Giarratano v. Murray

847 F.2d 1118, 1988 WL 54518

Opinions

K.K. HALL, Circuit Judge:

This is a consolidated appeal and cross-appeal arising from a class action initiated by death row inmates in the State of Virginia pursuant to 42 U.S.C. § 1983. The State appeals an order of the district court requiring the appointment of counsel for inmates challenging their death penalty through state habeas proceedings. The inmate class cross-appeals the district court’s refusal to order the appointment of counsel in federal post-conviction proceedings. By a majority vote, a panel of this Court reversed that portion of the judgment of the district court, 668 F.Supp. 511, requiring appointment of counsel for death row inmates in state proceedings. Giarratano, et al. v. Murray, et al., 836 F.2d 1421 (4th Cir.1988). Thereafter, a majority of the Court voted to reconsider the case en banc. A majority of the en banc Court has now voted to affirm the judgment of the district court for the reasons set forth below.

I.

Virginia currently provides three forms of legal assistance to death row inmates pursuing post-conviction claims — law libraries, unit attorneys, and appointed attorneys. Death row inmates are housed at Mecklenberg Correctional Center, the Virginia State Penitentiary and the Powhatan Correctional Center. Each of these three centers maintain law libraries. Mecklen-berg death row inmates are permitted two half-day periods weekly; death row inmates at Powhatan and the Penitentiary are not permitted to visit the libraries, but may borrow materials for use in their cells.

Unit attorneys are assigned to the various penal institutions to assist inmates in any matter related to incarceration. In addition to these unit attorneys, Virginia provides for the appointment of counsel, under certain circumstances, to indigent inmates who have been residents of Virginia for six months.¹ Va.Code § 14.1-183 (1950). Under this provision the courts in Virginia have the discretion to appoint counsel to represent inmates proceeding in forma pauperis. Death row inmates in Virginia, seeking collateral relief from their sentences through state post-conviction remedies, have traditionally had no automatic right to the assistance of counsel.

This action was originally brought by Joseph M. Giarratano, a Virginia death row inmate, who sought declaratory and injunc-tive relief with respect to post-conviction assistance of counsel. The district court permitted other death row inmates to intervene in the suit and granted their motion for class certification. The class consists of:

all persons, now and in the future, sentenced to death in Virginia, whose sentences have been or are subsequently 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.

The death row inmates had presented a number of constitutional grounds in support of their claim of right to post-conviction assistance of counsel.² However, the district court granted relief only on the basis of the right of access to the courts as stated in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). In Bounds, the Supreme Court held that prison authorities are required to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or assistance from legally trained personnel.

The district court found, based upon evidence presented at the trial, that the death row inmates were incapable of effectively using law books to raise their post-conviction claims. Three considerations led the district court to this conclusion:

(1) the limited amount of time death row inmates had to prepare and present their petitions to the courts;

(2) the complexity and difficulty of the legal work; and

(3) the emotional instability of inmates preparing themselves for impending death.

The district court consequently found that the provision of a library did little to satisfy Virginia’s obligation to assist death row inmates in the preparation and filing of meaningful legal papers as required by Bounds. The district court then turned to the examination of the assistance presently provided by Virginia to determine if it met the constitutional requirement.

The district court found that the assistance provided by unit attorneys was inadequate both in fact and in law. Evidence produced at trial indicated that seven institutional attorneys were attempting to meet the needs of over 2,000 prisoners and that each attorney could not adequately handle more than one capital case at a time. In addition, the unit attorneys were not hired to work full time. The district court also noted that even if Virginia appointed unit attorneys to service only the death row inmates, its duty under Bounds would not be fulfilled because the scope of assistance was too limited.³ The district court concluded that only the continuous services of an attorney to investigate, research, and present claimed violations of fundamental rights could provide death row inmates the meaningful access to the courts guaranteed by the Constitution and that the assistance of unit attorneys fell short of this requirement.

The district court then turned to the second form of legal assistance, provided by appointed attorneys, and found that the timing of the appointment was a fatal defect with respect to the requirements of Bounds. Appointments are made under Va.Code § 14.1-183 only after a petition is filed and then only if a nonfrivolous claim is raised. Thus, the district court reasoned, the inmate would not receive the attorney’s assistance in the critical stages of developing his claims.⁴ The district court concluded that in view of the inadequacy of the assistance provided by Virginia and the scarcity of competent and willing counsel to assist indigent death row inmates seeking post-conviction remedies,⁵ such relief was necessary and warranted.⁶ In order to provide effective relief, the district court held that Virginia must provide death row inmates trained legal assistance in their state post-conviction proceedings.

II.

On appeal, the State contends that the constitutional right of access to the courts does not require appointment of counsel for death row inmates in state habeas corpus proceedings and that Virginia provides constitutionally adequate legal assistance to death row inmates. Alternatively, the State argues that the Supreme Court has determined in Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), that there is no constitutional right to counsel in state post-conviction proceedings. On cross-appeal, the death row inmates contend that the district court’s reading of Bounds limiting its application to state post-conviction proceedings, does not adhere to the current state of the law. We disagree with all of these contentions and address them seriatim.

We are persuaded by the well reasoned opinion of the district court that legal assistance presently available to Virginia death row inmates in state post-conviction proceedings fails to meet the constitutional requirement of meaningful access to the courts as set forth in Bounds. It is now established beyond a doubt that prisoners have a constitutional right of access to the courts. The district court evaluated the existing Virginia program “as a whole to ascertain its compliance with constitutional standards.” Bounds, 430 U.S. at 832, 97 S.Ct. at 1500. The district court made findings of fact based upon the record which indicated that Virginia was not in compliance with constitutional rights of access to the courts. Under Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), we cannot say these findings of fact are clearly erroneous. Nor do we find that the district court abused its discretion in formulating the remedy in this case. Milliken v. Bradley, (Milliken II), 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977).

The State’s reliance on Pennsylvania v. Finley, supra, as authority for their contention that state prisoners are not constitutionally entitled to state-supplied attorneys in post-conviction proceedings is misplaced. In Finley, the Supreme Court held that the procedural framework of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), does not apply to the situation in which counsel appointed pursuant to Pennsylvania state law later seeks to withdraw from the representation without first filing a brief. The Court stated that because Pennsylvania was not constitutionally required to provide counsel in post-conviction proceedings, then due process did not require that the counsel’s actions corn-port with the Anders procedures.⁷ How-

ever, Finley was not a meaningful access case, nor did it address the rule enunciated in Bounds v. Smith. Most significantly, Finley did not involve the death penalty.

Both society and affected individuals have a compelling interest in insuring that death sentences have been constitutionally imposed. Moreover, the complexity and difficulty of the legal work involved in challenging a death penalty require particular safeguards in order to insure meaningful access. The Supreme Court has stated that “there is a significant constitutional difference between the death penalty and lesser punishments.” Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). In addition, the Supreme Court recently held that matters affecting an already condemned prisoner call for “no less stringent standards than those demanded in any other aspect of a capital proceeding.” Ford v. Wainwright, 477 U.S. 399, 411-12, 106 S.Ct. 2595, 2603, 91 L.Ed.2d 335 (1986). See also, Booth v. Maryland, — U.S. —, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (“death is a punishment different from all other sanctions.”)⁸ We do not, therefore, read Finley as suggesting that the counsel cannot be required under the unique circumstances of post-conviction proceedings involving a challenge to the death penalty.

III.

The death row inmates argue that the district court erred in denying counsel for federal habeas corpus and certiorari petitions. We disagree. In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Supreme Court rejected a claim that states must appoint counsel for indigents seeking a writ of certiorari. The Court also observed that in considering a writ of certiorari it would have available appellate briefs, a transcript and state court opinions. Similarly, a federal court considering a petition for habeas corpus would also have briefs of counsel, a transcript and opinions because of the exhaustion of remedies requirement.

Virginia provides for a mandatory appeal for capital convictions and death sentences and counsel is provided for this appeal. The death row inmates would have available the appellate briefs, transcripts and state court opinions to use in their writs of certiorari. If the inmates are provided with court-appointed attorneys in their state post-conviction proceedings, they will have briefs, transcripts and opinions to use in their federal habeas corpus proceedings. We conclude that the provision of assistance of attorneys at these points insure that the inmates are provided with meaningful access to the federal courts in their federal post-conviction proceedings.

IV.

Accordingly, for all the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

1 . Va.Code § 14.1-183 was amended in 1987 to delete the six-month residency requirement. (Repl.Vol. 1985 & Supp.1987). However, this change in the Code does not alter our disposition of this appeal.

2 . These grounds included the sixth amendment, eighth amendment, fourteenth amendment due process clause, Article I, the equal protection clause, and the right of access to the courts.

3 . The evidence indicated that the unit attorneys do not perform factual inquiries, sign pleadings, or make court appearances. Instead, they act only as legal advisors.

4 .This assistance is particularly critical in Virginia where all claims, the facts of which are known at the time of filing, must be included in that petition as they may not be raised successfully in a subsequent filing and those claims also could not be considered in federal court because federal courts generally may not consider claims barred by Virginia procedural rules. Whitley v. Bair, 802 F.2d 1487 (4th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987), and Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986).

5 . The district court found that in the past Virginia had perceived no need to provide counsel to death row inmates pursuing post-conviction relief because attorneys volunteered their services or were recruited to provide pro bono assistance to death row prisoners. However, the evidence presented at trial established that few attorneys are now willing to voluntarily represent death row inmates in post-conviction efforts.

6 . The district court’s order specifically provided that:

il) indigent Virginia death row inmates are entitled to the appointment of counsel upon request to assist them in pursuing habeas corpus relief in the state courts;

(2) defendants shall develop a system whereby attorneys may be appointed to the death row inmates individually as provided above;

(3) plaintiffs are entitled to their taxable costs and attorney fees as provided by law; and

(4) counsel for the parties shall attempt to reach an agreement as to counsel fees. Any such agreement shall be without prejudice to defendants’ right to contest the right of plaintiffs to recover same.

7 . The Anders procedures require counsel to perform a conscientious evaluation of the record, to write a brief referring to arguable support in the record and to give notice to the client.

8 . Because of the peculiar nature of the death penalty, we find it difficult to envision any situation in which appointed counsel would not be required in state post-conviction proceedings when a prisoner under the sentence of death could not afford tin attorney.