Mackall v. Angelone ( 1998 )

Filed: January 13, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-4018
(CA-92-219-AM)
Tony Albert Mackall,
Petitioner - Appellant,
versus
Ronald J. Angelone, etc., et al.,
Respondents - Appellees.
O R D E R
The Court amends its opinion filed December 18, 1997, as
follows:
On page 4, second full paragraph, line 1 -- the phrase "still
represented by counsel," is deleted.
On page 5, first paragraph, lines 13 and 14 -- the words
"attorneys" "were" are corrected to read "attorney" "was."
On page 7, first paragraph, lines 3 and 4 -- the words "attor-
neys" "were themselves" are corrected to read "attorney" "was
himself."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TONY ALBERT MACKALL,
Petitioner-Appellant,
v.
RONALD J. ANGELONE, Director,
Virginia Department of Corrections;
No. 95-4018
SAMUEL V. PRUETT, Warden,
Mecklenburg State Correctional
Facility; COMMONWEALTH OF
VIRGINIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-92-219-AM)
Argued: September 30, 1997
Decided: December 18, 1997
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, Wid-
ener, Niemeyer, Hamilton, Luttig, Williams, Michael, and Motz
joined. Senior Judge Butzner wrote a dissenting opinion, in which
Judge Murnaghan joined.
_________________________________________________________________
COUNSEL
ARGUED: Joseph N. Bowman, Alexandria, Virginia, for Appellant.
Donald Richard Curry, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellees. ON BRIEF: Donald R. Lee,
VIRGINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Richmond, Virginia, for Appellant. James S. Gilmore, III, Attorney
General, Pamela A. Rumpz, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Tony Albert Mackall appeals a decision of the district court deny-
ing his petition for a writ of habeas corpus,1 which challenged his Vir-
ginia conviction for capital murder and resulting death sentence. See
28 U.S.C.A. § 2254 (West 1994).2 Mackall's request for a certificate
_________________________________________________________________
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 Cor-
rectional Facility. For ease of reference, we refer to Respondents collec-
tively 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 Antiterro-
rism 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
§ 106 of the AEDPA do not govern our resolution of this appeal. See
Lindh v. Murphy, 117 S. Ct. 2059, 2067 (1997). We have not yet decided
whether the provisions contained in § 107 of the AEDPA apply to peti-
tioners 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 seek-
ing federal habeas relief from capital sentences when the Virginia courts
2
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
_________________________________________________________________
finally decided their state habeas petition prior to that date; noting that
it was undecided whether the procedures established by the Common-
wealth for the appointment, compensation, and payment of reasonable
litigation expenses and competent counsel satisfied the statutory opt-in
requirements after that date), cert. denied, 117 S. Ct. 503 (1996). Mac-
kall'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 con-
sider the applicability of the provisions of § 107 of the AEDPA in light
of the procedural morass presented by the facts at hand because we con-
clude 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, 117 S. Ct. 1969(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, how-
ever, 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 (1991) (per curiam) (explaining that to warrant the grant of a cer-
tificate 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 debat-
able among jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to deserve encour-
agement 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, 118 S. Ct. 26 (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.
3
I.
On the night of December 9, 1986, Mackall robbed a service sta-
tion in Prince William County, Virginia and murdered the cashier on
duty, Mary E. Dahn, by shooting her in the head. Mackall subse-
quently was convicted of capital murder in the commission of a rob-
bery 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, 372 S.E.2d
759 (Va. 1988), cert. denied, 492 U.S. 925 (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 sug-
gestive; (2) the trial court improperly refused to permit defense coun-
sel 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, con-
cluding that the first of Mackall's claims was defaulted under Slayton
v. Parrigan, 205 S.E.2d 680, 682 (Va. 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, 175 S.E.2d 271, 274 (Va. 1970) (pre-
cluding, 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
_________________________________________________________________
5 Mackall was also convicted of robbery and a firearm offense and was
sentenced to life and two years imprisonment respectively on those
counts.
4
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 Mac-
kall 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 repre-
sented 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 con-
sider the first petition since that petition was neither signed nor veri-
fied; 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 assign-
ments 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 constitu-
tionally 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
5
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 ade-
quate and independent state procedural rule. See Harris v. Reed, 489
U.S. 255, 262 (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 inde-
pendent state-law ground for decision. See, e.g., Pope v. Netherland,
113 F.3d 1364, 1372 (4th Cir. 1997), cert. denied, 66 U.S.L.W. 3177(U.S. Aug. 19, 1997) (No. 97-5343); Gray v. Netherland, 99 F.3d
158, 163 (4th Cir. 1996), cert. denied, 117 S. Ct. 1102 (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 (1991).
Mackall maintains that cause and prejudice exist7 to excuse his fail-
_________________________________________________________________
6 Mackall maintains that his trial counsel erred in failing to challenge
witness identifications of him as the murderer, to cross-examine an iden-
tifying 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 constitu-
tional error probably resulted in the conviction of one who is actually
factually innocent. See Schlup v. Delo, 513 U.S. 298, 323-27 (1995). Fur-
ther, Mackall has not presented "clear and convincing evidence that but
for a constitutional error, no reasonable juror would have found the peti-
tioner eligible for the death penalty," and thus he has not demonstrated
6
ure 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 ear-
lier 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 (1984),8 the Sixth Amendment dictates that the attor-
ney's error must be imputed to the state. See Coleman, 501 U.S. at
754. 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; Murray v. Carrier,
477 U.S. 478, 488 (1986). In order to constitute constitutionally inef-
fective assistance of counsel, however, a constitutional right to effec-
tive assistance of counsel must first exist. See Coleman, 501 U.S. at
752.9
_________________________________________________________________
that he is "actually innocent of the death penalty." Id. at 323 (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 stan-
dard 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.
9 Generally, "a claim of ineffective assistance [must] be presented to
the state courts as an independent claim before it may be used to estab-
lish cause for a procedural default." Murray, 477 U.S. at 489; 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 anoma-
lous position of adjudicating an unexhausted constitutional claim for
7
In Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), the Supreme
Court categorically rejected an argument that "prisoners have a con-
stitutional 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 peti-
tion for postconviction relief after appointed counsel moved to with-
draw on the basis that no nonfrivolous grounds for such relief existed.
See id. at 553-54. The Pennsylvania Superior Court had ruled that the
procedures specified in Anders v. California, 386 U.S. 738 (1967),10
must 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.
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 (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. The Court
ruled, however, that the reasoning in Douglas did not compel the con-
clusion 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 pro-
cedures prescribed in Anders--to allow an indigent petitioner to pur-
_________________________________________________________________
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. Mackall has satisfied this requirement by pre-
senting 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 refer-
encing 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.
8
sue it. See id. at 554-55. Furthermore, the Court explained, Anders did
not establish a constitutional rule that appointed attorneys in all pro-
ceedings must follow the specified procedures, but"established a pro-
phylactic 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 (emphasis added) (citation
omitted).
A plurality of the Court applied this holding in a capital setting in
Murray v. Giarratano, 492 U.S. 1 (1989). There, Chief Justice Rehn-
quist, 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 postcon-
viction relief from their capital convictions and sentences. See id. at
3-13. 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 (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 (second alteration in original) (citations
omitted) (quoting Finley, 481 U.S. at 556-57). And, the plurality
found this reasoning to apply equally in capital and noncapital set-
tings. See id. at 8-10.11
_________________________________________________________________
11 Justice Kennedy concurred in the judgment, reasoning that the con-
stitutional requirement of meaningful access to the courts was not vio-
lated by the Virginia scheme. See Giarratano, 492 U.S. at 14-15(Kennedy, J., concurring in the judgment).
9
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. 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. This procedural rule consti-
tuted 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. Coleman argued that cause existed to
excuse his default because his attorney had been constitutionally inef-
fective in failing to note a timely appeal. See id. at 752. The Court,
however, rejected Coleman's claim. See id. at 752-57. 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 constitu-
tional right to counsel. See id. at 752 (citing Carrier, 477 U.S. at 487-
88). 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 post-
conviction proceedings. Pennsylvania v. Finley, 481 U.S.
551 (1987); Murray v. Giarratano, 492 U.S. 1 (1989)
(applying the rule to capital cases). Consequently, a peti-
tioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.
Coleman, 501 U.S. at 752. 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 ineffec-
tiveness will constitute cause only if it is an independent constitu-
tional violation[, and] Finley and Giarratano established that there is
no right to counsel in state collateral proceedings." Id. at 755.
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
10
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 rea-
soning 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 col-
lateral review is the first place a prisoner can present a chal-
lenge to his conviction. We need not answer this question
broadly, however, for one state court has addressed Cole-
man'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 con-
stitutes 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 (quoting Douglas, 372 U.S. at 357-58)
(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 pro-
ceeding may be considered" when the state habeas court considered
his claims of ineffective assistance of counsel. Id. at 756 (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 proceed-
ing 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
11
can be raised on direct appeal.12 See id. at 755. Because he was unable
to present his allegations of constitutional error on direct appeal, the
first opportunity made available by the Commonwealth for the pre-
sentation 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 con-
tinues, he possessed a constitutional right to counsel in the first state
habeas proceeding to raise claims of constitutionally ineffective assis-
tance 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 pur-
sue 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 pro-
ceedings 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 ("Finley and Giarratano established that there
is no right to counsel in state collateral proceedings."). As an inferior
_________________________________________________________________
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 assis-
tance 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 assis-
tance are not among the extremely limited type that could satisfy this
standard. See generally, e.g., Dowell v. Commonwealth, 351 S.E.2d 915,
919 (Va. Ct. App. 1987) (considering on direct appeal claim of ineffec-
tive assistance of counsel due to conflict of interest arising from coun-
sel's representation of multiple codefendants).
12
appellate court, we are not at liberty to disregard this controlling
authority. See Agostini v. Felton, 117 S. Ct. 1997, 2017 (1997) (reaf-
firming 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 deci-
sions, the Court of Appeals should follow the case which directly con-
trols, 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 intro-
duce 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 Morgan-
town, 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 hal-
lucinations. 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.
_________________________________________________________________
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, 117 S. Ct. 967 (1997); Bonin v. Calderon, 77 F.3d 1155,
1159-60 (9th Cir.), cert. denied, 116 S. Ct. 980 (1996); Nolan v.
Armontrout, 973 F.2d 615, 616-17 (8th Cir. 1992).
13
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, Mac-
kall failed to exhaust the claims he now seeks to raise. See Duncan
v. Henry, 513 U.S. 364, 366 (1995) (per curiam) (holding that argu-
ment 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 pres-
ented to the highest state court), cert. denied, 118 S. Ct. 102 (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 viola-
tion of his constitutional rights"); id. at 995 (explaining that exhaus-
tion requires "more than scatter[ing] some makeshift needles in the
haystack of the state court record" (internal quotation marks omit-
ted)). Because presentation of these claims to the state court at this
juncture would be fruitless, they properly are considered to be proce-
durally 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, 117 S. Ct. 854(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 vio-
lated 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,
14
504 U.S. 719, 728 (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 (1985)) (alteration in
original). "[A] juror who in no case would vote for capital punish-
ment, regardless of his or her instructions, is not an impartial juror
and must be removed for cause." Id. Likewise, a juror "who will auto-
matically vote for the death penalty in every case will fail in good
faith to consider the evidence of aggravating and mitigating circum-
stances as the instructions require him to do;" such a juror is not
impartial and should be removed for cause. Id. at 729. A corollary of
the right to an impartial jury is the requirement of a voir dire suffi-
cient 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. 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 circum-
stances, rendering them unable to perform their duties in accordance
with the law. See id. at 735-36. Questions directed simply to whether
a juror can be fair, or follow the law, are insufficient. See id. 734-36.
Although the state trial court declined Mackall's request to ask pro-
spective 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?
....
15
...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 inef-
fective 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 Four-
teenth 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 fol-
lowing question, which was recognized and reserved in Coleman v.
Thompson, 501 U.S. 722, 755 (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.
16
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 (1963).
The right to counsel extends to the first appeal (sometimes called
a direct appeal). Douglas v. California, 372 U.S. 353, 355-58 (1963).
Counsel must be competent. Strickland v. Washington, 466 U.S.
668, 684-87 (1984).
Therefore, to give effect to the foregoing precedent, Mackall had
a right to pursue his Sixth Amendment guarantee of competent coun-
sel during trial and appeal in his state habeas corpus proceeding with
the assistance of competent counsel. Although a prisoner is not con-
stitutionally entitled to counsel in a collateral proceeding, the excep-
tion 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 appel-
late counsel and of his first habeas counsel, I would vacate the judg-
ment 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.
17