Mackall v. Murray

• Decision Date: 25 March 1997
• Docket Number: No. 95-4018,95-4018
• Citation: 109 F.3d 957
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 957

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.

ARGUED: Donald Robert Lee, Virginia Capital Representation Resource Center, Richmond, VA, for Petitioner-Appellant. Pamela Anne Rumpz, Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Respondents-Appellees. ON BRIEF: Joseph N. Bowman, Alexandria, VA, Mark Olive, Barbara L. Hartung, Virginia Capital Representation Resource Center, Richmond, VA, for Petitioner-Appellant. James S. Gilmore, III, Attorney General, Office of the Attorney General, Richmond, VA, for Respondents-Appellees.

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;

(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...