VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 11th day of March,
2005.
William Joseph Burns, Petitioner,
against Record No. 020971
Warden of the Sussex I
State Prison, Respondent.
Upon a Petition for Writ of Habeas Corpus
Upon a Rehearing
On October 28, 2003, we entered an order dismissing Burns'
petition for a writ of habeas corpus except for that portion of the
petition asserting that he was not eligible for the death penalty
because he was mentally retarded. We concluded that Burns' claim of
mental retardation was not frivolous and, pursuant to Code § 8.01-
654.2, remanded the matter to the Circuit Court of Shenandoah County
for a jury determination of that issue.
The Warden filed a motion for rehearing asserting that Burns
was not entitled to a jury determination of his claim of mental
retardation. On February 6, 2004, we granted the Warden's motion
for rehearing and vacated that portion of our October 28, 2003 order
remanding Burns' mental retardation claim to the circuit court. On
June 10, 2004, we issued an order reinstating that portion of the
October 28, 2003 order remanding the case to the circuit court for a
jury determination of the mental retardation issue. The Warden
filed a motion seeking a rehearing of the June 10 order, again
asserting that Code § 8.01-654.2 does not allow a jury determination
of Burns' claim of mental retardation in a habeas corpus proceeding.
We granted the Warden's motion by order entered October 1, 2004, and
set aside the order of June 10, 2004. Upon further review of the
briefs and argument of counsel, we conclude that, on remand to the
circuit court, Burns is entitled to a jury determination of his
mental retardation claim.
In 2003, following the decision of the United States Supreme
Court in Atkins v. Virginia, 536 U.S. 304 (2002), the General
Assembly enacted Code §§ 19.2-264.3:1.1 and 19.2-264.3:1.2
establishing the procedure for determining defendants' claims of
mental retardation arising in capital murder trials. The General
Assembly also enacted Code § 8.01-654.2 allowing defendants whose
capital murder trials concluded before April 29, 2003 to raise the
issue of mental retardation. That statute provides:
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 the person has not commenced a direct
appeal, he shall present his claim of mental retardation
by assignment of error and in his brief in that appeal,
or 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, or
(ii) if the person has not filed a petition for a writ
of habeas corpus under subsection C of § 8.01-654, he
shall present his claim of mental retardation in a
petition for a writ of habeas corpus under such
subsection, or if such a petition is pending in the
Supreme Court, he shall file an amended petition
containing his claim of mental retardation. A person
proceeding under this section shall allege the factual
basis for his claim of mental retardation. The Supreme
Court shall consider a claim raised under this section
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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 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.
If the person has completed both a direct appeal and a
habeas corpus proceeding under subsection C of § 8.01-
654, he shall not be entitled to file any further habeas
petitions in the Supreme Court and his sole remedy shall
lie in federal court.
The Warden interprets this statute as authorizing a jury
determination of mental retardation only when a capital defendant
raises the issue in this Court on direct appeal. This
interpretation, he argues, is consistent with our jurisprudence that
excludes the use of a jury in habeas corpus proceedings.
We agree with the Warden that habeas corpus proceedings do not
involve juries. However, the proceeding under Code § 8.01-654.2 is
not a habeas corpus proceeding, but a proceeding created by the
General Assembly for a specific and limited purpose. The statute
provides a mechanism to raise the mental retardation issue in the
context of a direct appeal or habeas corpus petition, and
establishes a single specific procedure to determine the issue
regardless of the context in which the issue arises. The Warden
does not contest that the General Assembly has full authority to
enact Code § 8.01-654.2 and delineate the procedure contained in
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that statute. Accordingly, a person qualified to raise the mental
retardation issue under the statute may do so in a habeas corpus
petition; however, adjudication of that issue does not occur as part
of a habeas corpus proceeding but in the specific proceeding the
General Assembly established in Code § 8.01-654.2.
Thus, if this Court finds that a mental retardation claim is
not frivolous, as in this case, it must "remand" the factual issue
of mental retardation to the circuit court for determination. Under
the plain language of the statute, the traditional "referral" of
factual matters to a circuit court for an evidentiary hearing
available in a capital habeas corpus proceeding, Code § 8.01-654(C),
is not available for proceedings arising pursuant to Code § 8.01-
654.2. The requirement that a non-frivolous claim be remanded
applies whether the claim is raised in the context of a direct
appeal or a petition for habeas corpus.
The statute does not directly address whether the claim of
mental retardation on remand is to be determined by a court or by a
jury. However, Code § 8.01-654.2 directs that the provisions of
Code §§ 19.2-264.3:1.1 and 19.2-264.3:1.2 govern the determination
of mental retardation on remand. Code § 19.2-264.3:1.1(C) provides
that if the guilt phase of the capital murder trial was tried by a
jury, the jury shall determine the mental retardation issue as part
of the sentencing phase; if the guilt phase was tried by a judge,
the judge makes the determination as part of the sentencing
proceeding. The General Assembly has directed these provisions
apply whether the claim is raised in a direct appeal or as a habeas
corpus petition.
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Finally, the provision in Code § 8.01-654.2 directing the
circuit court to empanel a new jury to determine the mental
retardation claim if the original sentence of death was imposed by a
jury is not a limitation on the use of juries to determine the
issue, but rather authorizes the circuit court to empanel a new jury
to determine the issue. See e.g., Code § 19.2-264.3(C).
As noted above, Code § 8.01-654.2 is a transitional statute
that the General Assembly enacted to address the rights of a limited
number of capital murder defendants. Our holding is strictly a
determination of the scope of Code § 8.01-654.2. That statute
permits a petitioner in a very limited number of cases to raise the
mental retardation issue in the direct appeal or habeas corpus
proceeding but creates a separate procedure for determining the
issue which is not part of the habeas corpus proceeding. Neither
the statute nor this decision in any way alters our traditional
habeas corpus rules.
We have previously held that Burns' claim of mental retardation
is not frivolous. Because Burns was originally tried by a jury,
Code § 8.01-654.2 requires that, on remand, Burns is entitled to
have his claim of mental retardation determined by a jury. Code
§ 19.2-264.3:1.1(C). Furthermore, although the statute is silent
regarding the procedure to be followed once the mental retardation
issue is resolved on remand, we conclude that, upon a finding that
Burns is not mentally retarded, the sentence of death entered on May
12, 2000 remains in full force and effect. Upon a finding that
Burns is mentally retarded, the trial court shall enter an order
vacating the sentence of death and re-sentencing Burns in accordance
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with Code § 19.2-264.3:1.1(D).
For these reasons, the petitioner's claim of mental retardation
is remanded to the Circuit Court of Shenandoah County for further
proceedings consistent with this order.
_______________
JUSTICE KINSER, concurring in part and dissenting in part.
I agree with the majority’s conclusion that, pursuant to the
provisions of Code § 8.01-654.2, an individual under a sentence of
death that became final before April 29, 2003, who uses a habeas
corpus petition as the vehicle to raise a claim of mental
retardation is entitled to have that claim adjudicated by a jury,
provided the claim is non-frivolous and the individual was
originally tried by a jury. However, I reiterate my prior
conclusion that Burns failed to present to this Court a non-
frivolous claim of mental retardation. See Code § 8.01-654.2.
Thus, in my view, Burns is not entitled to have the claim remanded
to the Circuit Court of Shenandoah County. For that reason, I
respectfully concur in part and dissent in part.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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Burns v. Warden of Sussex I State Prison
Combined Opinion