Present: All the Justices 

IN RE: COMMONWEALTH OF VIRGINIA 

 OPINION BY 

CHIEF JUSTICE LEROY R. HASSELL, SR. 

 June 4, 2009 

Record Nos. 080282 and 080283 

UPON PETITIONS FOR A WRIT OF MANDAMUS AND A WRIT OF 

PROHIBITION1

I. 

 In this proceeding, which invokes this Court's original 

jurisdiction, we consider whether a writ of mandamus or a writ 

of prohibition lies to compel a circuit court, that had 

entered a final judgment in a capital murder proceeding, to 

vacate that judgment and conduct a hearing to determine 

whether a criminal defendant was mentally retarded when he 

robbed and murdered the victim. 

II. 

 The underlying capital murder litigation that is the 

subject of this proceeding has a very long history that we 

will briefly summarize. In 1998, Daryl Renard Atkins was 

convicted in a jury trial of the capital murder of Eric 

Michael Nesbitt. Atkins was sentenced to death. This Court 

affirmed Atkins' conviction for capital murder but vacated the 

 1

 Judge N. Prentis Smiley, Jr., who was the original 

respondent in this proceeding, died in December 2008, and by 

order, this Court substituted the Honorable William H. Shaw, 

III as the respondent. 
sentence of death because error occurred during the penalty 

proceeding of the capital murder trial. Atkins v. 

Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999). 

 Upon remand, at the conclusion of a new penalty 

proceeding, a different jury fixed Atkins' punishment at 

death. The circuit court imposed the death penalty in 

accordance with the jury verdict and this Court affirmed the 

conviction. Atkins v. Commonwealth, 260 Va. 375, 390, 534 

S.E.2d 312, 321 (2000) (Hassell & Koontz, JJ., dissenting). 

The Supreme Court held in Atkins v. Virginia, 536 U.S. 

304, 321 (2002) that the Eighth Amendment to the United States 

Constitution prohibits the execution of persons who are 

mentally retarded. The Supreme Court vacated Atkins' judgment 

of death and this Court remanded the case to the circuit court 

and directed that the circuit court conduct a jury trial on 

Atkins' claim that he is mentally retarded and, therefore, not 

subject to the death penalty. 

 Upon remand, a jury found that Atkins is not mentally 

retarded and the circuit court reinstated Atkins' sentence of 

death. On appeal, however, this Court reversed that judgment 

because error occurred during the proceeding to determine 

whether Atkins was mentally retarded. Atkins v. Commonwealth, 

272 Va. 144, 161, 631 S.E.2d 93, 102 (2006). 

2
This Court reversed and annulled the final judgment and 

remanded the case to the circuit court for a new proceeding to 

determine whether Atkins is mentally retarded. During this 

remand, Atkins filed a motion in the circuit court requesting 

the imposition of a life sentence pursuant to Code § 19.2-

264.5 or a new trial. Atkins asserted that the Commonwealth's 

Attorney withheld exculpatory evidence and suborned perjury 

during Atkins' 1998 capital murder trial. Atkins also 

asserted that the Commonwealth's Attorney, who allegedly 

withheld evidence and suborned perjury, should be disqualified 

from representing the Commonwealth during the proceeding to 

determine whether Atkins is mentally retarded. The 

Commonwealth opposed Atkins' motions and argued that the 

circuit court lacked jurisdiction to alter the sentence of 

death without a finding by a jury that Atkins is mentally 

retarded. The circuit court entered orders staying the 

proceeding and Atkins sought an interlocutory appeal to this 

Court and a writ of mandamus. This Court denied the 

interlocutory appeal, dismissed the writ of mandamus, and the 

proceedings resumed in the circuit court. 

The circuit court conducted an evidentiary hearing on 

Atkins' motions to disqualify the Commonwealth's Attorney and 

to vacate the sentence of death. The motions claimed 

exculpatory evidence violations occurred under the rule of 

3
Brady v. Maryland, 373 U.S. 83 (1963). During the hearing, 

Atkins produced the following evidence. A critical issue in 

Atkins' original capital murder trial was whether Atkins or 

his accomplice, William Jones, murdered the victim, because 

only the triggerman may receive the death penalty under the 

facts and circumstances of this case. On August 6, 1997, the 

Commonwealth's Attorney and certain law enforcement personnel 

met with Jones and his attorney to prepare Jones for Atkins' 

capital murder trial. This session was recorded with an 

audiotape recorder. At some point during the three-hour trial 

preparation session, the Commonwealth's Attorney turned the 

audiotape recorder off for sixteen minutes because the 

Commonwealth's Attorney thought Jones' testimony was not 

" 'going to do [the Commonwealth’s case] any good.' " 

During the sixteen-minute interval that was not recorded, 

the Commonwealth's Attorney, law enforcement officers, and 

Jones "acted out" the events related to the murder of Nesbitt. 

Jones' initial version of the facts changed after the 

rehearsed and coached unrecorded reenactment of the murder. 

The circuit court found that the Commonwealth's Attorney 

had "coached" Jones after the Commonwealth's Attorney realized 

that Jones' initial version of the facts regarding the capital 

murder would be "problematic" to the Commonwealth. The 

4
circuit court found that Jones "changed his story. He 

modified his story." 

The circuit court stated in its final judgment order 

that: 

"[T]he Office of the Commonwealth Attorney for York 

County and the City of Poquoson improperly suppressed 

exculpatory evidence from the August 6, 1997 interview of 

William Jones, in violation of Brady v. Maryland, 373 

U.S. 83 (1963), and that the suppressed information 

probably would have affected the outcome of Daryl Atkins’ 

trial had it been revealed to Atkins’ counsel in 1998." 

At the conclusion of the two-day evidentiary hearing, the 

circuit court set aside Atkins' sentence of death and imposed 

a sentence of life imprisonment without the possibility of 

parole "based on the newly discovered evidence of a Brady

violation."2

III. 

A. 

The Commonwealth asserts that mandamus is an appropriate 

remedy that the Commonwealth may utilize to compel Judge Shaw 

to vacate the circuit court's judgment, dated January 24, 

2008, that set aside Atkins' sentence of death and sentenced 

 2

 Generally, the remedy for a Brady violation is not a 

reduction in the sentence but a new trial, "if 'the false 

testimony could . . . in any reasonable likelihood have 

affected the judgment of the jury.' " United States v. 

Bagley, 473 U.S. 667, 677 (1985) (quoting Giglio v. United 

States, 405 U.S. 150, 154 (1972)); see also Workman v. 

Commonwealth, 272 Va. 633, 651, 636 S.E.2d 368, 378 (2006); 

5
him to life in the penitentiary without the possibility of 

parole. We disagree with the Commonwealth. 

 The writ of mandamus is an extraordinary remedy and for 

that reason this Court has carefully scrutinized and imposed 

limitations upon the use of this writ. This Court has 

consistently stated the following pertinent principles: 

"A writ of mandamus is an extraordinary remedial 

process, which is not awarded as a matter of right but in 

the exercise of a sound judicial discretion. Due to the 

drastic character of the writ, the law has placed 

safeguards around it. Consideration should be had for 

the urgency which prompts an exercise of the discretion, 

the interests of the public and third persons, the 

results which would follow upon a refusal of the writ, as 

well as the promotion of substantial justice. In 

doubtful cases the writ will be denied, but [when] the 

right involved and the duty sought to be enforced are 

clear and certain and [when] there is no other available 

specific and adequate remedy the writ will issue." 

Gannon v. State Corp. Commission, 243 Va. 480, 482, 416 S.E.2d 

446, 447 (1992) (quoting Richmond-Greyhound Lines v. Davis, 

200 Va. 147, 151-52, 104 S.E.2d 813, 816 (1958)); accord

Umstattd v. Centex Homes, 274 Va. 541, 545-46, 650 S.E.2d 527, 

530 (2007); Hertz v. Times-World Corporation, 259 Va. 599, 

607-08, 528 S.E.2d 458, 462-63 (2000); Williams v. Matthews, 

248 Va. 277, 281, 448 S.E.2d 625, 627 (1994); Railroad Company 

v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548-49 (1965). 

We stated, over 130 years ago, that: 

 

Bowman v. Commonwealth, 248 Va. 130, 135, 445 S.E.2d 110, 112-

6
 "In relation to courts and judicial officers, 

[mandamus] cannot be made to perform the functions of a 

writ of error or appeal, or other legal proceeding to 

review or correct errors, or to anticipate and forestall 

judicial action. It may be appropriately used and is 

often used to compel courts to act [when] they refuse to 

act and ought to act, but not to direct and control the 

judicial discretion to be exercised in the performance of 

the act to be done; to compel courts to hear and decide 

where they have jurisdiction, but not to pre-determine 

the decision to be made; to require them to proceed to 

judgment, but not to fix and prescribe the judgment to be 

rendered." 

Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878). 

 This Court also stated, over a century ago, that: "It is 

also well settled that mandamus does not lie to compel an 

officer to undo what he has done in the exercise of his 

judgment and discretion, and to do what he had already 

determined ought not to be done." Thurston v. Hudgins, 93 Va. 

780, 784, 20 S.E. 966, 968 (1895). We acknowledged this 

important precept in Board of Supervisors v. Combs, 160 Va. 

487, 498, 169 S.E. 589, 593 (1933) and observed: 

"Mandamus is prospective merely . . . . It is not a 

preventive remedy; its purpose and object is to command 

performance, not desistance, and is a compulsory as 

distinguished from a revisory writ; it lies to compel, 

not to revise or correct action, however erroneous it may 

have been, and is not like a writ of error or appeal, a 

remedy for erroneous decisions." 

160 Va. at 498, 169 S.E.2d at 593; see also Harrison v. 

Barksdale, 127 Va. 180, 188-89, 102 S.E. 789, 792 (1920). We 

restated this elemental precept in Richlands Medical Ass'n v. 

 

13 (1994). 

7
Commonwealth, 230 Va. 384, 387, 337 S.E.2d 737, 740 (1985): 

"[M]andamus is applied prospectively only; it will not be 

granted to undo an act already done." We recently repeated 

this principle when we stated in In re: Commonwealth’s 

Attorney, 265 Va. 313, 319 n.4, 576 S.E.2d 458, 462 n.4 (2003) 

that "mandamus will [not] lie to undo acts already done." 

 Applying this fundamental principle of jurisprudence in 

the present proceeding, we hold that mandamus does not lie. 

The circuit court entered a final judgment in Atkins' capital 

murder case on January 24, 2008. This final judgment is an 

act that the circuit court has performed and the Commonwealth 

seeks to use mandamus as a procedural mechanism to vacate or 

"undo" the circuit court's judgment. We hold that mandamus 

cannot be used by the Commonwealth or any other litigant to 

collaterally attack or vacate a final judgment entered by a 

circuit court upon the conclusion of a criminal proceeding. 

B. 

The Commonwealth contends that upon the entry of this 

Court's mandate, directing the circuit court to conduct an 

evidentiary hearing to determine whether Atkins is mentally 

retarded, the circuit court was required to conduct that 

hearing but lacked discretion to consider any other legal 

issues. We disagree with the Commonwealth. 

8
 This Court's mandate that remanded this proceeding to the 

circuit court for the mental retardation hearing did not 

divest the circuit court of its authority and discretion to 

consider legal issues that the Commonwealth and Atkins raised 

upon remand. We stated in Powell v. Commonwealth, 267 Va. 

107, 128, 590 S.E.2d 537, 550 (2004): "[W]hile the directive 

of this Court's mandate binds the circuit court, that court is 

not thereby prohibited from acting on matters not constrained 

by the language of the mandate." Additionally, the United 

States Supreme Court has stated: "While a mandate is 

controlling as to matters within its compass, on remand a 

lower court is free as to other issues." Sprague v. Ticonic 

Nat’l Bank, 307 U.S. 161, 168 (1939). We hold that a circuit 

court presiding during a remand of a capital murder proceeding 

retains authority and discretion to resolve legal issues that 

the litigants raise. A contrary holding would disrupt and 

impair the circuit court's authority to preside during a 

remand of a criminal proceeding. 

Additionally, the Commonwealth's position that a circuit 

court upon a remand must only consider the issue that is the 

subject of the remand would prohibit a circuit court from 

determining legal issues that affect a litigant's right to an 

impartial and fair trial. For example, a defendant would not 

be allowed to assert during a remand, as Atkins did in his 

9
capital murder case, that a Commonwealth's Attorney should not 

be allowed to prosecute the case because a conflict of 

interest exists. Likewise, under the Commonwealth's view, a 

litigant would not be able to assert that a court lacked 

subject matter jurisdiction even though it is an elemental 

precept that the lack of subject matter jurisdiction can be 

raised at any time, including post-judgment. 

 The Commonwealth further suggests that the circuit 

court lacked subject matter jurisdiction to consider any 

issue other than the mental retardation hearing. The 

Commonwealth's argument suffers from a fundamental 

misunderstanding of the nature of a circuit court's 

subject matter jurisdiction. For example, we have 

stated: 

"Subject matter jurisdiction refers to a court’s 

power to adjudicate a class of cases or 

controversies, and this power must be granted 

through a constitution or statute. Subject matter 

jurisdiction cannot be waived or conferred on a 

court by the litigants and the lack of subject 

matter jurisdiction may be raised at any time." 

Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 

4, 13, 624 S.E.2d 453, 458 (2006) (citations omitted); 

accord Nelson v. Warden, 262 Va. 276, 281, 552 S.E.2d 73, 

75 (2001); Morrison v. Bestler, 239 Va. 166, 169, 387 

S.E.2d 753, 755 (1990); Humphreys v. Commonwealth, 186 

Va. 765, 772-73, 43 S.E.2d 890, 894 (1947); Farant 

10
Investment Corp. v. Francis, 138 Va. 417, 427-28, 122 

S.E. 141, 144 (1924). 

 Without question, upon remand of Atkins’ criminal 

proceeding from this Court to the circuit court, that court 

had subject matter jurisdiction over the entire capital murder 

case. Subject matter jurisdiction is conferred by statute 

according to the subject of the case, in this instance capital 

murder, rather than according to a particular proceeding that 

may be one part of a capital murder case. See Code § 17.1-

513; Porter v. Commonwealth, 276 Va. 203, 229, 661 S.E.2d 415, 

427 (2008); In re: Commonwealth’s Attorney, 265 Va. at 317, 

576 S.E.2d at 461; Garza v. Commonwealth, 228 Va. 559, 565-66, 

323 S.E.2d 127, 130 (1984). 

C. 

 In the present mandamus proceeding, the Commonwealth 

asserts that the circuit court was without authority to 

consider any issue other than whether Atkins is mentally 

retarded. However, the Commonwealth’s Attorney specifically 

asked the circuit court, during the remanded criminal 

proceeding, to rule on Atkins' motion to disqualify the 

Commonwealth's Attorney because he allegedly created and 

procured perjured testimony in Atkins' original trial. The 

Commonwealth's Attorney stated to the court: 

11
"[T]he Commonwealth adamantly denies these 

allegations, but the reality is they have been made. 

They are very serious, and they go to the fitness of 

counsel. Should the Commonwealth have made similar 

allegations against defense counsel, it would be an 

issue of fitness of counsel to proceed, and I 

believe that's where we are, and I believe that the 

Court should have an evidentiary hearing on these 

allegations. The Court, I do not believe, has the 

jurisdiction to grant a new trial because of it, but 

the Court should, I think, resolve this issue before 

we proceed with the trial. 

The Court: "Well, the resolution - I mean, you made 

that representation earlier I think to resolve it 

only to resolve it in favor of the Commonwealth, and 

I think to invite the Court to resolve it you have 

to allow the Court, in an evidentiary proceeding, to 

go either way with it. 

The Commonwealth’s Attorney: "Absolutely. 

The Court: "So -- and with all due respect to the 

Virginia Supreme Court, they have directed me back 

to the issue of mental retardation, and by that 

direction, I mean, that's the marching orders of the 

Court. 

The Commonwealth's Attorney: "I understand that, 

Your Honor, but the question remains who are the 

parties going to be in that trial, and at this 

point, there is an allegation that's been made that 

clearly implicates fitness of counsel for the 

Commonwealth to proceed in that trial." 

We will not permit the Commonwealth to ask the 

circuit court during the remanded hearing on mental 

retardation to exercise discretion and rule upon other 

legal issues but, inconsistently, assert in the mandamus 

proceeding that the circuit court lacked legal authority 

to do so. The Commonwealth will not be allowed to 

12
approbate and reprobate. Garlock Sealing Technologies, 

LLC v. Little, 270 Va. 381, 388, 620 S.E.2d 773, 777 

(2005); Cohn v. Knowledge Connections, Inc., 266 Va. 362, 

367, 585 S.E.2d 578, 581 (2003); Hansen v. Stanley Martin 

Companies, 266 Va. 345, 358, 585 S.E.2d 567, 575 (2003); 

Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 

54 (1988). 

D. 

 We also note that Code § 19.2-264.5 confers upon a 

circuit court, presiding in a capital murder trial, the 

authority to reduce a jury's verdict of death to a 

sentence of imprisonment for life. Code § 19.2-264.5 

states in relevant part: 

"After the consideration of the [post-sentence] 

report, and upon good cause shown, the court may set 

aside the sentence of death and impose a sentence of 

imprisonment for life. Notwithstanding any other 

provision of law, if the court sets aside the 

sentence of death and imposes a sentence of 

imprisonment for life, it shall include in the 

sentencing order an explanation for the reduction in 

the sentence." 

 As we have stated above, the mandate that remanded 

this proceeding to the circuit court for the mental 

retardation hearing also "reversed and annulled" the 

final judgment in Atkins' capital murder case and the 

circuit court was required to enter a judgment upon the 

conclusion of the capital murder proceedings. If we were 

13
to accept the Commonwealth's argument in this case - that 

the circuit court upon remand could only conduct the 

mental retardation hearing and not consider any other 

legal issues - we would improperly divest the circuit 

court of its authority and discretion conferred by Code 

§ 19.2-264.5. Additionally, the logical conclusion of 

the Commonwealth's erroneous argument is that the circuit 

court would have lacked authority to enter a final 

judgment. 

E. 

 We also reject the Commonwealth's contention that 

mandamus lies for yet another reason. The Commonwealth 

essentially seeks, using the guise of a mandamus 

proceeding, to appeal the circuit court's judgment that 

imposed upon Atkins the sentence of life imprisonment 

without parole. Pursuant to Article VI, Section 1 of the 

Constitution of Virginia and Code § 19.2-398, the 

Commonwealth has a very limited right of appeal in a 

criminal case. This limited right of appeal does not 

include a right to appeal the circuit court’s final 

judgment entered in Atkins' capital murder trial. The 

Commonwealth seeks to circumvent and expand the 

constitutional and statutory limitations imposed on its 

limited right to appeal in a criminal case by challenging 

14
a final judgment in this mandamus proceeding. Mandamus 

may not be used as a substitute or guise for an appeal in 

a criminal proceeding because the Commonwealth's 

appellate rights are strictly prescribed by the 

Constitution of Virginia and Code § 19.2-398. See Hertz, 

259 Va. at 610, 528 S.E.2d at 464 (“mandamus cannot be 

used as a substitute for an appeal”); Morrissette v. 

McGinniss, 246 Va. 378, 382, 436 S.E.2d 433, 435 (1993); 

Richlands Medical Ass'n, 230 Va. at 387, 337 S.E.2d at 

740; Moon v. Welford, 84 Va. 34, 38, 4 S.E. 572, 575 

(1887). 

F. 

We reject the Commonwealth's assertion that this Court's 

decision in In re: Robert F. Horan, Jr., 271 Va. 258, 634 

S.E.2d 675 (2006) requires that we grant the petition for writ 

of mandamus. In Horan, we considered whether a circuit court 

could enter a pre-trial order that prohibited the Commonwealth 

from seeking the death penalty in a capital murder proceeding 

that was pending in that circuit court. We granted the 

petition for a writ of mandamus on the very narrow basis that 

pursuant to Virginia's capital murder statutory scheme, the 

circuit court did not have authority to make a sentencing 

decision when ruling upon a pre-trial motion and, hence, the 

circuit court's action was not within its discretion. 

15
Our decision in Horan is not controlling in this 

proceeding, which involves a final judgment that has been 

entered in a criminal proceeding. Our holding in Horan

is limited to the unique procedural history in that case, 

which did not involve a collateral attack upon a final 

judgment in a criminal proceeding. Moreover, this Court 

did not consider or discuss in Horan whether the circuit 

court's order that prohibited the Commonwealth from 

seeking the death penalty was an act performed by the 

circuit court which could not be undone. 

G. 

 As we have previously stated, in part III, section A of 

this opinion, a purpose of the writ of mandamus, which is an 

extraordinary remedy, is the promotion of substantial justice. 

See Gannon, 243 Va. at 482, 416 S.E.2d at 447; Railroad 

Company, 206 Va. at 162, 142 S.E.2d at 548; Richmond-Greyhound 

Lines, 200 Va. at 151-52, 104 S.E.2d at 816. The promotion of 

substantial justice has served as a prerequisite to the 

issuance of a writ of mandamus in this Commonwealth for almost 

200 years. For example, we stated in Commonwealth v. Justices 

of Fairfax County Court, 4 Va. (2 Va. Cas.) 9, 13 (1815) 

(emphasis in original omitted; other emphasis added): 

"A mandamus is a prerogative writ; to the aid of 

which the subject is entitled upon a proper case 

previously shewn to the satisfaction of the Court. 

16
The original nature of the writ, and the end for 

which it was framed, direct upon what occasions it 

shall be used. It was introduced to prevent 

disorder from a failure of justice, and defect of 

police. Therefore, it ought to be used upon all 

occasions where the law has established no specific 

remedy, and where in justice and good government 

there ought to be one." 

 In the present proceeding, clearly, the issuance of 

a writ of mandamus would not prevent "disorder from a 

failure of justice." Id. A critical issue during the 

trial of Atkins' capital murder case was whether Atkins 

or his accomplice, Jones, was the triggerman who fired 

the gun that killed the victim. Based upon the facts in 

this record, only the triggerman could be subject to a 

sentence of death. Atkins claimed that the accomplice 

was the triggerman but the accomplice countered that 

Atkins was the triggerman. 

Based upon the record before this Court, including 

the circuit court's final judgment, the circuit court had 

no confidence in the integrity of the judicial process 

and the jury verdict that resulted in Atkins' sentence of 

death. The circuit court found that the Commonwealth's 

Attorney had "coached" the accomplice who was involved in 

the murder after the Commonwealth's Attorney realized 

that the accomplice would have testified about facts that 

would have been "problematic" to the Commonwealth's case. 

17
The circuit court found that the accomplice "changed his 

story . . . [h]e modified his story," and, the circuit 

court held that information that the Commonwealth 

suppressed "probably would have affected the outcome of 

Daryl Atkins' trial." Simply stated, the coached 

accomplice may very well have "changed his story" in 

order to escape the possibility of a sentence of death. 

Therefore, issuance of a writ of mandamus would not 

prevent a failure of justice but merely would serve to 

ignore the reality of the present case that justice was 

not served by the Commonwealth’s deliberate use of 

"coached" testimony. 

H. 

 The dissent, relying principally upon this Court's 

decisions in Horan, 271 Va. 258, 634 S.E.2d 675, In re: 

Morrissey, 246 Va. 333, 433 S.E.2d 918 (1993), Davis v. 

Sexton, 211 Va. 410, 177 S.E.2d 524 (1970), Kirk v. Carter, 

202 Va. 335, 117 S.E.2d 135 (1960), Richardson v. Farrar, 88 

Va. 760, 15 S.E. 117 (1892), Wilder v. Kelley, 88 Va. 274, 13 

S.E. 483 (1891), Kent, Paine & Co. v. Dickinson, 66 Va. (25 

Gratt.) 817 (1875), and Cowan v. Fulton, 64 Va. (23 Gratt.) 

579 (1873), argues that these cases support a conclusion that 

a writ of mandamus lies to compel a circuit court to vacate a 

18
final judgment entered in a capital murder proceeding. We 

disagree with the dissent. 

Our decisions in Horan, Morrissey, Davis, Kirk, 

Richardson, Wilder, Kent, Paine & Co., and Cowan, do not 

involve final judgments entered in criminal proceedings. As 

we have discussed in part III, sections C, D, and E of this 

opinion, there are numerous substantive reasons why the 

Commonwealth should not be allowed to use a mandamus 

proceeding to invalidate a final judgment in a criminal case. 

And, our decision in Horan is not pertinent to our resolution 

of this proceeding for the reasons stated in part III, section 

F of this opinion. 

 Our decision in In re: Commonwealth of Virginia, 229 

Va. 159, 326 S.E.2d 695 (1985) is consistent with our 

holding today. Contrary to the dissent's assertion, our 

decision to grant the writ of mandamus in In re: 

Commonwealth of Virginia, did not have the effect of 

invalidating a final judgment in a criminal case. In In 

re: Commonwealth, the circuit court withheld imposition 

of sentence for a defendant's firearm conviction "until 

September 26, 1985, a period of Twelve (12) months, upon 

the conditions that [the defendant]: (1) keep the peace 

and be of good behavior and obey all laws, (2) continue 

with psychiatric care and treatment with reports to the 

19
Court every Ninety (90) days." Id. at 161, 326 S.E.2d at 

697. 

 The order that withheld imposition of sentence upon 

the firearm conviction was not a final judgment entered 

at the conclusion of a criminal case. Pursuant to the 

specific terms of the order, the defendant would have 

been required to return to the circuit court after a 

period of twelve months and the court would then have to 

decide whether to impose a sentence for the firearm 

violation. Indeed, the very reason that the Commonwealth 

filed a petition for a writ of mandamus in In re: 

Commonwealth was to compel the circuit court to enter a 

judgment that sentenced the defendant in accordance with 

the criminal firearm statute. See id. at 160-61, 326 

S.E.2d at 696. 

IV. 

 The Commonwealth also asserts that this Court should 

grant the Commonwealth's petition for a writ of prohibition. 

The Commonwealth argues that the circuit court exceeded the 

jurisdictional limits of this Court's 2006 mandate which 

states: "[T]he case is remanded to the . . . circuit court for 

a new proceeding . . . to determine whether [Atkins] is 

mentally retarded." 

20
We do not consider the Commonwealth's argument because 

prohibition clearly does not lie for a reason that the 

Commonwealth does not mention. We have stated: 

"The writ of prohibition, as its name imports, is one 

which commands the person to whom it is directed not to 

do something which . . . the court is informed he is 

about to do. If the thing be already done, it is 

manifest the writ of prohibition cannot undo it, for that 

would require an affirmative act; and the only effect of 

a writ of prohibition is to suspend all action, and to 

prevent any further proceeding in the prohibited 

direction." 

In re: Dept. of Corrections, 222 Va. 454, 461, 281 S.E.2d 857, 

861 (1981) (quoting United States v. Hoffman, 71 U.S. (4 

Wall.) 158, 161-62 (1867)). And, as we recently stated in In 

re: Commonwealth’s Attorney, 265 Va. at 319 n.4, 576 S.E.2d at 

462 n.4, "prohibition . . . will [not] lie to undo acts 

already done." The circuit court in this case has entered a 

final judgment in Atkins' capital murder proceeding which is 

an act "already done" and a petition for a writ of prohibition 

cannot be used to vacate or "undo" that final judgment. 

V. 

 For the forgoing reasons, we will dismiss the 

Commonwealth's petition for writ of mandamus and petition for 

writ of prohibition. 

Record No. 080282 – Petition dismissed. 

Record No. 080283 – Petition dismissed. 

JUSTICE KINSER, with whom JUSTICE LEMONS joins, dissenting. 

21
Today, the majority holds that a writ of mandamus does 

not lie to compel the Circuit Court of York County (the 

Circuit Court) to comply with this Court's mandates on the 

basis that mandamus, if issued, would undo an act already 

done. Our jurisprudence does not support that conclusion 

because we have issued mandamus in numerous cases when the 

writ, either directly or implicitly, undid an act already 

done. Further, the Circuit Court had no discretion to 

disregard our mandates, the Commonwealth has a clear right to 

the relief requested, and it has no other adequate remedy to 

enforce that right. Moreover, in Wilder v. Kelley, 88 Va. 

274, 13 S.E. 483 (1891), we issued a writ of mandamus to 

compel a circuit court judge to enter and enforce an order of 

this Court granting an injunction. Id. at 283, 13 S.E. at 

486. 

For the same reason, the majority likewise holds that a 

writ of prohibition does not lie. As with mandamus, this 

Court has issued a writ of prohibition on several occasions 

when the writ undid an act already done. Moreover, in the 

unique circumstances of this case, the Circuit Court exceeded 

its jurisdiction when it entered the order setting aside a 

death sentence. Contrary to the majority, I would issue a 

writ of mandamus and a writ of prohibition. Thus, I 

respectfully dissent. 
I. PRIOR RELEVANT PROCEEDINGS 

Before explaining why I conclude mandamus and prohibition 

lie in this case, I find it necessary to summarize the 

procedural history culminating in this Court's two separate 

mandates ordering the Circuit Court to conduct a hearing to 

determine whether Daryl Renard Atkins is mentally retarded. 

After a jury trial in the Circuit Court, Atkins was sentenced 

to death for the murder of Eric Michael Nesbitt during the 

commission of robbery. This Court affirmed the judgment of 

conviction but vacated the sentence of death and remanded the 

case to the Circuit Court for a new sentencing hearing. 

Atkins v. Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 

(1999) (Atkins I). At the re-sentencing proceeding, a 

different jury imposed the death penalty, and the Circuit 

Court sentenced Atkins in accordance with the jury's verdict. 

Upon appeal to this Court, we upheld the Circuit Court's 

judgment and sentence of death. Atkins v. Commonwealth, 260 

Va. 375, 379, 534 S.E.2d 312, 314 (2000) (Atkins II). 

The United States Supreme Court subsequently granted 

Atkins a writ of certiorari on the sole issue "[w]hether the 

execution of mentally retarded individuals convicted of 

capital crimes violates the Eighth Amendment[.]" Atkins v. 

Virginia, 534 U.S. 809, 809 (2001). In its decision, the 

United States Supreme Court held that the execution of 

23
mentally retarded individuals is excessive punishment, and 

therefore violates the Eighth Amendment. Atkins v. Virginia, 

536 U.S. 304, 320-21 (2002) (Atkins III). The United States 

Supreme Court thus reversed our judgment with respect to 

Atkins' sentence and remanded the case to this Court for 

further proceedings. Id. at 321. 

In accordance with emergency legislation enacted by the 

General Assembly to establish procedures for determining 

whether a defendant convicted of capital murder is mentally 

retarded, see Code §§ 8.01-654.2, 19.2-264.3:1.1, 19.2-

264.3:1.2, and 19.2-264.3:3, and the mandate of the United 

States Supreme Court, this Court remanded Atkins' case to the 

Circuit Court for " 'the sole purpose of making a 

determination of mental retardation.' " Atkins v. 

Commonwealth, 266 Va. 73, 79, 581 S.E.2d 514, 517 (2003) 

(quoting Code § 8.01-654.2) (Atkins IV). At the conclusion of 

the mental retardation hearing conducted on remand, a third 

jury found that Atkins failed to prove by a preponderance of 

the evidence that he is mentally retarded under Code § 19.2-

264.3:1.1(A). Accordingly, the Circuit Court reinstated 

Atkins' death sentence. 

We awarded Atkins an appeal and reversed the Circuit 

Court's judgment. Atkins v. Commonwealth, 272 Va. 144, 158, 

631 S.E.2d 93, 100 (2006) (Atkins V). We then remanded the 

24
case again so the Circuit Court could conduct a "new 

proceeding to determine whether Atkins is mentally retarded." 

Id. In the mandate to the Circuit Court dated October 18, 

2006, we stated, in relevant part: "[T]he judgment is reversed 

and annulled, the verdict of the jury is set aside, and the 

case is remanded to the said [C]ircuit [C]ourt for a new 

proceeding . . . to determine whether [Atkins] is mentally 

retarded." 

Subsequent to the remand in Atkins V, Atkins filed a 

"Motion to Impose Life Sentence Based Upon Newly-Discovered 

Evidence of Brady and Napue Violations." The Circuit Court 

entered an order certifying an interlocutory appeal pursuant 

to Code § 8.01-670.1 and requesting this Court to decide 

whether, upon remand pursuant to Code § 8.01-654.2, the 

Circuit Court was "prohibited or restricted from exercising 

jurisdiction to hear" Atkins' motion and order an appropriate 

remedy. In addition, Atkins petitioned for a writ of 

mandamus, requesting this Court to direct the Circuit Court to 

hear and decide his motion. 

This Court entered an order refusing the interlocutory 

appeal on the basis that Code § 8.01-670.1 is inapplicable in 

a criminal case. The order contained the following mandate: 

The [C]ircuit [C]ourt is directed to proceed 

with this criminal case. Such proceeding is 

confined to the terms of the mandate issued by the 

25
Court on October 18, 2006 remanding this case to the 

[C]ircuit [C]ourt for a jury determination of 

whether Atkins is mentally retarded. 

(Emphasis added.). The order also summarily dismissed Atkins' 

petition for a writ of mandamus. 

Instead of conducting the mandated hearing to determine 

whether Atkins is mentally retarded, the Circuit Court granted 

Atkins' motion, finding the Commonwealth had withheld 

exculpatory evidence in violation of Brady v. Maryland, 373 

U.S. 83 (1963). Relying on the provisions of Code § 19.2-

264.5, the Circuit Court set aside Atkins' sentence of death 

and sentenced him to "imprisonment for life without the 

possibility of parole." 

This procedural history brings us to the present 

proceedings. After the Circuit Court refused to conduct the 

hearing to determine whether Atkins is mentally retarded, the 

Commonwealth filed separate petitions seeking a writ of 

mandamus and a writ of prohibition. I will address each of 

these extraordinary writs separately. 

II. MANDAMUS 

In its petition for a writ of mandamus, the Commonwealth 

requested that mandamus be issued compelling the Circuit Court 

to conduct a hearing to determine whether Atkins is mentally 

retarded in accordance with this Court's mandates. The issue 

in this case is whether a writ of mandamus lies to compel the 

26
Circuit Court to conduct that hearing, not whether mandamus 

lies to compel a circuit court to vacate an order, as stated 

by the majority. Because the Circuit Court did not have any 

discretion to disregard this Court's mandates, and because the 

Commonwealth has a clear right to the relief requested and no 

other adequate remedy to enforce its right, I would issue the 

writ of mandamus compelling the Circuit Court to conduct the 

mental retardation hearing as previously mandated by this 

Court. 

"Before a writ of mandamus may issue there must be a 

clear right in the petitioner to the relief sought, there must 

be a legal duty on the part of the respondent to perform the 

act which the petitioner seeks to compel, and there must be no 

adequate remedy at law." Board of County Supervisors v. 

Hylton Enterprises, Inc., 216 Va. 582, 584, 221 S.E.2d 534, 

536 (1976) (citing Richmond-Greyhound Lines v. Davis, 200 Va. 

147, 152, 104 S.E.2d 813, 817 (1958)). "[Mandamus] was 

introduced to prevent disorder from a failure of justice, and 

defect of police. Therefore, it ought to be used upon all 

occasions where the law has established no specific remedy, 

and where in justice and good government there ought to be 

one." Commonwealth v. Justices of Fairfax County Court, 4 Va. 

(2 Va. Cas.) 9, 13 (1815) (internal quotation marks omitted) 

27
(emphasis added); accord Lewis v. Whittle, 77 Va. 415, 417 

(1883). 

" 'Mandamus is an extraordinary remedy employed to compel 

a public official to perform a purely ministerial duty imposed 

upon him by law.' " In re: Horan, 271 Va. 258, 258, 634 

S.E.2d 675, 676 (2006) (quoting Richlands Med. Ass'n v. 

Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985)); 

accord Griffin v. Board of Supervisors, 203 Va. 321, 328, 124 

S.E.2d 227, 233 (1962). "A ministerial act is an act that one 

performs in obedience to a legal mandate and in a prescribed 

manner, without regard to his own judgment as to the propriety 

of the act to be done." City of Richmond v. Hayes, 212 Va. 

428, 429, 184 S.E.2d 784, 785 (1971) (citing Dovel v. Bertram, 

184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)); accord In re: 

Horan, 271 Va. at 258-59, 634 S.E.2d at 676; Richlands Med. 

Ass'n, 230 Va. at 386, 337 S.E.2d at 739. 

Specifically with regard to mandamus directed to an 

inferior court, we have previously explained that 

mandamus may be appropriately used and is often used 

to compel courts to act where they refuse to act and 

ought to act, but not to direct and control the 

judicial discretion to be exercised in the 

performance of the act to be done; to compel courts 

to hear and decide where they have jurisdiction, but 

not to pre-determine the decision to be made; to 

require them to proceed to judgment, but not to fix 

and prescribe the judgment to be rendered. 

28
Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878); accord In 

re: Horan, 271 Va. at 259, 634 S.E.2d at 676. 

Whether a writ of mandamus should issue in this case is 

inextricably linked to this Court's mandates directing the 

Circuit Court to conduct the hearing to determine whether 

Atkins is mentally retarded. Pursuant to what we recognize as 

the "mandate rule," a "trial judge is bound by a decision and 

mandate from [an appellate court], unless [the court] acted 

outside [its] jurisdiction. A trial court has no discretion

to disregard [a] lawful mandate."1 Powell v. Commonwealth, 267 

Va. 107, 127, 590 S.E.2d 537, 549 (2004) (alterations in 

original) (emphasis added); see also United States v. Bell, 5 

F.3d 64, 66 (4th Cir. 1993) ("[I]t is indisputable that a 

lower court generally is bound to carry the mandate of the 

upper court into execution and [may] not consider the 

questions which the mandate laid at rest. [The "mandate 

rule"] compels compliance on remand with the dictates of a 

superior court and forecloses relitigation of issues expressly 

or impliedly decided by the appellate court. . . . Thus, when 

[an appellate] court remands for further proceedings, a 

[lower] court must . . . implement both the letter and spirit 

 1

 The remand of Atkins' case, pursuant to this Court's 

mandate, was a "limited" remand, as opposed to a "general" 

remand, for the sole purpose of conducting a mental 

retardation hearing. See infra note 11. 

29
of the . . . mandate, taking into account [the appellate 

court's] opinion and the circumstances it embraces.") (second 

and seventh alterations in original) (internal quotation marks 

and citations omitted); Strayer v. Long, 83 Va. 715, 717-18, 3 

S.E. 372, 373-74 (1887) (recognizing that a circuit court is 

bound by the decree of this Court "and must obey it"). 

Pursuant to our mandates, the Circuit Court had no 

discretion to refuse to conduct the mental retardation 

hearing; the duty of the Circuit Court to do so was purely 

ministerial. See Wilder, 88 Va. at 282, 13 S.E. at 485 ("When 

a mandate goes down from the appellate tribunal to the 

inferior tribunal, whose action has been reviewed and 

reversed, there is no discretion; . . . and the simple 

province of the inferior tribunal is to obey the command of 

the superior."). Furthermore, the Commonwealth could not 

appeal the Circuit Court's refusal to conduct the hearing and 

thus has no adequate remedy at law.2 See In re: Horan, 271 Va. 

 2

 Mandamus does not lie when a petitioner has an adequate 

remedy at law by virtue of an appeal. See Richlands Med. 

Ass'n, 230 Va. at 387, 337 S.E.2d at 740 ("mandamus may not be 

used as a substitute for an appeal"). The majority turns this 

well-established principle on its head by holding that, since 

the Commonwealth does not have the right to appeal the Circuit 

Court's judgment setting aside Atkins' death sentence, 

mandamus does not lie because it would be a guise for an 

appeal the Commonwealth does not have. In other words, 

according to the majority, if a petitioner does not have a 

right of appeal, mandamus will not lie because it would be a 

substitute for a non-existent appeal. The result of the 

30
at 265, 634 S.E.2d at 680. Thus, I would issue a writ of 

mandamus compelling the Circuit Court to conduct the mental 

retardation hearing. "When the action of a court is 'a simple 

refusal to hear and decide the case; and this [C]ourt having 

held that no appeal lies from such refusal, it is exactly the 

case to which the highly remedial writ of mandamus is most 

frequently applied, in order to prevent a defect or failure of 

justice.' " Id. at 260, 634 S.E.2d at 677 (quoting Cowan v. 

Fulton, 64 Va. (23 Gratt.) 579, 584 (1873)); Smoleski v. 

County Court, 168 S.E.2d 521, 523 (W. Va. 1969) ("compliance 

with [an appellate court's] mandate in relation to a 

proceeding in a trial court may be compelled and . . . 

mandamus is the proper remedy to require such compliance"). 

In an analogous case, as I initially pointed out, we have 

previously issued a writ of mandamus compelling a circuit 

court to comply with a mandate from this Court. In Wilder, a 

circuit court judge, who was the respondent in the mandamus 

proceeding, refused to grant an injunction. 88 Va. at 275, 13 

S.E. at 483. Acting pursuant to former Code § 3438 (now Code 

§ 8.01-626), a justice of this Court awarded the injunction as 

requested by the complainants. Id. at 275-76, 13 S.E. at 483. 

 

majority's decision is that what was once a prerequisite to 

seeking relief by mandamus, i.e., that there be no other 

adequate remedy at law, is now a barrier to seeking such 

relief. 

31
The circuit court judge, however, then refused to enforce the 

order of this Court and, instead, heard "a motion to dissolve 

the injunction of the appellate judge, and . . . a motion to 

enjoin and restrain the order of such judge, and also . . . 

rules for contempt, and decided that there was no jurisdiction 

in a single judge of the Supreme Court of Appeals[3]

 to control 

. . . the action of a circuit court in its direction to its 

receiver, or in enforcing injunctions pending in the circuit 

court." Id. at 277, 13 S.E. at 484. The circuit court judge 

held that "the order of the appellate judge was null and void, 

and that the partial possession obtained under it was 

unlawful, and dismissed the proceedings for contempt for 

disobedience thereto, and, without otherwise disposing of the 

case on it merits, continued the same." Id.

The petitioners, who obtained the injunction in this 

Court, sought a writ of mandamus to compel the circuit court 

judge to "enter and enforce the order . . . of the appellate 

judge." Id. The question before us was "whether mandamus 

[was] the proper remedy to compel this judge to obey the law, 

or if he may annul the order, and by dilatory orders and 

continuances, under the guise of exercising judicial 

 3

 The 1971 Constitution of Virginia changed the name of 

this Court from the "Supreme Court of Appeals" to the "Supreme 

Court," and changed the designation for members of this Court 

from "judges" to "justices." 

32
discretion, reviewable by appeal only, entirely defeat the 

same." Id. at 280, 13 S.E. at 485. 

The respondent in Wilder argued that mandamus did not lie 

to correct his erroneous judicial acts. Id. at 277, 13 S.E. 

at 484. We disagreed, however, and stated: 

The general rule on this subject is that, if the 

inferior tribunal or corporate body has a discretion 

and exercises it, this discretion cannot be 

controlled by mandamus; but if the inferior tribunal 

refuse when the law requires them to act, and the 

party has no other adequate legal remedy, and when, 

in justice, there ought to be one, mandamus will lie 

to set them in motion to compel action, and, in 

proper cases, the court will settle the legal 

principle which should govern, but without 

controlling the discretion of the subordinate 

jurisdiction. 

Id. at 281, 13 S.E. at 485. 

In deciding to issue a writ of mandamus as requested by 

the petitioners, we held: 

When a mandate goes down from the appellate tribunal 

to the inferior tribunal, whose action has been 

reviewed and reversed, there is no discretion; that 

has been exercised, and in the exercise been 

exhausted, so far as it is established by the law; 

and the simple province of the inferior tribunal is 

to obey the command of the superior. 

. . . . 

It is settled law that when this order from an 

appellate court or an appellate judge, made in 

review of the order of an inferior court, comes 

down, the lower court must enter and enforce it. It 

is an order in his court in the latter case, and it 

is an order in his court in the former case; but it 

is there in each case for him to enter and obey. He 

may not set aside and annul it upon any pretext 

33
whatever. That may be done in a proper case by the 

Court of Appeals when, in the latter case, it 

reaches that tribunal; but it is not the province of 

the lower court to do this. Being, then, a matter 

of plain duty, and in no wise dependent upon any 

discretion of any sort, it must be entered and 

enforced as made, and mandamus will lie to enforce 

the performance of this plain legal duty. 

Id. at 282-83, 13 S.E. at 485-86. As in Wilder, mandamus 

should issue in the case before us to ensure that the 

Circuit Court obeys the mandates from this Court. 

The majority, however, holds that it is inappropriate to 

issue a writ of mandamus in the present case because to do so 

would undo an act already done. According to the majority, 

mandamus would compel the Circuit Court to vacate its order 

setting aside Atkins' death sentence and imposing a life 

sentence without the possibility of parole. It is correct 

that a writ of mandamus "will not be granted to undo an act 

already done." Richlands Med. Ass'n, 230 Va. at 387, 337 

S.E.2d at 740. In my view, the majority merely recites this 

principle and then applies it in the case before us without 

actually examining the facts, not only of the cases upon which 

the majority relies, but also of the numerous cases in which 

this Court's issuance of a writ of mandamus either directly 

compelled an act to be undone or had the incidental effect of 

undoing an act already done even though the writ itself did 

not specifically do so. 

34
For instance, in In re: Horan, this Court issued a writ 

of mandamus directing a circuit court judge to allow the 

Commonwealth's Attorney to seek the death penalty in a 

particular criminal case. 271 Va. at 265, 634 S.E.2d at 680. 

We did so although the circuit court judge had already entered 

an order prohibiting the Commonwealth from seeking the death 

penalty. Id. at 258, 634 S.E.2d at 676. The majority states 

there is a difference between the pre-trial order in In re: 

Horan and the "final judgment" in this case. That distinction 

has no significance with regard to whether a writ of mandamus 

is appropriate. In both instances, the respective orders had 

been entered when the petitions for writs of mandamus were 

filed. Furthermore, this Court has issued writs of mandamus 

even though the writ had the effect of undoing a final 

judgment. See, e.g., Kirk v. Carter, 202 Va. 335, 337, 117 

S.E.2d 135, 137 (1960) (requiring a three-judge court to hear 

a case which it had previously dismissed); Richardson v. 

Farrar, 88 Va. 760, 770, 15 S.E. 117, 121 (1892) (directing 

the circuit court to reinstate the complaint and hear the case 

on its merits). 

While I disagree with the majority's application today of 

the principle that mandamus does not lie to undo an act 

already done, if the majority is correct in refusing to issue 

a writ of mandamus in this case, then we should not have 

35
issued the writ in In re: Horan. This is so because the 

issuance of that writ had the incidental or secondary effect 

of undoing the order prohibiting the Commonwealth from seeking 

the death penalty even though the writ itself did not direct 

the circuit court judge to vacate or suspend its pre-trial 

order.4 In sum, I find no meaningful difference between the 

case before us and In re: Horan, as well as Wilder, that 

explains or justifies the majority's decision today. 

The holdings in In re: Horan and Wilder are not the only 

instances in which this Court's issuance of a writ of mandamus 

had the incidental effect of undoing an act already done. In 

Town of Front Royal v. Front Royal & Warren County Industrial 

Park Corporation, 248 Va. 581, 449 S.E.2d 794 (1994), we 

considered "whether mandamus [was] a proper remedy in an 

action to compel a municipality to comply with terms for 

provision of sewer services in a decree previously entered by 

 4

 The majority states, “this Court did not consider or 

discuss in In re: Horan whether the circuit court's order that 

prohibited the Commonwealth from seeking the death penalty was 

an act performed by the circuit court which could not be 

undone.” Contrary to the majority's statement, this Court did 

consider that issue. The respondent in In re: Horan

specifically argued that mandamus did not lie because it would 

undo the pre-trial order prohibiting the Commonwealth from 

seeking the death penalty. See Memorandum Submitted by the 

Honorable Leslie M. Alden in Opposition to "Emergency" 

Petitions for Writs of Mandamus and Prohibition, and in 

Support of Her Motion to Dismiss Those Petitions at 10-11, In 

re: Horan, 271 Va. 258, 634 S.E.2d 675 (2006) (Record Nos. 

060023 and 060024). 

36
an annexation court." Id. at 582, 449 S.E.2d at 795. The 

trial court had issued a writ of mandamus requiring the Town 

"to plan and construct sewer collectors to each of" several 

lots of real estate owned by the petitioner. Id. at 584, 449 

S.E.2d at 796. On appeal, the Town argued, among other 

things, that mandamus was not an appropriate remedy because 

the petitioner was "attempting to use mandamus as a means to 

revise or correct actions already taken by" the Town's 

governing body. Id. at 586, 449 S.E.2d at 797. The Town 

claimed the act already done was its denial of the 

petitioner's formal application for sewer service. Id.

In rejecting that argument, this Court stated: 

Here, . . . the Town is required, by the 1978 court 

decree, to perform a prospective non-discretionary 

act. The trial court's order issuing the writ of 

mandamus compels the Town to comply with that 

decree. We also observe, as the trial court found, 

that [the petitioner] has met each requirement 

necessary for the issuance of the writ. 

Id. at 587, 449 S.E.2d at 798. Despite the fact that issuing 

the writ of mandamus meant the Town had to reverse its 

rejection of the petitioner's application for sewer service, 

this Court, nevertheless, affirmed the trial court's judgment. 

Id. The petitioner had a clear right to the relief sought in 

its petition for a writ of mandamus, the annexation court's 

1978 decree imposed a ministerial duty on the Town to 

37
construct sewer lines to the petitioner's individual lots, and 

the petitioner had no adequate remedy at law. Id. 

In my view, the same rationale applies in the case before 

us. The Commonwealth has a clear right to have the Circuit 

Court conduct the hearing to determine whether Atkins is 

mentally retarded. This Court's mandates imposed a 

ministerial duty on the part of the Circuit Court to conduct 

that hearing. And, the Commonwealth has no adequate remedy at 

law. 

The decisions in In re: Horan and Town of Front Royal are 

not anomalies in our jurisprudence. In numerous other 

decisions by this Court, the issuance of a writ of mandamus 

had the incidental effect of undoing an act already done 

although the writ itself did not directly compel such action. 

See, e.g., Howell v. Catterall, 212 Va. 525, 186 S.E.2d 28 

(1972) (issuing writ of mandamus compelling the State 

Corporation Commission to grant petitioner a continuance, 

thereby effectively undoing the Commission's order denying 

petitioner a continuance); Planning Comm'n v. Berman, 211 Va. 

774, 180 S.E.2d 670 (1971) (affirming issuance of writ of 

mandamus to compel approval of site plan and issuance of 

building permits, thereby undoing a planning commission's 

previous disapproval of the site plan); Davis v. Sexton, 211 

Va. 410, 177 S.E.2d 524 (1970) (issuing writ of mandamus 

38
directing circuit court to allow a judge of a court not of 

record to practice criminal law in the circuit court and to 

represent a criminal defendant in a case pending before that 

court, thereby effectively nullifying the circuit court's 

order prohibiting the judge from practicing criminal law in 

that court); Peery v. Board of Funeral Directors, 203 Va. 161, 

123 S.E.2d 94 (1961) (issuing mandamus to compel the Virginia 

Board of Funeral Directors and Embalmers to issue petitioner a 

license as a funeral director, thereby undoing the Board's 

previous denial of the license); Kirk, 202 Va. 335, 117 S.E.2d 

135 (issuing mandamus to compel a three-judge court to hear 

and determine an election contest instituted by petitioners, 

thereby nullifying the court's order dismissing the election 

contest); McKinney v. Peers, 91 Va. 684, 22 S.E. 506 (1895) 

(petitioner, along with two other individuals, had received 

the requisite number of votes to be elected justices of the 

peace; the election commissioners and clerk met to review the 

results of the election, threw out the vote cast at a certain 

precinct, ascertained that three different individuals had 

been duly elected, and issued certificates of election to 

those individuals; this Court issued mandamus to compel the 

clerk to issue to the petitioner a certificate of his 

election, thereby nullifying the previously issued 

certificates of election); Richardson, 88 Va. 760, 15 S.E. 117 

39
(issuing mandamus to compel county court judge to reinstate a 

complaint, which had been dismissed, and to proceed to hear 

and determine the case upon its merits); Town of Danville v. 

Blackwell, 80 Va. 38, 42 (1885) (issuing mandamus to the 

corporation court of Danville to perform its absolute duty to 

remove a case to the circuit court, thereby undoing 

corporation court's order refusing to remove the case); Kent, 

Paine & Co. v. Dickinson, 66 Va. (25 Gratt.) 817 (1875) 

(issuing mandamus to compel a circuit court judge to hear and 

finally dispose of an appeal that had been previously 

dismissed by the said judge); Cowan v. Fulton, 64 Va. (23 

Gratt.) 579 (1873) (same); Smith v. Dyer, 5 Va. (1 Call.) 562 

(1799) (affirming a district court's judgment issuing a writ 

of mandamus compelling a county court to reinstate a clerk 

ousted from his office by the illegal appointment of another 

person, thereby undoing not only the removal of the clerk but 

also the appointment of a new clerk). 

Moreover, there are instances in which we have actually 

issued a writ of mandamus that directly compelled an act 

already done to be undone. See, e.g., In re: Morrissey, 246 

Va. 333, 334, 433 S.E.2d 918, 919 (1993) (issuing writ of 

mandamus to reinstate a public officeholder wrongly deprived 

of his office and "requiring that the court's [order removing 

the public officer] be annulled"); In re: Commonwealth's 

40
Attorney for Chesterfield County, 229 Va. 159, 163, 326 S.E.2d 

695, 698 (1985) ("the writ of mandamus will be granted 

directing the trial judge to forthwith vacate his judgment of 

September 25, 1984, and to sentence [the defendant] according 

to the provision of Code § 18.2-53.1"). 

In contrast to these cases, the decision in Morrissette 

v. McGinniss, 246 Va. 378, 436 S.E.2d 433 (1993), provides an 

example of when this Court affirmed a trial court's judgment 

denying a writ of mandamus because the writ, if issued, would 

have had the effect of undoing an act already done. There, 

the petition for mandamus asked the trial court to order a 

county's general registrar to amend and correct a 

certification in order to show that the required number of 

voters had indeed signed petitions for a referendum. Id. at 

381, 436 S.E.2d at 435. The general registrar had already 

certified that the petitions did not satisfy the requirements 

for a referendum. Id. at 380, 435 S.E.2d at 434. The 

petition for mandamus also asked the trial court to order the 

county board of supervisors to hold a referendum on the 

subject at issue despite the fact that the county board had 

already refused to do so and had enacted an ordinance creating 

a county service authority for the purpose of constructing and 

operating facilities for "a water supply, treatment, and 

distribution system, . . . a sewage collection, disposal and 

41
treatment system, and . . . a garbage and refuse collection 

and disposal system."5 Id. at 380, 436 S.E.2d at 434. 

In affirming the trial court's judgment refusing to issue 

a writ of mandamus, we stated: 

[The petitioner] seeks to use mandamus to revise or 

correct the allegedly erroneous action of the 

[general registrar], the [county board of 

supervisors], and the State Corporation Commission. 

He charges the [general registrar] with failing to 

properly certify the validity of the petitions; he 

charges the [county board] with unlawfully refusing 

to call for a referendum. Those acts had been 

performed at the time the mandamus petition was 

filed and could not be undone by mandamus. [The 

petitioner] should have taken prompt action 

immediately after the public hearing to seek 

judicial review of those allegedly erroneous 

actions. 

Id. at 382, 436 S.E.2d at 435. 

Unfortunately, these cases demonstrate that our 

jurisprudence is less than consistent in terms of when we use 

the principle that mandamus does not lie to undo an act 

already done as the basis for refusing to issue a writ of 

mandamus. The majority describes this principle as a 

"fundamental principle of jurisprudence." Whether it is or 

not, even the cases upon which the majority relies do nothing 

to explain or resolve the inconsistent results I find in our 

jurisprudence. 

 5

 The State Corporation Commission had also issued a 

certificate of incorporation for the county service authority. 

Morrissette, 246 Va. at 380, 436 S.E.2d at 434. 

42
In Thurston v. Hudgins, 93 Va. 780, 20 S.E. 966 (1895), 

the petitioner sought a writ of mandamus against an oyster 

inspector to compel him to give notice to two other 

individuals to remove their stakes from a certain oyster 

ground, and if the individuals failed to do so, to require the 

oyster inspector to remove the stakes. Id. at 781, 20 S.E. at 

967. The trial court refused to issue the writ. Id.

On appeal, the decision turned "upon the question whether 

the duties imposed upon an oyster inspector by the provisions 

of the Code [were] purely ministerial in their nature, or 

[were] duties necessarily calling for the exercise of judgment 

and discretion in their performance." Id. at 783, 20 S.E. at 

967. This Court concluded that an oyster inspector's 

statutory duties were "quasi judicial in their nature, 

requiring the exercise of judgment and discretion in their 

performance," and mandamus was therefore not appropriate. Id.

at 784, 20 S.E. at 968. 

We also recognized that the oyster inspector had already 

exercised his discretion in assigning a certain 20 acres to 

two individuals for the purpose of planting oysters or shells. 

Thus, "[t]he object of the petitioner . . . was not only to 

compel the inspector to undo what he had done, but to compel 

him to do a specific act without reference to the opinion of 

the inspector upon the subject." Id. We then stated, "It is 

43
also well settled that mandamus does not lie to compel an 

officer to undo what he has done in the exercise of his 

judgment and discretion, and to do what he had already 

determined ought not to be done, as is sought in this case." 

Id. In other words, mandamus did not lie because the act to 

be compelled was discretionary. See Harrison v. Barksdale, 

127 Va. 180, 189-90, 102 S.E. 789, 792 (1920) (explaining that 

in Thurston, the action of the officer that had been done was 

in the exercise of judgment and discretion and for that reason 

mandamus did not lie "to undo the action, and not merely 

because the action was a past event"). 

Next, in Board of Supervisors v. Combs, 160 Va. 487, 169 

S.E. 589 (1933), the Board of Supervisors of Amherst County 

sought a writ of mandamus directing the state comptroller and 

the Board of Supervisors of Campbell County "in the future to 

distribute the tax derived from motor vehicle fuel, in 

accordance with the said acts of 1930, page 42, ch. 45; that 

Amherst [C]ounty be given credit for one-half of the 

population of the [C]ity of Lynchburg as provided for in said 

acts, and in keeping with all other provisions thereof, and 

that said petitionees pay to Amherst [C]ounty all back pay or 

arrears in said tax, to which it is entitled had the law been 

so observed as it should have been, and deduct or credit the 

future payments to Campbell [C]ounty until the fund is 

44
equalized or adjusted upon a legal basis." Id. at 492, 169 

S.E. at 591. We held that mandamus did not lie against the 

Board of Supervisors of Campbell County because the statute in 

question gave no authority to county boards of supervisors to 

distribute the proceeds at issue. Id. at 493, 169 S.E. at 

591. 

As to the state comptroller, we noted not only that he 

had already distributed all the revenues apportionable among 

the counties under the 1930 act but also that the authority 

vested in the state comptroller had been withdrawn by 

subsequent legislation that became effective prior to this 

Court's hearing the petition for mandamus. Id. at 494-95, 169 

S.E. at 591-92. We concluded that mandamus did not lie 

against the state comptroller because there was no longer a 

fund from which he could make future distributions and because 

the authority vested in the state comptroller had been 

withdrawn. Id. at 495, 169 S.E. at 592. Thus, we held that 

"[i]n view of the . . . facts and the change in the law 

relating to the subject, it is obvious that the writ of 

mandamus prayed for by the petitioner would, if awarded, be 

unavailing and wholly nugatory." Id. at 496, 169 S.E. at 592. 

"[T]o warrant the court in granting the writ against a public 

officer such a state of facts must be presented as to show 

that the relator has a clear right to the performance of the 

45
thing demanded, and that a corresponding duty rests upon the 

officer to perform that particular thing." Id. (quoting 

Tyler v. Taylor, 70 Va. (29 Gratt.) 765, 767 (1878)). 

As to the petitioner's request that the state comptroller 

and Campbell County be directed to pay Amherst County "all 

back pay or arrears in said tax to which it is entitled had 

the law . . . been observed as it should have been," id. at 

497-98, 169 S.E. at 593, we likewise concluded that mandamus 

did not lie. To issue mandamus as the petitioner requested 

would have specifically directed the state comptroller to undo 

his distribution of the tax revenues derived from motor 

vehicle fuel. We stated: 

A mandamus is always granted to compel the 

performance of some duty which has not been done 

. . . . It is not granted to undo an act already 

done. The court will not allow the validity of the 

act to be tried in this way. We grant it, said Lord 

Campbell, when that has not been done which a 

statute orders to be done; but not for the purpose 

of undoing what has been done. 

Id. at 498, 169 S.E. at 593 (citing Harrison, 127 Va. 180, 102 

S.E. 789 (internal quotation marks omitted)). 

The quote from Lord Campbell relied upon in Combs comes 

from the case of Ex parte Nash, 15 Q.B. 92 (1850). There, the 

petitioner requested a writ of mandamus to compel a railway 

company to take its seal off the register of shareholders. 

Id. at 92. Prior to ruling, Lord Campbell stated to counsel 

46
for the petitioner, "It seems to me quite new to try the 

validity of an act by a mandamus to undo it." Id. at 95. 

Lord Campbell then ruled: 

We grant [mandamus] when that has not been done 

which a statute orders to be done; but not for the 

purpose of undoing what has been done. We may, upon 

an application for a mandamus, entertain the 

question whether a corporation, not having affixed 

its seal, be bound to do so; but not the question 

whether, when they have affixed it, they have been 

right in doing so. I cannot give countenance to the 

practice of trying in this form questions whether an 

act professedly done in pursuance of a statute was 

really justified by the statute. 

Id. at 95-96; see also In re: Horan, 271 Va. at 264, 634 

S.E.2d at 679; 2 T.C. Spelling, A Treatise on Injunctions and 

Extraordinary Remedies, § 1436, at 1256-57 (1901) ("Mandamus 

does not lie to compel a party holding an official position to 

reverse a decision already rendered in the exercise of 

discretionary powers. In other words, what has been already 

done, however erroneously, cannot be undone by this remedy.").6

 6

 This treatise divides the issue of mandamus into several 

sections, two of those being "To Inferior Courts and Judicial 

Officers" and "General Principles Governing Mandamus to Public 

Officers." Spelling, at xi-xii. Interestingly, the treatise 

discusses the principle that mandamus does not lie to undo an 

act already done in the section concerning public officers but 

does not mention it as an applicable rule in the section 

pertaining to inferior courts. Thus, I maintain the principle 

advanced by the majority in this case is not relevant when 

deciding whether to issue a mandamus to an inferior court as 

opposed to a public official. 

47
Continuing, in Richlands Medical Association, the State 

Health Commissioner requested the trial court to issue a writ 

of mandamus ordering a hearing examiner "to adhere to the law, 

to interpret properly the . . . Certificate of Public Need 

Law, to restrict his review to the function specified in 

[Code] § 32.1-97 . . ., to abandon his erroneous construction 

of the law, and to affirm the . . . Commissioner's original 

denial of the application" for a certificate of need to 

construct a new hospital filed by Richlands Medical 

Association. 230 Va. at 386, 337 S.E.2d at 739. This Court 

reversed the trial court's judgment issuing the writ 

"[b]ecause the hearing examiner's duties required the exercise 

of judgment and discretion." Id. at 388, 377 S.E.2d at 740. 

Alternatively, we also noted that mandamus, if issued, would 

"revise the hearing examiner's completed acts." Id. 

The case of In re: Commonwealth's Attorney, 265 Va. 313, 

315, 576 S.E.2d 458, 460 (2003), involved two petitions for 

writs of mandamus requesting this Court, among other things, 

to direct a circuit court judge to vacate particular orders 

and proceed to enter judgments of guilt. We did not issue 

mandamus because the petitioner was asking us to control a 

judge's exercise of judicial discretion. Id. at 319, 576 

S.E.2d at 462. In a footnote, we also stated that the actions 

of the circuit court judge at which the requested mandamus was 

48
directed had already taken place. Id. at 319 n.4, 576 S.E.2d 

at 462 n.4. 

Finally, in contrast to those four cases, we were 

confronted in Harrison with the question: "If the position of 

the petitioners were well taken, and it was the duty of the 

respondent to have entered a contrary order from that which he 

did enter, would mandamus lie to compel him to do so?" 127 

Va. at 187, 102 S.E. at 791. We answered the question in the 

affirmative and stated: 

It is true that mandamus will not lie unless the 

respondent is in possession of the authority to 

perform the act sought at the time the writ is asked 

to be issued; but the mere fact that he has done 

something contrary to his duty does not of itself 

deprive the respondent of the authority later to 

reverse such action and perform his duty aright. 

Id. at 189, 102 S.E. at 792. 

Despite the divergent application of the principle that 

mandamus does not lie to undo an act already done, I do, 

however, find consistency in the cases in which we have 

considered whether to issue a writ of mandamus to an inferior 

court. In In re: Horan, In re: Morrissey, In re: 

Commonwealth's Attorney for Chesterfield County, Davis, Kirk, 

Richardson, Wilder, Blackwell, Kent, Cowan, and Smith, we 

issued (or affirmed the issuance of) writs of mandamus that 

either directly or implicitly undid an act that had been done. 

In other words, we did not refuse to issue mandamus because it 

49
would undo an act already done by the inferior court.7 I do 

recognize that in the case of In re: Commonwealth's Attorney

we stated in a footnote that mandamus, if issued, would undo 

an act already done. 265 Va. at 319 n.4, 576 S.E.2d at 462 

n.4. That observation did not form the basis of the Court's 

decision. Thus, it appears that this Court has not, with few 

exceptions until today, applied this principle when 

considering whether a writ of mandamus should issue to an 

inferior court. See supra note 6. 

In sum, I conclude that the jurisprudence of this Court 

does not support the majority's refusal to issue a writ of 

mandamus directing the Circuit Court to conduct a hearing to 

determine whether Atkins is mentally retarded. The majority 

applies the principle that mandamus does not lie to undo an 

act already done as though this Court had never deviated from 

a constant use of the principle to refuse to issue mandamus 

anytime doing so would either directly or implicitly undo an 

act already done. But, as I have demonstrated, we have not 

been consistent, except with regard to issuing mandamus to 

 7

 The majority concludes these cases are not relevant 

because they did not involve final judgments in criminal 

cases. For purposes of deciding whether mandamus should 

issue, this Court has never before distinguished between final 

judgments in civil cases and final judgments in criminal 

cases. Yet, the majority does so today without explanation as 

to why such a distinction is appropriate. 

50
inferior courts. The majority merely cites the principle and 

concludes that mandamus does not lie in the case before us but 

ignores the rule of law embodied in our mandates.8

There can be no question, and the majority does not 

suggest otherwise, that our mandates to the Circuit Court left 

no room for the exercise of discretion as to whether to 

conduct the mental retardation hearing. We directed the 

Circuit Court to do so, but it refused to obey our mandates. 

But see Strayer, 83 Va. at 717, 3 S.E. at 374 (holding the 

circuit court "must obey" this Court's mandate). We have held 

that "[mandamus] may be appropriately used and is often used 

to compel courts to act where they refuse to act and ought to 

act." Page, 71 Va. (30 Gratt.) at 418; accord In re: Horan, 

271 Va. at 259, 634 S.E.2d at 676. 

Unlike the majority, I cannot sanction the Circuit 

Court's refusal to perform its duty to "implement both the 

letter and spirit" of our mandates. Bell, 5 F.3d at 66. As 

we said many years ago, "mandamus is always granted to compel 

 8

 I further note, as explained more thoroughly below in 

discussing the majority's refusal to issue a writ of 

prohibition, that the Circuit Court exceeded its jurisdiction 

when it entered the order setting aside Atkins' death 

sentence, thus rendering the order void ab initio. 

Consequently, the issuance of a writ of mandamus would not 

undo an act already done because the order, being void ab 

initio, was a legal nullity and in all practical effect, never 

done in the first place. 

51
the performance of some duty which has not been done." Combs, 

160 Va. at 498, 169 S.E. at 593. I also note that, by issuing 

a writ of mandamus compelling the Circuit Court to conduct the 

mental retardation hearing, we would not be reviewing the 

merits of its decision that the Commonwealth withheld 

exculpatory evidence.9 See id. For these reasons, I would 

issue a writ of mandamus directing the Circuit Court of York 

County to conduct a hearing to determine whether Atkins is 

mentally retarded. 

 9

 I express no opinion as to whether the Circuit Court was 

correct in finding that the Commonwealth withheld exculpatory 

evidence in violation of Brady and whether setting aside 

Atkins' sentence of death was an appropriate sanction. The 

merits of the Circuit Court's decision on that issue are not 

before us in these petitions for mandamus and prohibition. 

Nevertheless, the majority apparently decides the Circuit 

Court was correct since the majority concludes that issuing a 

writ of mandamus is not appropriate because it "would serve to 

ignore the reality of the present case that justice was not 

served by the Commonwealth's deliberate use of 'coached' 

testimony." 

I do emphasize, however, that alleged Brady violations 

are routinely the subject of petitions for writs of habeas 

corpus. See, e.g., Elliot v. Warden, 274 Va. 598, 598-99, 652 

S.E.2d 465, 471-72 (2007); Muhammad v. Warden, 274 Va. 3, 3-

13, 646 S.E.2d 182, 186-91 (2007); Lovitt v. Warden, 266 Va. 

216, 223-24, 243-47, 585 S.E.2d 801, 805, 817-19 (2003). 

Given the procedural status of Atkins' capital murder case, a 

petition for a writ of habeas corpus is the appropriate 

vehicle to address the merits of Atkins' motion alleging Brady

violations by the Commonwealth. 

52
III. PROHIBITION 

In addition to the petition for a writ of mandamus, the 

Commonwealth also filed a petition seeking a writ of 

prohibition. The Commonwealth asked that the Circuit Court be 

prohibited "from enforcing [its] January 24, 2008, pre-trial 

order . . . reducing the sentence of death imposed by the 

jury" in Atkins' capital murder case and "from entering any 

order in [that] case reducing the death sentence without a 

jury determination of mental retardation." Because the 

Circuit Court exceeded its jurisdiction when it entertained 

Atkins's Brady motion and then entered the order setting aside 

his death sentence, thereby rendering the order void ab 

initio, I would issue the writ of prohibition as prayed for by 

the Commonwealth. 

"The office of a writ of prohibition is . . . to prevent 

the exercise of jurisdiction of the court by the judge to whom 

it is directed, either where he has no jurisdiction at all, or 

is exceeding his jurisdiction." Rollins v. Bazile, 205 Va. 

613, 616, 139 S.E.2d 114, 117 (1964); see also Burch v. 

Hardwicke, 64 Va. (23 Gratt.) 51, 59 (1873) ("A [writ of] 

prohibition is a proper remedy to restrain an inferior court 

from acting in a matter of which it has no jurisdiction, or 

from exceeding the bounds of its jurisdiction."). "Although 

jurisdiction of the person, or of the subject matter, may have 

53
once existed, yet, if for any cause it has been lost, the writ 

[of prohibition] may issue." Rollins, 205 Va. at 616, 139 

S.E.2d at 117. The writ is used "for the furtherance of 

justice, and to secure order and regularity in judicial 

proceedings, where none of the ordinary remedies provided by 

law are applicable." Supervisors of Bedford v. Wingfield, 68 

Va. (27 Gratt.) 329, 333 (1876). 

Although this Court has never addressed the issue, 

various other courts have found that a writ of prohibition is 

a proper remedy to compel an inferior court to comply with a 

superior court's mandates. See, e.g., Harbel Oil Co. v. 

Superior Court, 345 P.2d 427, 429 (Ariz. 1959) (recognizing 

that a writ of prohibition is the appropriate remedy when a 

trial court refuses to obey the mandate of an appellate court 

"since the trial court's jurisdiction on remand is delimited 

by the terms of the mandate"); Arkansas Baptist Coll. v. 

Dodge, 74 S.W.2d 645, 646 (Ark. 1934) (making temporary writ 

of prohibition "perpetual" because chancery court failed to 

follow appellate court's mandate); Butler v. Superior Court, 

128 Cal. Rptr. 2d 403, 405 (Cal. Ct. App. 2002) ("When an 

appellate court's reversal is accompanied by directions 

requiring specific proceedings on remand, those directions are 

binding on the trial court and must be followed. Any material 

variance from the directions is unauthorized and void" and 

54
"failure to follow appellate directions can be challenged by 

an immediate petition for writ of prohibition."); Gibbs v. 

Circuit Court, 191 So. 699, 700 (Fla. 1939) ("The law is 

settled in this State that when a cause has been appealed and 

judgment rendered by the appellate court, interference 

therewith on the part of the lower court by any proceeding 

other than such as is directed by the appellate court will be 

prohibited."); Smith v. O'Connor, 646 N.E.2d 1115, 1117 (Ohio 

1995) ("A writ of prohibition is an appropriate remedy to 

prevent a lower court from proceeding contrary to the mandate 

of a superior court."); Cherokee Water Co. v. Ross, 698 S.W.2d 

363, 366 (Tex. 1985) ("When the opinion and mandate of [an 

appellate court] prohibit relitigation of some issues on 

remand, or direct that only some expressly severed issues or 

causes may still be litigated, and the parties and trial court 

attempt relitigation beyond that which was expressly 

permitted, a writ of prohibition will issue to prohibit 

relitigation." (citing City of Orange v. Clark, 627 S.W.2d 146 

(Tex. 1982))); Frazier & Oxley, L.C. v. Cummings, 591 S.E.2d 

728, 739 (W. Va. 2003) (holding that "when a circuit court 

fails or refuses to obey or give effect to the mandate of [an 

appellate court], misconstrues it, or acts beyond its province 

in carrying it out, the writ of prohibition is an appropriate 

means of enforcing compliance with the mandate"). 

55
In my view, this Court should follow this accepted 

principle of law and hold that a writ of prohibition is the 

proper remedy to enforce the Circuit Court's compliance with 

this Court's mandates. Not only do accepted principles of 

American law support this outcome, but issuing a writ of 

prohibition under the circumstances of this case is also fully 

supported by this Court's jurisprudence. 

A writ of prohibition is to prevent the exercise of 

jurisdiction when the judge to whom it is directed either has 

no jurisdiction or is exceeding his jurisdiction. Rollins, 

205 Va. at 616, 139 S.E.2d at 117. Thus, the dispositive 

question for purposes of issuing a writ of prohibition in this 

case is whether, upon remand from this Court, the Circuit 

Court had jurisdiction to conduct any proceedings other than 

the mental retardation hearing. I conclude that the Circuit 

Court did not because its jurisdiction at that time was 

circumscribed by the provisions of Code § 8.01-654.2 in 

conjunction with this Court's two separate mandates. 

Article VI, Section 1 of the Constitution of Virginia 

grants to the General Assembly, subject to certain limitations 

set forth in that section, "the power to determine the 

original and appellate jurisdiction of the courts of the 

Commonwealth." Pursuant to that constitutional provision, the 

General Assembly statutorily conferred upon circuit courts 

56
original subject matter jurisdiction for all indictments for 

felonies. Code § 17.1-513; Porter v. Commonwealth, 276 Va. 

203, 229, 661 S.E.2d 415, 427 (2008); see also Nelson v. 

Warden, 262 Va. 276, 281, 552 S.E.2d 73, 75 (2001) (subject 

matter jurisdiction is granted through a constitution or 

statute). Subject matter jurisdiction gives a court the power 

to adjudicate a class of cases or controversies. Jenkins v. 

Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 13, 624 

S.E.2d 453, 458 (2006). A circuit court, however, loses 

jurisdiction over a felony case after the expiration of 21 

days and may not thereafter modify, vacate, or suspend its 

final judgment, Rule 1:1; but, if a person is sentenced for a 

felony to the Department of Corrections, a circuit court "may, 

at any time before the person is transferred to the 

Department, suspend or otherwise modify the unserved portion 

of such a sentence." Code § 19.2-303; Commonwealth v. Neely, 

271 Va. 1, 2-3, 624 S.E.2d 657, 657 (2006).10 See also

Virginia Dep't of Corrs. v. Crowley, 227 Va. 254, 264, 316 

S.E.2d 439, 444 (1984) (holding that orders releasing certain 

 10 Rule 1:1 does not prevent a circuit court's entering an 

order staying an execution date because such an order does not 

modify, vacate, or suspend a final judgment. Davidson v. 

Commonwealth, 246 Va. 168, 171, 432 S.E.2d 178, 179 (1993). 

Under Rule 1:1, a circuit court may also "postpone execution 

of the sentence in order to give the accused an opportunity to 

apply for a writ of error and supersedeas." 

57
defendants and suspending their sentences entered after the 

21-day limitation in Rule 1:1 expired and after the defendants 

were transferred to the penitentiary were void for lack of 

jurisdiction). 

In the case before us, there is no question that, prior 

to this Court's remand for the sole purpose of conducting the 

mental retardation hearing, the time limitations in both Rule 

1:1 and Code § 19.2-303 had expired in Atkins' capital murder 

case and the Circuit Court no longer had any jurisdiction over 

the case. The General Assembly, however, enacted the 

previously mentioned emergency legislation in order to provide 

a mechanism for persons, such as Atkins, whose death sentences 

had become final in a circuit court before April 29, 2003 to 

present claims of mental retardation to this Court. Code 

§ 8.01-654.2. In relevant part, Code § 8.01-654.2 states: 

Notwithstanding any other provision of law, any 

person under sentence of death whose sentence became 

final in the circuit court before April 29, 2003, 

and who desires to have a claim of his mental 

retardation presented to the Supreme Court, shall do 

so by one of the following methods: (i) . . . if his 

direct appeal is pending in the Supreme Court, he 

shall file a supplemental assignment of error and 

brief containing his claim of mental retardation 

. . . . The Supreme Court shall consider a claim 

raised under this section and if it determines that 

the claim is not frivolous, it shall remand the 

claim to the circuit court for a determination of 

mental retardation; otherwise the Supreme Court 

shall dismiss the petition. The provisions of 

§§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a 

determination of mental retardation made pursuant to 

58
this section. If the claim is before the Supreme 

Court on direct appeal and is remanded to the 

circuit court and the case wherein the sentence of 

death was imposed was tried by a jury, the circuit 

court shall empanel a new jury for the sole purpose 

of making a determination of mental retardation. 

(Emphases added.). In accordance with the provisions of Code 

§ 8.01-654.2, our remand to the Circuit Court was necessarily 

restricted to "the sole purpose of making a determination of 

mental retardation."11 Atkins, 266 Va. at 80, 581 S.E.2d at 

517 (quoting Code § 8.01-654.2). 

Thus, but for the enactment of Code § 8.01-654.2 and this 

Court's remand, the Circuit Court would not have had the power 

to adjudicate whether Atkins is mentally retarded. Until the 

enactment of this statute and the other emergency legislation, 

see Code §§ 19.2-264.3:1.1, 19.2-264.3:1.2, and 19.2-264.3:3, 

there was no procedure in the Commonwealth for a defendant 

 11 Remands by appellate courts are often described as 

general or limited. Frazier & Oxley, 591 S.E.2d at 735. A 

general remand means "a cause is broadly remanded for a new 

trial [and] all of the issues are opened anew as if there had 

been no trial." Overton Constr. Co. v. First State Bank, 688 

S.W.2d 268, 269 (Ark. 1985). In contrast, a limited remand 

"prohibit[s] relitigation of some issues on remand, or 

direct[s] that only some expressly severed issues or causes 

may still be litigated." Cherokee Water Co. v. Ross, 698 

S.W.2d 363, 366 (Tex. 1985). "When the further proceedings 

are specified in the mandate, the [trial] court is limited to 

holding such as are directed." Hicks v. Gates Rubber Co., 928 

F.2d 966, 971 (10th Cir. 1991). Our mandate to the Circuit 

Court was a limited remand because it specified the further 

proceeding to be conducted, i.e., the mental retardation 

hearing. 

59
convicted of capital murder to obtain a determination of 

mental retardation by either a jury or a trial court sitting 

as the factfinder. However, in the new but narrow class of 

cases brought into existence because of the decision of the 

United States Supreme Court in Atkins III, in which the death 

sentence in a capital murder case became final in a circuit 

court before April 29, 2003, and this Court has determined 

that a claim of mental retardation is not frivolous, the 

General Assembly conferred limited jurisdiction, not plenary 

jurisdiction over an entire capital murder case, to a circuit 

court to adjudicate whether the defendant is mentally 

retarded. Given the limited jurisdiction in this particular 

class of cases, the Circuit Court had the power to adjudicate 

only the issue as to whether Atkins is mentally retarded.12 In 

 12 The majority states, and I agree, that the 

Commonwealth's Attorney asked the Circuit Court to rule on 

Atkins' motion to disqualify the Commonwealth's Attorney 

because he allegedly procured perjured testimony in Atkins' 

original capital murder trial. Certainly, whether the 

Commonwealth's Attorney should be disqualified from 

participating in the hearing to determine whether Atkins is 

mentally retarded is an issue that would be relevant and 

necessary to that proceeding, as would a motion to prohibit 

the introduction of certain evidence. 

The request by the Commonwealth's Attorney asking the 

Circuit Court to rule on Atkins' motion was not inconsistent 

with the assertion that the Circuit Court lacked the power to 

adjudicate other legal issues that were not relevant to the 

mental retardation hearing. Nevertheless, even if the 

majority is correct that the Commonwealth's Attorney 

approbated and reprobated, the jurisdiction to adjudicate any 

subject matter other than the issue of Atkins' mental 

60
other words, the Circuit Court exceeded the jurisdiction 

conferred by Code § 8.01-654.2 when it adjudicated Atkins' 

Brady motion and set aside his sentence of death. 

The Circuit Court itself questioned whether it had 

jurisdiction to adjudicate Atkins' motion alleging Brady

violations when it certified an interlocutory appeal pursuant 

to Code § 8.01-670.1, asking this Court whether it could hear 

the motion and order an appropriate remedy. Although we 

dismissed the appeal because Code § 8.01-670.1 is inapplicable 

in criminal cases, this Court's mandate upon remand directed 

the Circuit Court to continue with the case, expressly 

"confined to the terms of [our previous mandate] remanding 

this case for a jury determination of whether Atkins is 

mentally retarded." 

Since the Circuit Court exceeded its jurisdiction by 

adjudicating Atkins' Brady motion when Atkins' capital murder 

case was remanded pursuant to the limited jurisdiction 

conferred by Code § 8.01-654.2, the order setting aside 

Atkins' sentence of death is void and of no force and effect. 

See Crowley, 227 Va. at 264, 316 S.E.2d at 444. We have held 

in numerous cases that any action taken by a court after it 

 

retardation cannot be conferred on the Circuit Court "by 

consent of the parties, waiver or estoppel." Lucas v. Biller, 

204 Va. 309, 313, 130 S.E.2d 582, 585 (1963); accord Wagner v. 

61
loses jurisdiction is void ab initio and a complete nullity; 

an order entered under such circumstances has no force and 

effect. See, e.g., Morgan v. Russrand Triangle Assocs., 

L.L.C., 270 Va. 21, 26-27, 613 S.E.2d 589, 591-92 (2005); 

Safrin v. Travaini Pumps USA, Inc., 269 Va. 412, 418, 611 

S.E.2d 352, 355 (2005); James v. James, 263 Va. 474, 483, 562 

S.E.2d 133, 138 (2002); Super Fresh Food Mkts. v. Ruffin, 263 

Va. 555, 563-64, 561 S.E.2d 734, 739 (2002); Singh v. Mooney, 

261 Va. 48, 54, 541 S.E.2d 549, 552 (2001); Davis v. Mullins, 

251 Va. 141, 150, 466 S.E.2d 90, 94-95 (1996); Parrish v. 

Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 145 (1995); Ein v. 

Commonwealth, 246 Va. 396, 400-01, 436 S.E.2d 610, 613 (1993); 

Dixon v. Pugh, 244 Va. 539, 543, 423 S.E.2d 169, 171 (1992); 

School Bd. of the City of Lynchburg v. Caudill Rowlett Scott, 

Inc., 237 Va. 550, 556, 379 S.E.2d 319, 323 (1989); Prohm v. 

Anderson, 220 Va. 74, 77, 255 S.E.2d 491, 492-93 (1979). 

Further, it is well-settled that a judgment that is void ab 

initio "may be 'impeached directly or collaterally by all 

persons, anywhere, at any time, or in any manner.' " Singh, 

261 Va. at 52, 541 S.E.2d at 551 (quoting Barnes v. American 

Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925) 

(emphasis added)); see also Hicks v. Mellis, 275 Va. 213, 219, 

 

Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999); Morrison 

v. Bestler, 239 Va. 166, 169-70, 387 S.E.2d 753, 755 (1990). 

62
657 S.E.2d 142, 145 (2008); Collins v. Shepherd, 274 Va. 390, 

402, 649 S.E.2d 672, 678 (2007). 

This Court's decision in State Farm Mutual Automobile 

Insurance Company v. Remley, 270 Va. 209, 618 S.E.2d 316 

(2005), directly supports my conclusion that the Circuit Court 

exceeded its jurisdiction when it decided any issue other than 

whether Atkins is mentally retarded. In that case, the 

plaintiff, Christine B. Remley, obtained a default judgment 

against the defendant, Craig Griffin. Id. at 213, 618 S.E.2d 

at 317. The circuit court, however, erroneously stated in its 

default judgment order "that judgment be and hereby is granted 

to the plaintiff, Craig Griffin, and against the defendant." 

Id.

Relying on Code § 8.01-428,13 Remley's 

uninsured/underinsured motorist carrier filed a motion to set 

aside the default judgment; however, at the time it filed the 

motion, both the 21-day period provided in Rule 1:1 and the 

30-day period to file an appeal had expired. Id. at 213, 618 

S.E.2d at 318. The circuit court denied the motion but 

corrected the "scrivener's error" in its default judgment 

order so as to reflect that judgment was granted to Remley, 

 13 The provisions of Code § 8.01-428 permit a court to set 

aside default judgments for specific reasons, such as fraud 

upon the court, and correct clerical mistakes after the 21-day 

limitation in Rule 1:1 has expired. 

63
the correct plaintiff. Id. at 215, 618 S.E.2d at 319. The 

circuit court concluded that "its act of entering the 

corrected judgment order did not extend the court's 

jurisdiction to either grant the defendants leave to file a 

late grounds of defense or their motion to set aside the 

default judgment on grounds other than those contained in Code 

§ 8.01-428." Id.

This Court affirmed the circuit court's judgment denying 

the motion to set aside the default judgment. We gave these 

reasons for our decision: 

We disagree with [the insurer's] contention 

that the circuit court reacquired jurisdiction over 

all issues relating to plaintiff's motion for 

judgment when the circuit court entered the order of 

correction . . . . We hold that when a circuit 

court exercises jurisdiction pursuant to Code 

§ 8.01-428, such jurisdiction is limited to the 

specific subjects set forth in paragraphs (A), (B), 

(C), or (D) of Code § 8.01-428. Once a court 

obtains jurisdiction pursuant to Code § 8.01-428, 

the court is not authorized to consider any issues 

that are not specifically set forth in this statute. 

Id. at 221, 618 S.E.2d at 322 (emphasis added). 

Similarly, once the Circuit Court at issue reacquired 

jurisdiction of Atkins' capital murder case under Code § 8.01-

654.2, it was not authorized to consider any issue not 

specifically set forth in that statute. Just as Code § 8.01-

428 is a limited exception to the conclusive effect of a final 

judgment, so is Code § 8.01-654.2. See Charles v. 

64
Commonwealth, 270 Va. 14, 17 n.*, 613 S.E.2d 432, 433 n.* 

(2005) ("Unless otherwise provided by statute, see e.g., Code 

§ 8.01-428, Rule 1:1 prohibits the modification of a final 

order more than 21 days after the date of entry."); see also

McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243, 

244-45, 360 S.E.2d 845, 846 (1987). 

This Court has affirmed the issuance of a writ of 

prohibition to prevent a trial court from granting a new trial 

after the expiration of the statutory period during which the 

trial court retained jurisdiction to do so. Burroughs v. 

Taylor, 90 Va. 55, 56, 17 S.E. 745, 746 (1893). This Court 

has likewise issued a writ of prohibition to prevent a circuit 

court from entertaining motions to reconsider sentencing 

orders after the expiration of the 21-day period provided in 

Rule 1:1 and after the defendants were transferred to the 

Department of Corrections. In re: Dep't of Corrs., 222 Va. 

454, 466, 281 S.E.2d 857, 864 (1981). Thus, I conclude that a 

writ of prohibition as requested by the Commonwealth should be 

issued. 

Citing this latter case, the majority, however, holds 

that a writ of prohibition does not lie in this case because 

it would undo an act already done. In that case, five codefendants were convicted for various drug offenses and 

sentenced to terms in the penitentiary. Id. at 457, 281 

65
S.E.2d at 858-59. All the defendants filed motions to set 

aside the judgments within 21 days of the sentencing orders. 

Id. at 457-58, 281 S.E.2d at 859. The circuit court, within 

the 21-day period of Rule 1:1, took the motions under 

advisement, "stating that the defendants had not yet been 

committed to the penitentiary system [and] that the court was 

not prepared to rule on the motions at that time." Id. at 

458, 281 S.E.2d at 859. At some point after the circuit court 

took the motions under advisement, the defendants were 

received into the penitentiary system. Id.

Subsequently, the circuit court, in three separate orders 

entered on different dates, directed that three of the 

defendants be released from custody, suspended the remainder 

of the term of incarceration of each, and placed those three 

defendants on probation for the balance of their original 

sentences. Id. At the time the orders releasing the three 

defendants from the penitentiary were entered, they had been 

incarcerated for periods ranging from three and one-half 

months to one year. Id. The circuit court, however, took no 

action on the motions filed by the other two defendants. Id.

The Department of Corrections filed a petition for a writ 

of prohibition in this Court alleging that the circuit court 

"did not vacate or suspend the judgments of conviction prior 

to the expiration of 21 days or delivery of the defendants to 

66
the penitentiary, and therefore it had no jurisdiction to 

enter the orders suspending the sentences and compelling the 

release of [the three defendants] and has no jurisdiction now 

to take any such action as to [the two remaining defendants]." 

Id. The Department relied primarily on Rule 1:1 and former 

Code § 53-272, the predecessor to Code § 19.2-303. Id. at 459, 

281 S.E.2d at 859. 

With regard to the two defendants whose motions the 

circuit court had yet to decide, this Court held that because 

the circuit court had not modified, vacated, or suspended the 

final sentencing orders within 21-days of entry or before 

those defendants had been transferred to the penitentiary, the 

circuit court "no longer [had] jurisdiction to act on the 

[pending] motions to suspend." Id. at 465, 281 S.E.2d at 863. 

Thus, we "award[ed] a writ prohibiting the trial judge or any 

other judge of the [circuit] court from entering any orders on 

the motions to suspend the balance of the sentences of [the 

two defendants]." Id. at 466, 281 S.E.2d at 864. 

With regard to the three defendants who had already been 

released from the penitentiary, we denied the writ of 

prohibition, stating, "In each case, the release is an 

accomplished fact; thus, the time for challenging such 

67
releases in a petition for a writ of prohibition has passed."14 

Id. at 461, 281 S.E.2d at 861. In reaching that conclusion, 

the Court explained the purpose of a writ of prohibition: 

The writ of prohibition, as its name imports, 

is one which commands the person to whom it is 

directed not to do something which, by the 

suggestion of the relator, the court is informed he 

is about to do. If the thing be already done, it is 

manifest the writ of prohibition cannot undo it, for 

that would require an affirmative act; and the only 

effect of a writ of prohibition is to suspend all 

action, and to prevent any further proceeding in the 

prohibited direction. 

 14 Subsequently, in Crowley, this Court was called upon to 

determine whether the three circuit court orders for which we 

had refused to issue a writ of prohibition to prevent their 

enforcement, see In re: Dep't of Corrs., 222 Va. at 461, 281 

S.E.2d at 861, could be vacated and set aside. 227 Va. at 

258, 316 S.E.2d at 441. Applying Rule 1:1 and the rationale 

enunciated in In re: Department of Corrections when this Court 

granted the writ of prohibition as to the two defendants whose 

motions to suspend had not been ruled upon, we held that 

because the orders releasing the [three defendants] 

and suspending their sentences were entered after 

the 21-day limitation in Rule 1:1 had expired and 

the [three defendants] had been transferred to the 

penitentiary, those orders were void for lack of 

jurisdiction and the [circuit] court erred in 

dismissing the motions to vacate. Hence, we will 

reverse the several judgments and enter a final 

judgment in each case vacating the void order. If, 

upon entry of our mandates, the Attorney General, 

acting as attorney for the Commonwealth, for the 

Department of Corrections, and for the warden of the 

institution in which the [three defendants] were 

incarcerated, so elects, he may initiate the process 

required to return the [three defendants] to custody 

to serve the sentences originally imposed. 

Id. at 264, 316 S.E.2d at 444. 

68
Id. (quoting United States v. Hoffman, 71 U.S. (4 Wall.) 158, 

161-62 (1866)). 

It appears that In re: Department of Corrections is the 

only case in which we have refused to issue a writ of 

prohibition on the basis that doing so would undo an act 

already done.15 In examining the Court's opinion, I find that 

the release of the three defendants was the "accomplished 

fact" cited by the Court as the act that would be undone by 

issuing a writ of prohibition, as opposed to the circuit 

court's three orders releasing the defendants from custody and 

suspending the remainder of their terms of incarceration. Id.

at 461, 281 S.E.2d at 861. 

In contrast to the decision in In re: Department of 

Corrections, this Court has, on several occasions, issued a 

writ of prohibition notwithstanding the fact that it would 

undo an act already done. See, e.g., Charlottesville 

Newspapers, Inc. v. Berry, 215 Va. 116, 118, 206 S.E.2d 267, 

268 (1974) (issuing writ of prohibition preventing enforcement 

of order denying public access to pleadings in civil actions 

 15 I recognize that in the case of In re: Commonwealth's 

Attorney, we "note[d] that neither prohibition nor mandamus 

will lie to undo acts already done." 265 Va. at 319 n.4, 576 

S.E.2d at 462 n.4 (citing In re: Dep't of Corrs., 222 Va. at 

461, 281 S.E.2d at 861). But, as I previously pointed out, 

the statement, enunciated in a footnote, did not form the 

basis of the Court's holding in that case. 

69
and ordering "that the orders of the Circuit Court of 

Albemarle County which may be in conflict herewith, be, and 

the same hereby are, declared unenforceable"); Flanary v. 

Morton, 197 Va. 416, 417-18, 90 S.E.2d 470, 471 (1955) 

(because the circuit court did not have "the essential equity 

jurisdiction to entertain" a certain suit and an injunction 

granted in the suit was without validity and of no effect, a 

writ of prohibition was issued and the circuit court was 

"prohibited from having or holding any further proceedings in 

said equity suit . . . and from enforcing the said 

injunction"); Burroughs, 90 Va. at 56, 17 S.E. at 746 

(affirming issuance of a writ of prohibition to prevent a 

justice of the peace without jurisdiction from awarding a new 

trial, after the justice had already granted a new trial); 

Commonwealth v. Latham, 85 Va. 632, 633-34, 8 S.E. 488, 488-89 

(1889) (issuing a writ of prohibition directed to a judge who 

acted in excess of his jurisdiction when he enjoined the levy 

for a debt in favor of the Commonwealth, thereby preventing 

enforcement of an injunction already issued in the trial 

court); James v. Stokes, 77 Va. 225, 227-31 (1883) (where a 

justice of the peace assumed jurisdiction of a case involving 

a debt that exceeded the jurisdictional amount over which the 

justice had jurisdiction, this Court affirmed the issuance of 

a writ of prohibition against the justice even though judgment 

70
had been entered, writs of fieri facias had issued, and 

partial collection on the judgment had occurred); French v. 

Noel, 63 Va. (22 Gratt.) 454, 456 (1872) (holding that a writ 

of prohibition was "the proper remedy for the plaintiff in 

such a case as this, to prevent and arrest the said 

unauthorized proceedings, and to have them declared null and 

void; and that the said remedy still continues to exist, 

notwithstanding the said judgment of the said [c]ircuit court 

was rendered before the rule was awarded in this case" 

(emphasis added)); Jackson v. Maxwell, 26 Va. (5 Rand.) 636 

(1826) (issuing a writ of prohibition to inferior court 

because that court was without jurisdiction when it granted a 

writ of prohibition to another court, and prohibiting 

enforcement of the inferior court's writ). 

As with writs of mandamus, it appears that our cases are 

at odds regarding when a writ of prohibition should not issue 

because it would undo an act already done. I recognize that 

the cases I cited in the prior paragraph preceded our decision 

in In re: Department of Corrections, but, in the latter case, 

we did not state that we were adopting for the first time in 

the Commonwealth the rule that prohibition does not lie to 

undo an act already done. Clearly, this rule had been part of 

the common law for many years as reflected by the quote in In 

re: Department of Corrections from the 1866 decision in 

71
Hoffman. Furthermore, we did not distinguish our prior cases 

issuing the writ and thereby undoing acts already done. 

There is, however, a basis upon which our cases can be 

harmonized. In those cases where a writ of prohibition was 

issued, the act that either directly or indirectly was undone 

by the writ was an order of an inferior court. As I pointed 

out previously, the Court in In re: Department of Corrections

concluded that the act that would be undone by a writ of 

prohibition was the "accomplished fact" of three defendants' 

release from the penitentiary. 222 Va. at 461, 281 S.E.2d at 

861. The Court did not mention the circuit court's three 

orders, already entered, as the act that would be undone. 

The distinction I draw is substantiated by the rationale 

used in In re: Department of Corrections: " 'If the thing be 

already done, it is manifest the writ of prohibition cannot 

undo it, for that would require an affirmative act.' " 222 

Va. at 461, 281 S.E.2d at 861 (emphasis added) (quoting 

Hoffman 71 U.S. (4 Wall.) at 162). Obviously, in In re: 

Department of Corrections, it would have required an 

"affirmative act" to return those three defendants to 

confinement in the penitentiary. Here, however, the 

Commonwealth requests in its petition for a writ of 

prohibition that the Circuit Court be prohibited from 

enforcing its order reducing Atkins' sentence to life 

72
imprisonment and from reducing Atkins' death sentence in the 

absence of a jury finding that he is mentally retarded. That 

relief does not require anything to be undone by an 

"affirmative act" and is consistent with the type of relief we 

have given when issuing a writ of prohibition. See, e.g., 

Charlottesville Newspapers, 215 Va. at 118, 206 S.E.2d at 268 

(issuing writ of prohibition to prevent enforcement of circuit 

court's order); Flanary, 197 Va. at 417, 90 S.E. at 471 

(same).

Finally, as I previously explained, the Circuit Court's 

order setting aside Atkins' sentence of death and sentencing 

him to life imprisonment is a nullity and without force and 

effect. As such, the order, void from the outset, is treated 

as if it had never been entered in the first instance. See

Berry v. F&S Fin. Mktg., 271 Va. 329, 333, 626 S.E.2d 821, 823 

(2006). It is anomalous, to say the least, that a writ of 

prohibition under these circumstances would be undoing an act 

that was, in effect, never done in the first place. 

IV. CONCLUSION 

In order to prevent a failure of justice, I would grant 

both a writ of mandamus and a writ of prohibition to compel 

the Circuit Court of York County to conduct the mandated 

hearing to determine whether Atkins is mentally retarded and 

to prohibit the Circuit Court from enforcing its order setting 

73
aside Atkins' sentence of death and from taking any other 

action in Atkins' case other than conducting the mental 

retardation hearing and entering such orders as are relevant 

and necessary to that proceeding. The Commonwealth has no 

other adequate remedy at law that would provide the type of 

complete relief necessitated by the peculiar facts of this 

case. Justice and the rule of law demand that there be a 

remedy for the Circuit Court's failure to follow the mandates 

of this Court.16 For these reasons, I respectfully dissent. 

 16 As I have already pointed out, Atkins' remedy for the 

Commonwealth's alleged Brady violations is a petition for a 

writ of habeas corpus. See supra note 9. 

74