Murray v. Giarratano/Concurrence Kennedy
Justice KENNEDY, with whom Justice O'CONNOR joins, concurring in the judgment.
It cannot be denied that collateral relief proceedings are a central part of the review process for prisoners sentenced to death. As Justice STEVENS observes, a substantial proportion of these prisoners succeed in having their death sentences vacated in habeas corpus proceedings. Post, at 23-24, and n. 13. The complexity of our jurisprudence in this area, moreover, makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law.
The requirement of meaningful access can be satisfied in various ways, however. This was made explicit in our decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). The intricacies and range of options are of sufficient complexity that state legislatures and prison administrators must be given "wide discretion" to select appropriate solutions. Id., at 833, 97 S.Ct., at 1500. Indeed, judicial imposition of a categorical remedy such as that adopted by the court below might pretermit other responsible solutions being considered in Congress and state legislatures. Assessments of the difficulties presented by collateral litigation in capital cases are now being conducted by committees of the American Bar Association and the Judicial Conference of the United States, and Congress has stated its intention to give the matter serious consideration. See 134 Cong. Rec. 33237 (1988) (providing for expedited consideration of proposals of the Judicial Conference committee).
Unlike Congress, this Court lacks the capacity to undertake the searching and comprehensive review called for in this area, for we can decide only the case before us. While Virginia has not adopted procedures for securing representation that are as far reaching and effective as those available in other States, no prisoner on death row in Virginia has been unable to obtain counsel to represent him in postconviction proceedings, and Virginia's prison system is staffed with institutional lawyers to assist in preparing petitions for postconviction relief. I am not prepared to say that this scheme violates the Constitution.
On the facts and record of this case, I concur in the judgment of the Court.
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.
Two Terms ago this Court reaffirmed that the Fourteenth Amendment to the Federal Constitution obligates a State " 'to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process.' " Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987) (quoting Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2446, 41 L.Ed.2d 341 (1974)). The narrow question presented is whether that obligation includes appointment of counsel for indigent death row inmates who wish to pursue state postconviction relief. Viewing the facts in light of our precedents, we should answer that question in the affirmative.
* The parties before us, like the Court of Appeals en banc and the District Court below, have accorded controlling importance to our decision in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).  In that case, inmates had alleged that North Carolina violated the Fourteenth Amendment by failing to provide research facilities to help them prepare habeas corpus petitions and federal civil rights complaints. Stressing "meaningful" access to the courts as a "touchstone," id., at 823, 97 S.Ct., at 1495, we held:
"[T]he fundamental constitutional right of access to the courts requires prison authorities 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." Id., at 828, 97 S.Ct., at 1498.
Far from creating a discrete constitutional right, Bounds constitutes one part of a jurisprudence that encompasses "right-to-counsel" as well as "access-to-courts" cases. Although each case is shaped by its facts, all share a concern, based upon the Fourteenth Amendment, that accused and convicted persons be permitted to seek legal remedies without arbitrary governmental interference.
At the fountainhead of this body of law is Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), which recognized that "[e]ven the intelligent and educated layman . . . requires the guiding hand of counsel at every step in the proceedings against him." The Court reversed the convictions and death sentences of seven black men, charged with the rape of two white women, because the state court failed to designate counsel until the morning of trial. Reasoning that the "notice and hearing" guaranteed by the Due Process Clause "would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel," id., at 68-69, 53 S.Ct., at 63-64, the Court held:
"[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." Id., at 71, 53 S.Ct., at 65.
Particular circumstances thus defined the degree to which the Fourteenth Amendment protected petitioners in Powell against arbitrary criminal prosecution or punishment. Similarly, in Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct. 585, 590-591, 100 L.Ed. 891 (1956), the Court focused on "[s]tatistics show[ing] that a substantial proportion of criminal convictions are reversed by state appellate courts" in concluding that once a State allows appeals of convictions, it cannot administer its appellate process in a discriminatory fashion. Finding no rational basis for requiring appellants to pay for trial transcripts, "effectively den[ying] the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance," the Court held that the Fourteenth Amendment required States to furnish transcripts to indigents. Id., at 18, 76 S.Ct., at 590. Accord, Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959) ($20 fee to file appeal). The principles articulated in Griffin soon were applied to invalidate similar restraints on state postconviction review. Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) (transcript); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (filing fee).
On the same day in 1963, the Court held that the Fourteenth Amendment guaranteed indigent defendants assistance of counsel both at trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, and on their first appeal as of right, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814. Applying the Sixth Amendment's express right of counsel to the States, the Court in Gideon departed from the special circumstances analysis in favor of a categorical approach.  But because of the absence of a constitutional right to appeal, see McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), the Court decided Douglas by assessing the facts in light of the Fourteenth Amendment.  The Court's reasons for invalidating California's appellate procedure-by which the appellate court undertook an ex parte examination of "the barren record" to determine whether an appeal merited appointment of counsel, 372 U.S., at 356, 83 S.Ct., at 816-echoed its earlier statements in Griffin:
"When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. . . . [T]he discrimination is not between 'possibly good and obviously bad cases,' but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. . . . The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal." Douglas, 372 U.S., at 357-358, 83 S.Ct., at 816-817.
In two subsequent opinions the Court rejected inmates' attempts to secure legal assistance. In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Court held there was no right to appointment of counsel for discretionary state appeals or certiorari petitions to this Court. It later announced for the first time that a State has no obligation to provide defendants with any collateral review of their convictions, and that if it does, "the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well." Pennsylvania v. Finley, 481 U.S., at 557, 107 S.Ct., at 1994. Although one might distinguish these opinions as having a different legal basis than the present case,  it is preferable to consider them, like Powell, Griffin, Douglas, and Bounds, as applications of the Fourteenth Amendment's guarantees to particular situations. Indeed the Court reaffirmed in Ross:
"The Fourteenth Amendment . . . does require that the state appellate system be 'free of unreasoned distinctions,' Rinaldi v. Yeager, 384 U.S. 305, 310 [86 S.Ct. 1497, 1500, 16 L.Ed.2d 577] (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). The State cannot adopt procedures which leave an indigent defendant 'entirely cut off from any appeal at all,' by virtue of his indigency, Lane v. Brown, 372 U.S., at 481, 83 S.Ct., at 771, or extend to such indigents merely a 'meaningless ritual' while others in better economic circumstances have a 'meaningful appeal.' Douglas v. California, supra, 372 U.S., at 358, 83 S.Ct., at 817. The question is not one of absolutes, but one of degrees." 417 U.S., at 612, 94 S.Ct., at 2445.
These precedents demonstrate that the appropriate question in this case is not whether there is an absolute "right to counsel" in collateral proceedings, but whether due process requires that these respondents be appointed counsel in order to pursue legal remedies. Three critical differences between Finley and this case demonstrate that even if it is permissible to leave an ordinary prisoner to his own resources in collateral proceedings, it is fundamentally unfair to require an indigent death row inmate to initiate collateral review without counsel's guiding hand. I shall address each of these differences in turn.
First. These respondents, like petitioners in Powell but unlike respondent in Finley, have been condemned to die. Legislatures conferred greater access to counsel on capital defendants than on persons facing lesser punishment even in colonial times.  Our First Congress required assignment of up to two attorneys to a capital defendant at the same time it initiated capital punishment;  nearly a century passed before Congress provided for appointment of counsel in other contexts. See Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989) (interpreting Act of July 20, 1892, ch. 209, § 1, 27 Stat. 252, now codified at 28 U.S.C. § 1915(d)). Similarly, Congress at first limited the federal right of appeal to capital cases. See Evitts v. Lucey, 469 U.S. 387, 409, 105 S.Ct. 830, 843, 83 L.Ed.2d 821 (1985) (REHNQUIST, J., dissenting). Just last year, it enacted a statute requiring provision of counsel for state and federal prisoners seeking federal postconviction relief-but only if they are under sentence of death. 
This Court also expanded capital defendants' ability to secure counsel and other legal assistance long before bestowing similar privileges on persons accused of less serious crimes.  Both before and after Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), established that the Constitution requires channeling of the death-sentencing decision, various Members of this Court have recognized that "the penalty of death is qualitatively different from a sentence of imprisonment, however long." Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion). 
The unique nature of the death penalty not only necessitates additional protections during pretrial, guilt, and sentencing phases,  but also enhances the importance of the appellate process. Generally there is no constitutional right to appeal a conviction. See, e.g., McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). "[M]eaningful appellate review" in capital cases, however, "serves as a check against the random or arbitrary imposition of the death penalty." Gregg v. Georgia, 428 U.S. 153, 195, 206, 96 S.Ct. 2909, 2935, 2940, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). It is therefore an integral component of a State's "constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty." Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). 
Ideally, "direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception. When the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). There is, however, significant evidence that in capital cases what is ordinarily considered direct review does not sufficiently safeguard against miscarriages of justice to warrant this presumption of finality.  Federal habeas courts granted relief in only 0.25% to 7% of noncapital cases in recent years; in striking contrast, the success rate in capital cases ranged from 60% to 70%.  Such a high incidence of uncorrected error demonstrates that the meaningful appellate review necessary in a capital case extends beyond the direct appellate process.
Second. In contrast to the collateral process discussed in Finley, Virginia law contemplates that some claims ordinarily heard on direct review will be relegated to postconviction proceedings. Claims that trial or appellate counsel provided constitutionally ineffective assistance, for instance, usually cannot be raised until this stage. See Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (1986). Furthermore, some irregularities, such as prosecutorial misconduct, may not surface until after the direct review is complete. E.g., Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988) (prosecutor deliberately underrepresented black people and women in jury pools); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Occasionally, new evidence even may suggest that the defendant is innocent. E.g., Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App., 1989); McDowell v. Dixon, 858 F.2d 945 (C.A.4 1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1172, 103 L.Ed.2d 230 (1989). Given the irreversibility of capital punishment, such information deserves searching, adversarial scrutiny even if it is discovered after the close of direct review.
The postconviction procedure in Virginia may present the first opportunity for an attorney detached from past proceedings to examine the defense and to raise claims that were barred on direct review by prior counsel's ineffective assistance. A fresh look may reveal, for example, that a prior conviction used to enhance the defendant's sentence was invalid, e.g., Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); or that the defendant's mental illness, lack of a prior record, or abusive childhood should have been introduced as evidence in mitigation at his sentencing hearing, e.g., Curry v. Zant, 258 Ga. 527, 371 S.E.2d 647 (1988). Defense counsel's failure to object to or assert such claims precludes direct appellate review of them.  The postconviction proceeding gives inmates another chance to rectify defaults.  In Virginia, therefore, postconviction proceedings are key to meaningful appellate review of capital cases.
State postconviction proceedings also are the cornerstone for all subsequent attempts to obtain collateral relief. Once a Virginia court determines that a claim is procedurally barred, a federal court may not review it unless the defendant can make one of two difficult showings: that there was both cause for the default and resultant prejudice, or that failure to review will cause a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 485, 495, 106 S.Ct. 2639, 2644, 2649, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). If an asserted claim is tested in an evidentiary hearing, the state postconviction court's factual findings may control the scope of a federal court's review of a subsequent petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 
Nor may a defendant circumvent the state postconviction process by filing a federal habeas petition. In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), this Court held that in order to comply with the exhaustion provision of 28 U.S.C. § 2254(c), federal courts should dismiss petitions containing claims that have not been "fairly presented to the state courts," Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), for both direct and postconviction review, Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). Given the stringency with which this Court adheres to procedural default rules,  it is of great importance to the prisoner that all his substantial claims be presented fully and professionally in his first state collateral proceeding. 
Third. As the District Court's findings reflect, the plight of the death row inmate constrains his ability to wage collateral attacks far more than does the lot of the ordinary inmate considered in Finley.  The District Court found that the death row inmate has an extremely limited period to prepare and present his postconviction petition and any necessary applications for stays of execution. 668 F.Supp. 511, 513 (E.D.Va.1986). Unlike the ordinary inmate, who presumably has ample time to use and reuse the prison library and to seek guidance from other prisoners experienced in preparing pro se petitions, cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), a grim deadline imposes a finite limit on the condemned person's capacity for useful research. 
Capital litigation, the District Court observed, is extremely complex. 668 F.Supp., at 513. Without regard to the special characteristics of Virginia's statutory procedures,  this Court's death penalty jurisprudence unquestionably is difficult even for a trained lawyer to master.  A judgment that it is not unfair to require an ordinary inmate to rely on his own resources to prepare a petition for postconviction relief, see Finley, 481 U.S., at 557, 107 S.Ct., at 1994, does not justify the same conclusion for the death row inmate who must acquire an understanding of this specialized area of the law and prepare an application for stay of execution as well as a petition for collateral relief.  This is especially true, the District Court concluded, because the "evidence gives rise to a fair inference that an inmate preparing himself and his family for impending death is incapable of performing the mental functions necessary to adequately pursue his claims."  668 F.Supp., at 513.
These three critical factors demonstrate that there is a profound difference between capital postconviction litigation and ordinary postconviction litigation in Virginia. The District Court's findings unequivocally support the conclusion that to obtain an adequate opportunity to present their postconviction claims fairly, death row inmates need greater assistance of counsel than Virginia affords them. Cf. id., at 514-515. Meaningful access, and meaningful judicial review, would be effected in this case only if counsel were appointed, on request, in time to enable examination of the case record, factual investigation, and preparation of a petition containing all meritorious claims, which the same attorney then could litigate to its conclusion.
Although in some circumstances governmental interests may justify infringements on Fourteenth Amendment rights, cf. Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976), Virginia has failed to assert any interest that outweighs respondents' right to legal assistance. The State already appoints counsel to death row inmates who succeed in filing postconviction petitions asserting at least one nonfrivolous claim; therefore, the additional cost of providing its 32 death row inmates competent counsel to prepare such petitions should be minimal. See 668 F.Supp., at 512, 515. Furthermore, multiple filings delay the conclusion of capital litigation and exacerbate the already serious burden these cases impose on the State's judicial system and the legal department. It seems obvious that professional preparation of the first postconviction petition, by reducing successive petitions, would result in a net benefit to Virginia. 
Of the 37 States authorizing capital punishment, at least 18 automatically provide their indigent death row inmates counsel to help them initiate state collateral proceedings.  Thirteen of the 37 States have created governmentally funded resource centers to assist counsel in litigating capital cases.  Virginia is among as few as five States that fall into neither group and have no system for appointing counsel for condemned prisoners before a postconviction petition is filed.  In Griffin, the Court proscribed I linois' discriminatory barrier to appellate review in part because many other States already had rejected such a barrier. 351 U.S., at 19, 76 S.Ct., at 590; cf. Gideon, 372 U.S., at 345, 83 S.Ct., at 798 (noting that 22 States supported right to trial counsel). Similarly, the trend in most States to expand legal assistance for their death row inmates further dilutes Virginia's weak justifications for refusing to do so, and "lends convincing support to the conclusion" of the courts below that these respondents have a fundamental right to the relief they seek. See Powell, 287 U.S., at 73, 53 S.Ct., at 67.
The basic question in this case is whether Virginia's procedure for collateral review of capital convictions and sentences assures its indigent death row inmates an ad quate opportunity to present their claims fairly. The District Court and Court of Appeals en banc found that it did not, and neither the State nor this Court's majority provides any reasoned basis for disagreeing with their conclusion. Simple fairness requires that this judgment be affirmed.
I respectfully dissent.
^1 Compare Brief for Petitioners 23 ("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 inconsistent with the limited nature of the right") with Brief for Respondents 25 ("The district court's findings, conclusion, and remedy all comprise a conventional application of Bounds in an extraordinary context").
Although the Court of Appeals en banc and the District Court placed singular reliance on Bounds, both indicated that they would have reached the same result on the other legal theories as well. 847 F.2d 1118, 1122, n. 8 (CA4 1988) ("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 an attorney"); 668 F.Supp. 511, 516, n. 4 (E.D.Va.1986) ("[C]hanging the theory under which relief is sought would not alter the analysis").
^2 See Gideon, 372 U.S., at 342-344, 83 S.Ct., at 795-797. Justice Harlan made explicit Gideon's abandonment of the special circumstances rule in the context of the right to counsel in serious criminal prosecutions. Id., at 350-351, 83 S.Ct., at 800-801 (concurring opinion). But see id., at 348, n. 2, 83 S.Ct., at 799, n. 2 (Clark, J., concurring in result) (linking Gideon to Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961), also a Fourteenth Amendment case).
^3 The Court consistently has adhered to Justice Sutherland's observation in Powell v. Alabama, 287 U.S. 45, 53, 71, 53 S.Ct. 55, 58, 65, 77 L.Ed. 158 (1932), that when assistance of counsel is required, that assistance must be "effective" rather than pro forma. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam ). Cf. Penson v. Ohio, 488 U.S. 75, 85, 109 S.Ct. 346, 352, 102 L.Ed.2d 300 (1988) ("The need for forceful advocacy does not come to an abrupt halt as the legal proceeding moves from the trial to appellate stage. Both stages of the prosecution, although perhaps involving unique legal skills, require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over").
^4 The en banc majority below, for instance, distinguished Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), in part on the ground that it "was not a meaningful access case, nor did it address the rule enunciated in Bounds v. Smith." 847 F.2d, at 1122.
^5 The Colonies of Pennsylvania, South Carolina, and Virginia made counsel more available to capital defendants than to persons accused of other offenses. See Powell, 287 U.S., at 61-63, 65, 53 S.Ct., at 61-62, 63.
^6 Act of Apr. 30, 1790, ch. 9, §§ 1, 3, 8-10, 14, 1 Stat. 112-115 (authorizing death sentence for willful murder, treason, and other crimes); id., § 29, 1 Stat. 118, as amended, 18 U.S.C. § 3005 (requiring appointment of counsel for capital defendants).
^7 The Anti-Drug Abuse Act of 1988, § 7001(b), Pub.L. 100-690, 102 Stat. 4393-4394, codified at 21 U.S.C. §§ 848(q)(4)(B), (q)(8) (1988 ed.) provides in pertinent part:
"(B) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragrap[h] . . . (8). . . .
- * * * *
"(8) Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications, for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant."
^8 Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932), for instance, established a right to appointment of counsel for capital defendants three d cades before that right was extended to felony defendants facing imprisonment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942). See Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (reversing State's denial of postconviction relief for petitioner who was not represented by counsel at arraignment on capital charge). In Bute v. Illinois, 333 U.S. 640, 674, 68 S.Ct. 763, 780, 92 L.Ed. 986 (1948), the Court held that a state court was not required to query a defendant in a noncapital case regarding his desire for counsel. "On the other hand," Justice Burton pointed out in the majority opinion, "this Court repeatedly has held that failure to appoint counsel to assist a defendant or to give a fair opportunity to the defendant's counsel to assist him in his defense where charged with a capital crime is a violation of due process of law under the Fourteenth Amendment." Id., at 676, 68 S.Ct., at 781 (citing cases).
^9 Among those making this point before Furman were Justice Frankfurter in Andres v. United States, 333 U.S. 740, 753, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948) (concurring opinion) ("The statute reflects the movement, active during the nineteenth century, against the death sentence. The movement was impelled both by ethical and humanitarian arguments against capital punishment, as well as by the practical consideration that jurors were reluctant to bring in verdicts which inevitably called for its infliction"), and again in Leland v. Oregon, 343 U.S. 790, 803, 72 S.Ct. 1002, 1009, 96 L.Ed. 1302 (1952) (dissenting opinion) ("Even though a person be the immediate occasion of another's death,
he is not a deodand to be forfeited like a thing in the medieval law"), and Justice Reed in Andres, supra, 333 U.S., at 752, 68 S.Ct., at 886 (opinion of the Court) ("In death cases doubts such as those presented here should be resolved in favor of the accused").
In 1983, 11 years after Furman had been decided, Justice O'CONNOR observed in a majority opinion that the "Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 3451-3452, 77 L.Ed.2d 1171; see id., at 999, n. 9, 103 S.Ct., at 3452, n. 9 (citing cases). See also, e.g., Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (MARSHALL, J., plurality opinion) ("In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. . . . This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different"); Ake v. Oklahoma, 470 U.S. 68, 87, 105 S.Ct. 1087, 1098, 84 L.Ed.2d 53 (1985) (Burger, C.J., concurring in judgment) ("In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases"); Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d 393 (1977) (STEVENS, J., plurality opinion) ("From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion").
^10 E.g., Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Spaziano v. Florida, 468 U.S. 447, 456, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340 (1984); Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed. 392 (1980); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). Accord, ante, at 8-9.
^11 Accord, Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (1976) (plurality opinion); Proffitt v. Florida, 428 U.S. 242, 251, 253, 258-259, 96 S.Ct. 2960, 2966, 2967, 2969-2970, 49 L.Ed.2d 913 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.); Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.); Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). Cf. Ramos, 463 U.S., at 999, 103 S.Ct., at 3452; Zant v. Stephens, 462 U.S. 862, 876, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); Griffin, 351 U.S., at 21, 76 S.Ct., at 591 (Frankfurter, J., concurring in judgment) ("Since capital offenses are sui generis, a State may take account of the irrevocability of death by allowing appeals in capital cases and not in others").
^12 Nor can we overlook our experience that capital litigation proceeds apace after affirmance of a conviction. With the vigorous opposition of state legal departments, capital defendants seek not only review of state and federal judicial decisions, but also relief from state governors and parole boards. See Powell, Capital Punishment, 102 Harv.L.Rev. 1035, 1038-1041 (1989). Thus the conviction and sentence in a capital case will not be "final," or undisturbed, until the sentence either is executed or set aside. Cf. Barefoot v. Estelle, 463 U.S. 880, 888, 103 S.Ct. 3383, 3392, 77 L.Ed.2d 1090 (1983). With the cases of over half the Nation's more than 2,100 inmates yet to move into collateral proceedings, Wilson & Spangenberg, State Post-Conviction Representation of Defendants Sentenced to Death, 72 Judicature 331, 332 (1989), the need for an orderly sequence of review is pellucid. As THE CHIEF JUSTICE has remarked: " 'We judges have no right to insist that matters such as these proceed at a leisurely pace, or even at an ordinary pace, but I think we do have a claim to have explored the possibility of imposing some reasonable regulations in a situation which is disjointed and chaotic.' " Remarks before the National Conference of Chief Justices (Jan. 27, 1988), quoted in Powell, supra, at 1040.
^13 Mello, Facing Death Alone: The Post-Conviction Attorney Crisis on Death Row, 37 Am.U.L.Rev. 513, 520-521 (1988). The former Chief Judge of the Eleventh Circuit, which has the greatest volume of capital litigation, recently estimated that in his Circuit capital defendants' success rate in collateral proceedings may be as high as one-third to one-half of all such cases. Godbold, Pro Bono Representation of Death Sentenced Inmates, 42 Record of N.Y.C.B.A. 859, 873 (1987). Cf. Barefoot, 463 U.S., at 915, 103 S.Ct., at 3406 (MARSHALL, J., dissenting).
^14 The Virginia Supreme Court requires contemporaneous objection before it will consider any asserted trial error on direct review. Va.Sup.Ct. Rule 5:21. Likewise, it does not review the entire case record, but only questions clearly assigned as errors on appeal. See ibid.; Va.Code § 17-110.1 (1988). See also Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983).
This Court abides by States' applications of rules precluding direct review of procedurally defaulted claims, see Caldwell, 472 U.S., at 327, 105 S.Ct., at 2638, sometimes in confidence that an obvious error will be corrected on collateral review. E.g., Watkins v. Virginia, 475 U.S. 1099, 1100, 106 S.Ct. 1503, 1504, 89 L.Ed.2d 903 1986) (opinion of STEVENS, J., respecting the denial of petition for certiorari in 229 Va. 469, 331 S.E.2d 422 (1985)).
^15 The Virginia Supreme Court will consider previously defaulted claims on postconviction review if the petitioner shows that counsel was ineffective in failing to assert a claim or object to an error. See Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975). Failure to do so may forever bar review, for Virginia does not allow a claim that could have been raised in the first postconviction petition to be asserted in a successive petition. Va.Code § 8.01-654(B)(2) (1984). See 847 F.2d, at 1120, n. 4; Whitley v. Bair, 802 F.2d 1487 (CA4 1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987).
^16 Indeed, if the petitioner is represented by counsel at the hearing, the court's factual findings attain a presumption of correctness that may bar further factual review by the federal court. 28 U.S.C. § 2254(d)(5). See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).
^17 See, e.g., Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989) (declining to review claim that jury was instructed inaccurately regarding its role in the capital sentencing process); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding procedurally barred claim, asserted by petitioner serving life term for murder, that jury was selected in a biased manner in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). See also n. 14, supra.
^18 The availability of appointed counsel on federal habeas, see n. 7, supra, thus presents the specter of a petitioner filing for federal habeas corpus and attaining counsel, only to have the petition dismissed as unexhausted and remanded to state court. Such a haphazard procedure scarcely would serve any interest in finality. It further would raise questions regarding the obligations not only of the appointed counsel to effect exhaustion at the state level, but also of the Federal Treasury to pay for those efforts. Cf. Ex parte Hull, 312 U.S. 546, 549, 61 S.Ct. 640, 641, 85 L.Ed. 1034 (1941) ("[T]he state and its officers may not abridge or impair petitioner's right to apply to a federal court f r a writ of habeas corpus").
^19 I am at a loss as to why the plurality today prefers to label the District Court findings of fact, based upon trial testimony and post-trial submissions, " 'considerations.' " See ante, at 4-5, 6.
^20 An execution may be scheduled for any time 30 days after the date of sentencing. Va.Code § 53.1-232 (1988); see 668 F.Supp., at 513. A 1988 study commissioned by the American Bar Association found that attorneys spent an average of 992 hours and $3,686 on each capital postconviction proceeding in Virginia. Brief for American Bar Association as Amicus Curiae 34 (hereinafter ABA Brief).
^21 The District Court commented:
"In Virginia, the capital trial is bifurcated, entailing separate proceedings to determine guilt and to set the appropriate punishment. Aside from analyzing the voluminous transcript of the guilt determination phase which not infrequently lasts several days, a great deal of time must be devoted to analyzing the issues of mitigation and aggravation characteristic of the sentencing phase of a capital case." 668 F.Supp., at 513.
^22 In apparent recognition of this fact, Congress has required that when a court appoints counsel in capital postconviction proceedings, at least one attorney must have been a member of the bar for at least five years and have at least three years felony litigation experience. § 7001(b) of the Anti-Drug Abuse Act of 1988, Pub.L. 100-690, 102 Stat. 4394, codified at 21 U.S.C. §§ 828(q)(5), (q)(6) (1988 ed.).
^23 Compounding matters is the typically low educational attainment of prisoners. In 1982 more than half of Florida's general inmate population was found to be functionally illiterate, while in 1979 the State's death row inmates possessed a ninth-grade mean educational level. ABA Brief 26-27. Virginia's death row inmates apparently have similar educational backgrounds. See Brief for American Civil Liberties Union et al. as Amici Curiae 20-21, n. 7. See also Brief for Maryland State Bar Association et al. as Amici Curiae 16-17 (State Bar Brief) (citing similar statistics for other States' inmate populations).
^24 For example, one lawyer testified:
"I have had lots of clients in those last 60 day time periods, and what they are forced to do is to prepare themselves mentally and spiritually and emo-
tionally to deal with their family and their children, all of whom see them as about to die. And that is a full time job.
"And very few of them, I think, even have the emotional resources to talk with you meaningfully at that point about their case. Much less to take it over." App. 66.
Cf. In re Medley, 134 U.S. 160, 172, 10 S.Ct. 384, 389, 33 L.Ed. 835 (1890) ("[W]hen a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place").
^25 A representative of the Virginia attorney general's office testified regarding the office's policy not to oppose a death row inmate's motion for appointment of postconviction counsel as follows:
"Well, basically we want to see the inmate have an attorney at State Habeas for reasons of economy and efficiency.
"When you have a death case, we recognize that it is going to be prolonged litigation and we want to see all matters that the inmate or the petitioner wants to raise be raised at one proceeding, and we can deal more efficiently with an attorney. And we prefer that from an economy standpoint we don't have to have more than one proceeding." App. 272.
Cf. Powell, 102 Harv.L.Rev., at 1040 (attributing delay in carrying out capital punishment in part to lack of counsel on collateral review).
^26 Ariz.Rule Crim.Proc. 32.5(b); Cal.Govt.Code Ann. § 15421(c) (West 1980), Cal.Penal Code Ann. § 1240 (West 1982); Conn.Super.Ct.Rules, Criminal Cases § 959, Conn.Gen.Stat. § 51-296(a) (1989); Fla.Stat. § 27.702 (1987); Idaho Code § 19-4904 (1987); Ind.Rule Proc. for Post-Conviction Remedies 1, § 9; Md.Ann.Code, Art. 27, § 645A(f) (Supp.1988); Mo.Rules Crim.Proc. 24.035(e), 29.15(e); N.J.Rules Governing Criminal Practice 3:22-6, 3:27-1, N.J.Stat.Ann. § 2A:158A-5 (West Supp.1989-1990); N.C.Gen.Stat. §§ 15A-1421 (1988), 7A-451(a)(2) (Supp.1988), 7A-486.3 (1986); Okla.Stat., Tit. 22, § 1089 (Supp.1988); Ore.Rev.Stat. § 138.590(3) (1987); Pa.Rule Crim.Proc. 1503; S.D.Codified Laws § 21-27-4 (1987); Tenn.Sup.Ct.Rule 13, § 1; Utah Rule Civ.Proc. 65B(i)(5); Vt.Stat.Ann., Tit. 13, §§ 5231-5233, 7131 (1974), as interpreted in In re Morse, 138 Vt. 327, 415 A.2d 232 (1980); Wash.Super.Ct.Crim.Rule 3.1(b)(2).
In addition to these 18 States, 3-Montana, Nevada, and Wyoming-have no definitive case or statutory law on this point but are listed in a 1988 study commissioned by the American Bar Association as having a practice of mandatory appointment of counsel on request. Wilson & Spangenberg, 72 Judicature, at 334 (Table 1).
^27 They are Alabama, Arizona, California, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, and Texas. State Bar Brief 34. See Mello, 37 Am.U.L.Rev., at 593-606 (discussing development of Florida's resource center); cf. Godbold, 42 Record of N.Y.C.B.A., at 868-871 (state and federal efforts to provide legal assistance). As a result of several studies it has commissioned concerning the significance of providing counsel in capital postconviction proceedings, the American Bar Association "has recognized that the only feasible way to provide death row inmates with meaningful access to the courts is the implementation in each state which imposes capital punishment of a governmentally-funded system under which qualified, compensated attorneys represent death row inmates in state post-conviction proceedings." ABA Brief 4-5.
^28 Of 27 States that responded to a 1988 survey, only Virginia, Nebraska, Pennsylvania, and Nevada were reported to have no system "to monitor and assure that counsel will be provided prior to the filing of a post-conviction petition." Wilson & Spangenberg, supra, at 335. Of those, only Virginia and Nevada have executed prisoners since this Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). NAACP Legal Defense and Education Fund, Inc., Death Row, U.S.A. 3 (March 1, 1989) (Death Row). Pennsylvania, and perhaps Nevada, appoint counsel automatically upon request. See n. 26, supra. Of the 10 States that have death penalty statutes but were not part of the survey, only Arkansas, Colorado, and New Hampshire have neither rules for automatic appointment of counsel nor resource centers. None of these States has conducted a post-Furman execution; New Hampshire, in fact, has no prisoner under sentence of death, and Colorado has none whose case has reached the state postconviction stage. Death Row, supra, at 1; Wilson & Spangenberg, supra, at 334.