Burns v. WARDEN OF SUSSEX I STATE PRISON

Counsel

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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (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:, 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 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., 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 *611the 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.