court denied the petition, concluding that the first of Mackall's claims was defaulted under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974) (holding that issues not properly raised at trial and on direct appeal will not be considered on state collateral postconviction review) and that the remaining claims were barred by Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271, 274 (1970) (precluding, absent changed circumstances, consideration in state habeas proceedings of claims previously considered on their merits). Mackall did not seek review of this ruling.

Acting pro se, Mackall filed this action on January 2, 1992, seeking habeas corpus relief pursuant to 28 U.S.C.A. 2254. The district court appointed counsel and granted counsel's subsequent request to hold the federal proceedings in abeyance to permit Mackall to exhaust numerous claims that had not been pursued on direct appeal or in his first state habeas petition. Mackall then, for a second time, petitioned the Virginia courts for postconviction relief. Among the claims Mackall advanced in this second state petition were arguments that he received ineffective assistance of counsel during trial and on direct appeal. The state habeas court denied relief, concluding that because Mackall had not raised these claims in his first habeas petition, they were barred pursuant to Va.Code Ann. 8.01-654(B)(2) (Michie 1992).

Mackall petitioned the Supreme Court of Virginia for review, raising five assignments of error: (1) the state habeas court erred in failing to conduct an evidentiary hearing; (2) he possessed a right to effective assistance of counsel in the first forum in which he could raise his federal constitutional claims; (3) the attorney who represented him during his first state habeas proceeding was ineffective, and this ineffectiveness constituted cause for failing to raise the claims that were omitted from the first state habeas petition; (4) the new claims raised in his second state habeas petition were not defaulted because the state habeas court lacked jurisdiction to consider the first petition since that petition was neither signed nor verified; and (5) the new claims raised in his second state habeas petition were not defaulted by his failure to seek appellate review of the denial of the first habeas petition. The Supreme Court of Virginia denied review:

Applying the mandate of Code 8.01-654(B)(2) and the rule of Slayton v. Parrigan to the assignments of error Nos. 4 and 5, and finding no merit in the appellant's other assignments of error, the Court refuses the petition for appeal.

J.A. 1762 (citation omitted).

Returning to district court, Mackall pressed numerous claims, including the three that he pursues here--that he received constitutionally ineffective assistance of counsel during trial and on direct appeal in violation of the Sixth Amendment; that the trial court improperly excluded mitigating evidence in violation of the Eighth and Fourteenth Amendments; and that the refusal of the state trial court to permit defense counsel to question the venire concerning their views of the death penalty violated the Sixth and Fourteenth Amendments. The district court rejected each of these claims, and Mackall appeals.

II.

Absent cause and prejudice or a fundamental miscarriage of justice, a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989).

The Supreme Court of Virginia expressly relied on the procedural default rule set forth in Va.Code Ann. 8.01-654(B)(2) in refusing during Mackall's second state habeas corpus proceedings to consider his claims that he received constitutionally ineffective assistance of counsel during trial and on direct appeal.6 And, we have held on numerous occasions that the procedural default rule set forth in 8.01-654(B)(2) constitutes an adequate and independent state-law ground for decision. See, e.g., Pope v. Netherland, 113 F.3d 1364, 1372 (4th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 16, 138 L.Ed.2d 1048 (1997) (No. 97-5343); Gray v. Netherland, 99 F.3d 158, 163 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1102, 137 L.Ed.2d 234 (1997).

Accordingly, we may not consider these claims on their merits unless Mackall can demonstrate that cause and prejudice exist to excuse the default or that the failure of the court to consider the claims would amount to a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991).

Mackall maintains that cause and prejudice exist7 to excuse his failure to raise the claims that counsel representing him during trial and on direct appeal were constitutionally ineffective. He asserts that the attorney representing him during his first habeas corpus proceeding was himself constitutionally ineffective in failing to raise the earlier ineffectiveness of counsel.

In other words, Mackall contends that because he received constitutionally ineffective assistance of counsel during his first state habeas corpus proceeding, this court should excuse his failure to raise the claims of ineffective assistance of trial and appellate counsel and address those claims on their merits.

If attorney error amounts to constitutionally ineffective assistance of counsel under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),8 the Sixth Amendment dictates that the attorney's error must be imputed to the state. See Coleman, 501 U.S. at 754, 111 S.Ct. at 2567. Consequently, when attorney error amounts to constitutionally ineffective assistance of counsel, it may provide the cause necessary to excuse a procedural default. See id. at 752-54, 111 S.Ct. at 2566-67; Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). In order to constitute constitutionally ineffective assistance of counsel, however, a constitutional right to effective assistance of counsel must first exist. See Coleman, 501 U.S. at 752, 111 S.Ct. at 2566.9

In Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987), the Supreme Court categorically rejected an argument that "prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions." The Finley Court was reviewing a decision of the Pennsylvania Superior Court, which reversed the dismissal of a petition for postconviction relief after appointed counsel moved to withdraw on the basis that no nonfrivolous grounds for such relief existed. See id. at 553-54, 107 S.Ct. at 1992-93. The Pennsylvania Superior Court had ruled that the procedures specified in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),10must be followed when counsel appointed to represent a petitioner pursuing collateral relief from a state conviction determines that no nonfrivolous issues exist and seeks to withdraw. See id. at 554, 107 S.Ct. at 1992.

The Finley Court emphatically disagreed with the conclusion of the state court. The Supreme Court observed that the procedures set forth in Anders were designed to protect the constitutional right to counsel on direct appeal that the Court recognized in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (holding that the denial of counsel to an indigent defendant on a first appeal as of right violated a "constitutional requirement of substantial equality and fair process" mandated by the Fourteenth Amendment). See Finley, 481 U.S. at 554, 107 S.Ct. at 1992.

The Court ruled, however, that the reasoning in Douglas did not compel the conclusion that because the state had created an avenue for collateral review of a conviction, the Fourteenth Amendment mandated that the state provide effective assistance of counsel--as protected by the procedures prescribed in Anders--to allow an indigent petitioner to pursue it. See id. at 554-55, 107 S.Ct. at 1992-93.

Furthermore, the Court explained, Anders did not establish a constitutional rule that appointed attorneys in all proceedings must follow the specified procedures, but "established a prophylactic framework" applicable only when a defendant possesses a constitutional right to counsel. Id. The Court set forth its holding in unmistakably plain language: "We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further." Id. at 555, 107 S.Ct. at 1993 (emphasis added) (citation omitted).

A plurality of the Court applied this holding in a capital setting in Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). There, Chief Justice Rehnquist, joined by Justices White, O'Connor, and Scalia, rejected a claim by Virginia death row inmates that the Fourteenth Amendment required that counsel be appointed to permit them to pursue postconviction relief from their capital convictions and sentences. See id. at 3-13, 109 S.Ct. at 2766-72. The plurality reiterated the reasoning in Finley:

"Postconviction relief is even further removed from the criminal trial than is discretionary direct review[for which the Court had rejected a constitutional right to counsel in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) ]. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature.... States have no obligation to provide this avenue of relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the state supply a lawyer as well."

Giarratano, 492 U.S. at 8, 109 S.Ct. at 2769 (second alteration in original) (citations omitted) (quoting Finley, 481 U.S. at 556-57, 107 S.Ct. at 1993-94). And, the plurality found this reasoning to apply equally in capital and noncapital settings. See id. at 8-10, 109 S.Ct. at 2769-70.11

Most recently, in Coleman v. Thompson, the Court addressed a claim by Coleman--who was seeking federal habeas relief from his state capital conviction and sentence--that he could demonstrate cause to excuse a procedural default based on ineffective assistance of counsel. See Coleman, 501 U.S. at 752, 111 S.Ct. at 2566. Coleman's attorney had failed to timely file an appeal from the denial of a state petition for collateral relief, resulting in the dismissal of the appeal based on a state procedural rule. See id. at 727-28, 111 S.Ct. at 2546-47.

This procedural rule constituted an adequate and independent state ground for denying relief on the claims raised in the state petition and hence foreclosed federal review of those claims absent cause and prejudice or a miscarriage of justice. See id. at 740-44, 111 S.Ct. at 2559-61. Coleman argued that cause existed to excuse his default because his attorney had been constitutionally ineffective in failing to note a timely appeal. See id. at 752, 111 S.Ct. at 2566.

The Court, however, rejected Coleman's claim. See id. at 752-57, 111 S.Ct. at 2566-68. It explained that Carrier required that in order to constitute cause, attorney error must amount to constitutionally ineffective assistance of counsel and that this standard could not be satisfied in the absence of a constitutional right to counsel. See id. at 752, 111 S.Ct. at 2566 (citing Carrier, 477 U.S. at 487-88, 106 S.Ct. at 2644-45). And, relying on Finley, the Court stated in unequivocal terms:

Applying the Carrier rule as stated, this case is at an end. There is no constitutional right to an attorney in state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (applying the rule to capital cases). Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.

Coleman, 501 U.S. at 752, 111 S.Ct. at 2566. Thus, the Court held that cause based on the attorney's failure to file a timely appeal from the denial of state habeas relief had not been demonstrated because "counsel's ineffectiveness will constitute cause only if it is an independent constitutional violation[, and] Finley and Giarratano established that there is no right to counsel in state collateral proceedings." Id. at 755, 111 S.Ct. at 2567.

The Court then turned to consider expressly Coleman's argument. He maintained that because the applicable Virginia law prohibited him from raising claims of ineffective assistance of trial or appellate counsel during his direct appeal, state habeas proceedings were the first opportunity that he had to present those issues and that, as a result, he should possess a constitutional right to effective assistance of counsel to pursue those claims on collateral review under the reasoning of Douglas. See id. Addressing this argument, the Court wrote:

For Coleman to prevail, ... there must be an exception to the rule of Finley and Giarratano in those cases where state collateral review is the first place a prisoner can present a challenge to his conviction. We need not answer this question broadly, however, for one state court has addressed Coleman's claims: the state habeas trial court. The effectiveness of Coleman's counsel before that court is not at issue here. Coleman contends that it was the ineffectiveness of his counsel during the appeal from that determination that constitutes cause to excuse his default. We thus need to decide only whether Coleman had a constitutional right to counsel on appeal from the state habeas trial court judgment. We conclude that he did not.

Id. The Court explained that Douglas "established that an indigent criminal defendant has a right to appointed counsel in his first appeal as of right in state court" because the " 'equality demanded by the Fourteenth Amendment' " dictates that when " 'the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, ... an unconstitutional line has been drawn between rich and poor.' " Id. at 755-56, 111 S.Ct. at 2567-68 (quoting Douglas, 372 U.S. at 357-58, 83 S.Ct. at 816-17) (emphasis omitted).

Thus, the Court refused to accept Coleman's assertion that he was entitled to effective assistance of counsel on his appeal from the denial of his state habeas petition, reasoning that he had "had his one and only appeal, if that is what a state collateral proceeding may be considered" when the state habeas court considered his claims of ineffective assistance of counsel. Id. at 756, 111 S.Ct. at 2568(internal quotation marks omitted).

Here, Mackall squarely presents the issue purportedly reserved in Coleman. He argues that he possessed a constitutional right to the effective assistance of counsel in his first state habeas corpus proceeding in order to raise his claims of ineffective assistance of trial and appellate counsel. He correctly observes that under Virginia law claims of ineffective assistance of neither trial nor appellate counsel can be raised on direct appeal.12 See id. at 755, 111 S.Ct. at 2567.

Because he was unable to present his allegations of constitutional error on direct appeal, the first opportunity made available by the Commonwealth for the presentation of his ineffective assistance of counsel claims was his initial state habeas proceeding; thus, Mackall contends, the first state habeas proceeding is analogous to the one and only appeal of right in which a right to counsel was held to exist in Douglas. Hence, Mackall continues, he possessed a constitutional right to counsel in the first state habeas proceeding to raise claims of constitutionally ineffective assistance of trial and appellate counsel that he could not raise on direct appeal. We cannot agree.

It is true that in Coleman the Supreme Court rejected on narrow grounds the argument that a petitioner possesses a right to effective assistance of counsel in state postconviction relief proceedings to pursue constitutional claims that could not be raised during the direct appeal and is said to have purported to leave unanswered the question presented here. Nevertheless, we cannot accept Mackall's contention that Coleman recognizes a loophole and that he possesses a right to effective assistance of counsel to pursue in his state collateral proceedings a claim of ineffective assistance of trial or appellate counsel.

The Coleman Court did not adopt an exception to Finley; it merely rejected Coleman's argument that the Court should create such an exception on the facts presented. And, critically, the rule for which Mackall argues here is directly contrary to the explicit holding of Finley that no constitutional right to counsel exists in collateral review. Cf. id. at 755, 111 S.Ct. at 2567 ("Finley and Giarratano established that there is no right to counsel in state collateral proceedings.").

As an inferior appellate court, we are not at liberty to disregard this controlling authority. See Agostini v. Felton, --- U.S. ----, ----, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997) (reaffirming that "if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions" (internal quotation marks omitted)). Thus, we are bound by the holding in Finley.13

Because Mackall has no right to effective assistance of counsel in his state habeas proceedings, he cannot demonstrate cause to excuse the procedural default of his claims that his trial and appellate counsel were constitutionally ineffective. Consequently, federal habeas review of those claims is barred.

III.

Mackall next contends that the state trial court violated the Eighth and Fourteenth Amendments by limiting testimony he sought to introduce in mitigation during the sentencing phase of his trial. During cross-examination of prosecution witness Patricia Hollingsworth, Mackall's former probation officer, Mackall sought to elicit testimony that he had asked to be incarcerated for a prior offense in Morgantown, West Virginia rather than Lorton Reformatory in Virginia because he had many friends at Lorton and "had been hanging around with the wrong group." J.A. 1157.

Further, during presentation of his case in mitigation, Mackall sought to develop the basis for Dr. Carol Rayburn's opinion that Mackall's mental functioning was impaired and to elicit Mackall's self-reports to her that he had experienced hallucinations. Additionally, Mackall attempted to have Terry Hollar, a nurse from the local jail, testify that he had admitted prior drug use to her. The state trial court sustained prosecution objections to these lines of testimony.

Mackall alleged error based on each of these trial court rulings to the Supreme Court of Virginia during his direct appeal, asserting that the exclusions violated state law. However, Mackall did not base his claims of error on a constitutional right to admit mitigating testimony or contend that the refusal of the trial court to admit this testimony rendered his sentencing proceeding fundamentally unfair.

Thus, Mackall failed to exhaust the claims he now seeks to raise. See Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam) (holding that argument to state supreme court that an evidentiary ruling by trial court violated state law was insufficient to exhaust claim that the ruling constituted a violation of a federal constitutional right, and rejecting the argument that similarity of claims is adequate to exhaust); Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.) (explaining that in order for federal claim to be exhausted, its substance must be presented to the highest state court), cert. denied, --- U.S. ----, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997); Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.1994) (noting that exhaustion requires that petitioner do more than apprise state court of the facts; he must "explain how those alleged events establish a violation of his constitutional rights"); id. at 995 (explaining that exhaustion requires "more than scatter[ing] some makeshift needles in the haystack of the state court record" (internal quotation marks omitted)).

Because presentation of these claims to the state court at this juncture would be fruitless, they properly are considered to be procedurally barred. See George v. Angelone, 100 F.3d 353, 363 (4th Cir.1996) ("A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture."), cert. denied, --- U.S. ----, 117 S.Ct. 854, 136 L.Ed.2d 829 (1997). And, because Mackall does not maintain that this default may be excused by cause and prejudice or a miscarriage of justice, we hold these allegations of constitutional error to be procedurally defaulted.

IV.

Mackall's sole undefaulted claim is that the state trial court violated the Sixth and Fourteenth Amendments by refusing to question prospective jurors concerning their views on the death penalty. We disagree.

The Sixth and Fourteenth Amendments "guarantee[ ] a defendant on trial for his life the right to an impartial jury." Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992). And, " 'the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment ... is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' " Id. (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)) (alteration in original). "[A] juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause." Id. Likewise, a juror "who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do;" such a juror is not impartial and should be removed for cause. Id. at 729, 112 S.Ct. at 2229.

A corollary of the right to an impartial jury is the requirement of a voir dire sufficient to permit identification of unqualified jurors because without an adequate voir dire, a trial judge will not be able to remove unqualified jurors and the defendant will not be able to exercise challenges for cause. See id. at 729-30, 112 S.Ct. at 2229.

Thus, a capital defendant must be allowed on voir dire to ascertain whether prospective jurors are unalterably in favor of the death penalty in every case, regardless of the circumstances, rendering them unable to perform their duties in accordance with the law. See id. at 735-36, 112 S.Ct. at 2233-34. Questions directed simply to whether a juror can be fair, or follow the law, are insufficient. See id. at 734-36, 112 S.Ct. at 2232-33.

Although the state trial court declined Mackall's request to ask prospective jurors their views on the death penalty, it did ask prospective jurors the following questions relating to the death penalty:

Do you have any opinion such as to prevent any of you from convicting anyone of an offense punishable with death?

....

If you were to find the defendant guilty of capital murder, is there any juror who could never vote to impose the death penalty or would refuse to even consider its imposition in this case?

....

... If you were to sit as a juror in this case and the jury were to convict the defendant of capital murder, would you also be able to consider voting for a sentence less than death?

J.A. 500-01. These questions focus on the relevant circumstance of whether a prospective juror entertains opinions on capital punishment that would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath and are adequate to identify those who would automatically vote for the death penalty. Consequently, we conclude that the voir dire conducted by the state trial court did not violate Mackall's Sixth or Fourteenth Amendment rights.

V.

In sum, we conclude that Mackall has not demonstrated cause to excuse his procedural default of both his claim that he received ineffective assistance of trial and appellate counsel and his claim that the state trial court violated the Eighth and Fourteenth Amendments by excluding certain testimony during the sentencing phase of his trial. We also hold that the state trial court did not violate the Sixth or Fourteenth Amendments by refusing to inquire into the prospective jurors' views of the death penalty. Accordingly, we affirm.

AFFIRMED.

*****

BUTZNER, Senior Circuit Judge, with whom Judge Murnaghan joins, dissenting:

The Supreme Court of Virginia, for good and sufficient reasons, will not decide on direct appeal whether counsel was constitutionally ineffective during trial and direct appeal. This appeal raises the following question, which was recognized and reserved in Coleman v. Thompson, 501 U.S. 722, 755, 111 S.Ct. 2546, 2567, 115 L.Ed.2d 640 (1991). Did Mackall have a right to the assistance of competent counsel to pursue the issue of allegedly incompetent counsel in his state habeas corpus proceeding? Sound precedent suggests an affirmative answer.

The Sixth Amendment guarantees a person charged with a felony a right to counsel at trial. Gideon v. Wainwright, 372 U.S. 335, 336-45, 83 S.Ct. 792, 792-97, 9 L.Ed.2d 799 (1963).

The right to counsel extends to the first appeal (sometimes called a direct appeal). Douglas v. California, 372 U.S. 353, 355-58, 83 S.Ct. 814, 815-17, 9 L.Ed.2d 811 (1963).

Counsel must be competent. Strickland v. Washington, 466 U.S. 668, 684-87, 104 S.Ct. 2052, 2062-64, 80 L.Ed.2d 674 (1984).

Therefore, to give effect to the foregoing precedent, Mackall had a right to pursue his Sixth Amendment guarantee of competent counsel during trial and appeal in his state habeas corpus proceeding with the assistance of competent counsel. Although a prisoner is not constitutionally entitled to counsel in a collateral proceeding, the exception to this general rule, which Mackall seeks, is in reality a direct attack on the competency of his trial and appellate counsel in the only forum available to him--a habeas corpus proceeding. For this limited purpose Mackall is entitled to the assistance of competent counsel.

Because Mackall challenges the competency of his trial and appellate counsel and of his first habeas counsel, I would vacate the judgment denying the writ and remand the case to the district court. The district court should conduct an evidentiary hearing to determine the competency of Mackall's first habeas counsel. If this counsel was competent, the district court should reinstate the judgment denying the writ. If the first habeas counsel was incompetent, the district court should determine whether Mackall's trial and appellate counsel were incompetent. If his trial and appellate counsel were competent, the district court should reinstate the judgment denying the writ. If his counsel were incompetent, the district court should grant the writ with an appropriate proviso for a new trial. In all other respects, I would affirm the judgment of the district court.

*****

1

Mackall named the Commonwealth of Virginia; Edward W. Murray, then Director of the Virginia Department of Corrections; and Charles E. Thompson, then Warden of the Mecklenburg Correctional Facility where Mackall is incarcerated, as Respondents in his petition. Subsequently, Ronald J. Angelone became the Director of the Virginia Department of Corrections and Samuel V. Pruett became Warden at Mecklenburg Correctional Facility. For ease of reference, we refer to Respondents collectively as "the Commonwealth" throughout this opinion

2

Because Mackall's petition for a writ of habeas corpus was filed on January 2, 1992, prior to the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214, amendments to 28 U.S.C.A. 2254 effected by the AEDPA do not govern our resolution of this appeal. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2067, 138 L.Ed.2d 481 (1997). We have not yet decided whether the provisions contained in 107 of the AEDPA apply to petitioners who filed state habeas proceedings after July 1, 1992. See Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.) (holding that prior to July 1, 1992 Virginia had not satisfied the statutory opt-in requirements and that the provisions of 107 do not apply to indigent Virginia prisoners seeking federal habeas relief from capital sentences when the Virginia courts finally decided their state habeas petition prior to that date; noting that it was undecided whether the procedures established by the Commonwealth for the appointment, compensation, and payment of reasonable litigation expenses and competent counsel satisfied the statutory opt-in requirements after that date), cert. denied, --- U.S. ----, 117 S.Ct. 503, 136 L.Ed.2d 395 (1996). Mackall's first state habeas proceeding was finally decided by the Virginia courts October 18, 1989; but, his second habeas petition was filed on August 20, 1993 and finally denied on April 12, 1994. We need not consider the applicability of the provisions of 107 of the AEDPA in light of the procedural morass presented by the facts at hand because we conclude that habeas relief is inappropriate under the more lenient standards in effect prior to the AEDPA amendments. See O'Dell v. Netherland, 95 F.3d 1214, 1255 n. 36 (4th Cir.1996) (en banc), aff'd, --- U.S. ----, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997)

3

There has been no argument concerning whether Mackall should be granted a certificate of probable cause to appeal, as he requested, or a certificate of appealability. We need not address that question here, however, because the certificate would be granted based on the conclusion that Mackall made a substantial showing of the denial of a constitutional right irrespective of which type of certificate technically should be issued under these circumstances. Compare Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S.Ct. 860, 861-62, 112 L.Ed.2d 956 (1991) (per curiam) (explaining that to warrant the grant of a certificate of probable cause to appeal, a habeas petitioner must "make a substantial showing of the denial of [a] federal right" and that to satisfy this showing, the petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further" (alterations in original) (internal quotation marks omitted)), with Murphy v. Netherland, 116 F.3d 97, 101 (4th Cir.) (denying certificate of appealability under 28 U.S.C.A. 2253 (West Supp.1997) in habeas corpus action seeking relief from death sentence when petitioner failed to make a substantial showing of the denial of a constitutional right), cert. denied, --- U.S. ----, 118 S.Ct. 26, 138 L.Ed.2d 1050 (1997)

4

A panel of this court earlier held that the decision of the district court should be affirmed in part, reversed in part, and remanded for further proceedings. See Mackall v. Murray, 109 F.3d 957, 964 (4th Cir.1997). A majority of the judges in active service subsequently voted to consider this appeal en banc, and accordingly, the panel decision was vacated

5

Mackall was also convicted of robbery and a firearm offense and was sentenced to life and two years imprisonment respectively on those counts

6

Mackall maintains that his trial counsel erred in failing to challenge witness identifications of him as the murderer, to cross-examine an identifying witness and a jailhouse informant, to point out that an identifying witness had given a statement that the perpetrator wore a mask, and to object to irrelevant testimony, the prosecutor's closing argument, and cross-examination of an expert outside the scope of direct examination

7

Mackall does not assert, and has not demonstrated, that a constitutional error probably resulted in the conviction of one who is actually factually innocent. See Schlup v. Delo, 513 U.S. 298, 323-27, 115 S.Ct. 851, 865-67, 130 L.Ed.2d 808 (1995). Further, Mackall has not presented "clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty," and thus he has not demonstrated that he is "actually innocent of the death penalty." Id. at 323, 115 S.Ct. at 865 (emphasis & internal quotation marks omitted). Consequently, Mackall has not established a fundamental miscarriage of justice to excuse his default of these claims

8

A defendant is deprived of the assistance of counsel guaranteed by the Constitution when counsel's performance falls "below an objective standard of reasonableness" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064, 2068

9

Generally, "a claim of ineffective assistance [must] be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray, 477 U.S. at 489, 106 S.Ct. at 2646; see Pruett v. Thompson, 996 F.2d 1560, 1570 (4th Cir.1993). This is so because allowing a petitioner to raise a claim of ineffective assistance of counsel for the first time on federal habeas review in order to show cause for a procedural default would place the federal habeas court "in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available" in contravention of "[t]he principle of comity that underlies the exhaustion doctrine." Murray, 477 U.S. at 489, 106 S.Ct. at 2646. Mackall has satisfied this requirement by presenting his claims of ineffective assistance of habeas counsel to the state court

10

Anders requires that appointed counsel who seeks to withdraw because no nonfrivolous issues exist for review must submit a brief referencing anything in the record that arguably could support an appeal; a copy of that brief must be furnished to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct an independent and complete examination of the proceedings to determine if further review is merited. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400

11

Justice Kennedy concurred in the judgment, reasoning that the constitutional requirement of meaningful access to the courts was not violated by the Virginia scheme. See Giarratano, 492 U.S. at 14-15, 109 S.Ct. at 2772-73 (Kennedy, J., concurring in the judgment)

12

A statutory exception to this general rule was in effect during the time of Mackall's direct appeal. See Va.Code Ann. 19.2-317.1 (repealed 1990). Pursuant to that provision, a claim of ineffective assistance of trial counsel could be presented on direct appeal "if all matters relating to such issue [were] fully contained within the record of the trial." Id. It is undisputed that Mackall's allegations of ineffective assistance are not among the extremely limited type that could satisfy this standard. See generally, e.g., Dowell v. Commonwealth, 3 Va.App. 555, 351 S.E.2d 915, 919 (1987) (considering on direct appeal claim of ineffective assistance of counsel due to conflict of interest arising from counsel's representation of multiple codefendants)

13

We note that each of the courts of appeals that has been asked to adopt the exception alluded to in Coleman has similarly rejected that invitation. See Hill v. Jones, 81 F.3d 1015, 1024-26 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997); Bonin v. Calderon, 77 F.3d 1155, 1159-60 (9th Cir.), cert. denied, 516 U.S. 1143, 116 S.Ct. 980, 133 L.Ed.2d 899 (1996); Nolan v. Armontrout, 973 F.2d 615, 616-17 (8th Cir.1992)
 

 

 
 
 
 
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