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
Her husband and two young
daughters were decorating the gas station for
the holidays and Mrs. Dahn was working the cash register when
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
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
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
when her mother was shot. She testified for the prosecution at
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
know, I just want to be there. What he did was just not
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
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
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
Tony Mackall was executed on February 10,
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.
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
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
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
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
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.
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
"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
"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
Edward W. MURRAY, Director, Virginia Department of Corrections;
Charles E. Thompson, Warden, Mecklenburg State Correctional Facility;
Commonwealth of Virginia, Respondents-Appellees.
United States Court of Appeals,
Argued July 16, 1996.
Decided March 25, 1997.
Opinion Vacated On May 21,
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.
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
* 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
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
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 §
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
(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;
(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
(3) denying the appointment of
counsel upon a finding that the prisoner is not indigent.
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
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
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
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
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.
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
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."
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
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
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
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
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.
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
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
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.
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
AFFIRMED IN PART AND REVERSED
AND REMANDED IN PART.