Petitioners Brief — Murray v. Giarratano

. Supreme Court, U.S. 7

EILED

NO. 88-411! DEC 15 1988

IN THI

Supreme Court of the Hnited States

OCTOBER TERM, 1988

EDWARD W. MURRAY, DIRECTOR

VIRGINIA DEPARTMENT OF CORRECTIONS. et al

P TT,

Ciiiidrier

hMOSEPH M. GIARRATANO. et. a

Responden

ON WRIT OF CERTIORARI TO THE UNITED STATI

COURT OF APPEALS FOR THE FOURTH CIRC!

BRiErF FOR THE PETITIONER

MARY SUE TERRY

Attorney (Crenera \ \

MH. LANE ANEEDLER

Ff | Den | Art ry . rere :

: :

STEPHEN D. ROSENTHAI!

Deputy Attort Crem

* ROBERT O. HARR

\ Stan |

rRANC | rh hel ~/f )

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QUESTION PRESENTED

Does the nght of “meaningful access to the courts” require the

States to provide a personal lawyer to represent each inmate who

desires to attack fis death sentence in state habeas corpus

proceedings”

LIST OF PARTIES

The parties to the proceedings below were the petitioners

before this Court, Edward W. Murray, Director of the Virginia

Department of Corrections, Gerald L. Baliles, Governor of the

Commonwealth of Virginia, Robert N. Baldwin, Executive

Secretary ot the Supreme Court of Virguma. and Michael Sam-

berg. Warden of the Virginia State Penitentiary, and the

respondents. Joseph M. Giarratano, Johnny Watkins,

Jr. and Richard T. Boggs, inmates confined in the Virginia

Department of Corrections under sentence of death. W atkins

and Boggs are named representatives of a class of death row

inmates.

TABLE OF CONTENTS

; Page

QUESTION PRESENTED .......... 0.6.66 cece cece ee eees i

RSET GH PARTIES cccccccccccccccccccccccccccccccccess ll

TABLE OF CITATIONS ........ Leteendnavarseuanenanes v

GCHUIIIS BELG onc cccccccccccccccccscccccccccccess I

FUT cc ccccccccccccsscccscccccccscccceces crn

STATEMENT OF THE CASE ..........--.02eeeeeeeeees 2

SUMMARY OF ARGUMENT ..........--.-0000eee005. 10

ARGUMENT —

THE CONSTITUTION DOES NOT REQUIRE

STATES TO PROVIDE COUNSEL TO REPRESENT

INMATES WHO DESIRE TO CHALLENGE

DEATH SENTENCES IN STATE HABEAS

CORPUS PROCEEDINGS. ....... 6.66. c cece eunes 12

A. The State’s Obligation To Provide Counsel

Extends To The First Appeal Of Right And No

Te cccnccbosseendencetosccecessageéeneess 12

B. A Right To Post-Conviction Counsel For Death

Row Inmates Is An Unwarranted And Dangerous

Intrusion Into A Matter Committed To The

GT DEPEND. coccoccecccovenscecess is

C. Inmates Under A Sentence Of Death Are Not

Entitled To A Preferred Constitutional! Status In

Post-Conviction Proceedings .............++++. 18

D. The Right Of Meaningful Access To The Courts

Does Not Provide A Right To Counsel For Post-

Conviction Proceedings .........--.---seseee0s 2!

E. Virginia Provides Death Row Inmates Legal Assist-

ance That Exceeds Its Constitutional Obli-

gation To Assure Meaningful Access To The

GEE 406: cb nbeccasdeddaiiinineedtdedscnveses 23

|. The district court's rejection of Virginia's

methods of providing legal assistance cannot

be properly considered as factual findings

Pee eee 25

2. The district court erroneously interpreted

Virginia law in rejecting the availability of

court-appointed coumsel ...........6600005. 26

3. The district court’s “considerations” con-

cerning the ability of death rew inmates to

make etfective use of a law library are not sup-

OE SP TP. ncovocvééovesceocncecss 29

4. The district court's “finding” that the

assistance the institutional attorneys are able

to provide is inadequate is factually flawed

and based on an erroneous concept of access

SEP kei cicdudccdsndapcedécvecscecs 31

CONCLUSION

TABLE OF CITATIONS

Cases

Page

Arey v. Peyton, 209 Va. 370, 164 S.E.2d 691 (1968) ...... 27

Autry v. Estelle, 464 U.S. 1 (1983)... ccc eee 20

Barefoot v. Estelle, 463 U.S. 880 (1983) ........ 10, 14, 19, 20

Bose Corporation vy. Consumer Union, 466 U.S. 485

SERED cnnvsccdadecdedcdcosdedewsésecnsoesecesosecs 26

Bounds v. Smith, 430 U.S. 817 (1977) ........ nGneretinreee

podeneeesesnbsneedndbedéenseves 3, 10, 21, 22, 23, 24, 31

Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984),

cert. denied, 470 U.S. 1088 (1985)... 6... ccc eens 13

Burns v. Ohio, 360 U.S. 252 (1959)... cece 22

Cooper v. Haas, 210 Va. 279, 170 S.E.2d 5 (1969) ....... 27

Darnell v. Peyton, 208 Va. 675, 160 S.E.2d 749

SEED kccecuddsseceoesheewssnccesecssceesses 6, 26, 27

Douglas v. California, 372 U.S. 353 (1963)... 6... eee ee. 13

Engle v. Isaac, 456 U.S. 107 (1982)... eens 14

Evitts v. Lucey, 469 U.S. 387 (1985)... cece 13, 15, 16

Ex Parte Hull, 312 U.S. S46 (1941) 6. cece 21

Fay v. Noia, 372 U.S. 391 (1963) occ cee eee eee ees 14

Ford v. Wainwright, 477 U.S. 399 (1986)... cnn 20

Griffin v. Illinois, 351 U.S. 12 (W956) oo cee ee 22

Hooks v. Wainwright, 775 F.2d 1433 (11th Cir, 1985).

cert. denied, 107 S.Ct. 313 (1986) 6. cee 22

Howard v. Warden, 232 Va. 16, 348 S.E.2d 211 (1986) ... 27

Johnson v. Avery, 393 U.S. 483 (1969) ....... sunceued 22, 23

Lockett v. Ohio, 438 U.S. S86 (V9TB) occ ccc eens 19

\

Morris v. Slappy, 461 U.S. 1 (1983)... oe eee eee

Pennsylvania v. Finley, 107 S.Ct. 1990 (1987)... ewe

PARSE PE Pe eee Per rT 10, 12, 15, 17, 18, 21.

Procunier v. Martinez. 416 U.S. 396 (1974) .......... 22,

Pulley v. Harris, 465 U.S. 37 (1984)... eens 13,

Rhodes v. Chapman, 452 U.S. 337 (1981) ow. c eee nes

Ross v. Moffitt, 417 U.S. 600 (1974) ....... 12, 14, 15, 22,

Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974),

cert. denied, sub nom. Parrigan v. Paderick.,

GIO UG. DIGB CISTI cccccccccccccvcccccccccsccece:

Smith v. Murray, 477 U.S. 527 (1986) ow. ccc eens

Spaziano v. Florida, 468 U.S. 447 (1984)... 6... e eee e es

Strickland v. Washington, 466 U.S. 668 (1984) ....... 15,

lnited States v. Gouveia, 467 U.S. 180 (1984) ...........

Virginia Department of Corrections v. C lark.

227 Va. 525. 318 S.E.2d 399 (1984) .. 2... ccc ce cne,

Wainwright v. Svkes, 433 U.S. 72 (1977)... cece 14,

Wainwright v. Torna, 455 U.S. 586 (1982) ........66. 12,

Wolff v. McDonnell, 418 U.S. 539 (1974) ©. cece 22,

Woodard v. Hutchins. 464 U.S. 377 (1984)... 6.6 6 cen.

Younger v. Gilmore, 404 U.S. IS (1971) ...... 1d ae ied oe

Zant v. Stephens, 462 U.S. 862 (1983) 6. ccc erences :

Other Authorities

Code ot Virginia -

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Poh OO.0 ead BID.2 .ccccccesescencccccesececveses

§ §3.1-232

28 U.S.C. § 2254(b), (c), amd (d) oe eens

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No. 88-411

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EDWARD W. MURRAY, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Vv.

JOSEPH M. GIARRATANO., et ai.,

Respondents.

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The Opinion of the en banc Court of Appeals for the Fourth

Circuit (Pet. App. A-1-8) is reported at 847 F.2d 1118. The

memorandum opinion of the United States District Court tor the

Eastern District of Virginia (Pet. App. A-23-33) is reported at

668 F.Supp. 51!

JURISDICTION

The judgment of the United States Court of Appeais for the

Fourth Circuit was entered on June 3, 1988. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1). The petition for a

writ of certiorari was filed on August 31. 1988. and was granted

on October 31, 1988.

STATEMENT OF THE CASE

Joseph M. Giarratano, a Virginia prisoner under sentence

of death, initiated this civil rights action pursuant to 42 U.S.C. §

1983, by a pro se complaint filed in the district court on July 3,

1985. By Order of May 29. 1986, the district court certified a class

consisting of:

all persons. now and in the future. sentenced to death

in Virginia, whose sentences have been or are sub-

sequently affirmed by the Virginia Supreme Court and

who either (1) cannot afford to retain and do not have

attorneys to represent them in connection with their

post-conviction proceedings, or (2) could not afford to

retain and did not have attorneys to represent them in

connection with a particular post-conviction proceeding.

(J.A. 32). Thirty-two inmates were confined in Virgimia under

sentence of death at the time of trial.' Oniy one inmate did not

then have counsel. (J.A. 165).

The inmate plaintiffs asserted a constitutional entitlement

to representation by counsel in state and federal post-conviction

challenges to their convictions and death sentences. They based

the asserted right on the Equal Protection and Due Process

provisions of the Fourteenth Amendment. the Sixth Amend-

ment, the Eighth Amendment. Article |, and the mght of access to

the courts.

Fifteen inmates have had death sentences imposed and affirmed on direct

appeal since the trial of this acuion

ts

The case was tried on July 10 and 11, 1986. By Order and

Opinion of December 18, 1986, the district court determined that

the inmates were entitled to attorneys upon request to represent

them in the preparation. filing, and prosecuuon of state habeas

corpus actions. (Pet. App. A-23). The court based its ruling on

the right of meaningful access to the courts as expressed in

Bounds v. Smith, 430 U.S. 817 (1977). (Pet. App. A-25).

Legal Assistance Available in Virginia

Virginia death row inmates are confined primarily at the

Mecklenburg Correctional Center (“Mecklenburg”). On occa-

sion, a few are housed at the Powhatan Correctional Center

(“Powhatan”) or the Virginia State Penitentiary (“Penitentiary”)

Virginia prisoners have access to legal information and assist-

ance from three sources provided by the state: institutional law

libraries. institutional attorneys. and court-appointed attorneys.

Institutional Law Libraries:

Each of the institutions housing death-sentenced inmates

maintains a law library. (J.A. 336, 341, 347). Regulation of

physical access to the libraries varies at the institutions. Mec-

klenburg death row inmates are permitted two half-day pernods

weekly (J.A. 265, 322): death row inmates at Powhatan and the

Penitentiary are not permitted to visit the libraries, but may have

legal material brought to them in their cells. (J.A. 333, 346).

rules and state statutes. The libraries also contain copies of the

annotated United States Code and federal rules, as well as

reported federal cases. Law dictionaries are provided, as are

treatises concerning criminal law and procedure, self-help man-

uals for prisoners, and forms for filing habeas corpus actions.

(J.A. 336, 341, 347).

The plaintiffs did not challenge the contents of the institu-

tional law libraries at trial. Inmate Watkins, who had visited the

Mecklenburg library “about twice.” complained of the lack of

assistance trom a clerk. (J.A. 123, 126). Inmate Giarratano also

commented on the lack of skills of the library clerk, but he

described the library as “decent.” (J.A. 207). A library “annex”

was created for the death row inmates at Mecklenburg in 1985 to

provide additional general reference materials for the prisoners

in their cell area. The annex was later removed, at the inmates’

request. (J.A. 315. TR. 410).

Institutional Attorneys:

Pursuant to Virginia Code § 53.1-40, attorneys have been

appointed for each institution to “counsel and assist indigent

prisoners therein confined regarding any legal matter relating to

their incarceration.” (J.A. 302, 304, 331, 335, 340, 344-45). The

uppointment and compensation of the institutional attorneys Is

under the authority of the circuit court where the prison ts

located. (J.A. 304). The attorneys are independent of the

Department of Corrections.

The institutional attorneys are available to assist the inmate

in the preparation of habeas corpus petitions by: obtaining the

records concerning the trial, including the trial transcript, appel-

late briefs. and orders: reviewing the record of the trial and other

proceedings with the inmate to help identify and develop claims,

providing the inmate with copies of legal materials, or conduct-

ing legal research for the prisoners: and drafting petitions for the

inmate to review and file pro se. (J.A. 218-19, 234).

The legal assistance provided by the unit attorneys does not

include acting as counsel of record -- the attorneys do net sign the

documents as counsel and do not appear in court on behalf of the

inmates. (J.A. 219-20. 251). Other attorneys are provided for

court proceedings. (J.A. 302).

No requests for legal assistance trom the institutional attor-

nevs have been made by death row inmates at the Penitentiary.

(J.A. 182, 258). Only one such request was received from a

Powhatan death row inmate, and the assistance requested was

provided. (J.A. 221, 223-24).None of the institutional attorneys

at Mecklenburg, Powhatan, or the Penitentiary has been asked

to research and prepare a petition for a writ of habeas corpus

for any death row inmate. (J.A. 182, 221, 230, 231, 232, 258).

The institutional attorneys regularly prepare petitions for other

inmates when requested to do so. (J.A. 220, 235, TR. 373).

One of the institutional attorneys at Mecklenburg testified

that few requests have been made for assistance from the death

row inmates. The attorney has conducted legal research upon

request (J.A. 235): he has prepared motions for extensions of

time (J.A. 232-33); he began work on a certiorari petition for

inmate Edmunds before the inmate obtained volunteer counsel

(J.A. 237-38): he collected materials for review in preparing a

habeas corpus petition for inmate Richard Boggs (J.A. 236-37);

he prepared motions to stay mandates (J.A. 249); and he has

assisted death row inmates with civil rights actions brought

under 42 U.S.C. § 1983 (J.A. 229). The attorney estimated that he

had prepared fifty or more habeas corpus petitions for other

Mecklenburg inmates since his November 1983 appointment.

(J.A. 235).

This attorney collected information concerning capital pun-

ishment and the death sentencing process for his library, in

addition to the resources available at the institution. (J.A. 238-

39). Since 1985, he has monitored the status of the post-

conviction litigation of death row inmates at Mecklenburg. (J.A.

228, 233). No death row inmate at Mecklenburg has ever asked

the institutional attorney to prepare a petition for a writ of

habeas corpus. (J.A. 229-30). The attorney considers himself

obligated to prepare such petitions if asked. and he 1s willing to

provide such assistance. (J.A. 231, 236).

Two Mecklenburg inmates testified that the unit attorney

had failed to provide assistance upon request. Inmate Watkins

asked tne attorney to help him obtain a transcript of his trial. At

the time of the request, Watkins was represented by counsel on

his direct appeal. and he was advised to contact his attorneys to

obtain transcript. (J.A. 119, 122-23).

Inmate Giarratano acknowledged that the institutional

attorneys come to the death row unit when they receive a request

from an inmate. (J.A. 204). Giarratano has referred other

inmates to these attorneys, but not specifically for the purpose of

preparing a habeas corpus petition. (J.A. 209). Giarratano testi-

fied that the unit attorneys had advised him that they could not

draft pleadings and could not represent inmates (J.A. 209, 212),

5

although he was aware of at least one instance when an institu-

tional lawyer prepared a motion for another inmate. (J.A. 210).

According to Giarratano, the inmates are aware of the unit

attorneys, but their understanding is that the attorneys do not

draft petitions and do not represent inmates. (J.A. 212).

The Mecklenburg attorney became aware of the death row

inmates’ perception that the unit attorneys did not draft petitions

during his review of materials submitted in connection with this

case. (J.A. 236). His impression was that inmates learn soon after

they arrive that the other death row inmates have attorneys who

have been privately recruited. The inmates then look to this

volunteer system for help in their own Cases. (J.A. 235-36).

Representation by Counsel:

Counsel is provided for all indigent defendants accused and

convicted of capital crimes in Virginia at trial and on the manda-

tory direct appeal to the Virginia Supreme Court. Va. Code §§

19. 2-159. 19,2-326. Virginia statutory law does not require the

appointment of counsel to represent inmates in the initiation of

collateral attacks on state court judgments. Virginia courts have

the authority however. to appoint counsel to represent any indi-

gent inmate in a habeas corpus proceeding. Va. Code § 14. 1-183.

Such appointments are discretionary with the court and have

been made, upon request, prior to the filing of any petition.

Attornevs so appointed are compensated by the state. As a

matter of state practice, the Virginia Supreme Court has ruled

that counsel must be appointed to represent a habeas corpus

petitioner who presents non-tfrivolous claims requiring a hearing.

Darnell y. Pevton, 208 Va. 675. 160 S.E.2d 749 (1968).

All death row inmates in Virginia have had the assistance ot

an attorney. whether volunteer or court-appointed, in pursuing

state habeas corpus remedies. Each inmate executed in Virginia

under the present capital punishment statutes has had counsel

available for all habeas corpus actions prior to his execution.

Virginia death row inmates not already represented by

volunteer or retained lawvers have sought appointment of counsel

on only two occasions. On both occasions, the request for

appointed counsel was granted. (J.A. 325, 353). There is no

evidence of a shortage of attorneys willing to accept court

appointments.

The Circuit Court of Fairfax County, “on motion of”

Richard Whitley, appointed Robert Hall to represent Whitley in

the preparation and prosecution of his state habeas corpus

action. (J.A. 109, 353). Halli and his associates prepared the

petition, conducted the hearing, and prepared the appellate

materials. (J.A. 110).

The Circuit Court of York County appointed Alan Clarke

and Lloyd Snook to represent death row inmate Willie Leroy

Jones. (J.A. 196). The state judge was approached by one of the

attorneys who advised the court of his willingness to represent

Jones if appointed. The state judge agreed to appoint the

attorney, although the formal motion for appointment was

tendered and granted after the filing of the petition. (J.A. 325,

328).

Since the enactment of the present Virginia capital punish-

ment statutes in 1976, death row inmates have chosen to rely

primarily on volunteer attorneys for assistance in their post-

conviction efforts to challenge their convictions and sentences.

Beginning in 1983, the Virginia Coalition on Jails and Prisons

was formed to monitor the status of Virginia death row inmates

and to locate volunteer attorneys willing to represent these

inrnates in legal proceedings to challenge their sentences after

direct appeal. (J.A. 154). Marie Deans, Executive Director of the

Coalition, has worked with inmate Joseph Giarratano, and

attorneys who had previously represented death row inmates, to

recruit lawyers to represent fifteen death row inmates between

1983 and the time of trial. (J.A. 155-56, 157, 159-162). Ms. Deans

is not an attorney and the Coalition is not an agency of the

Commonwealth.

Ms. Deans experienced increasing difficulty in obtaining

volunteer counsel for the inmates. (J.A. 157). She was unable to

locate an attorney to file certiorari petitions for one inmate, and

the petitions were prepared by inmate Joseph Giarratano. (J.A.

164). She also initially was unable to locate volunteer counsel to

prepare a state habeas corpus petition for inmate Earl Washing-

ton. Plaintiffs’ counsel in this action prepared the petition for

Washington. (J.A. 162).

The Decisions Below

The district court concluded that law libraries do not pro-

vide these inmates with meaningful access to the courts, citing

three considerations: the limited amount of time death row

inmates may have to prepare and present their petitions; the

complexity and difficulty of the legal work: and the stress on an

inmate’s mental functions caused by the tact of a death sentence.

(Pet. App. A-26). The district court did not question the ade-

quacy of the institutional law libraries in any respect.

The district court also concluded that the assistance pro-

vided by unit attorneys is inadequate for these plaintiffs. In part.

the district court relied on the limitations imposed by reason of

the attorneys’ workloads. At the ume of trial, seven attorneys

provided legal assistance tor approximately 2000 inmates. The

attorneys appointed to the institutions maintain private practices

in addition to their work at the institutions. Testimony at trial

indicated that an institutional attorney would find it difficult to

handle more than one capital case at a time. (Pet. App. A-27).

The district court also concluded that the scope of that assistance

was too limited even if additional institutional attorneys were

appointed. In particular. the court noted the lack of factual

investigation that could be conducted. and the fact that such

attorneys do not sign pleadings or appear in court. (Pet. App.

A-28).

The district court rejected the availability of court-appointed

attorneys as an adequate method ot assuring the inmates of

access to the courts. According to the district court, the timing of

such appointments was too late. The district court interpreted

the authority of the Virginia courts to appoint counsel as limited

only to situations in which a petition had been filed raising

non-frivolous claims. (Pet. App. A-28-29).

The district court ruled that meaningtul access to the courts

for these inmates could be provided only by “the continuous

services of an attorney to investigate. research and present

claimed violations of fundamental rights.” 668 F. Supp. at 514

(Pet. App. A-28). The pool of attorneys willing to volunteer to

represent death row inmates In collateral attacks on their death

sentences was determined to be insufficient to meet the needs of

these inmates. The state defendants were ordered to “develop a

system whereby attorneys may be appointed to the death row

inmates individually.” 668 F. Supp. at 517 (Pet. App. A-23). The

injunctive relief ordered, however, was limited to state post-

conviction proceedings.

The defendants appealed to the United States Court of

Appeals for the Fourth Circuit, and the plaintiffs cross-appealed.

A split panel of the Fourth Circuit reversed the district court's

judgment that the state was constitutionally required to provide

personal attorneys to represent death row inmates in state collat-

eral proceedings. On rehearing en banc, however, the district

court's judgment was affirmed by a 6-4 vote. The en banc deci-

sion, like that of the district court, limited the relief to state

habeas corpus proceedings and expressly rejected the plaintiffs’

contention that their right of access required counsel for federal

habeas corpus proceedings as well. 847 F.2d at 1122 (Pet. App.

A-8).

SUMMARY OF ARGUMENT

The Fourth Circuit majority has created a right to counsel

for the plaintiff inmates where none is required by the Constitu-

tion. In reaching this result, the court below disregarded the clear

statements of this Court in three distinct areas that recognize the

limited reach of the Federal Constitution in post-conviction

proceedings affecting state prisoners. In each instance, the court

below has ignored or obliterated the lines established by this

Court concerning the States’ constitutional obligations to pri-

soners who wish to pursue post-conviction collateral remedies.

|. In Pennsylvania v. Finley, this Court found no constitu-

tional right to counsel in post-conviction proceedings. and rec-

ognized the limited command of the Constitution in such pro-

ceedings. The reasons that this Court identified in Finley tor

limiting the right to counsel to criminal prosecutions and direct

appeals are equally evident here. The consequences of aconstitu-

tional right to counsel in such proceedings also are readily appar-

ent. This Court has recognized that a constitutionally-mandated

right to counsel carries with it a right to effective assistance of

counsel. A right to post-conviction counsel will undoubtedly

spawn collateral challenges to the effectiveness of habeas counsel.

2. In Barefoot v. Estelle. and subsequent cases, this Court

has specifically rejected the premise that a post-conviction chal-

lenge to a death sentence has a preferred constitutional status.

The decision of the court below is nevertheless based on the

premise that inmates attacking death sentences are entitled to

more consideration in state habeas corpus actions than is

required for other prisoners challenging non-capital convictions.

This Court, however. has consistently refused to impose addi-

tional procedural requirements on the States once a capital case

has progressed beyond the trial stage.

3. In Bounds v. Smith. this Court articulated a mght of

access to the courts. but did not require the States to provide the

inmate with the equivalent of a personal attorney to represent

him in habeas corpus actions, state or federal. The legal assist-

ance which Virginia has made available to these inmates far

exceeds the level of assistance which this Court has held suffi-

cient to satisfy the Constitution.

10

| In short, this Court’s decisions recognize the important

interests of comity and finality intrinsic to all post-conviction

actions. Those interests were ignored by the court below, thereby

jeopardizing the ability of Virginia to enforce its judgments. The

court below has simply preempted the State’s legislative preroga-

uve and has substituted its judgment of what it considers a

desirable policy in state post-conviction proceedings.

ARGUMENT

THE CONSTITUTION DOES NOT REQUIRE

STATES TO PROVIDE COUNSEL TO

REPRESENT INMATES WHO DESIRE TO

CHALLENGE DEATH SENTENCES IN

STATE HABEAS CORPUS PROCEEDINGS.

A. The State’s Obligation to Provide Counsel

Extends to the First Appeal of Right and No Further.

The courts below have created a federal constitutional right to

counsel for a particular class of inmates tor a single type of

state-court proceeding. This enutlement requires Virginia to pro-

vide counsel if the inmate is indigent and if he expresses a desire to

challenge his death sentence in a state habeas corpus action.

This Court has consistently held. however. that the consfitu-

tional right to appointed counsel extends to the first appeal ot

right and no further. Wainwright v. Torna, 455 U.S. 586 (1982):

Ross v. Moffitt. 417 U.S. 600 (1974). There is no constitutional

right to counsel tor state post-conviction attacks on state crimi-

nal convictions. Pennsylvania v. Finley, 107 S.Ct. 1990, 1993

(1987).

A prisoner seeking to challenge his conviction in a habeas

corpus action already has received the full panoply of protections

afforded by a legal system that makes individual rights its highest

priority. The accused in a criminal prosecution is provided a host

of protections designed to ensure fairness and a just result.

Fundamental fairness requires counsel as a safeguard of those

rights. and Virginia honors these requirements in all criminal

prosecuuons.

In capital cases. moreover. certain additional substantive

and procedural saleguards are provided Virginia law limits capi-

tal murder to a narrowly defined class of eight offenses. Va. Code

§ 18.2-31. The trial proceedings are bifurcated to permit the

appropriate consideration of the separate issues of guilt and

punishment. Va. Code 3 19.2-264.3. In the sentencing phase.

appropriate measures are taken to assure that the sentencer will

consider all relevant factors concerning the defendant and his

]>

—

sentence. Va. Code § 19.2-264.4(B). A defendant is provided a

virtually unlimited opportunity to offer evidence in mitigation of

punishment. Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984), cert.

denied, 470 U.S. 1088 (1985).

Once a defendant has been convicted of capital murder, the

Commonwealth’s ability to obtain a death sentence ts also care-

fully circumscribed. The prosecutor must prove beyond a reaso-

nable doubt specific aggravating circumstances before a death

sentence may be imposed. Va. Code § 19.2-264.4(C). The jurors

must be unanimous on the sentence of death, and if they cannot

agree, the defendant is automatically sentenced to life imprison-

ment. Va. Code § 19.2-264.4(D) and (E). Even if the Common-

wealth’s burden is met, the jury remains free to impose a life

sentence. and if it does not, the trial judge still may reduce the

penalty to life imprisonment after an independent review. Va.

Code § 19.2-264.5. Virginia law thus provides all the safeguards

which the Constitution requires for the imposition of a death

sentence.

Similarly. when a state provides for an appeal of a criminal

conviction. counsel must be provided for the first appeal of right.

Evitts v. Lucey, 469 U.S. 387 (1985); Douglas v. California, 372

U.S. 253 (1963). In Virginia, a mandatory appeal is provided to

the Virginia Supreme Court in death penalty cases. The appeal is

automatic, unlike the process in non-capital cases. and is given

priority over all other appeals. Va. Code §§ 17-110.1 and 110.2.

The Virginia Supreme Court is required to conduct an independ-

ent review of the sentence to determine if it 1s excessive. dispro-

portionate, or arbitrarily imposed. Va. Code § !7-110.1(C)(1)

and (2). The proportionality review conducted by the Virginia

Supreme Court exceeds what the Constitution requires. See

Pulley vy. Harris, 465 U.S. 37, 50-51 (1984) (proportionality

review not constitutionally mandated in appellate review of capi-

tal cases).

Once the direct appeal is over, however. the constitutional

obligation of the State to provide counsel ends. By the time the

capital defendant has completed his trial and direct appeal, he

has received the benefit of the full arsenal of procedural rights, all

safeguarded by his right to counsel. Direct appeal is the primary

avenue for review of a conviction or sentence. After the process

of direct review is complete, state court criminal judgments

13

are presumed final and valid. Barefoot v. Estelle, 463 U.S. 880,

887 (1983). In the context of a capital trial and its heightened

procedura! safeguards, that presumption is truly earned.

“The writ of habeas corpus indisputably holds an honored

position in our jurisprudence,” but it also “entails significant

costs.” Engle v. Isaac, 456 U.S. 107, 126(1982). Those costs have

been well articulated by this Court. By extending “the ordeal of

trial for both society and the accussed,” collateral review of a

criminal conviction “undermines the usual principles of finality

of litigation.” /d. at 127. See also Bator. Finality in Criminal

Litigation and Federal Habeas Corpus for State Prisoners, 76

Harv.L.Rev. 441 (1963). “Liberal allowance of the writ. . .

degrades the prominence of the trial itself,” and issuance of the

writ “frequently cost[s] society the right to punish admitted

offenders.” Isaac, 456 U.S. at 127.

Habeas corpus is not an occasion to relitigate the state

court trial. and its role is secondary and limited. Barefoot, 463

U.S. at 887. A habeas corpus action is not part of the criminal

adjudication process. See Fay v. Nota, 372 US. 391. 423-24

(1963).

Virginia courts recognize the appropriate function of the

writ of habeas corpus. “A prisoner is not entitled to use habeas

corpus to circumvent the trial and appellate processes for an

inquiry into an alleged non-jurisdictional defect of ajudgment of

conviction.” Stayton v. Parrigan, 215 Va. 27. 30, 205 S.E.2d 680,

682 (1974). cert. denied sub. nom. Parrigan v. Paderick, 419 U.S.

1108 (1975).

Thus. while state habeas corpus proceedings offer a prisoner

an opportunity to challenge his conviction, a State is not inde-

pendently obligated to provide habeas corpus review to contirm

the validity of the state court judgment. The trial is still the “main

event.” Wainwright v. Svkes. 433 U.S. 72, 90 (1977).

In Ross v. Moffitt, this Court emphasized that there 1s a

significant difference between the role of counsel on appeal and

at trial. Appellate counsel no longer acts as the shield to protect

the defendant's trial rights. He serves instead as a sword in an

attempt to upset a prior determination of guilt. While a state may

not dispense with the trial proceedings, the Constitution does not

obligate the States to provide any appeal. Having provided an

14

appeal, the State is not also obligated to provide counsel at every

step in the appeals process. Ross, 417 U.S. at 610-611.

A habeas corpus proceeding is obviously even further

removed from the trial than an appeal. The prisoner's objective is

to invalidate a judgment which already has been the subject of

direct review and is presumptively valid and final. 1 he additional

concern of a need for finality, and the limited function of the writ

of habeas corpus, give the considerations articulated in Ross

even greater force in this arena. As the Court held in Finley:

States have no obligation to provide [habeas corpus]

relief.... and when they do, the fundamental fairness

mandated by the Due Process Clause does not require

that the State supply a lawyer as well.

107 S.Ct. at 1994 (citation omitted).

The underlying theory for the inmates’ claims in this action

is no different than that addressed in Finley, i.e.. atederal consti-

tutional right to counsel for state post-conviction proceedings.

The reasons why the States’ obligation to provide counsel

extends no further than the first appeal of right, however, are as

evident here as they were in Finley.

B. A Right To Post-Conviction Counsel For Death

Row Inmates Is An Unwarranted And Dangerous

Intrusion into A Matter Committed To The

Discretion Of The States.

The consequences of the right which the courts below have

created are readily apparent. The attorney who unsuccessfully

represents a death row inmate in a post-conviction proceeding.

like the attorney who defended the inmate at trial, will become

the focus of yet another round of post-conviction challenges.

This Court has recognized that the right to counsel, if constitu-

tionally mandated, carries with it the right to effective counsel.

Evitts v. Lucey. 469 U.S. 387, 396 (1985); Strickland v. Washing-

ton. 466 U.S. 668. 686 (1984): cf. Pennysivania v. Finley, 107

S Ct. at 1994.: Wainwright v. Torna. 455 U.S. 586, 587-88 (1982).

1S

The Fourth Circuit majority’s ruling, if allowed to stand, will no

doubt provoke an endless succession of collateral proceedings in

which the petitioner invokes a right to counsel to challenge the

effectiveness of the next previous attorney.

Although the new right to post-conviction counsel

does not appear to arise from the Sixth Amendment, it

will presumably carry with it some entitlement to

“effective assistance.” Provision of the counsel on

constitutional grounds also brings with it a panoply of

procedural requirements. ... It is hard to imagine a

more fertile ground for litigation than that provided

by these entitlements. The likely result will be addi-

tional cycles of prisoner litigation in every capital case,

each ever further removed from the proper focus of

criminal adjudication -- the trial itseif.

847 F.2d at 1125 (emphasis added) ( Wilkinson, J., dissenting and

concurring). “The result is akin to the effect created when a mirror

is held facing another mirror. the image repeating itself to infinity.”

Evitts v. Lucey, 469 U.S. at 411 (Rehnquist. J., dissenting).

Virginia’s legitimate interest in the finality of its judgments,

already threatened by repetitive post-conviction litigation, will

be further jeopardized by a finding of a constitutional! entitle-

ment to post-conviction counsel. Finality becomes impossible if

every post-conviction proceeding produces the opportunity for

still more collateral challenges to the adequacy of previous post-

conviction counsel. The strong state interest in the enforcement

of presumptively valid judgments is reduced to a meaningless

phrase without an enforceable concept ot finality.

The creation of a right to counsel for death row inmates Is

also certain to encourage other inmates to assert that they too

have difficult and complex claims which require the assistance o!

counsel. The capital defendant who receives multiple lite senten-

ces. for example. is faced with the same type of issues identified

by the courts below, but he is not given counsel under the district

court and Fourth Circuit opimons. That his need could be as

great or greater than that asserted by the class in this case simply

demonstrates the arbitrariness of the actions of the courts belew.

16

This unwarranted and unprecedented federal intrusion into

a matter peculiarly committed to the States’ authority -- state

post-conviction review of a state criminal judgment -- “disre-

gards the independence of state judicial systems and the respec-

tive spheres ot legislative and judicial competence.” 847 F.2d at

1123. (Wilkinson, J.. dissenting and concurring). This Court has

repeatedly stressed the interests of the State in the enforcement ot

its criminal laws in the context of federal habeas corpus review of!

state court criminal convictions. The exhaustion requirement of

the federal habeas corpus statute, see 28 U.S.C. § 2254(b) and (c).

the deference to state court factual findings. see 28 U.S.C. §

2254(d). and the enforcement of state court procedural rules, see

Wainwright v. Svkes, 433 U.S. 72( 1977). ali reflect an overriding

respect in our federal system for the state’s interest in its criminal

judgments. That interest is certainly paramount to any federal

interest which has been identified 1n this case.

The premise that the Federal Constitution dictates the pre-

cise form that state post-conviction proceedings should assume

has been specifically rejected by this Court: “On the contrary. in

this area the States have substantial discretion to develop and

implement programs to aid prisoners seeking to secure post-

conviction review.” Finley. 107 S.Ct. at 1995. The discretion

recognized by this Court in Finley has little meaning if the State

is to be held to some federally-imposed model. The effect of this

intrusion. as Judge Wilkinson noted in dissent below. Is that

“{s]tate post-conviction remedies will now move one step closer

to the status of a federal protectorate.” 847 F.2d at 1125.

The Fourth Circuit majority and the district court below

have created an entitlement to a personal lawver for death row

inmates in state court collateral proceedings. but have not

granted such a right for federal habeas corpus actions involving

the same inmates challenging the same convictions and

sentences. Thus. the lower courts in this case have been willing to

thrust upon the Commonwealth of Virginia a system which they

are unwilling or unable to force upon the federal government.

The remarkable and unprecedented result is that the Federal

Constitution is deemed to require greater protection tor a state

inmate in state court than for the same inmate in federai court.

Even more remarkable is the fact that this new entitlement Is

17

based solely on the preterences of the prisoners, not any demon-

strable failure of an existing state system to provide legal assist-

ance. The available sources of legal assistance for death row

inmates -- institutional law libraries, institutional attorneys and

court-appointed attorneys -- provide ample assurance that each

inmate will have an adequate opportunity to identify and present

his claims ina petition for habeas corpus relief if he chooses to do

SO.

Thirty-seven States and the federal government provide tor

application of the death penalty as a permissible punishment for

the most serious crimes. Plaintiffs estimated at trial that two-

thirds of the States with capital punishment statutes do not

provide lawyers as a matter of right tor inmates seeking reliet

from their sentences in state post-conviction actions. If the deci-

sion below requiring the automatic provision ol personal counse!

to represent each death row inmate in state post-conviction

proceedings is permitted to stand, all states which administer a

system of capital punishment must expect challenges to their

post-conviction procedures on the basis ot this newly-tound

constitutional right to counsel. The second wave of litigation to

challenge the effectiveness ot habeas counsel in capital cases

would never end. As the plaintiffs have advised this Court (Br.

Opp. 15. 22). the decision of the Fourth Circuit is the first to

address this issue. If the decision below is upheld. it most cer-

tainly will not be the last.

C. Inmates Under A Sentence Of Death Are Not Entitled

lo A Preferred Constitutional Status In Post-Conviction

Proceedings.

Attempting to distinguish Findey. the Fourth Circuit major-

ity cited the “significant constitutional ditterence between the

death penalty and lesser punishments.” 847 F.2d at 1122 (Pet.

App. A-7). and concluded that the nature ol the penalty constitu-

tionally requires the appointmeni of counsel. Thus. the Fourth

Circuit has plainly created a special category of habeas corpus

cases distinguished only by the nature of the penalty imposed

upon the litigant. This Court. however. has specifically rejected

Is

the proposition that the fact of a death sentence entitles a pri-

soner to a preferred status in post-conviction matters.

A death sentence is not inherently suspect. To the contrary,

the many procedural protections constitutionally required for

capital trials and sentencing are designed for purposes of assur-

ing a reliable and accurate determination by the sentencer that

death is the appropriate penalty in a particular case. A conviction

and sentence upheld on direct review is entitled to a presumption

of finality and legality, and “death penalty cases are no excep-

tion”. Barefoot v. Estelle, 463 U.S. at 887 (emphasis added).

The qualitative difference between death and other punish-

ments has been recognized by this Court as calling for “a greater

degree of reliability when the death sentence is imposed.” Lock-

ett vy. Ohio, 438 U.S. 586, 604 (1978) (emphasis added) ( Burger.

C.J.). This concern, grounded in the Eighth Amendment,

requires capital sentencing procedures at trial designed to minim-

ize the risk that the penalty will be imposed in an arbitrary and

capricious \manner. Zant y. Stephens, 462 U.S. 862, 876-77

(1983). The Court has emphasized its “twin objectives” of “mea-

sured. consistent application and fairness to the accused.” Spazi-

ano y. Florida. 468 U.S. 447, 459 (1984). Thus, the sentencing

procedures at trial must provide a means to rationally identity

those for whom the penalty is appropriate, Zan, 462 U.S. at

878-880. and must permit the sentencer to consider the individual

circumstances of the defendant and his crime. Lockett, 438 U.S.

at 605.

The death penalty. however. does not require special or

additional protection for the capital defendant in every matter

affecting his trial and sentencing. See, e.g., Spaziano v. Florida.

468 U.S. at 460 (“[T]here certainly is nothing in the safeguards

necessitated by the Court's recognition of the qualitative differen-

ces of the death penalty that requires that the sentence be

imposed by ajury.”): Pulley v. Harris, 465 U.S. at 50-51 (reject-

ing a requirement ol comparative proporuonality review on state

appeals of death sentences).

This Court has considered and repeatedly rejected efforts by

death row prisoners to obtain a preferred status in mounting

collateral attacks on their convictions and sentences. Neither the

“qualitative difference” of the death penalty, nor any constitu-

19

tional provision, has been deemed to warrant different treatment

for capital cases in post-conviction proceedings.

Procedural default rules apply in capital habeas proceedings

in the same way as in non-death penalty cases. Smith v. Murray,

477 U.S. 527. §38 (1986). Likewise. there is no different standard

for post-conviction evaluation of the effective assistance of coun-

sel in death penalty cases. Strickland v. Washington, 466 U.S. at

687. In Barefoot v. Estelle, 463 U.S. at 893, the Court rejected the

provision of an automatic certificate of probable cause to appeal

federal habeas cases involving the death penalty.

Five members of this Court joined in a per curiam opinion

to state emphatically that violations of Rule 9(b) of the Rules

Governing 28 U.S.C. § 2254 Cases (abuse of the writ) should not

be tolerated by the federal courts, even in capital cases. Woodard

v. Hutchins, 464 U.S. 377, 380 (1984) (per curiam) (Powell, J.,

concurring). In Awrry v. Estelle. 464 U.S. 1 (1983) (per curiam),

the Court refused to adopt a rule that would grant an automatic

stay in capital cases “regardless of the merits of the claims

presented.” even when “the applicant is seeking review of the

denial of his first habeas corpus petition.” /d. at 2.°

This Court's decisions demonstrate conclusively that, in the

context of a collateral attack, the nature of the penalty does not

alter the nature of the proceedings. There is simply no basis in

this Court’s decisions to support the separate habeas corpus

scheme contemplated by the courts below.

In Ford y. Wainwright, 477 U.S. 399 (1986). the Court held that execution of

an insane person was not permitted by the Eighth Amendment. The Court did

not specify What procedures were necessary to make the sanity determination

Five members of the Court, however, explicitly rejected the concept that the

strict procedural requirements that surround a capital trial should apply in a

post-conviction proceeding. As Justice Powell noted in his concurring opinion,

“{T]}his Court's decisions imposing heightened procedural requirements on

capital trials and sentencing proceedings... do not apply in this context.” 477

LS. at 425

20

D. The Right of Meaningful Access to the Courts

Does Not Provide a Right To Counsel

For Post-Conviction Proceedings.

This case was decided on the basis of the constitutional right

of access to the courts. The courts below rejected the means of

providing legal assistance to inmates that Virginia has chosen

and instead ordered the state to provide the appointment of

personal counsel to represent death row inmates upon request.

This requirement is not warranted either by law or by the facts of

this case.

The Fourth Circuit attempted to avoid the clear import of

Finley by focusing on the fact that the Fin/ey opinion did not

expressly refer to Bounds v. Smith. In the plainest language.

however, the Court acknowledged that Finley had not been

denied “meaningful access” as a result of her counsel's conduct.

107 S.Ct. at 1994. In Ross v. Moffitt, the Court concluded that

“meaningful access” to discretionary appellate review did not

require the state to provide counsel. 417 U.S. at 614-15. In

Finley, the Court explicitly stated that “the same conclusion [as

in Ross] necessarily obtains with respect to post-conviction

review.” 107 S.Ct. at 1994.

In Bounds v. Smith, this Court addressed the question of

“whether states must protect the right of prisoners to access to

the courts by providing them with law libraries or alternative

sources of legal knowledge.” 430 U.S. at 817. The Court con-

cluded that state prisoners have a constitutional right of access to

the courts, and the States have an affirmative obligation to

assure that such access is meaningful. The Court specifically held

that the obligation of the States is to “assist inmates in the

preparation and filing of meaningful legal papers by providing

prisoners with adequate law libraries or adequate assistance

from persons trained in the law.” 430 U.S. at 828.

The specific holding in Bounds and the historical context of

the right of access demonstrate the limited nature of the right.*

As the Eleventh Circuit observed:

* The right of access to the courts was first expressed in Ex parte Hull, 312 U.S.

546 (1941). when the Court invalidated a prison regulation prohibiting inmates

trom filing petitions for writs of habeas corpus without first submitting

‘ 21

Having held that inmates can represent themselves, if

able to do so, and can help other inmates who are not

so able, it was but a small step to hold that such able

inmates, who presumably would have access to librar-

ies but for imprisonment, must be given access to

libraries in prison, or access to people who have access

to libraries. This is a far cry from constitutional'y

requiring the state to provide legal counsel for the

imprisoned, not available as a matter of constitutional

right to the unimprisoned in civil cases.

Hooks v. Wainwright, 775 F.2d 1433, 1436-37 (11th Cir. 1985),

cert. denied, 107 S.Ct. 313 (1986) (Florida plan for providing

prisoners access does not require attorney assistance).

Bounds did not suggest that the States’ obligation to provide

legal assistance to inmates included providing a personal lawyer

to represent inmates. The appointment of counsel to represent

inmates was mentioned only as an independent issue, and by

specifically referring to Ross v. Moffitt and Johnson v. Avery,

the Court underscored the conclusion that there 1s no obligation

on state and federal courts to appoint counsel for inmates who

the pleadings to a state official to determine if they were “properly drawn”. The

Court held that “the state and its officers may not abridge or impair petitioner's

right to apply to a federal court for a writ of habeas corpus.” 312 U.S. at 549.

Subsequently. the Court has struck down various restricuons imposed upon

prisoners which had the effect of preventing inmates from presenting their

claims of constitutional deprivations to the courts. Griffin v. Illinois, 351 U.S.

12 (1956) (trial records for inmates who cannot afford to buy them), Burns v.

Ohio, 360 U.S. 252 (1959) (payment of docket fees by indigent prisoners):

Johnson v. Avery, 393 U.S. 483 (1969) (regulation prohibiting assistance of

other inmates in preparing petitions): }ounger v. Gilmore, 404 U.S. 15 (1971)

(per curiam), aff Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal. 1970) (prison

regulations restricting inmates’ access to libraries). Procunier v. Martinez, 416

U.S. 396(1974) (regulations restricting inmate access to law students); Wolff v.

Mc Donnell, 418 U.S. 539 (1974) (regulations restricting assistance of other

inmates for civil rights actions). This Court has never construed the “right to

meaningful access” to include a right to counsel for post-conviction proceedings.

indicate an intention to seek post-conviction relief.* Rather, the

right of “meaningful access to the courts” imposes a limited

obligation on the States to make some source of legal assistance

available to provide inmates a “reasonably adequate opportunity

to present claimed violations-of fundamental constitutional

rights.” 430 U.S. at 825.°

The notion that the access right is to be measured against the

assistance that might be provided an inmate by a personal lawyer

has no support in Bounds. Indeed, the idea is entirely inconsist-

ent with the limited nature of the right. The efforts of the courts

below to elevate the right of access to the level of a right to

counsel ignores the limited scope of the right identified in

Bounds. By giving the right such an expansive reading, the courts

below have granted what this Court specifically denied in Finley

-a right to counsel for post-conviction proceedings.

E. Virginia Provides Death Row Inmates

Legal Assistance That Exceeds Its Constitutional!

Obligation To Assure Meaningful Access To The Courts.

Virginia has chosen to provide inmates with legal assistance

in both forms specifically held in Bounds to satisfy the State’s

* The Court noted that “[c]ourts may also impose additional burdens before

appointing counsel for indigents in civil cases.” Bounds, 430 U.S. at 8260.15.

That the right of access does not provide a basis for requiring representation by

appointed counsel for post-conviction proceedings had been established in

Johnson v. Avery:

It has not been held that there is any general obligation of the

courts, state or federal. to appoint counsel for prisoners who

indicate. without more, that they wish to seek post-conviction

relief.

393 U.S. at 488.

* This description of the right of meaningful access has been consistently

employed by this Court. See Procumier v. Martinez, 416 U.S. at 419 (“reasona-

ble opportunity to seek and receive” assistance); Ross v. Moffitt, 417 U.S. at

616 (“adequate opportunity to present claims fairly”); Wolff v. Mc Donnell, 418

U.S. at 579 (“opportunity to present”).

23

obligations, as well as the opportunity to have counsel appointed

to represent the inmate in his habeas corpus efforts. All death

row inmates in Virginia have had the assistance of an attorney,

whether volunteer or court-appointed, in pursuing state and

federal habeas corpus remedies. No inmate has been executed

without counsel. Only one of the thirty-two inmates confined in

Virginia under sentence of death at the time this case was tried

did not then have counsel representing him.®

No allegation has been raised in this action that the forms of

legal assistance made available by Virginia are inadequate to

meet the access rights of the inmate population generally. The

district court in fact acknowledged that the Virginia system for

providing legal assistance had previously been found adequate to

satisfy the state’s duty under Bounds. 668 F.Supp. at 514 (Pet.

App. A-27). The challenge here is based entirely on the premise

that inmates under sentence of death require additional

assistance.

The inmates in this case have attacked the adequacy of a

system that they have. with few exceptions, declined to attempt

to use. They have chosen to rely primarily on an alternative

system of privately recruited volunteer attorneys instead of the

assistance available in the Virginia courts and the institutions.

The perceived threat of a collapse of that volunteer system led the

district court to impose upon Virginia the obligation of provid-

ing assistance in the form that the inmates previously had

obtained privately. There has been no showing whatsoever that

the system Virginia already has in place, if properly utilized by

the inmates, is inadequate to meet their needs. The abstract

nature of the district court’s inquiry is reflected in the speculative

nature of the court’s determinations.

* The inmate. Richard Boggs. was being assisted by the institutional attorney in

the preparation of a habeas corpus petition. The attorney's efforts to obtain a

complete record of the trial proceedings were impeded, in part, by the inmate's

reluctance to cooperate fully in that attempt. (J.A. 237). Boggs has since

obtained a volunteer attorney

24

1. The district court’s rejection of Virginia’s methods of

providing legal assistance cannot be properly consi-

dered as factual findings based on the record.

The district court’s determination that Virginia does not

meet its obligation of providing death row inmates access to the

courts is based on generalized policy considerations, not eviden-

tiary findings. The district court made no finding that any inmate

was deprived of adequate library time; no finding that any

inmate’s case was too complex or difficult for him to attempt to

raise a particular claim; no finding that any inmate was so pre-

occupied with his fate that he could not pursue relief on his own;

and no finding that any death row inmate was refused assistance

from an institutional attorney in preparing his habeas corpus

action. As all Virginia death row inmates have in fact been

represented by counsel in the preparation of their state habeas

corpus actions, the record simply cannot support a determina-

tion that any death row inmate was denied access to the courts as

a result of an inadequate system of providing legal assistance.

Assuming that the “considerations” selected by the district

court have some relevance, they have not been demonstrated to

be uniformly applicable to these inmates as a class. The record

does not show that these “considerations” apply even to a signifi-

cant part of the class of Virginia death row inmates. These

generalized beliefs are not findings of fact, and the district court

did not so label them. In fact, as Judge Wilkinson noted in

dissenting below, it is difficult to conceive of how such sweeping

generalizations could be made as factual findings given the

requirements of the federal rules for class actions. 847 F.2d at

1125 (Pet. App. A-13).

The procedural device of a class action does not warrant

transforming generalized statements of policy into factual find-

ings. Nor does the Fourth Circuit’s endorsement of the district

court’s determinations automatically change these “considera-

tions” into particularized findings of fact. There are no findings

of fact made by the district court which compel deference to the

district court’s interpretation of what the right of access to the

courts requires.

The deference given to a trial court’s findings of fact does

25

not limit a reviewing court’s power to correct errors of law,

including those that may infect a finding of fact, or mixed ques-

tions of law and fact. Bose Corporaiion v. Consumer Union, 466

U.S. 485, 501 (1984). Generalized considerations and beliefs

cannot substitute for facts. Absent facts showing a deprivation of

a right, the courts should not impose their ideas of what policy

considerations suggest as the best response to a perceived prob-

lem. See Rhodes v. Chapman, 452 U.S. 337, 348-49 (1981).

The district court’s errors of law, and its reliance on general

considerations rather than the factual record, compel rejection of

its conclusions concerning the adequacy of the Virginia system.

To the extent that the court’s conclusions can be considered

factual findings, they are without support in this record and must

be deemed clearly erroneous.

2. The district court erroneously interpreted Virginia law

in rejecting the availability of court-appointed counsel.

The record in this case establishes that Virginia courts have

appointed lawyers for the death row inmates without counsel

who have requested such assistance. (J.A. 325, 353). To the

extent that an individual death row inmate may have special and

difficult claims and lack the ability to present them, he may seek

and obtain the appointment of counsel to represent him.

The district court erroneously interpreted Virginia law as

authorizing appointment of counsel only after a petition is filed

raising non-frivolous claims. In that situation, the assistance was

deemed to come too late to satisfy the state’s obligation to

provide access to the courts. The district court, however, deter-

mined an issue that the Virginia Supreme Court has never been

called upon to address, and which the lower Virginia courts have

decided quite differently than the district court.

The Virginia Supreme Court has held that state courts must

appoint counsel for unrepresented inmates in habeas corpus

actions where a non-frivolous petition is presented raising triable

issues of fact. Darnell v. Peyton, 208 Va. 675, 677-78, 160 S.E.2d

749, 751 (1968). The Court has not addressed the question that

the district court resolved, but has had the opportunity to con-

sider the issue of appointing counsel only when a petition had in

26

fact already been filed. See Howard v. Warden, 232 Va. 16, 348

S.E.2d 211 (1986); Cooper v. Haas, 210 Va. 279, 170 S.E.2d 5

(1969); Arey v. Peyton, 209 Va. 370, 164 S.E.2d 691 (1968).

The statutory authority cited by the Court in Darnell does

not require the prior filing of a petition before the court may

appoint counsel. See Va. Code § 14.1-183. The district court’s

conclusion that appointments are made only after a petition is

filed and only if a non-frivolous claim is raised, ignores the

uncontradicted evidence in the record. Virginia courts have in

fact provided appointed counsel for death row inmates without

requiring them first to file a petition. (J.A. 325, 353).

The only factual circumstance cited by the district court to

support its conclusion was one instance in which “the Common-

wealth’s counsel contended, unsuccessfully, that the Court had

no authority to appoint counsel in a habeas corpus proceeding.”

668 F.Supp. at 514 n.1(Pet. App. A-28). However, the authority

of a trial court to appoint counsel for a habeas corpus proceeding

involving a hearing, as in the instance the court cited, has been

clearly established in Virginia since 1968 by Darnell v. Peyton.

The plaintiffs have offered the circumstances of inmate Earl

Washington as the centerpiece of their argument that Virginia's

means of providing legal assistance is inadequate. Washington’s

case, however, provides no support for their claim.

Washington appeared in the Circuit Court of Culpeper

County at a July 3, 1985 proceeding to set an execution date

following the denial of his petition for a writ of certiorari in this

Court on May 13, 1985. The local prosecutor (the Common-

wealth’s Attorney) represents the state in these proceedings.

Washington was represented by retained counsel. The circuit

* The court apparently referred to the habeas corpus action of inmate James

Clark. The district court described the case as “a matter before the Circuit

Court of Clarke County,” but no evidence at the trial of this action referred to

any proceeding in that court. The attorney who represented Clark testified in

this action that he moved for appointment at the end of the habeas corpus

hearing in the trial court, and the motion was opposed on the grounds that there

was no statutory authority for the appointment. (J.A. 98, 110). The attorney

was appointed to represent Clark, and that issue was not contested in the

Commonwealth's appeal of that case. See Virginia Department of Corrections

v. Clark, 227 Va. 525, 318 S.E.2d 399 (1984).

27

court set an execution date for Washington for September 5,

1985. According to the order, Washington’s attorney moved the

court to appoint counsel to represent Washington “in any habeas

corpus proceeding,” and the motion was denied. (J.A. 314). The

record does not disclose whether Washington’s retained attorney

asked to have himself or another attorney appointed.

No evidence was presented in this case to explain further the

circumstances of the motion or the court’s action. No habeas

corpus actions had been filed on Washington's behalf at that

time. There is no evidence that Washington made any effort to

seek assistance available to him at the institution or to seek

appointment of counsel himself, and not through his retained

counsel. There is no evidence that Washington or anyone acting

on his behalf sought a stay of execution to permit the inmate

more time to prepare a petition or find counsel."

Virginia has not acted to deny counsel to death row prison-

ers in habeas corpus actions. There is no evidence that any

request for counsel by an unrepresented death row inmate has

ever been opposed by the Commonwealth or denied by a state

court. In fact, the Attorney General's Office has represented its

willingness to join in motions for appointment of counsel if a

death row prisoner seek this assistance.

Plaintiffs sought to confuse this issue below by noting occa-

sions when the Attorney General's Office or a local Common-

wealth’s Attorney had objected to motions made by volunteer

counsel seeking to have themselves appointed by the court. The

reaons for those objections are obvious: the prisoner already has

an attorney, and asking the court to appoint him infringes on the

* Plaintiffs characterize inmate Washington's case as an attempt by Virginia to

execute an unrepresented prisoner who was unable to institute state habeas

corpus proceedings. and offer it as the example oi the “crisis in Virginia.” As the

record shows, the Attorney General's Office had been advised that a petition

would be filed on Washington's behalf. (J.A. 283). The Attorney General's

Office was not involved in the Washington case at the sentencing proceeding. In

a case where no petition is filed and the prisoner indicates that he wants to filea

petition, the Attorney General's Office will join motions to appoint counsel and

obtain a stay. (J.A. 271-72, 273, 278, 282). Nothing in this record even remotely

suggests that Virginia attempts to execute prisoners who do not have lawyers.

28

court’s discretion to determine whom to appoint. As is also clear

the courts considering such motions decide the issue. not the

Attorney General's Office. Some courts have accepted the

Attorney General's position and some have not. The result of the

denial of such motions is nor that the inmate is left without

counsel. He still has counsel on the same terms that the lawver

accepted when he took the case as a volunteer. ’

In sum, the record does not establish a lack of authority for

court appointed counsel and cannot support an assumption that

state court judges are hostile to such appointments. The plaintiffs’

indignation at the Commonwealth’s objections to the appointment

of volunteer counsel reveals the real basis for their dissatisfaction

with the assistance Virginia already provides. The inmates want

the Commonwealth to pay for the services of volunteer counsel

instead of having local courts appoint counsel not of the inmates’

own choosing.\The state, however, is not obligated to provide a

litigant counsel of his choice at state expense even in the context of

the accused in a criminal trial. much less in a collateral proceeding

See Morris v. Slappy, 461 U.S. 1 (1983). |

3. The district court's “considerations” concerning the

ability of death row inmates to make effective use of a

law library are not supported by the record.

| There may be inmates who cannot effectively use a law

library, but there is no evidence that the inmates on Virginia's

death row are uniformly disabled from making any effort to

research and develop claims using a law library. This lawsuit, for

example, was initiated by death-row inmate Joseph Giarratano

in a pro se complaint. (J.A. 4-7).

| _Time considerations were not shown to limit the practical

ability of an inmate proceeding pro se to research and develop his

claims.’ In the context .. a state habeas corpus action, the

* The district court noted that an execution date may be set as close as thirty

days from imposition of sentence. Va. Code § 53. 1-232. However, as the district

court acknowledged, stays of execution may be granted to permit the inmate

additional time to prepare and present his petition to the appropriate courts.

29

same state court that sets an execution date will be the first state

court to consider the petition. There is no basis in the record for

concluding that the court would deny an inmate sufficient time to

prepare his petition and have it considered. In fact, the plaintiffs

offered evidence to show that death row inmates remain on death

row without lawyers to represent them for “lengthy periods of

time.” (TR. 192).

There is simply no basi: ‘or an across-the-board assumption

that all cases involving a death sentence are so inherently com-

plex that no class member can present his claims without a

personal attorney to represent him.'° Nor can it be presumed that

an inmate convicted of a non-capital offense is confronted with

intrinsically less difficult or complex issues.

The plaintiffs have stressed the need for a factual investiga-

tion of the offense and all aspects of the prisoner’s background as

the primary difficulty encountered in a capital habeas corpus

action. The difficulty of conducting factual investigations while

incarcerated, however, is not unique to death-sentenced prison-

ers. All prisoners are similarly disadvantaged in their ability to

reinvestigate the facts of their offenses. Presumably, all prisoners

could benefit from personal private investigators provided to

them by the state to allow an unlimited opportunity to discover

and present new facts to challenge convictions. But there is no

requirement that such factual investigatory support be provided

for the accused ar tria/, much less in a collateral proceeding.

What is at issue here is /ega/ assistance to assure access to the

courts. An attorney is not provided, even at trial, to be a private

investigator. See United States v. Gouveia, 467 U.S. 180, 191 (1984).

Finally, the district court relied upon a “fair inference that

an inmate preparing himself and his family for impending death

0 The district court stressed the nature of a capital trial. which includes

separate guilt and penalty phases. and noted the necessity of analyzing the often

voluminous record of such proceedings and the issues of aggravation and

mitigation involved. (Pet. App. A-26). Although such a review may be tme-

consuming, as the district court noted, all inmates of the class certified by the

district court have not been shown to be incapable of conducting a review of

their cases and raising claims based on such a review. As has been noted

moreover, all Virginia death row inmates have had lawyers to conduct such a

review.

30

is incapable of performing the mental functions necessary to

adequately pursue his claims.” 668 F.Supp. at 513 (Pet. App.

A-26). This potential individual circumstance, however, cannot

be transformed into an enduring class-wide status that precludes

all death row inmates from making any effort to challenge their

convictions. Neither inmate who testified suggested any preoc-

cupation with the possibility of an execution.

Thus, the “considerations” relied upon b, the district court

are either unsupported by the evidence or insufficient to distin-

guish death row inmates as a class requiring special access assist-

ance. To the extent that the factors cited by the district court may

apply to some particular inmate, that prisoner still has available

to him the assistance provided at the institution by the institu-

tional attorney and the opportunity to request court appointed

counsel to represent him.

4. The district court's “finding” that the assistance the

institutional attorneys are able to provide is inadequate

is factually flawed and based on an erroneous concept

of access to the courts.

As the district court noted, the Virginia system of providing

legal assistance by way of institutional attorneys previously had

been found sufficient by that court and the Fourth Circuit to

meet the state’s obligation under Bounds. 668 F.Supp. at 514

(Pet. App. A-27).

The district court’s assumption that institutional attornevs

could not meet the demand of assisting death row inmates is

unfounded. The number ot attorneys provided, and the hours

they devote to their duties. reflect what has becn necessary for

them to accomplish their tasks. The number of attornevs is not

fixed. nor are their hours inflexible. The attorneys indicated their

willingness to spend the time necessary to do what is required

under their appointments. (J.A. 252-53, 259-60). As the district

court acknowledged, additicnal attorneys may be appointed if

the need arises.

More significantly, however. the district court discounted

the assistance available from the institutional attorneys for

3]

—

“these plaintiffs” because of its conclusion that “only the contin-

uous services of an attorney to investigate, research, and present

claimed violations of fundamental rights provides them the

meaningful access to the courts guaranteed by the Constitution.”

668 F.Supp. at 514 (Pet. App. A-28). By equating the right of

access to the courts with a right to counsel, the district court erred

as a matter of law. As is evident from the testimony of the

institutional attorneys, they are available to provide the inmates

with legal assistance in the filing of post-conviction complaints

that includes virtually everything except acting as counsel of

record. This is the assistance they have provided to other inmates

generally, and this is the assistance they will provide to the death

row inmates if requested to do so.

CONCLUSION

The expansion of the right of access to the courts to include

a new right to counsel for death-sentenced inmates in state

collateral attacks represents a radical departure from existing

law and an unprecedented intrusion by federal courts into mat-

ters peculiarly the responsibility and concern of the States. By

creating a special and preferred status for death row inmates in

state habeas corpus proceedings, the courts below have ignored

the presumption of finality that attaches to a criminal conviction

once atrial and direct appeal have concluded. Capital defendants

already benefit from the most careful and meticulous procedural

protections devised for any aspect of our legal system. That the

protections already afforded are appropriate does not warrant

their endless extension in a manner not justified by this record.

by this Court’s prior decisions, or by a concept of fundamental

fairness to death row inmates.

This case is about the drawing of lines. It is about the

requirements of a system that meets the demands of fundamental

fairness. It is about whether a rationale that “death is different”

justifies a special system of post-conviction review in the state

courts that is not available to other inmates. The inmate plain-

tiffs have couched their claim in terms of access to state courts,

but realistically, their claim is that fairness in capital cases

requires the extension of a constitutionally imposed right to

32

counsel to state post-conviction proceedings. —

This Court already has rejected that argument on a number

of occasions. The lines previously drawn are clear, and are clearly

inconsistent with the disposition of this case by the courts below.

In seeking a reversal of the Court of Appeals, the petitioners ask

merely that this Court reaffirm the reconciliation of the values of

finality, comity and fairness that this Court previously has

recognized.

Respectfully submitted,

MARY SUE TERRY

Attorney General of Virginia

H. LANE KNEEDLER

Chiet Deputy Attorney General

STEPHEN D. ROSENTHAL

Deputy Attorney General

* ROBERT Q. HARRIS

Assistant Attorney General

FRANCIS S. FERGUSON

Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-4624

* Counsel of Record

December 1988

33