In Re Com.

Present: All the Justices

IN RE: COMMONWEALTH OF VIRGINIA
OPINION BY
CHIEF JUSTICE LEROY R. HASSELL, SR.
June 4, 2009
Record Nos. 080282 and 080283

UPON PETITIONS FOR A WRIT OF MANDAMUS AND A WRIT OF
PROHIBITION 1

I.

In this proceeding, which invokes this Court's original

jurisdiction, we consider whether a writ of mandamus or a writ

of prohibition lies to compel a circuit court, that had

entered a final judgment in a capital murder proceeding, to

vacate that judgment and conduct a hearing to determine

whether a criminal defendant was mentally retarded when he

robbed and murdered the victim.

II.

The underlying capital murder litigation that is the

subject of this proceeding has a very long history that we

will briefly summarize. In 1998, Daryl Renard Atkins was

convicted in a jury trial of the capital murder of Eric

Michael Nesbitt. Atkins was sentenced to death. This Court

affirmed Atkins' conviction for capital murder but vacated the

1
Judge N. Prentis Smiley, Jr., who was the original
respondent in this proceeding, died in December 2008, and by
order, this Court substituted the Honorable William H. Shaw,
III as the respondent.
sentence of death because error occurred during the penalty

proceeding of the capital murder trial. Atkins v.

Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999).

Upon remand, at the conclusion of a new penalty

proceeding, a different jury fixed Atkins' punishment at

death. The circuit court imposed the death penalty in

accordance with the jury verdict and this Court affirmed the

conviction. Atkins v. Commonwealth, 260 Va. 375, 390, 534

S.E.2d 312, 321 (2000) (Hassell & Koontz, JJ., dissenting).

The Supreme Court held in Atkins v. Virginia, 536 U.S.

304, 321 (2002) that the Eighth Amendment to the United States

Constitution prohibits the execution of persons who are

mentally retarded. The Supreme Court vacated Atkins' judgment

of death and this Court remanded the case to the circuit court

and directed that the circuit court conduct a jury trial on

Atkins' claim that he is mentally retarded and, therefore, not

subject to the death penalty.

Upon remand, a jury found that Atkins is not mentally

retarded and the circuit court reinstated Atkins' sentence of

death. On appeal, however, this Court reversed that judgment

because error occurred during the proceeding to determine

whether Atkins was mentally retarded. Atkins v. Commonwealth,

272 Va. 144, 161, 631 S.E.2d 93, 102 (2006).

2
 This Court reversed and annulled the final judgment and

remanded the case to the circuit court for a new proceeding to

determine whether Atkins is mentally retarded. During this

remand, Atkins filed a motion in the circuit court requesting

the imposition of a life sentence pursuant to Code § 19.2-

264.5 or a new trial. Atkins asserted that the Commonwealth's

Attorney withheld exculpatory evidence and suborned perjury

during Atkins' 1998 capital murder trial. Atkins also

asserted that the Commonwealth's Attorney, who allegedly

withheld evidence and suborned perjury, should be disqualified

from representing the Commonwealth during the proceeding to

determine whether Atkins is mentally retarded. The

Commonwealth opposed Atkins' motions and argued that the

circuit court lacked jurisdiction to alter the sentence of

death without a finding by a jury that Atkins is mentally

retarded. The circuit court entered orders staying the

proceeding and Atkins sought an interlocutory appeal to this

Court and a writ of mandamus. This Court denied the

interlocutory appeal, dismissed the writ of mandamus, and the

proceedings resumed in the circuit court.

The circuit court conducted an evidentiary hearing on

Atkins' motions to disqualify the Commonwealth's Attorney and

to vacate the sentence of death. The motions claimed

exculpatory evidence violations occurred under the rule of

3
Brady v. Maryland, 373 U.S. 83 (1963). During the hearing,

Atkins produced the following evidence. A critical issue in

Atkins' original capital murder trial was whether Atkins or

his accomplice, William Jones, murdered the victim, because

only the triggerman may receive the death penalty under the

facts and circumstances of this case. On August 6, 1997, the

Commonwealth's Attorney and certain law enforcement personnel

met with Jones and his attorney to prepare Jones for Atkins'

capital murder trial. This session was recorded with an

audiotape recorder. At some point during the three-hour trial

preparation session, the Commonwealth's Attorney turned the

audiotape recorder off for sixteen minutes because the

Commonwealth's Attorney thought Jones' testimony was not

" 'going to do [the Commonwealth’s case] any good.' "

During the sixteen-minute interval that was not recorded,

the Commonwealth's Attorney, law enforcement officers, and

Jones "acted out" the events related to the murder of Nesbitt.

Jones' initial version of the facts changed after the

rehearsed and coached unrecorded reenactment of the murder.

The circuit court found that the Commonwealth's Attorney

had "coached" Jones after the Commonwealth's Attorney realized

that Jones' initial version of the facts regarding the capital

murder would be "problematic" to the Commonwealth. The

4
circuit court found that Jones "changed his story. He

modified his story."

The circuit court stated in its final judgment order

that:

"[T]he Office of the Commonwealth Attorney for York
County and the City of Poquoson improperly suppressed
exculpatory evidence from the August 6, 1997 interview of
William Jones, in violation of Brady v. Maryland, 373
U.S. 83 (1963), and that the suppressed information
probably would have affected the outcome of Daryl Atkins’
trial had it been revealed to Atkins’ counsel in 1998."

At the conclusion of the two-day evidentiary hearing, the

circuit court set aside Atkins' sentence of death and imposed

a sentence of life imprisonment without the possibility of

parole "based on the newly discovered evidence of a Brady

violation." 2

III.

A.

The Commonwealth asserts that mandamus is an appropriate

remedy that the Commonwealth may utilize to compel Judge Shaw

to vacate the circuit court's judgment, dated January 24,

2008, that set aside Atkins' sentence of death and sentenced

2
Generally, the remedy for a Brady violation is not a
reduction in the sentence but a new trial, "if 'the false
testimony could . . . in any reasonable likelihood have
affected the judgment of the jury.' " United States v.
Bagley, 473 U.S. 667, 677 (1985) (quoting Giglio v. United
States, 405 U.S. 150, 154 (1972)); see also Workman v.
Commonwealth, 272 Va. 633, 651, 636 S.E.2d 368, 378 (2006);

5
him to life in the penitentiary without the possibility of

parole. We disagree with the Commonwealth.

The writ of mandamus is an extraordinary remedy and for

that reason this Court has carefully scrutinized and imposed

limitations upon the use of this writ. This Court has

consistently stated the following pertinent principles:

"A writ of mandamus is an extraordinary remedial
process, which is not awarded as a matter of right but in
the exercise of a sound judicial discretion. Due to the
drastic character of the writ, the law has placed
safeguards around it. Consideration should be had for
the urgency which prompts an exercise of the discretion,
the interests of the public and third persons, the
results which would follow upon a refusal of the writ, as
well as the promotion of substantial justice. In
doubtful cases the writ will be denied, but [when] the
right involved and the duty sought to be enforced are
clear and certain and [when] there is no other available
specific and adequate remedy the writ will issue."

Gannon v. State Corp. Commission, 243 Va. 480, 482, 416 S.E.2d

446, 447 (1992) (quoting Richmond-Greyhound Lines v. Davis,

200 Va. 147, 151-52, 104 S.E.2d 813, 816 (1958)); accord

Umstattd v. Centex Homes, 274 Va. 541, 545-46, 650 S.E.2d 527,

530 (2007); Hertz v. Times-World Corporation, 259 Va. 599,

607-08, 528 S.E.2d 458, 462-63 (2000); Williams v. Matthews,

248 Va. 277, 281, 448 S.E.2d 625, 627 (1994); Railroad Company

v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548-49 (1965).

We stated, over 130 years ago, that:

Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d 110, 112-

6
 "In relation to courts and judicial officers,
[mandamus] cannot be made to perform the functions of a
writ of error or appeal, or other legal proceeding to
review or correct errors, or to anticipate and forestall
judicial action. It may be appropriately used and is
often used to compel courts to act [when] they refuse to
act and ought to act, but not to direct and control the
judicial discretion to be exercised in the performance of
the act to be done; to compel courts to hear and decide
where they have jurisdiction, but not to pre-determine
the decision to be made; to require them to proceed to
judgment, but not to fix and prescribe the judgment to be
rendered."

Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878).

This Court also stated, over a century ago, that: "It is

also well settled that mandamus does not lie to compel an

officer to undo what he has done in the exercise of his

judgment and discretion, and to do what he had already

determined ought not to be done." Thurston v. Hudgins, 93 Va.

780, 784, 20 S.E. 966, 968 (1895). We acknowledged this

important precept in Board of Supervisors v. Combs, 160 Va.

487, 498, 169 S.E. 589, 593 (1933) and observed:

"Mandamus is prospective merely . . . . It is not a
preventive remedy; its purpose and object is to command
performance, not desistance, and is a compulsory as
distinguished from a revisory writ; it lies to compel,
not to revise or correct action, however erroneous it may
have been, and is not like a writ of error or appeal, a
remedy for erroneous decisions."

160 Va. at 498, 169 S.E.2d at 593; see also Harrison v.

Barksdale, 127 Va. 180, 188-89, 102 S.E. 789, 792 (1920). We

restated this elemental precept in Richlands Medical Ass'n v.

13 (1994).

7
Commonwealth, 230 Va. 384, 387, 337 S.E.2d 737, 740 (1985):

"[M]andamus is applied prospectively only; it will not be

granted to undo an act already done." We recently repeated

this principle when we stated in In re: Commonwealth’s

Attorney, 265 Va. 313, 319 n.4, 576 S.E.2d 458, 462 n.4 (2003)

that "mandamus will [not] lie to undo acts already done."

Applying this fundamental principle of jurisprudence in

the present proceeding, we hold that mandamus does not lie.

The circuit court entered a final judgment in Atkins' capital

murder case on January 24, 2008. This final judgment is an

act that the circuit court has performed and the Commonwealth

seeks to use mandamus as a procedural mechanism to vacate or

"undo" the circuit court's judgment. We hold that mandamus

cannot be used by the Commonwealth or any other litigant to

collaterally attack or vacate a final judgment entered by a

circuit court upon the conclusion of a criminal proceeding.

B.

The Commonwealth contends that upon the entry of this

Court's mandate, directing the circuit court to conduct an

evidentiary hearing to determine whether Atkins is mentally

retarded, the circuit court was required to conduct that

hearing but lacked discretion to consider any other legal

issues. We disagree with the Commonwealth.

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 This Court's mandate that remanded this proceeding to the

circuit court for the mental retardation hearing did not

divest the circuit court of its authority and discretion to

consider legal issues that the Commonwealth and Atkins raised

upon remand. We stated in Powell v. Commonwealth, 267 Va.

107, 128, 590 S.E.2d 537, 550 (2004): "[W]hile the directive

of this Court's mandate binds the circuit court, that court is

not thereby prohibited from acting on matters not constrained

by the language of the mandate." Additionally, the United

States Supreme Court has stated: "While a mandate is

controlling as to matters within its compass, on remand a

lower court is free as to other issues." Sprague v. Ticonic

Nat’l Bank, 307 U.S. 161, 168 (1939). We hold that a circuit

court presiding during a remand of a capital murder proceeding

retains authority and discretion to resolve legal issues that

the litigants raise. A contrary holding would disrupt and

impair the circuit court's authority to preside during a

remand of a criminal proceeding.

Additionally, the Commonwealth's position that a circuit

court upon a remand must only consider the issue that is the

subject of the remand would prohibit a circuit court from

determining legal issues that affect a litigant's right to an

impartial and fair trial. For example, a defendant would not

be allowed to assert during a remand, as Atkins did in his

9
capital murder case, that a Commonwealth's Attorney should not

be allowed to prosecute the case because a conflict of

interest exists. Likewise, under the Commonwealth's view, a

litigant would not be able to assert that a court lacked

subject matter jurisdiction even though it is an elemental

precept that the lack of subject matter jurisdiction can be

raised at any time, including post-judgment.

The Commonwealth further suggests that the circuit

court lacked subject matter jurisdiction to consider any

issue other than the mental retardation hearing. The

Commonwealth's argument suffers from a fundamental

misunderstanding of the nature of a circuit court's

subject matter jurisdiction. For example, we have

stated:

"Subject matter jurisdiction refers to a court’s
power to adjudicate a class of cases or
controversies, and this power must be granted
through a constitution or statute. Subject matter
jurisdiction cannot be waived or conferred on a
court by the litigants and the lack of subject
matter jurisdiction may be raised at any time."

Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va.

4, 13, 624 S.E.2d 453, 458 (2006) (citations omitted);

accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73,

75 (2001); Morrison v. Bestler, 239 Va. 166, 169, 387

S.E.2d 753, 755 (1990); Humphreys v. Commonwealth, 186

Va. 765, 772-73, 43 S.E.2d 890, 894 (1947); Farant

10
Investment Corp. v. Francis, 138 Va. 417, 427-28, 122

S.E. 141, 144 (1924).

Without question, upon remand of Atkins’ criminal

proceeding from this Court to the circuit court, that court

had subject matter jurisdiction over the entire capital murder

case. Subject matter jurisdiction is conferred by statute

according to the subject of the case, in this instance capital

murder, rather than according to a particular proceeding that

may be one part of a capital murder case. See Code § 17.1-

513; Porter v. Commonwealth, 276 Va. 203, 229, 661 S.E.2d 415,

427 (2008); In re: Commonwealth’s Attorney, 265 Va. at 317,

576 S.E.2d at 461; Garza v. Commonwealth, 228 Va. 559, 565-66,

323 S.E.2d 127, 130 (1984).

C.

In the present mandamus proceeding, the Commonwealth

asserts that the circuit court was without authority to

consider any issue other than whether Atkins is mentally

retarded. However, the Commonwealth’s Attorney specifically

asked the circuit court, during the remanded criminal

proceeding, to rule on Atkins' motion to disqualify the

Commonwealth's Attorney because he allegedly created and

procured perjured testimony in Atkins' original trial. The

Commonwealth's Attorney stated to the court:

11
 "[T]he Commonwealth adamantly denies these
allegations, but the reality is they have been made.
They are very serious, and they go to the fitness of
counsel. Should the Commonwealth have made similar
allegations against defense counsel, it would be an
issue of fitness of counsel to proceed, and I
believe that's where we are, and I believe that the
Court should have an evidentiary hearing on these
allegations. The Court, I do not believe, has the
jurisdiction to grant a new trial because of it, but
the Court should, I think, resolve this issue before
we proceed with the trial.

The Court: "Well, the resolution - I mean, you made
that representation earlier I think to resolve it
only to resolve it in favor of the Commonwealth, and
I think to invite the Court to resolve it you have
to allow the Court, in an evidentiary proceeding, to
go either way with it.

The Commonwealth’s Attorney: "Absolutely.

The Court: "So -- and with all due respect to the
Virginia Supreme Court, they have directed me back
to the issue of mental retardation, and by that
direction, I mean, that's the marching orders of the
Court.

The Commonwealth's Attorney: "I understand that,
Your Honor, but the question remains who are the
parties going to be in that trial, and at this
point, there is an allegation that's been made that
clearly implicates fitness of counsel for the
Commonwealth to proceed in that trial."

We will not permit the Commonwealth to ask the

circuit court during the remanded hearing on mental

retardation to exercise discretion and rule upon other

legal issues but, inconsistently, assert in the mandamus

proceeding that the circuit court lacked legal authority

to do so. The Commonwealth will not be allowed to

12
approbate and reprobate. Garlock Sealing Technologies,

LLC v. Little, 270 Va. 381, 388, 620 S.E.2d 773, 777

(2005); Cohn v. Knowledge Connections, Inc., 266 Va. 362,

367, 585 S.E.2d 578, 581 (2003); Hansen v. Stanley Martin

Companies, 266 Va. 345, 358, 585 S.E.2d 567, 575 (2003);

Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46,

54 (1988).

D.

We also note that Code § 19.2-264.5 confers upon a

circuit court, presiding in a capital murder trial, the

authority to reduce a jury's verdict of death to a

sentence of imprisonment for life. Code § 19.2-264.5

states in relevant part:

"After the consideration of the [post-sentence]
report, and upon good cause shown, the court may set
aside the sentence of death and impose a sentence of
imprisonment for life. Notwithstanding any other
provision of law, if the court sets aside the
sentence of death and imposes a sentence of
imprisonment for life, it shall include in the
sentencing order an explanation for the reduction in
the sentence."

As we have stated above, the mandate that remanded

this proceeding to the circuit court for the mental

retardation hearing also "reversed and annulled" the

final judgment in Atkins' capital murder case and the

circuit court was required to enter a judgment upon the

conclusion of the capital murder proceedings. If we were

13
to accept the Commonwealth's argument in this case - that

the circuit court upon remand could only conduct the

mental retardation hearing and not consider any other

legal issues - we would improperly divest the circuit

court of its authority and discretion conferred by Code

§ 19.2-264.5. Additionally, the logical conclusion of

the Commonwealth's erroneous argument is that the circuit

court would have lacked authority to enter a final

judgment.

E.

We also reject the Commonwealth's contention that

mandamus lies for yet another reason. The Commonwealth

essentially seeks, using the guise of a mandamus

proceeding, to appeal the circuit court's judgment that

imposed upon Atkins the sentence of life imprisonment

without parole. Pursuant to Article VI, Section 1 of the

Constitution of Virginia and Code § 19.2-398, the

Commonwealth has a very limited right of appeal in a

criminal case. This limited right of appeal does not

include a right to appeal the circuit court’s final

judgment entered in Atkins' capital murder trial. The

Commonwealth seeks to circumvent and expand the

constitutional and statutory limitations imposed on its

limited right to appeal in a criminal case by challenging

14
a final judgment in this mandamus proceeding. Mandamus

may not be used as a substitute or guise for an appeal in

a criminal proceeding because the Commonwealth's

appellate rights are strictly prescribed by the

Constitution of Virginia and Code § 19.2-398. See Hertz,

259 Va. at 610, 528 S.E.2d at 464 (“mandamus cannot be

used as a substitute for an appeal”); Morrissette v.

McGinniss, 246 Va. 378, 382, 436 S.E.2d 433, 435 (1993);

Richlands Medical Ass'n, 230 Va. at 387, 337 S.E.2d at

740; Moon v. Welford, 84 Va. 34, 38, 4 S.E. 572, 575

(1887).

F.

We reject the Commonwealth's assertion that this Court's

decision in In re: Robert F. Horan, Jr., 271 Va. 258, 634

S.E.2d 675 (2006) requires that we grant the petition for writ

of mandamus. In Horan, we considered whether a circuit court

could enter a pre-trial order that prohibited the Commonwealth

from seeking the death penalty in a capital murder proceeding

that was pending in that circuit court. We granted the

petition for a writ of mandamus on the very narrow basis that

pursuant to Virginia's capital murder statutory scheme, the

circuit court did not have authority to make a sentencing

decision when ruling upon a pre-trial motion and, hence, the

circuit court's action was not within its discretion.

15
 Our decision in Horan is not controlling in this

proceeding, which involves a final judgment that has been

entered in a criminal proceeding. Our holding in Horan

is limited to the unique procedural history in that case,

which did not involve a collateral attack upon a final

judgment in a criminal proceeding. Moreover, this Court

did not consider or discuss in Horan whether the circuit

court's order that prohibited the Commonwealth from

seeking the death penalty was an act performed by the

circuit court which could not be undone.

G.

As we have previously stated, in part III, section A of

this opinion, a purpose of the writ of mandamus, which is an

extraordinary remedy, is the promotion of substantial justice.

See Gannon, 243 Va. at 482, 416 S.E.2d at 447; Railroad

Company, 206 Va. at 162, 142 S.E.2d at 548; Richmond-Greyhound

Lines, 200 Va. at 151-52, 104 S.E.2d at 816. The promotion of

substantial justice has served as a prerequisite to the

issuance of a writ of mandamus in this Commonwealth for almost

200 years. For example, we stated in Commonwealth v. Justices

of Fairfax County Court, 4 Va. (2 Va. Cas.) 9, 13 (1815)

(emphasis in original omitted; other emphasis added):

"A mandamus is a prerogative writ; to the aid of
which the subject is entitled upon a proper case
previously shewn to the satisfaction of the Court.

16
 The original nature of the writ, and the end for
which it was framed, direct upon what occasions it
shall be used. It was introduced to prevent
disorder from a failure of justice, and defect of
police. Therefore, it ought to be used upon all
occasions where the law has established no specific
remedy, and where in justice and good government
there ought to be one."

In the present proceeding, clearly, the issuance of

a writ of mandamus would not prevent "disorder from a

failure of justice." Id. A critical issue during the

trial of Atkins' capital murder case was whether Atkins

or his accomplice, Jones, was the triggerman who fired

the gun that killed the victim. Based upon the facts in

this record, only the triggerman could be subject to a

sentence of death. Atkins claimed that the accomplice

was the triggerman but the accomplice countered that

Atkins was the triggerman.

Based upon the record before this Court, including

the circuit court's final judgment, the circuit court had

no confidence in the integrity of the judicial process

and the jury verdict that resulted in Atkins' sentence of

death. The circuit court found that the Commonwealth's

Attorney had "coached" the accomplice who was involved in

the murder after the Commonwealth's Attorney realized

that the accomplice would have testified about facts that

would have been "problematic" to the Commonwealth's case.

17
The circuit court found that the accomplice "changed his

story . . . [h]e modified his story," and, the circuit

court held that information that the Commonwealth

suppressed "probably would have affected the outcome of

Daryl Atkins' trial." Simply stated, the coached

accomplice may very well have "changed his story" in

order to escape the possibility of a sentence of death.

Therefore, issuance of a writ of mandamus would not

prevent a failure of justice but merely would serve to

ignore the reality of the present case that justice was

not served by the Commonwealth’s deliberate use of

"coached" testimony.

H.

The dissent, relying principally upon this Court's

decisions in Horan, 271 Va. 258, 634 S.E.2d 675, In re:

Morrissey, 246 Va. 333, 433 S.E.2d 918 (1993), Davis v.

Sexton, 211 Va. 410, 177 S.E.2d 524 (1970), Kirk v. Carter,

202 Va. 335, 117 S.E.2d 135 (1960), Richardson v. Farrar, 88

Va. 760, 15 S.E. 117 (1892), Wilder v. Kelley, 88 Va. 274, 13

S.E. 483 (1891), Kent, Paine & Co. v. Dickinson, 66 Va. (25

Gratt.) 817 (1875), and Cowan v. Fulton, 64 Va. (23 Gratt.)

579 (1873), argues that these cases support a conclusion that

a writ of mandamus lies to compel a circuit court to vacate a

18
final judgment entered in a capital murder proceeding. We

disagree with the dissent.

Our decisions in Horan, Morrissey, Davis, Kirk,

Richardson, Wilder, Kent, Paine & Co., and Cowan, do not

involve final judgments entered in criminal proceedings. As

we have discussed in part III, sections C, D, and E of this

opinion, there are numerous substantive reasons why the

Commonwealth should not be allowed to use a mandamus

proceeding to invalidate a final judgment in a criminal case.

And, our decision in Horan is not pertinent to our resolution

of this proceeding for the reasons stated in part III, section

F of this opinion.

Our decision in In re: Commonwealth of Virginia, 229

Va. 159, 326 S.E.2d 695 (1985) is consistent with our

holding today. Contrary to the dissent's assertion, our

decision to grant the writ of mandamus in In re:

Commonwealth of Virginia, did not have the effect of

invalidating a final judgment in a criminal case. In In

re: Commonwealth, the circuit court withheld imposition

of sentence for a defendant's firearm conviction "until

September 26, 1985, a period of Twelve (12) months, upon

the conditions that [the defendant]: (1) keep the peace

and be of good behavior and obey all laws, (2) continue

with psychiatric care and treatment with reports to the

19
Court every Ninety (90) days." Id. at 161, 326 S.E.2d at

697.

The order that withheld imposition of sentence upon

the firearm conviction was not a final judgment entered

at the conclusion of a criminal case. Pursuant to the

specific terms of the order, the defendant would have

been required to return to the circuit court after a

period of twelve months and the court would then have to

decide whether to impose a sentence for the firearm

violation. Indeed, the very reason that the Commonwealth

filed a petition for a writ of mandamus in In re:

Commonwealth was to compel the circuit court to enter a

judgment that sentenced the defendant in accordance with

the criminal firearm statute. See id. at 160-61, 326

S.E.2d at 696.

IV.

The Commonwealth also asserts that this Court should

grant the Commonwealth's petition for a writ of prohibition.

The Commonwealth argues that the circuit court exceeded the

jurisdictional limits of this Court's 2006 mandate which

states: "[T]he case is remanded to the . . . circuit court for

a new proceeding . . . to determine whether [Atkins] is

mentally retarded."

20
 We do not consider the Commonwealth's argument because

prohibition clearly does not lie for a reason that the

Commonwealth does not mention. We have stated:

"The writ of prohibition, as its name imports, is one
which commands the person to whom it is directed not to
do something which . . . the court is informed he is
about to do. If the thing be already done, it is
manifest the writ of prohibition cannot undo it, for that
would require an affirmative act; and the only effect of
a writ of prohibition is to suspend all action, and to
prevent any further proceeding in the prohibited
direction."

In re: Dept. of Corrections, 222 Va. 454, 461, 281 S.E.2d 857,

861 (1981) (quoting United States v. Hoffman, 71 U.S. (4

Wall.) 158, 161-62 (1867)). And, as we recently stated in In

re: Commonwealth’s Attorney, 265 Va. at 319 n.4, 576 S.E.2d at

462 n.4, "prohibition . . . will [not] lie to undo acts

already done." The circuit court in this case has entered a

final judgment in Atkins' capital murder proceeding which is

an act "already done" and a petition for a writ of prohibition

cannot be used to vacate or "undo" that final judgment.

V.

For the forgoing reasons, we will dismiss the

Commonwealth's petition for writ of mandamus and petition for

writ of prohibition.

Record No. 080282 – Petition dismissed.
Record No. 080283 – Petition dismissed.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, dissenting.

21
 Today, the majority holds that a writ of mandamus does

not lie to compel the Circuit Court of York County (the

Circuit Court) to comply with this Court's mandates on the

basis that mandamus, if issued, would undo an act already

done. Our jurisprudence does not support that conclusion

because we have issued mandamus in numerous cases when the

writ, either directly or implicitly, undid an act already

done. Further, the Circuit Court had no discretion to

disregard our mandates, the Commonwealth has a clear right to

the relief requested, and it has no other adequate remedy to

enforce that right. Moreover, in Wilder v. Kelley, 88 Va.

274, 13 S.E. 483 (1891), we issued a writ of mandamus to

compel a circuit court judge to enter and enforce an order of

this Court granting an injunction. Id. at 283, 13 S.E. at

486.

For the same reason, the majority likewise holds that a

writ of prohibition does not lie. As with mandamus, this

Court has issued a writ of prohibition on several occasions

when the writ undid an act already done. Moreover, in the

unique circumstances of this case, the Circuit Court exceeded

its jurisdiction when it entered the order setting aside a

death sentence. Contrary to the majority, I would issue a

writ of mandamus and a writ of prohibition. Thus, I

respectfully dissent.
 I. PRIOR RELEVANT PROCEEDINGS

Before explaining why I conclude mandamus and prohibition

lie in this case, I find it necessary to summarize the

procedural history culminating in this Court's two separate

mandates ordering the Circuit Court to conduct a hearing to

determine whether Daryl Renard Atkins is mentally retarded.

After a jury trial in the Circuit Court, Atkins was sentenced

to death for the murder of Eric Michael Nesbitt during the

commission of robbery. This Court affirmed the judgment of

conviction but vacated the sentence of death and remanded the

case to the Circuit Court for a new sentencing hearing.

Atkins v. Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457

(1999) (Atkins I). At the re-sentencing proceeding, a

different jury imposed the death penalty, and the Circuit

Court sentenced Atkins in accordance with the jury's verdict.

Upon appeal to this Court, we upheld the Circuit Court's

judgment and sentence of death. Atkins v. Commonwealth, 260

Va. 375, 379, 534 S.E.2d 312, 314 (2000) (Atkins II).

The United States Supreme Court subsequently granted

Atkins a writ of certiorari on the sole issue "[w]hether the

execution of mentally retarded individuals convicted of

capital crimes violates the Eighth Amendment[.]" Atkins v.

Virginia, 534 U.S. 809, 809 (2001). In its decision, the

United States Supreme Court held that the execution of

23
mentally retarded individuals is excessive punishment, and

therefore violates the Eighth Amendment. Atkins v. Virginia,

536 U.S. 304, 320-21 (2002) (Atkins III). The United States

Supreme Court thus reversed our judgment with respect to

Atkins' sentence and remanded the case to this Court for

further proceedings. Id. at 321.

In accordance with emergency legislation enacted by the

General Assembly to establish procedures for determining

whether a defendant convicted of capital murder is mentally

retarded, see Code §§ 8.01-654.2, 19.2-264.3:1.1, 19.2-

264.3:1.2, and 19.2-264.3:3, and the mandate of the United

States Supreme Court, this Court remanded Atkins' case to the

Circuit Court for " 'the sole purpose of making a

determination of mental retardation.' " Atkins v.

Commonwealth, 266 Va. 73, 79, 581 S.E.2d 514, 517 (2003)

(quoting Code § 8.01-654.2) (Atkins IV). At the conclusion of

the mental retardation hearing conducted on remand, a third

jury found that Atkins failed to prove by a preponderance of

the evidence that he is mentally retarded under Code § 19.2-

264.3:1.1(A). Accordingly, the Circuit Court reinstated

Atkins' death sentence.

We awarded Atkins an appeal and reversed the Circuit

Court's judgment. Atkins v. Commonwealth, 272 Va. 144, 158,

631 S.E.2d 93, 100 (2006) (Atkins V). We then remanded the

24
case again so the Circuit Court could conduct a "new

proceeding to determine whether Atkins is mentally retarded."

Id. In the mandate to the Circuit Court dated October 18,

2006, we stated, in relevant part: "[T]he judgment is reversed

and annulled, the verdict of the jury is set aside, and the

case is remanded to the said [C]ircuit [C]ourt for a new

proceeding . . . to determine whether [Atkins] is mentally

retarded."

Subsequent to the remand in Atkins V, Atkins filed a

"Motion to Impose Life Sentence Based Upon Newly-Discovered

Evidence of Brady and Napue Violations." The Circuit Court

entered an order certifying an interlocutory appeal pursuant

to Code § 8.01-670.1 and requesting this Court to decide

whether, upon remand pursuant to Code § 8.01-654.2, the

Circuit Court was "prohibited or restricted from exercising

jurisdiction to hear" Atkins' motion and order an appropriate

remedy. In addition, Atkins petitioned for a writ of

mandamus, requesting this Court to direct the Circuit Court to

hear and decide his motion.

This Court entered an order refusing the interlocutory

appeal on the basis that Code § 8.01-670.1 is inapplicable in

a criminal case. The order contained the following mandate:

The [C]ircuit [C]ourt is directed to proceed
with this criminal case. Such proceeding is
confined to the terms of the mandate issued by the

25
 Court on October 18, 2006 remanding this case to the
[C]ircuit [C]ourt for a jury determination of
whether Atkins is mentally retarded.

(Emphasis added.). The order also summarily dismissed Atkins'

petition for a writ of mandamus.

Instead of conducting the mandated hearing to determine

whether Atkins is mentally retarded, the Circuit Court granted

Atkins' motion, finding the Commonwealth had withheld

exculpatory evidence in violation of Brady v. Maryland, 373

U.S. 83 (1963). Relying on the provisions of Code § 19.2-

264.5, the Circuit Court set aside Atkins' sentence of death

and sentenced him to "imprisonment for life without the

possibility of parole."

This procedural history brings us to the present

proceedings. After the Circuit Court refused to conduct the

hearing to determine whether Atkins is mentally retarded, the

Commonwealth filed separate petitions seeking a writ of

mandamus and a writ of prohibition. I will address each of

these extraordinary writs separately.

II. MANDAMUS

In its petition for a writ of mandamus, the Commonwealth

requested that mandamus be issued compelling the Circuit Court

to conduct a hearing to determine whether Atkins is mentally

retarded in accordance with this Court's mandates. The issue

in this case is whether a writ of mandamus lies to compel the

26
Circuit Court to conduct that hearing, not whether mandamus

lies to compel a circuit court to vacate an order, as stated

by the majority. Because the Circuit Court did not have any

discretion to disregard this Court's mandates, and because the

Commonwealth has a clear right to the relief requested and no

other adequate remedy to enforce its right, I would issue the

writ of mandamus compelling the Circuit Court to conduct the

mental retardation hearing as previously mandated by this

Court.

"Before a writ of mandamus may issue there must be a

clear right in the petitioner to the relief sought, there must

be a legal duty on the part of the respondent to perform the

act which the petitioner seeks to compel, and there must be no

adequate remedy at law." Board of County Supervisors v.

Hylton Enterprises, Inc., 216 Va. 582, 584, 221 S.E.2d 534,

536 (1976) (citing Richmond-Greyhound Lines v. Davis, 200 Va.

147, 152, 104 S.E.2d 813, 817 (1958)). "[Mandamus] was

introduced to prevent disorder from a failure of justice, and

defect of police. Therefore, it ought to be used upon all

occasions where the law has established no specific remedy,

and where in justice and good government there ought to be

one." Commonwealth v. Justices of Fairfax County Court, 4 Va.

(2 Va. Cas.) 9, 13 (1815) (internal quotation marks omitted)

27
(emphasis added); accord Lewis v. Whittle, 77 Va. 415, 417

(1883).

" 'Mandamus is an extraordinary remedy employed to compel

a public official to perform a purely ministerial duty imposed

upon him by law.' " In re: Horan, 271 Va. 258, 258, 634

S.E.2d 675, 676 (2006) (quoting Richlands Med. Ass'n v.

Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985));

accord Griffin v. Board of Supervisors, 203 Va. 321, 328, 124

S.E.2d 227, 233 (1962). "A ministerial act is an act that one

performs in obedience to a legal mandate and in a prescribed

manner, without regard to his own judgment as to the propriety

of the act to be done." City of Richmond v. Hayes, 212 Va.

428, 429, 184 S.E.2d 784, 785 (1971) (citing Dovel v. Bertram,

184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)); accord In re:

Horan, 271 Va. at 258-59, 634 S.E.2d at 676; Richlands Med.

Ass'n, 230 Va. at 386, 337 S.E.2d at 739.

Specifically with regard to mandamus directed to an

inferior court, we have previously explained that

mandamus may be appropriately used and is often used
to compel courts to act where they refuse to act and
ought to act, but not to direct and control the
judicial discretion to be exercised in the
performance of the act to be done; to compel courts
to hear and decide where they have jurisdiction, but
not to pre-determine the decision to be made; to
require them to proceed to judgment, but not to fix
and prescribe the judgment to be rendered.

28
Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878); accord In

re: Horan, 271 Va. at 259, 634 S.E.2d at 676.

Whether a writ of mandamus should issue in this case is

inextricably linked to this Court's mandates directing the

Circuit Court to conduct the hearing to determine whether

Atkins is mentally retarded. Pursuant to what we recognize as

the "mandate rule," a "trial judge is bound by a decision and

mandate from [an appellate court], unless [the court] acted

outside [its] jurisdiction. A trial court has no discretion

to disregard [a] lawful mandate." 1 Powell v. Commonwealth, 267

Va. 107, 127, 590 S.E.2d 537, 549 (2004) (alterations in

original) (emphasis added); see also United States v. Bell, 5

F.3d 64, 66 (4th Cir. 1993) ("[I]t is indisputable that a

lower court generally is bound to carry the mandate of the

upper court into execution and [may] not consider the

questions which the mandate laid at rest. [The "mandate

rule"] compels compliance on remand with the dictates of a

superior court and forecloses relitigation of issues expressly

or impliedly decided by the appellate court. . . . Thus, when

[an appellate] court remands for further proceedings, a

[lower] court must . . . implement both the letter and spirit

1
The remand of Atkins' case, pursuant to this Court's
mandate, was a "limited" remand, as opposed to a "general"
remand, for the sole purpose of conducting a mental
retardation hearing. See infra note 11.

29
of the . . . mandate, taking into account [the appellate

court's] opinion and the circumstances it embraces.") (second

and seventh alterations in original) (internal quotation marks

and citations omitted); Strayer v. Long, 83 Va. 715, 717-18, 3

S.E. 372, 373-74 (1887) (recognizing that a circuit court is

bound by the decree of this Court "and must obey it").

Pursuant to our mandates, the Circuit Court had no

discretion to refuse to conduct the mental retardation

hearing; the duty of the Circuit Court to do so was purely

ministerial. See Wilder, 88 Va. at 282, 13 S.E. at 485 ("When

a mandate goes down from the appellate tribunal to the

inferior tribunal, whose action has been reviewed and

reversed, there is no discretion; . . . and the simple

province of the inferior tribunal is to obey the command of

the superior."). Furthermore, the Commonwealth could not

appeal the Circuit Court's refusal to conduct the hearing and

thus has no adequate remedy at law. 2 See In re: Horan, 271 Va.

2
Mandamus does not lie when a petitioner has an adequate
remedy at law by virtue of an appeal. See Richlands Med.
Ass'n, 230 Va. at 387, 337 S.E.2d at 740 ("mandamus may not be
used as a substitute for an appeal"). The majority turns this
well-established principle on its head by holding that, since
the Commonwealth does not have the right to appeal the Circuit
Court's judgment setting aside Atkins' death sentence,
mandamus does not lie because it would be a guise for an
appeal the Commonwealth does not have. In other words,
according to the majority, if a petitioner does not have a
right of appeal, mandamus will not lie because it would be a
substitute for a non-existent appeal. The result of the

30
at 265, 634 S.E.2d at 680. Thus, I would issue a writ of

mandamus compelling the Circuit Court to conduct the mental

retardation hearing. "When the action of a court is 'a simple

refusal to hear and decide the case; and this [C]ourt having

held that no appeal lies from such refusal, it is exactly the

case to which the highly remedial writ of mandamus is most

frequently applied, in order to prevent a defect or failure of

justice.' " Id. at 260, 634 S.E.2d at 677 (quoting Cowan v.

Fulton, 64 Va. (23 Gratt.) 579, 584 (1873)); Smoleski v.

County Court, 168 S.E.2d 521, 523 (W. Va. 1969) ("compliance

with [an appellate court's] mandate in relation to a

proceeding in a trial court may be compelled and . . .

mandamus is the proper remedy to require such compliance").

In an analogous case, as I initially pointed out, we have

previously issued a writ of mandamus compelling a circuit

court to comply with a mandate from this Court. In Wilder, a

circuit court judge, who was the respondent in the mandamus

proceeding, refused to grant an injunction. 88 Va. at 275, 13

S.E. at 483. Acting pursuant to former Code § 3438 (now Code

§ 8.01-626), a justice of this Court awarded the injunction as

requested by the complainants. Id. at 275-76, 13 S.E. at 483.

majority's decision is that what was once a prerequisite to
seeking relief by mandamus, i.e., that there be no other
adequate remedy at law, is now a barrier to seeking such
relief.

31
The circuit court judge, however, then refused to enforce the

order of this Court and, instead, heard "a motion to dissolve

the injunction of the appellate judge, and . . . a motion to

enjoin and restrain the order of such judge, and also . . .

rules for contempt, and decided that there was no jurisdiction

in a single judge of the Supreme Court of Appeals[3] to control

. . . the action of a circuit court in its direction to its

receiver, or in enforcing injunctions pending in the circuit

court." Id. at 277, 13 S.E. at 484. The circuit court judge

held that "the order of the appellate judge was null and void,

and that the partial possession obtained under it was

unlawful, and dismissed the proceedings for contempt for

disobedience thereto, and, without otherwise disposing of the

case on it merits, continued the same." Id.

The petitioners, who obtained the injunction in this

Court, sought a writ of mandamus to compel the circuit court

judge to "enter and enforce the order . . . of the appellate

judge." Id. The question before us was "whether mandamus

[was] the proper remedy to compel this judge to obey the law,

or if he may annul the order, and by dilatory orders and

continuances, under the guise of exercising judicial

3
The 1971 Constitution of Virginia changed the name of
this Court from the "Supreme Court of Appeals" to the "Supreme
Court," and changed the designation for members of this Court
from "judges" to "justices."

32
discretion, reviewable by appeal only, entirely defeat the

same." Id. at 280, 13 S.E. at 485.

The respondent in Wilder argued that mandamus did not lie

to correct his erroneous judicial acts. Id. at 277, 13 S.E.

at 484. We disagreed, however, and stated:

The general rule on this subject is that, if the
inferior tribunal or corporate body has a discretion
and exercises it, this discretion cannot be
controlled by mandamus; but if the inferior tribunal
refuse when the law requires them to act, and the
party has no other adequate legal remedy, and when,
in justice, there ought to be one, mandamus will lie
to set them in motion to compel action, and, in
proper cases, the court will settle the legal
principle which should govern, but without
controlling the discretion of the subordinate
jurisdiction.

Id. at 281, 13 S.E. at 485.

In deciding to issue a writ of mandamus as requested by

the petitioners, we held:

When a mandate goes down from the appellate tribunal
to the inferior tribunal, whose action has been
reviewed and reversed, there is no discretion; that
has been exercised, and in the exercise been
exhausted, so far as it is established by the law;
and the simple province of the inferior tribunal is
to obey the command of the superior.

. . . .

It is settled law that when this order from an
appellate court or an appellate judge, made in
review of the order of an inferior court, comes
down, the lower court must enter and enforce it. It
is an order in his court in the latter case, and it
is an order in his court in the former case; but it
is there in each case for him to enter and obey. He
may not set aside and annul it upon any pretext

33
 whatever. That may be done in a proper case by the
Court of Appeals when, in the latter case, it
reaches that tribunal; but it is not the province of
the lower court to do this. Being, then, a matter
of plain duty, and in no wise dependent upon any
discretion of any sort, it must be entered and
enforced as made, and mandamus will lie to enforce
the performance of this plain legal duty.

Id. at 282-83, 13 S.E. at 485-86. As in Wilder, mandamus

should issue in the case before us to ensure that the

Circuit Court obeys the mandates from this Court.

The majority, however, holds that it is inappropriate to

issue a writ of mandamus in the present case because to do so

would undo an act already done. According to the majority,

mandamus would compel the Circuit Court to vacate its order

setting aside Atkins' death sentence and imposing a life

sentence without the possibility of parole. It is correct

that a writ of mandamus "will not be granted to undo an act

already done." Richlands Med. Ass'n, 230 Va. at 387, 337

S.E.2d at 740. In my view, the majority merely recites this

principle and then applies it in the case before us without

actually examining the facts, not only of the cases upon which

the majority relies, but also of the numerous cases in which

this Court's issuance of a writ of mandamus either directly

compelled an act to be undone or had the incidental effect of

undoing an act already done even though the writ itself did

not specifically do so.

34
 For instance, in In re: Horan, this Court issued a writ

of mandamus directing a circuit court judge to allow the

Commonwealth's Attorney to seek the death penalty in a

particular criminal case. 271 Va. at 265, 634 S.E.2d at 680.

We did so although the circuit court judge had already entered

an order prohibiting the Commonwealth from seeking the death

penalty. Id. at 258, 634 S.E.2d at 676. The majority states

there is a difference between the pre-trial order in In re:

Horan and the "final judgment" in this case. That distinction

has no significance with regard to whether a writ of mandamus

is appropriate. In both instances, the respective orders had

been entered when the petitions for writs of mandamus were

filed. Furthermore, this Court has issued writs of mandamus

even though the writ had the effect of undoing a final

judgment. See, e.g., Kirk v. Carter, 202 Va. 335, 337, 117

S.E.2d 135, 137 (1960) (requiring a three-judge court to hear

a case which it had previously dismissed); Richardson v.

Farrar, 88 Va. 760, 770, 15 S.E. 117, 121 (1892) (directing

the circuit court to reinstate the complaint and hear the case

on its merits).

While I disagree with the majority's application today of

the principle that mandamus does not lie to undo an act

already done, if the majority is correct in refusing to issue

a writ of mandamus in this case, then we should not have

35
issued the writ in In re: Horan. This is so because the

issuance of that writ had the incidental or secondary effect

of undoing the order prohibiting the Commonwealth from seeking

the death penalty even though the writ itself did not direct

the circuit court judge to vacate or suspend its pre-trial

order. 4 In sum, I find no meaningful difference between the

case before us and In re: Horan, as well as Wilder, that

explains or justifies the majority's decision today.

The holdings in In re: Horan and Wilder are not the only

instances in which this Court's issuance of a writ of mandamus

had the incidental effect of undoing an act already done. In

Town of Front Royal v. Front Royal & Warren County Industrial

Park Corporation, 248 Va. 581, 449 S.E.2d 794 (1994), we

considered "whether mandamus [was] a proper remedy in an

action to compel a municipality to comply with terms for

provision of sewer services in a decree previously entered by

4
The majority states, “this Court did not consider or
discuss in In re: Horan whether the circuit court's order that
prohibited the Commonwealth from seeking the death penalty was
an act performed by the circuit court which could not be
undone.” Contrary to the majority's statement, this Court did
consider that issue. The respondent in In re: Horan
specifically argued that mandamus did not lie because it would
undo the pre-trial order prohibiting the Commonwealth from
seeking the death penalty. See Memorandum Submitted by the
Honorable Leslie M. Alden in Opposition to "Emergency"
Petitions for Writs of Mandamus and Prohibition, and in
Support of Her Motion to Dismiss Those Petitions at 10-11, In
re: Horan, 271 Va. 258, 634 S.E.2d 675 (2006) (Record Nos.
060023 and 060024).

36
an annexation court." Id. at 582, 449 S.E.2d at 795. The

trial court had issued a writ of mandamus requiring the Town

"to plan and construct sewer collectors to each of" several

lots of real estate owned by the petitioner. Id. at 584, 449

S.E.2d at 796. On appeal, the Town argued, among other

things, that mandamus was not an appropriate remedy because

the petitioner was "attempting to use mandamus as a means to

revise or correct actions already taken by" the Town's

governing body. Id. at 586, 449 S.E.2d at 797. The Town

claimed the act already done was its denial of the

petitioner's formal application for sewer service. Id.

In rejecting that argument, this Court stated:

Here, . . . the Town is required, by the 1978 court
decree, to perform a prospective non-discretionary
act. The trial court's order issuing the writ of
mandamus compels the Town to comply with that
decree. We also observe, as the trial court found,
that [the petitioner] has met each requirement
necessary for the issuance of the writ.

Id. at 587, 449 S.E.2d at 798. Despite the fact that issuing

the writ of mandamus meant the Town had to reverse its

rejection of the petitioner's application for sewer service,

this Court, nevertheless, affirmed the trial court's judgment.

Id. The petitioner had a clear right to the relief sought in

its petition for a writ of mandamus, the annexation court's

1978 decree imposed a ministerial duty on the Town to

37
construct sewer lines to the petitioner's individual lots, and

the petitioner had no adequate remedy at law. Id.

In my view, the same rationale applies in the case before

us. The Commonwealth has a clear right to have the Circuit

Court conduct the hearing to determine whether Atkins is

mentally retarded. This Court's mandates imposed a

ministerial duty on the part of the Circuit Court to conduct

that hearing. And, the Commonwealth has no adequate remedy at

law.

The decisions in In re: Horan and Town of Front Royal are

not anomalies in our jurisprudence. In numerous other

decisions by this Court, the issuance of a writ of mandamus

had the incidental effect of undoing an act already done

although the writ itself did not directly compel such action.

See, e.g., Howell v. Catterall, 212 Va. 525, 186 S.E.2d 28

(1972) (issuing writ of mandamus compelling the State

Corporation Commission to grant petitioner a continuance,

thereby effectively undoing the Commission's order denying

petitioner a continuance); Planning Comm'n v. Berman, 211 Va.

774, 180 S.E.2d 670 (1971) (affirming issuance of writ of

mandamus to compel approval of site plan and issuance of

building permits, thereby undoing a planning commission's

previous disapproval of the site plan); Davis v. Sexton, 211

Va. 410, 177 S.E.2d 524 (1970) (issuing writ of mandamus

38
directing circuit court to allow a judge of a court not of

record to practice criminal law in the circuit court and to

represent a criminal defendant in a case pending before that

court, thereby effectively nullifying the circuit court's

order prohibiting the judge from practicing criminal law in

that court); Peery v. Board of Funeral Directors, 203 Va. 161,

123 S.E.2d 94 (1961) (issuing mandamus to compel the Virginia

Board of Funeral Directors and Embalmers to issue petitioner a

license as a funeral director, thereby undoing the Board's

previous denial of the license); Kirk, 202 Va. 335, 117 S.E.2d

135 (issuing mandamus to compel a three-judge court to hear

and determine an election contest instituted by petitioners,

thereby nullifying the court's order dismissing the election

contest); McKinney v. Peers, 91 Va. 684, 22 S.E. 506 (1895)

(petitioner, along with two other individuals, had received

the requisite number of votes to be elected justices of the

peace; the election commissioners and clerk met to review the

results of the election, threw out the vote cast at a certain

precinct, ascertained that three different individuals had

been duly elected, and issued certificates of election to

those individuals; this Court issued mandamus to compel the

clerk to issue to the petitioner a certificate of his

election, thereby nullifying the previously issued

certificates of election); Richardson, 88 Va. 760, 15 S.E. 117

39
(issuing mandamus to compel county court judge to reinstate a

complaint, which had been dismissed, and to proceed to hear

and determine the case upon its merits); Town of Danville v.

Blackwell, 80 Va. 38, 42 (1885) (issuing mandamus to the

corporation court of Danville to perform its absolute duty to

remove a case to the circuit court, thereby undoing

corporation court's order refusing to remove the case); Kent,

Paine & Co. v. Dickinson, 66 Va. (25 Gratt.) 817 (1875)

(issuing mandamus to compel a circuit court judge to hear and

finally dispose of an appeal that had been previously

dismissed by the said judge); Cowan v. Fulton, 64 Va. (23

Gratt.) 579 (1873) (same); Smith v. Dyer, 5 Va. (1 Call.) 562

(1799) (affirming a district court's judgment issuing a writ

of mandamus compelling a county court to reinstate a clerk

ousted from his office by the illegal appointment of another

person, thereby undoing not only the removal of the clerk but

also the appointment of a new clerk).

Moreover, there are instances in which we have actually

issued a writ of mandamus that directly compelled an act

already done to be undone. See, e.g., In re: Morrissey, 246

Va. 333, 334, 433 S.E.2d 918, 919 (1993) (issuing writ of

mandamus to reinstate a public officeholder wrongly deprived

of his office and "requiring that the court's [order removing

the public officer] be annulled"); In re: Commonwealth's

40
Attorney for Chesterfield County, 229 Va. 159, 163, 326 S.E.2d

695, 698 (1985) ("the writ of mandamus will be granted

directing the trial judge to forthwith vacate his judgment of

September 25, 1984, and to sentence [the defendant] according

to the provision of Code § 18.2-53.1").

In contrast to these cases, the decision in Morrissette

v. McGinniss, 246 Va. 378, 436 S.E.2d 433 (1993), provides an

example of when this Court affirmed a trial court's judgment

denying a writ of mandamus because the writ, if issued, would

have had the effect of undoing an act already done. There,

the petition for mandamus asked the trial court to order a

county's general registrar to amend and correct a

certification in order to show that the required number of

voters had indeed signed petitions for a referendum. Id. at

381, 436 S.E.2d at 435. The general registrar had already

certified that the petitions did not satisfy the requirements

for a referendum. Id. at 380, 435 S.E.2d at 434. The

petition for mandamus also asked the trial court to order the

county board of supervisors to hold a referendum on the

subject at issue despite the fact that the county board had

already refused to do so and had enacted an ordinance creating

a county service authority for the purpose of constructing and

operating facilities for "a water supply, treatment, and

distribution system, . . . a sewage collection, disposal and

41
treatment system, and . . . a garbage and refuse collection

and disposal system." 5 Id. at 380, 436 S.E.2d at 434.

In affirming the trial court's judgment refusing to issue

a writ of mandamus, we stated:

[The petitioner] seeks to use mandamus to revise or
correct the allegedly erroneous action of the
[general registrar], the [county board of
supervisors], and the State Corporation Commission.
He charges the [general registrar] with failing to
properly certify the validity of the petitions; he
charges the [county board] with unlawfully refusing
to call for a referendum. Those acts had been
performed at the time the mandamus petition was
filed and could not be undone by mandamus. [The
petitioner] should have taken prompt action
immediately after the public hearing to seek
judicial review of those allegedly erroneous
actions.

Id. at 382, 436 S.E.2d at 435.

Unfortunately, these cases demonstrate that our

jurisprudence is less than consistent in terms of when we use

the principle that mandamus does not lie to undo an act

already done as the basis for refusing to issue a writ of

mandamus. The majority describes this principle as a

"fundamental principle of jurisprudence." Whether it is or

not, even the cases upon which the majority relies do nothing

to explain or resolve the inconsistent results I find in our

jurisprudence.

5
The State Corporation Commission had also issued a
certificate of incorporation for the county service authority.
Morrissette, 246 Va. at 380, 436 S.E.2d at 434.

42
 In Thurston v. Hudgins, 93 Va. 780, 20 S.E. 966 (1895),

the petitioner sought a writ of mandamus against an oyster

inspector to compel him to give notice to two other

individuals to remove their stakes from a certain oyster

ground, and if the individuals failed to do so, to require the

oyster inspector to remove the stakes. Id. at 781, 20 S.E. at

967. The trial court refused to issue the writ. Id.

On appeal, the decision turned "upon the question whether

the duties imposed upon an oyster inspector by the provisions

of the Code [were] purely ministerial in their nature, or

[were] duties necessarily calling for the exercise of judgment

and discretion in their performance." Id. at 783, 20 S.E. at

967. This Court concluded that an oyster inspector's

statutory duties were "quasi judicial in their nature,

requiring the exercise of judgment and discretion in their

performance," and mandamus was therefore not appropriate. Id.

at 784, 20 S.E. at 968.

We also recognized that the oyster inspector had already

exercised his discretion in assigning a certain 20 acres to

two individuals for the purpose of planting oysters or shells.

Thus, "[t]he object of the petitioner . . . was not only to

compel the inspector to undo what he had done, but to compel

him to do a specific act without reference to the opinion of

the inspector upon the subject." Id. We then stated, "It is

43
also well settled that mandamus does not lie to compel an

officer to undo what he has done in the exercise of his

judgment and discretion, and to do what he had already

determined ought not to be done, as is sought in this case."

Id. In other words, mandamus did not lie because the act to

be compelled was discretionary. See Harrison v. Barksdale,

127 Va. 180, 189-90, 102 S.E. 789, 792 (1920) (explaining that

in Thurston, the action of the officer that had been done was

in the exercise of judgment and discretion and for that reason

mandamus did not lie "to undo the action, and not merely

because the action was a past event").

Next, in Board of Supervisors v. Combs, 160 Va. 487, 169

S.E. 589 (1933), the Board of Supervisors of Amherst County

sought a writ of mandamus directing the state comptroller and

the Board of Supervisors of Campbell County "in the future to

distribute the tax derived from motor vehicle fuel, in

accordance with the said acts of 1930, page 42, ch. 45; that

Amherst [C]ounty be given credit for one-half of the

population of the [C]ity of Lynchburg as provided for in said

acts, and in keeping with all other provisions thereof, and

that said petitionees pay to Amherst [C]ounty all back pay or

arrears in said tax, to which it is entitled had the law been

so observed as it should have been, and deduct or credit the

future payments to Campbell [C]ounty until the fund is

44
equalized or adjusted upon a legal basis." Id. at 492, 169

S.E. at 591. We held that mandamus did not lie against the

Board of Supervisors of Campbell County because the statute in

question gave no authority to county boards of supervisors to

distribute the proceeds at issue. Id. at 493, 169 S.E. at

591.

As to the state comptroller, we noted not only that he

had already distributed all the revenues apportionable among

the counties under the 1930 act but also that the authority

vested in the state comptroller had been withdrawn by

subsequent legislation that became effective prior to this

Court's hearing the petition for mandamus. Id. at 494-95, 169

S.E. at 591-92. We concluded that mandamus did not lie

against the state comptroller because there was no longer a

fund from which he could make future distributions and because

the authority vested in the state comptroller had been

withdrawn. Id. at 495, 169 S.E. at 592. Thus, we held that

"[i]n view of the . . . facts and the change in the law

relating to the subject, it is obvious that the writ of

mandamus prayed for by the petitioner would, if awarded, be

unavailing and wholly nugatory." Id. at 496, 169 S.E. at 592.

"[T]o warrant the court in granting the writ against a public

officer such a state of facts must be presented as to show

that the relator has a clear right to the performance of the

45
thing demanded, and that a corresponding duty rests upon the

officer to perform that particular thing." Id. (quoting

Tyler v. Taylor, 70 Va. (29 Gratt.) 765, 767 (1878)).

As to the petitioner's request that the state comptroller

and Campbell County be directed to pay Amherst County "all

back pay or arrears in said tax to which it is entitled had

the law . . . been observed as it should have been," id. at

497-98, 169 S.E. at 593, we likewise concluded that mandamus

did not lie. To issue mandamus as the petitioner requested

would have specifically directed the state comptroller to undo

his distribution of the tax revenues derived from motor

vehicle fuel. We stated:

A mandamus is always granted to compel the
performance of some duty which has not been done
. . . . It is not granted to undo an act already
done. The court will not allow the validity of the
act to be tried in this way. We grant it, said Lord
Campbell, when that has not been done which a
statute orders to be done; but not for the purpose
of undoing what has been done.

Id. at 498, 169 S.E. at 593 (citing Harrison, 127 Va. 180, 102

S.E. 789 (internal quotation marks omitted)).

The quote from Lord Campbell relied upon in Combs comes

from the case of Ex parte Nash, 15 Q.B. 92 (1850). There, the

petitioner requested a writ of mandamus to compel a railway

company to take its seal off the register of shareholders.

Id. at 92. Prior to ruling, Lord Campbell stated to counsel

46
for the petitioner, "It seems to me quite new to try the

validity of an act by a mandamus to undo it." Id. at 95.

Lord Campbell then ruled:

We grant [mandamus] when that has not been done
which a statute orders to be done; but not for the
purpose of undoing what has been done. We may, upon
an application for a mandamus, entertain the
question whether a corporation, not having affixed
its seal, be bound to do so; but not the question
whether, when they have affixed it, they have been
right in doing so. I cannot give countenance to the
practice of trying in this form questions whether an
act professedly done in pursuance of a statute was
really justified by the statute.

Id. at 95-96; see also In re: Horan, 271 Va. at 264, 634

S.E.2d at 679; 2 T.C. Spelling, A Treatise on Injunctions and

Extraordinary Remedies, § 1436, at 1256-57 (1901) ("Mandamus

does not lie to compel a party holding an official position to

reverse a decision already rendered in the exercise of

discretionary powers. In other words, what has been already

done, however erroneously, cannot be undone by this remedy."). 6

6
This treatise divides the issue of mandamus into several
sections, two of those being "To Inferior Courts and Judicial
Officers" and "General Principles Governing Mandamus to Public
Officers." Spelling, at xi-xii. Interestingly, the treatise
discusses the principle that mandamus does not lie to undo an
act already done in the section concerning public officers but
does not mention it as an applicable rule in the section
pertaining to inferior courts. Thus, I maintain the principle
advanced by the majority in this case is not relevant when
deciding whether to issue a mandamus to an inferior court as
opposed to a public official.

47
 Continuing, in Richlands Medical Association, the State

Health Commissioner requested the trial court to issue a writ

of mandamus ordering a hearing examiner "to adhere to the law,

to interpret properly the . . . Certificate of Public Need

Law, to restrict his review to the function specified in

[Code] § 32.1-97 . . ., to abandon his erroneous construction

of the law, and to affirm the . . . Commissioner's original

denial of the application" for a certificate of need to

construct a new hospital filed by Richlands Medical

Association. 230 Va. at 386, 337 S.E.2d at 739. This Court

reversed the trial court's judgment issuing the writ

"[b]ecause the hearing examiner's duties required the exercise

of judgment and discretion." Id. at 388, 377 S.E.2d at 740.

Alternatively, we also noted that mandamus, if issued, would

"revise the hearing examiner's completed acts." Id.

The case of In re: Commonwealth's Attorney, 265 Va. 313,

315, 576 S.E.2d 458, 460 (2003), involved two petitions for

writs of mandamus requesting this Court, among other things,

to direct a circuit court judge to vacate particular orders

and proceed to enter judgments of guilt. We did not issue

mandamus because the petitioner was asking us to control a

judge's exercise of judicial discretion. Id. at 319, 576

S.E.2d at 462. In a footnote, we also stated that the actions

of the circuit court judge at which the requested mandamus was

48
directed had already taken place. Id. at 319 n.4, 576 S.E.2d

at 462 n.4.

Finally, in contrast to those four cases, we were

confronted in Harrison with the question: "If the position of

the petitioners were well taken, and it was the duty of the

respondent to have entered a contrary order from that which he

did enter, would mandamus lie to compel him to do so?" 127

Va. at 187, 102 S.E. at 791. We answered the question in the

affirmative and stated:

It is true that mandamus will not lie unless the
respondent is in possession of the authority to
perform the act sought at the time the writ is asked
to be issued; but the mere fact that he has done
something contrary to his duty does not of itself
deprive the respondent of the authority later to
reverse such action and perform his duty aright.

Id. at 189, 102 S.E. at 792.

Despite the divergent application of the principle that

mandamus does not lie to undo an act already done, I do,

however, find consistency in the cases in which we have

considered whether to issue a writ of mandamus to an inferior

court. In In re: Horan, In re: Morrissey, In re:

Commonwealth's Attorney for Chesterfield County, Davis, Kirk,

Richardson, Wilder, Blackwell, Kent, Cowan, and Smith, we

issued (or affirmed the issuance of) writs of mandamus that

either directly or implicitly undid an act that had been done.

In other words, we did not refuse to issue mandamus because it

49
would undo an act already done by the inferior court. 7 I do

recognize that in the case of In re: Commonwealth's Attorney

we stated in a footnote that mandamus, if issued, would undo

an act already done. 265 Va. at 319 n.4, 576 S.E.2d at 462

n.4. That observation did not form the basis of the Court's

decision. Thus, it appears that this Court has not, with few

exceptions until today, applied this principle when

considering whether a writ of mandamus should issue to an

inferior court. See supra note 6.

In sum, I conclude that the jurisprudence of this Court

does not support the majority's refusal to issue a writ of

mandamus directing the Circuit Court to conduct a hearing to

determine whether Atkins is mentally retarded. The majority

applies the principle that mandamus does not lie to undo an

act already done as though this Court had never deviated from

a constant use of the principle to refuse to issue mandamus

anytime doing so would either directly or implicitly undo an

act already done. But, as I have demonstrated, we have not

been consistent, except with regard to issuing mandamus to

7
The majority concludes these cases are not relevant
because they did not involve final judgments in criminal
cases. For purposes of deciding whether mandamus should
issue, this Court has never before distinguished between final
judgments in civil cases and final judgments in criminal
cases. Yet, the majority does so today without explanation as
to why such a distinction is appropriate.

50
inferior courts. The majority merely cites the principle and

concludes that mandamus does not lie in the case before us but

ignores the rule of law embodied in our mandates. 8

There can be no question, and the majority does not

suggest otherwise, that our mandates to the Circuit Court left

no room for the exercise of discretion as to whether to

conduct the mental retardation hearing. We directed the

Circuit Court to do so, but it refused to obey our mandates.

But see Strayer, 83 Va. at 717, 3 S.E. at 374 (holding the

circuit court "must obey" this Court's mandate). We have held

that "[mandamus] may be appropriately used and is often used

to compel courts to act where they refuse to act and ought to

act." Page, 71 Va. (30 Gratt.) at 418; accord In re: Horan,

271 Va. at 259, 634 S.E.2d at 676.

Unlike the majority, I cannot sanction the Circuit

Court's refusal to perform its duty to "implement both the

letter and spirit" of our mandates. Bell, 5 F.3d at 66. As

we said many years ago, "mandamus is always granted to compel

8
I further note, as explained more thoroughly below in
discussing the majority's refusal to issue a writ of
prohibition, that the Circuit Court exceeded its jurisdiction
when it entered the order setting aside Atkins' death
sentence, thus rendering the order void ab initio.
Consequently, the issuance of a writ of mandamus would not
undo an act already done because the order, being void ab
initio, was a legal nullity and in all practical effect, never
done in the first place.

51
the performance of some duty which has not been done." Combs,

160 Va. at 498, 169 S.E. at 593. I also note that, by issuing

a writ of mandamus compelling the Circuit Court to conduct the

mental retardation hearing, we would not be reviewing the

merits of its decision that the Commonwealth withheld

exculpatory evidence. 9 See id. For these reasons, I would

issue a writ of mandamus directing the Circuit Court of York

County to conduct a hearing to determine whether Atkins is

mentally retarded.

9
I express no opinion as to whether the Circuit Court was
correct in finding that the Commonwealth withheld exculpatory
evidence in violation of Brady and whether setting aside
Atkins' sentence of death was an appropriate sanction. The
merits of the Circuit Court's decision on that issue are not
before us in these petitions for mandamus and prohibition.
Nevertheless, the majority apparently decides the Circuit
Court was correct since the majority concludes that issuing a
writ of mandamus is not appropriate because it "would serve to
ignore the reality of the present case that justice was not
served by the Commonwealth's deliberate use of 'coached'
testimony."

I do emphasize, however, that alleged Brady violations
are routinely the subject of petitions for writs of habeas
corpus. See, e.g., Elliot v. Warden, 274 Va. 598, 598-99, 652
S.E.2d 465, 471-72 (2007); Muhammad v. Warden, 274 Va. 3, 3-
13, 646 S.E.2d 182, 186-91 (2007); Lovitt v. Warden, 266 Va.
216, 223-24, 243-47, 585 S.E.2d 801, 805, 817-19 (2003).
Given the procedural status of Atkins' capital murder case, a
petition for a writ of habeas corpus is the appropriate
vehicle to address the merits of Atkins' motion alleging Brady
violations by the Commonwealth.

52
 III. PROHIBITION

In addition to the petition for a writ of mandamus, the

Commonwealth also filed a petition seeking a writ of

prohibition. The Commonwealth asked that the Circuit Court be

prohibited "from enforcing [its] January 24, 2008, pre-trial

order . . . reducing the sentence of death imposed by the

jury" in Atkins' capital murder case and "from entering any

order in [that] case reducing the death sentence without a

jury determination of mental retardation." Because the

Circuit Court exceeded its jurisdiction when it entertained

Atkins's Brady motion and then entered the order setting aside

his death sentence, thereby rendering the order void ab

initio, I would issue the writ of prohibition as prayed for by

the Commonwealth.

"The office of a writ of prohibition is . . . to prevent

the exercise of jurisdiction of the court by the judge to whom

it is directed, either where he has no jurisdiction at all, or

is exceeding his jurisdiction." Rollins v. Bazile, 205 Va.

613, 616, 139 S.E.2d 114, 117 (1964); see also Burch v.

Hardwicke, 64 Va. (23 Gratt.) 51, 59 (1873) ("A [writ of]

prohibition is a proper remedy to restrain an inferior court

from acting in a matter of which it has no jurisdiction, or

from exceeding the bounds of its jurisdiction."). "Although

jurisdiction of the person, or of the subject matter, may have

53
once existed, yet, if for any cause it has been lost, the writ

[of prohibition] may issue." Rollins, 205 Va. at 616, 139

S.E.2d at 117. The writ is used "for the furtherance of

justice, and to secure order and regularity in judicial

proceedings, where none of the ordinary remedies provided by

law are applicable." Supervisors of Bedford v. Wingfield, 68

Va. (27 Gratt.) 329, 333 (1876).

Although this Court has never addressed the issue,

various other courts have found that a writ of prohibition is

a proper remedy to compel an inferior court to comply with a

superior court's mandates. See, e.g., Harbel Oil Co. v.

Superior Court, 345 P.2d 427, 429 (Ariz. 1959) (recognizing

that a writ of prohibition is the appropriate remedy when a

trial court refuses to obey the mandate of an appellate court

"since the trial court's jurisdiction on remand is delimited

by the terms of the mandate"); Arkansas Baptist Coll. v.

Dodge, 74 S.W.2d 645, 646 (Ark. 1934) (making temporary writ

of prohibition "perpetual" because chancery court failed to

follow appellate court's mandate); Butler v. Superior Court,

128 Cal. Rptr. 2d 403, 405 (Cal. Ct. App. 2002) ("When an

appellate court's reversal is accompanied by directions

requiring specific proceedings on remand, those directions are

binding on the trial court and must be followed. Any material

variance from the directions is unauthorized and void" and

54
"failure to follow appellate directions can be challenged by

an immediate petition for writ of prohibition."); Gibbs v.

Circuit Court, 191 So. 699, 700 (Fla. 1939) ("The law is

settled in this State that when a cause has been appealed and

judgment rendered by the appellate court, interference

therewith on the part of the lower court by any proceeding

other than such as is directed by the appellate court will be

prohibited."); Smith v. O'Connor, 646 N.E.2d 1115, 1117 (Ohio

1995) ("A writ of prohibition is an appropriate remedy to

prevent a lower court from proceeding contrary to the mandate

of a superior court."); Cherokee Water Co. v. Ross, 698 S.W.2d

363, 366 (Tex. 1985) ("When the opinion and mandate of [an

appellate court] prohibit relitigation of some issues on

remand, or direct that only some expressly severed issues or

causes may still be litigated, and the parties and trial court

attempt relitigation beyond that which was expressly

permitted, a writ of prohibition will issue to prohibit

relitigation." (citing City of Orange v. Clark, 627 S.W.2d 146

(Tex. 1982))); Frazier & Oxley, L.C. v. Cummings, 591 S.E.2d

728, 739 (W. Va. 2003) (holding that "when a circuit court

fails or refuses to obey or give effect to the mandate of [an

appellate court], misconstrues it, or acts beyond its province

in carrying it out, the writ of prohibition is an appropriate

means of enforcing compliance with the mandate").

55
 In my view, this Court should follow this accepted

principle of law and hold that a writ of prohibition is the

proper remedy to enforce the Circuit Court's compliance with

this Court's mandates. Not only do accepted principles of

American law support this outcome, but issuing a writ of

prohibition under the circumstances of this case is also fully

supported by this Court's jurisprudence.

A writ of prohibition is to prevent the exercise of

jurisdiction when the judge to whom it is directed either has

no jurisdiction or is exceeding his jurisdiction. Rollins,

205 Va. at 616, 139 S.E.2d at 117. Thus, the dispositive

question for purposes of issuing a writ of prohibition in this

case is whether, upon remand from this Court, the Circuit

Court had jurisdiction to conduct any proceedings other than

the mental retardation hearing. I conclude that the Circuit

Court did not because its jurisdiction at that time was

circumscribed by the provisions of Code § 8.01-654.2 in

conjunction with this Court's two separate mandates.

Article VI, Section 1 of the Constitution of Virginia

grants to the General Assembly, subject to certain limitations

set forth in that section, "the power to determine the

original and appellate jurisdiction of the courts of the

Commonwealth." Pursuant to that constitutional provision, the

General Assembly statutorily conferred upon circuit courts

56
original subject matter jurisdiction for all indictments for

felonies. Code § 17.1-513; Porter v. Commonwealth, 276 Va.

203, 229, 661 S.E.2d 415, 427 (2008); see also Nelson v.

Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001) (subject

matter jurisdiction is granted through a constitution or

statute). Subject matter jurisdiction gives a court the power

to adjudicate a class of cases or controversies. Jenkins v.

Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 13, 624

S.E.2d 453, 458 (2006). A circuit court, however, loses

jurisdiction over a felony case after the expiration of 21

days and may not thereafter modify, vacate, or suspend its

final judgment, Rule 1:1; but, if a person is sentenced for a

felony to the Department of Corrections, a circuit court "may,

at any time before the person is transferred to the

Department, suspend or otherwise modify the unserved portion

of such a sentence." Code § 19.2-303; Commonwealth v. Neely,

271 Va. 1, 2-3, 624 S.E.2d 657, 657 (2006). 10 See also

Virginia Dep't of Corrs. v. Crowley, 227 Va. 254, 264, 316

S.E.2d 439, 444 (1984) (holding that orders releasing certain

10
Rule 1:1 does not prevent a circuit court's entering an
order staying an execution date because such an order does not
modify, vacate, or suspend a final judgment. Davidson v.
Commonwealth, 246 Va. 168, 171, 432 S.E.2d 178, 179 (1993).
Under Rule 1:1, a circuit court may also "postpone execution
of the sentence in order to give the accused an opportunity to
apply for a writ of error and supersedeas."

57
defendants and suspending their sentences entered after the

21-day limitation in Rule 1:1 expired and after the defendants

were transferred to the penitentiary were void for lack of

jurisdiction).

In the case before us, there is no question that, prior

to this Court's remand for the sole purpose of conducting the

mental retardation hearing, the time limitations in both Rule

1:1 and Code § 19.2-303 had expired in Atkins' capital murder

case and the Circuit Court no longer had any jurisdiction over

the case. The General Assembly, however, enacted the

previously mentioned emergency legislation in order to provide

a mechanism for persons, such as Atkins, whose death sentences

had become final in a circuit court before April 29, 2003 to

present claims of mental retardation to this Court. Code

§ 8.01-654.2. In relevant part, Code § 8.01-654.2 states:

Notwithstanding any other provision of law, any
person under sentence of death whose sentence became
final in the circuit court before April 29, 2003,
and who desires to have a claim of his mental
retardation presented to the Supreme Court, shall do
so by one of the following methods: (i) . . . if his
direct appeal is pending in the Supreme Court, he
shall file a supplemental assignment of error and
brief containing his claim of mental retardation
. . . . The Supreme Court shall consider a claim
raised under this section and if it determines that
the claim is not frivolous, it shall remand the
claim to the circuit court for a determination of
mental retardation; otherwise the Supreme Court
shall dismiss the petition. The provisions of
§§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a
determination of mental retardation made pursuant to

58
 this section. If the claim is before the Supreme
Court on direct appeal and is remanded to the
circuit court and the case wherein the sentence of
death was imposed was tried by a jury, the circuit
court shall empanel a new jury for the sole purpose
of making a determination of mental retardation.

(Emphases added.). In accordance with the provisions of Code

§ 8.01-654.2, our remand to the Circuit Court was necessarily

restricted to "the sole purpose of making a determination of

mental retardation." 11 Atkins, 266 Va. at 80, 581 S.E.2d at

517 (quoting Code § 8.01-654.2).

Thus, but for the enactment of Code § 8.01-654.2 and this

Court's remand, the Circuit Court would not have had the power

to adjudicate whether Atkins is mentally retarded. Until the

enactment of this statute and the other emergency legislation,

see Code §§ 19.2-264.3:1.1, 19.2-264.3:1.2, and 19.2-264.3:3,

there was no procedure in the Commonwealth for a defendant

11
Remands by appellate courts are often described as
general or limited. Frazier & Oxley, 591 S.E.2d at 735. A
general remand means "a cause is broadly remanded for a new
trial [and] all of the issues are opened anew as if there had
been no trial." Overton Constr. Co. v. First State Bank, 688
S.W.2d 268, 269 (Ark. 1985). In contrast, a limited remand
"prohibit[s] relitigation of some issues on remand, or
direct[s] that only some expressly severed issues or causes
may still be litigated." Cherokee Water Co. v. Ross, 698
S.W.2d 363, 366 (Tex. 1985). "When the further proceedings
are specified in the mandate, the [trial] court is limited to
holding such as are directed." Hicks v. Gates Rubber Co., 928
F.2d 966, 971 (10th Cir. 1991). Our mandate to the Circuit
Court was a limited remand because it specified the further
proceeding to be conducted, i.e., the mental retardation
hearing.

59
convicted of capital murder to obtain a determination of

mental retardation by either a jury or a trial court sitting

as the factfinder. However, in the new but narrow class of

cases brought into existence because of the decision of the

United States Supreme Court in Atkins III, in which the death

sentence in a capital murder case became final in a circuit

court before April 29, 2003, and this Court has determined

that a claim of mental retardation is not frivolous, the

General Assembly conferred limited jurisdiction, not plenary

jurisdiction over an entire capital murder case, to a circuit

court to adjudicate whether the defendant is mentally

retarded. Given the limited jurisdiction in this particular

class of cases, the Circuit Court had the power to adjudicate

only the issue as to whether Atkins is mentally retarded. 12 In

12
The majority states, and I agree, that the
Commonwealth's Attorney asked the Circuit Court to rule on
Atkins' motion to disqualify the Commonwealth's Attorney
because he allegedly procured perjured testimony in Atkins'
original capital murder trial. Certainly, whether the
Commonwealth's Attorney should be disqualified from
participating in the hearing to determine whether Atkins is
mentally retarded is an issue that would be relevant and
necessary to that proceeding, as would a motion to prohibit
the introduction of certain evidence.
The request by the Commonwealth's Attorney asking the
Circuit Court to rule on Atkins' motion was not inconsistent
with the assertion that the Circuit Court lacked the power to
adjudicate other legal issues that were not relevant to the
mental retardation hearing. Nevertheless, even if the
majority is correct that the Commonwealth's Attorney
approbated and reprobated, the jurisdiction to adjudicate any
subject matter other than the issue of Atkins' mental

60
other words, the Circuit Court exceeded the jurisdiction

conferred by Code § 8.01-654.2 when it adjudicated Atkins'

Brady motion and set aside his sentence of death.

The Circuit Court itself questioned whether it had

jurisdiction to adjudicate Atkins' motion alleging Brady

violations when it certified an interlocutory appeal pursuant

to Code § 8.01-670.1, asking this Court whether it could hear

the motion and order an appropriate remedy. Although we

dismissed the appeal because Code § 8.01-670.1 is inapplicable

in criminal cases, this Court's mandate upon remand directed

the Circuit Court to continue with the case, expressly

"confined to the terms of [our previous mandate] remanding

this case for a jury determination of whether Atkins is

mentally retarded."

Since the Circuit Court exceeded its jurisdiction by

adjudicating Atkins' Brady motion when Atkins' capital murder

case was remanded pursuant to the limited jurisdiction

conferred by Code § 8.01-654.2, the order setting aside

Atkins' sentence of death is void and of no force and effect.

See Crowley, 227 Va. at 264, 316 S.E.2d at 444. We have held

in numerous cases that any action taken by a court after it

retardation cannot be conferred on the Circuit Court "by
consent of the parties, waiver or estoppel." Lucas v. Biller,
204 Va. 309, 313, 130 S.E.2d 582, 585 (1963); accord Wagner v.

61
loses jurisdiction is void ab initio and a complete nullity;

an order entered under such circumstances has no force and

effect. See, e.g., Morgan v. Russrand Triangle Assocs.,

L.L.C., 270 Va. 21, 26-27, 613 S.E.2d 589, 591-92 (2005);

Safrin v. Travaini Pumps USA, Inc., 269 Va. 412, 418, 611

S.E.2d 352, 355 (2005); James v. James, 263 Va. 474, 483, 562

S.E.2d 133, 138 (2002); Super Fresh Food Mkts. v. Ruffin, 263

Va. 555, 563-64, 561 S.E.2d 734, 739 (2002); Singh v. Mooney,

261 Va. 48, 54, 541 S.E.2d 549, 552 (2001); Davis v. Mullins,

251 Va. 141, 150, 466 S.E.2d 90, 94-95 (1996); Parrish v.

Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 145 (1995); Ein v.

Commonwealth, 246 Va. 396, 400-01, 436 S.E.2d 610, 613 (1993);

Dixon v. Pugh, 244 Va. 539, 543, 423 S.E.2d 169, 171 (1992);

School Bd. of the City of Lynchburg v. Caudill Rowlett Scott,

Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989); Prohm v.

Anderson, 220 Va. 74, 77, 255 S.E.2d 491, 492-93 (1979).

Further, it is well-settled that a judgment that is void ab

initio "may be 'impeached directly or collaterally by all

persons, anywhere, at any time, or in any manner.' " Singh,

261 Va. at 52, 541 S.E.2d at 551 (quoting Barnes v. American

Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925)

(emphasis added)); see also Hicks v. Mellis, 275 Va. 213, 219,

Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999); Morrison
v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990).

62
657 S.E.2d 142, 145 (2008); Collins v. Shepherd, 274 Va. 390,

402, 649 S.E.2d 672, 678 (2007).

This Court's decision in State Farm Mutual Automobile

Insurance Company v. Remley, 270 Va. 209, 618 S.E.2d 316

(2005), directly supports my conclusion that the Circuit Court

exceeded its jurisdiction when it decided any issue other than

whether Atkins is mentally retarded. In that case, the

plaintiff, Christine B. Remley, obtained a default judgment

against the defendant, Craig Griffin. Id. at 213, 618 S.E.2d

at 317. The circuit court, however, erroneously stated in its

default judgment order "that judgment be and hereby is granted

to the plaintiff, Craig Griffin, and against the defendant."

Id.

Relying on Code § 8.01-428, 13 Remley's

uninsured/underinsured motorist carrier filed a motion to set

aside the default judgment; however, at the time it filed the

motion, both the 21-day period provided in Rule 1:1 and the

30-day period to file an appeal had expired. Id. at 213, 618

S.E.2d at 318. The circuit court denied the motion but

corrected the "scrivener's error" in its default judgment

order so as to reflect that judgment was granted to Remley,

13
The provisions of Code § 8.01-428 permit a court to set
aside default judgments for specific reasons, such as fraud
upon the court, and correct clerical mistakes after the 21-day
limitation in Rule 1:1 has expired.

63
the correct plaintiff. Id. at 215, 618 S.E.2d at 319. The

circuit court concluded that "its act of entering the

corrected judgment order did not extend the court's

jurisdiction to either grant the defendants leave to file a

late grounds of defense or their motion to set aside the

default judgment on grounds other than those contained in Code

§ 8.01-428." Id.

This Court affirmed the circuit court's judgment denying

the motion to set aside the default judgment. We gave these

reasons for our decision:

We disagree with [the insurer's] contention
that the circuit court reacquired jurisdiction over
all issues relating to plaintiff's motion for
judgment when the circuit court entered the order of
correction . . . . We hold that when a circuit
court exercises jurisdiction pursuant to Code
§ 8.01-428, such jurisdiction is limited to the
specific subjects set forth in paragraphs (A), (B),
(C), or (D) of Code § 8.01-428. Once a court
obtains jurisdiction pursuant to Code § 8.01-428,
the court is not authorized to consider any issues
that are not specifically set forth in this statute.

Id. at 221, 618 S.E.2d at 322 (emphasis added).

Similarly, once the Circuit Court at issue reacquired

jurisdiction of Atkins' capital murder case under Code § 8.01-

654.2, it was not authorized to consider any issue not

specifically set forth in that statute. Just as Code § 8.01-

428 is a limited exception to the conclusive effect of a final

judgment, so is Code § 8.01-654.2. See Charles v.

64
Commonwealth, 270 Va. 14, 17 n.*, 613 S.E.2d 432, 433 n.*

(2005) ("Unless otherwise provided by statute, see e.g., Code

§ 8.01-428, Rule 1:1 prohibits the modification of a final

order more than 21 days after the date of entry."); see also

McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243,

244-45, 360 S.E.2d 845, 846 (1987).

This Court has affirmed the issuance of a writ of

prohibition to prevent a trial court from granting a new trial

after the expiration of the statutory period during which the

trial court retained jurisdiction to do so. Burroughs v.

Taylor, 90 Va. 55, 56, 17 S.E. 745, 746 (1893). This Court

has likewise issued a writ of prohibition to prevent a circuit

court from entertaining motions to reconsider sentencing

orders after the expiration of the 21-day period provided in

Rule 1:1 and after the defendants were transferred to the

Department of Corrections. In re: Dep't of Corrs., 222 Va.

454, 466, 281 S.E.2d 857, 864 (1981). Thus, I conclude that a

writ of prohibition as requested by the Commonwealth should be

issued.

Citing this latter case, the majority, however, holds

that a writ of prohibition does not lie in this case because

it would undo an act already done. In that case, five co-

defendants were convicted for various drug offenses and

sentenced to terms in the penitentiary. Id. at 457, 281

65
S.E.2d at 858-59. All the defendants filed motions to set

aside the judgments within 21 days of the sentencing orders.

Id. at 457-58, 281 S.E.2d at 859. The circuit court, within

the 21-day period of Rule 1:1, took the motions under

advisement, "stating that the defendants had not yet been

committed to the penitentiary system [and] that the court was

not prepared to rule on the motions at that time." Id. at

458, 281 S.E.2d at 859. At some point after the circuit court

took the motions under advisement, the defendants were

received into the penitentiary system. Id.

Subsequently, the circuit court, in three separate orders

entered on different dates, directed that three of the

defendants be released from custody, suspended the remainder

of the term of incarceration of each, and placed those three

defendants on probation for the balance of their original

sentences. Id. At the time the orders releasing the three

defendants from the penitentiary were entered, they had been

incarcerated for periods ranging from three and one-half

months to one year. Id. The circuit court, however, took no

action on the motions filed by the other two defendants. Id.

The Department of Corrections filed a petition for a writ

of prohibition in this Court alleging that the circuit court

"did not vacate or suspend the judgments of conviction prior

to the expiration of 21 days or delivery of the defendants to

66
the penitentiary, and therefore it had no jurisdiction to

enter the orders suspending the sentences and compelling the

release of [the three defendants] and has no jurisdiction now

to take any such action as to [the two remaining defendants]."

Id. The Department relied primarily on Rule 1:1 and former

Code § 53-272, the predecessor to Code § 19.2-303. Id. at 459,

281 S.E.2d at 859.

With regard to the two defendants whose motions the

circuit court had yet to decide, this Court held that because

the circuit court had not modified, vacated, or suspended the

final sentencing orders within 21-days of entry or before

those defendants had been transferred to the penitentiary, the

circuit court "no longer [had] jurisdiction to act on the

[pending] motions to suspend." Id. at 465, 281 S.E.2d at 863.

Thus, we "award[ed] a writ prohibiting the trial judge or any

other judge of the [circuit] court from entering any orders on

the motions to suspend the balance of the sentences of [the

two defendants]." Id. at 466, 281 S.E.2d at 864.

With regard to the three defendants who had already been

released from the penitentiary, we denied the writ of

prohibition, stating, "In each case, the release is an

accomplished fact; thus, the time for challenging such

67
releases in a petition for a writ of prohibition has passed." 14

Id. at 461, 281 S.E.2d at 861. In reaching that conclusion,

the Court explained the purpose of a writ of prohibition:

The writ of prohibition, as its name imports,
is one which commands the person to whom it is
directed not to do something which, by the
suggestion of the relator, the court is informed he
is about to do. If the thing be already done, it is
manifest the writ of prohibition cannot undo it, for
that would require an affirmative act; and the only
effect of a writ of prohibition is to suspend all
action, and to prevent any further proceeding in the
prohibited direction.

14
Subsequently, in Crowley, this Court was called upon to
determine whether the three circuit court orders for which we
had refused to issue a writ of prohibition to prevent their
enforcement, see In re: Dep't of Corrs., 222 Va. at 461, 281
S.E.2d at 861, could be vacated and set aside. 227 Va. at
258, 316 S.E.2d at 441. Applying Rule 1:1 and the rationale
enunciated in In re: Department of Corrections when this Court
granted the writ of prohibition as to the two defendants whose
motions to suspend had not been ruled upon, we held that

because the orders releasing the [three defendants]
and suspending their sentences were entered after
the 21-day limitation in Rule 1:1 had expired and
the [three defendants] had been transferred to the
penitentiary, those orders were void for lack of
jurisdiction and the [circuit] court erred in
dismissing the motions to vacate. Hence, we will
reverse the several judgments and enter a final
judgment in each case vacating the void order. If,
upon entry of our mandates, the Attorney General,
acting as attorney for the Commonwealth, for the
Department of Corrections, and for the warden of the
institution in which the [three defendants] were
incarcerated, so elects, he may initiate the process
required to return the [three defendants] to custody
to serve the sentences originally imposed.

Id. at 264, 316 S.E.2d at 444.

68
Id. (quoting United States v. Hoffman, 71 U.S. (4 Wall.) 158,

161-62 (1866)).

It appears that In re: Department of Corrections is the

only case in which we have refused to issue a writ of

prohibition on the basis that doing so would undo an act

already done. 15 In examining the Court's opinion, I find that

the release of the three defendants was the "accomplished

fact" cited by the Court as the act that would be undone by

issuing a writ of prohibition, as opposed to the circuit

court's three orders releasing the defendants from custody and

suspending the remainder of their terms of incarceration. Id.

at 461, 281 S.E.2d at 861.

In contrast to the decision in In re: Department of

Corrections, this Court has, on several occasions, issued a

writ of prohibition notwithstanding the fact that it would

undo an act already done. See, e.g., Charlottesville

Newspapers, Inc. v. Berry, 215 Va. 116, 118, 206 S.E.2d 267,

268 (1974) (issuing writ of prohibition preventing enforcement

of order denying public access to pleadings in civil actions

15
I recognize that in the case of In re: Commonwealth's
Attorney, we "note[d] that neither prohibition nor mandamus
will lie to undo acts already done." 265 Va. at 319 n.4, 576
S.E.2d at 462 n.4 (citing In re: Dep't of Corrs., 222 Va. at
461, 281 S.E.2d at 861). But, as I previously pointed out,
the statement, enunciated in a footnote, did not form the
basis of the Court's holding in that case.

69
and ordering "that the orders of the Circuit Court of

Albemarle County which may be in conflict herewith, be, and

the same hereby are, declared unenforceable"); Flanary v.

Morton, 197 Va. 416, 417-18, 90 S.E.2d 470, 471 (1955)

(because the circuit court did not have "the essential equity

jurisdiction to entertain" a certain suit and an injunction

granted in the suit was without validity and of no effect, a

writ of prohibition was issued and the circuit court was

"prohibited from having or holding any further proceedings in

said equity suit . . . and from enforcing the said

injunction"); Burroughs, 90 Va. at 56, 17 S.E. at 746

(affirming issuance of a writ of prohibition to prevent a

justice of the peace without jurisdiction from awarding a new

trial, after the justice had already granted a new trial);

Commonwealth v. Latham, 85 Va. 632, 633-34, 8 S.E. 488, 488-89

(1889) (issuing a writ of prohibition directed to a judge who

acted in excess of his jurisdiction when he enjoined the levy

for a debt in favor of the Commonwealth, thereby preventing

enforcement of an injunction already issued in the trial

court); James v. Stokes, 77 Va. 225, 227-31 (1883) (where a

justice of the peace assumed jurisdiction of a case involving

a debt that exceeded the jurisdictional amount over which the

justice had jurisdiction, this Court affirmed the issuance of

a writ of prohibition against the justice even though judgment

70
had been entered, writs of fieri facias had issued, and

partial collection on the judgment had occurred); French v.

Noel, 63 Va. (22 Gratt.) 454, 456 (1872) (holding that a writ

of prohibition was "the proper remedy for the plaintiff in

such a case as this, to prevent and arrest the said

unauthorized proceedings, and to have them declared null and

void; and that the said remedy still continues to exist,

notwithstanding the said judgment of the said [c]ircuit court

was rendered before the rule was awarded in this case"

(emphasis added)); Jackson v. Maxwell, 26 Va. (5 Rand.) 636

(1826) (issuing a writ of prohibition to inferior court

because that court was without jurisdiction when it granted a

writ of prohibition to another court, and prohibiting

enforcement of the inferior court's writ).

As with writs of mandamus, it appears that our cases are

at odds regarding when a writ of prohibition should not issue

because it would undo an act already done. I recognize that

the cases I cited in the prior paragraph preceded our decision

in In re: Department of Corrections, but, in the latter case,

we did not state that we were adopting for the first time in

the Commonwealth the rule that prohibition does not lie to

undo an act already done. Clearly, this rule had been part of

the common law for many years as reflected by the quote in In

re: Department of Corrections from the 1866 decision in

71
Hoffman. Furthermore, we did not distinguish our prior cases

issuing the writ and thereby undoing acts already done.

There is, however, a basis upon which our cases can be

harmonized. In those cases where a writ of prohibition was

issued, the act that either directly or indirectly was undone

by the writ was an order of an inferior court. As I pointed

out previously, the Court in In re: Department of Corrections

concluded that the act that would be undone by a writ of

prohibition was the "accomplished fact" of three defendants'

release from the penitentiary. 222 Va. at 461, 281 S.E.2d at

861. The Court did not mention the circuit court's three

orders, already entered, as the act that would be undone.

The distinction I draw is substantiated by the rationale

used in In re: Department of Corrections: " 'If the thing be

already done, it is manifest the writ of prohibition cannot

undo it, for that would require an affirmative act.' " 222

Va. at 461, 281 S.E.2d at 861 (emphasis added) (quoting

Hoffman 71 U.S. (4 Wall.) at 162). Obviously, in In re:

Department of Corrections, it would have required an

"affirmative act" to return those three defendants to

confinement in the penitentiary. Here, however, the

Commonwealth requests in its petition for a writ of

prohibition that the Circuit Court be prohibited from

enforcing its order reducing Atkins' sentence to life

72
imprisonment and from reducing Atkins' death sentence in the

absence of a jury finding that he is mentally retarded. That

relief does not require anything to be undone by an

"affirmative act" and is consistent with the type of relief we

have given when issuing a writ of prohibition. See, e.g.,

Charlottesville Newspapers, 215 Va. at 118, 206 S.E.2d at 268

(issuing writ of prohibition to prevent enforcement of circuit

court's order); Flanary, 197 Va. at 417, 90 S.E. at 471

(same).

Finally, as I previously explained, the Circuit Court's

order setting aside Atkins' sentence of death and sentencing

him to life imprisonment is a nullity and without force and

effect. As such, the order, void from the outset, is treated

as if it had never been entered in the first instance. See

Berry v. F&S Fin. Mktg., 271 Va. 329, 333, 626 S.E.2d 821, 823

(2006). It is anomalous, to say the least, that a writ of

prohibition under these circumstances would be undoing an act

that was, in effect, never done in the first place.

IV. CONCLUSION

In order to prevent a failure of justice, I would grant

both a writ of mandamus and a writ of prohibition to compel

the Circuit Court of York County to conduct the mandated

hearing to determine whether Atkins is mentally retarded and

to prohibit the Circuit Court from enforcing its order setting

73
aside Atkins' sentence of death and from taking any other

action in Atkins' case other than conducting the mental

retardation hearing and entering such orders as are relevant

and necessary to that proceeding. The Commonwealth has no

other adequate remedy at law that would provide the type of

complete relief necessitated by the peculiar facts of this

case. Justice and the rule of law demand that there be a

remedy for the Circuit Court's failure to follow the mandates

of this Court. 16 For these reasons, I respectfully dissent.

16
As I have already pointed out, Atkins' remedy for the
Commonwealth's alleged Brady violations is a petition for a
writ of habeas corpus. See supra note 9.

74