I agree with the majority's conclusion that, pursuant to the provisions of Code § 8.01-654.2, an individual under a sentence of death that became final before April 29, 2003, who uses a habeas corpus petition as the vehicle to raise a claim of mental retardation is entitled to have that claim adjudicated by a jury, provided the claim is non-frivolous and the individual was originally tried by a jury. However, I reiterate my prior conclusion that Burns failed to present to this Court a non-frivolous claim of mental retardation. See Code § 8.01-654.2. Thus, in my view, Burns is not entitled to have the claim remanded to the Circuit Court of Shenandoah County. For that reason, I respectfully concur in part and dissent in part.
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