This issue focuses on the AEDPA and the standards of review announced by the Eleventh Circuit in Neelley v Nagle, making now three circuits that have rejected the standards suggested by Larry Yackle, A Primer on the New Habeas Corpus Statute, 44 Buff. L. Rev. 381 (1996) and chosing instead a very narrow rule of federal review. This week's "Did you miss" section covers, folowing up on the international law angles of the last few weeks, offers one example of litigating with international treaties.

This Week's Focus

Of recent cases few are of more import or more indicative of these times thenNeelley v Nagle. The case is a perfect example of modern capital jurisprudence. A jury recommend 10-2 for life, the judge overrode, even though the evidence at trial made it clear she was the less culpable of the co-defendants. The state appellate postconviction court initially granted further appellate and then dismissed as improvidently granted, but was held up just long enough for the AEDPA to pass. The Eleventh Circuit holds that despite the AEDPA's emphasis on the importance of state court adjudications, the AEDPA is applicable where state-postconviction completed prior to enactment & that in non-opt in states the AEDPA still applies to capital cases . Claims of interest & Brady violations held not to have been unreasonably adjudicated under Alabama las but in so reaching the panel narrowly draws it interpretation of the AEDPA. Of greater import, however, is the issue of standards of adjudication under the AEDPA

In adjudicating the "clearly established" under the AEDPA a "court evaluating a habeas petition under §2254(d) should 'survey the legal landscape' at the time the state court adjudicated the petitioner's claim to determine the applicable Supreme Court authority; the law is 'clearly established' if Supreme Court precedent would have compelled a particular result ," but, noting in footnote 2, "the language of §2254 would seem to indicate that the law must be clearly established at the time the state court makes the adjudication under review." The standard would seemingly suggest that on some issues at least the case law retroactivity would be state court post-conviction relief, not direct appellate as suggested by Teague.

The "contrary to" and "unreasonable application of" clause are held to presuppose the correct adjudication by the state courts but would allow federal courts to overturn a conviction only where a set of facts that is essentially the same has previously adjudicated and the state court reaches an opposite conclusion OR a state court uses the wrong level of adjudication. This differential standard of review applies to both question of law and mixed questions of law & fact as "[b]y its very language, 'unreasonable application' refers to mixed questions of law and fact, when a state court has 'unreasonably' applied clear Supreme Court precedent to the facts of a given case."

Fn5 notes "[t]he Fifth and Seventh Circuits have considered the meaning of the statutory language and likewise have concluded that the two clauses give standards for review of questions of law ("contrary to") and mixed questions of law and fact ("unreasonable application of"). See Drinkard v. Johnson, 97 F.3d 751, 767 (5th Cir. 1996); Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996), reversed on other grounds, ___ U.S. ___, 117 S. C`t. 2059 (1997). But see Larry Yackle, A Primer on the New Habeas Corpus Statute, 44 Buff. L. Rev. 381, 442 n.192 (1996) (disagreeing with this interpretation)."

CAPITAL CASES REVIEWED

People v. Hill (available inWord or PDF only) California Supreme Court unanimously affirms in very strong language that prosecutorial misconduct, even in light of strong evidence in this case, rendered the trial unfair. "The most disturbing aspect of this case was the outrageous and pervasive misconduct on the part of the state’s representative at trial: the public prosecutor. As we explain, although we might find any individual instance of prosecutorial misconduct or other error harmless standing alone, we cannot ignore the combined prejudicial effect these many missteps had on the overall fairness of the trial. Finding the cumulative prejudice flowing from the combination of prosecutorial misconduct and other errors rendered defendant’s trial fundamentally unfair, we reverse the judgment in all respects."

Huffington v. Nuth Fourth Circuit, on a former capital case, denies relief on claims of ineffective assistance of counsel (failure to investigate, failure to call a witness & adequately challenge state's evidence, most notably), as well as a grab bag of other minor issues.

In re Buenoano Eleventh Circuit holds "even if there is some constitutional error (which is by no means clear) connected with the new evidence relating to the stipulation . . . Buenoano clearly has failed to meet her § 2244(b)(2)(B)(ii) burden of showing that but for that error "no reasonable factfinder would have found [her] guilty of the underlying offense. . . . claim concerning one of the jurors at her trial failing to disclose that he had been convicted of involuntary manslaughter is not based upon a new rule of constitutional law that the Supreme Court has made retroactively applicable to her case, so the § 2244(b)(2)(A) exception to the bar against second habeas petitions does not apply."

Neelley v Nagle Eleventh Circuit denies habeas in an Alabama Death case (judge override to death). (A) AEDPA held applicable where state-postconviction completed prior to enactment; (B) AEDPA in non-opt in states applicable to capital cases (C) examination of terms of the AEDPA including "Clearly established" & "Contrary To" and "Unreasonable Application Of", (D) claims of interest & Brady violations held not to have been unreasonably adjudicated under Alabama law. Fn5 notes "[t]he Fifth and Seventh Circuits have considered the meaning of the statutory language and likewise have concluded that the two clauses give standards for review of questions of law ("contrary to") and mixed questions of law and fact ("unreasonable application of"). "

Pitsonbarger v Gramley Seventh Circuit on this capital remand from the US Supreme Court examines whether the results of its AEDPA analysis would be different then pre-AEDPA analysis. Concluding that under either statute petitioner would lose, (most notably ineffective assistance of counsel) the court denies habeas

Smith v Stewart Ninth Circuit strikes down a death sentence on the grounds that counsel had no reason not to investigate potential mitigation evidence & therefore the decision could not have been rational tactical decision.

Supreme Court Proceedings

United States v. Scheffer: Ban on the use of lie-detector test results as evidence in criminal trials does not violate a defendant's Sixth Amendment rights, the U.S. Supreme Court, however, five Justices suggested that such a ban may at times violate the Sixth Amendment. "There is simply no consensus that polygraph evidence is reliable," Justice Clarence Thomas wrote for an 8-1 court. He said the military's ban is a valid means of "advancing the legitimate interest in barring unreliable evidence." Four of the majority's members, led by Justice Kennedy (with Justices O'Connor, Ginsburg and Breyer), suggested "doubt . . . that the rule of per se exclusion is wise, and some later case might present a more compelling case for introduction of the testimony than this one does." Justice John Paul Stevens wrote a dissenting opinion arguing the Sixth Amendment may indeed by violated by the exclusion of polygraph evidence.

Habeas --AEDPA Analysis

Nichols v. Bowersox Eighth Circuit holds for the purposes of the time limitations under § 2244 of the AEDPA, a petition is considered filed when it is deposited in the prison mail system.

Bazemore v United States Eleventh Circuit in a § 2255 proceeding affirms denial of habeas on the ground that Bailey v. US is not as broad as to prevent liability under traditional aid & abet law.

Lopez v. Douglas Tenth Circuit holds that a Fed R. Civ. P. 60(b)(6) in a § 2254 proceedings should properly be treated as a successive petition, and petitioner does not meet the requirements of § 2244 citing Burris v. Parke, 130 F.3d 782 (7th Cir. 1997), the court construed petitioner's Rule 60(b) motion requesting reconsideration of the district court's denial of habeas relief in light of Cooper v. Oklahoma as a second habeas petition under the AEDPA. The court then construed petitioner's notice of appeal and appellate brief as "an implied application under 28 U.S.C. §2244(b)(3)(A) for leave to file a second habeas petition in the district court," which the court denied.

Stantini v. United States Second Circuit holds on an application to file a successive habeas petition was unnecessary as the pre-trial § 2241 "habeas petition" was not a motion filed under § 2255 and could not therefore be counted as the "one bite at the habeas apple" that each incarcerated prisoner is entitled to under the AEDPA.

Ineffective Assistance of Counsel

Torres v. United States Second Circuit affirms on collateral review question arising from a bombing campaign in NYC relating to Puerto Rican national independence, examines the constitutional issues relating to her refusal to take part in manner of her trial

Jury Instructions

Robertson v. Hanks Seventh Circuit, while noting a wide split in the circuits, holds that save a fundamental miscarriage of justice, there is no right to a jury instruction on lesser included offenses in a non-capital case, amongst numerous other claims.

Jury Voir Dire

Jackson v Shanks Tenth Circuit denies non-capital habeas claims most notably of: "(1) the death qualification of the jury pool prior to the selection of a panel for the guilt phase violated due process;. . . (4) Mr. Jackson's trial and appellate counsel rendered ineffective assistance; . . .; and (9) Mr. Jackson's convictions for felony murder and the underlying offense of armed robbery violated the double jeopardy clause"

Police Misconduct/Prisoner Rights Cases

Curd v. City of Judsonia Eighth Circuit holds that defendant's' judgment in unreasonable force case be affirmed as seizing plaintiff's arm during booking procedure was not objectively unreasonable; warrantless search of her purse was constitutional.

Dykstra v. United States Prison officials were exercising discretion when they decided not to place plaintiff in protective custody and were entitled to immunity on Federal Tort Act Claim.

Jackson v. Everett Eighth Circuit holds that prison guard was entitled to qualified immunity on claims of failing to protect a prisoner in his charge.

Curd v. Bowersox Eighth Circuit affirms summary judgment grant for "alleged excessive force in effecting her arrest, unreasonable search and seizure of fingerprint evidence during the booking process, and unreasonable search of her purse at the station house following her arrest.

Wilson v. Layne Fourth Circuit en banc holds that police were entitled to immunity when they invited media along on a warrant even though they did so for no legitimate law enforcement purpose.

Sheth v. Webster Eleventh Circuit examines qualified immunity in the context of false arrest and mixed Alabama state law and federal claims.

Berry v Brown, et al., Seventh Circuit holds jury instructions were not improper in a case which examines the racial overtones of police conduct in Porter, Indiana

Li v. CanarozziSecond Circuit upholds jury verdict in Bivens suit assault claims arising out of pretrial detention.

Hilt v. Sciarrotta Second Circuit holds that State probation officers are entitled to absolute immunity in connection with preparing and furnishing pre sentence reports.

Flore v. Satz Eleventh Circuit holds that because no clearly identified federal right was compromised claims to unlawful acts under 4th and 14th amendments are dismissed.

Sylvester v. Hanks Seventh Circuit holds no error in prison disciplinary hearing where "reasons for failing to ensure that two inmate witnesses [ ] requested to furnish testimony" were given. "A prisoner is entitled to some kind of hearing, but an opportunity to present his own testimony, documentary evidence, and the testimony of willing witnesses is constitutionally sufficient for interests of this kind (if, to repeat, any process at all is due)."

Peckham v. Wisconsin DOC Seventh Circuit holds that female prisoner had no Fourth Amendment right to be free from strip searches.

Brown v. Toombs Unless the record demonstrates that the requirements of the PLRA have been satisfied, an appeal should be dismissed without prejudice for failing to satisfy the exhaustion of available state remedies

Did you miss?

In keeping with the examination of International law and the death penalty, this week's did you miss covers one argument put forward concerning the International Covenant on Civil and Political Rights.

Article I, section 10 of the International Covenant on Civil and Political Rights commands that even persons condemned to death maintain "inherent dignity" that a state can not, to stay within the confines of international norms, break without violating basic human rights guaranteed to all citizens of any nation that has acceded to the treaty. The United States has acceded to the treaty. During the process of ratification of the treaty the United States Senate made numerous reservations. No reservation was made to article I, section 10. The United States Senate did declare, however, that the provisions of the Covenant are not "self-executing." An examination of the language of the Senate resolution indicates that while reserving rights through numerous portions of the treaty did not reserve to article I, section 10 it chose not to so reserve in regards to section 10. At the time of ratification international norms for the adjudication of human right treaties stressed that reservations to these type accords were to be strictly constructed for the purposes of adjudication. The Senate chose not to make a reservation to section 10. The United States Senate rather declared that the prescriptive provisions of the Covenant (Articles 1 to 27) are not "self-executing" absent specific "implementing legislation," are not binding as it is neither an Act of Congress nor a reservation to the Covenant. United States v. Percheman, 32 U.S. 51 (1833); People of Saipan v. Department of the Interior, 502 F.2d 90 (9th Cir. 1974); see also John Quigley, CRIMINAL LAW AND HUMAN RIGHTS: IMPLICATIONS OF THE UNITED STATES RATIFICATION OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 6 Harv. Hum. Rts. J. 59 (1993). In Perchman the Court recognized that even though the United States Senate may make reservations that are binding against parties attempting to enforce certain provisions of the treaties, declarations have no effect as they are not contemplated under the Senate's ratification authority found in Article I. Perchman, 32 U.S. at . "Article 2 of the Covenant demands that the United States crate a system for enforcement; the Senate's declaration . . . does not mitigate this obligation. Because the United States has not created an enforcement mechanism . . . it necessarily relies upon the judiciary to meet its obligation." Quigley, supra, at 71; see also, Covenant art. 2(3)(b) (by acceding to the treaty the United States agreed top provide remedies enforceable "by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.").

Although no court on this continent has interpreted the terms "inherent dignity" vis-a-vis the International Covenant on Political and Civil Rights, there is a large body of international law interpreting these terms. Both the Constitutional Court of South Africa [State v. T Makwanyane & M' Mchunu, CCT /3/94 [SA] (6 June 1995).] and the Hungarian Supreme Court[Decision No 23/1990, (X.31.) AB, George Feher translation.] have concluded that the dignity inherent in all persons bans the application of the death penalty in all cases, with the latter court concluding:

It is the untouchability and equality contained in the right to human dignity that results in man's right to life being a specific right to human life (over and above animals' and artificial subjects' right to being); on the other hand, dignity as a funda- mental right does not have meaning for the individual if he or she is dead. ... Human dignity is a naturally accompanying quality of human life.'[Id.]

The International Covenant on Civil and Political Rights must be read in concert with other international treaties to give effect to its meaning, as such electrocution is incompatible with international obligations set forth in Articles I, II, XI, XVIII, XXV and XXVI of the American Declaration of the Rights and Duties of Man, adopted at the Ninth International Conference of American States in 1948, as informed by Articles 1(1), 7(6), 8(1), 24 and 25 of the American Convention on Human Rights (entered into force, June 1978); Articles 1, 2, 5, 7, 8 & 10 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on December 10, 1948; and, Article II of the Convention on the Prevention and Punishment of the Crime of Gencide, adopted by the United Nations General Assembly on 9 December, 1948 (hereinafter the Genocide Convention.).

Assuming, arguendo, that the Covenant is not self-executing, federal courts must examine as a manner for determining societal norms for purposes of Eighth Amendment jurisprudence. See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 831 n.34 (1989) (International Covenant on Civil and Political Rights, among other international agreements, persuasive, even though United States was a mere signatory nation.).

Other perspectives

Law Journal Extra, a must add to anyone's list of must sites, had this to say on several recent criminal law cases:

Lemmon v. People THE "GREAT WEIGHT of the evidence" standard does not permit the trial judge to act as a 13th juror, the Michigan Supreme Court ruled . . . . "A trial judge does not sit as the thirteenth juror in ruling on motions for a new trial and may grant a new trial only if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand." The court nevertheless affirmed because the trial court's decision to grant a new trial was not an abuse of discretion.

In re 1994 Chevrolet Cavalier STATUTORY IN REM forfeiture constitutes neither punishment nor a sanction for the same offense for purposes of double jeopardy, the Supreme Court of New Hampshireruled March 26. In re 1994 Chevrolet Cavalier, 96-460. . . .

Smith v. United States THE STANDARD JURY instruction on reasonable doubt should be modified, the District of Columbia Court of Appeals ruled March 26. Smith v. U.S., 94-CF-569. . . . The court adopted the following instruction: "Reasonable doubt . . .is a doubt based upon reason - -a doubt for which you have a reason based upon the evidence or lack of evidence in the case. If, after careful, honest, and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant's guilt, then you have a reasonable doubt...."

Brown v. Toombs UNLESS THE RECORD demonstrates that the requirements of the Prison Litigation Reform Act of 1995, or PLRA, 42 U.S.C. 1997, have been satisfied, an appeal should be dismissed without prejudice for failing to satisfy the exhaustion of available state remedies, the 6th U.S. Circuit Court of Appeals ruled March 27. Brown v. Toombs, 97-1333. Vacating and remanding in a per curiam opinion, the appeals panel instructed the district court to dismiss the case without prejudice for failure to exhaust available administrative remedies, as required by the PLRA. The PLRA requires that a plaintiff inmate exhaust all available state administrative remedies before a federal court may entertain and decide the prisoner's 42 U.S.C. 1983 action. In this case, the prisoner sued on a number of grounds, including denial of access to the courts and interference with legal mail. . . . Federal trial courts [ ] should enforce the exhaustion requirement sua sponte if it is not raised by the defendant.

Iowa v. Breur A DEFENDANT HAD a legitimate expectation of privacy in the area leading from the outer door of his apartment building to his upstairs apartment door, the Supreme Court of Iowa ruled March 25. State v. Breuer . . . . The court noted that the hallway was used only by the defendant and, therefore, could not be considered a "common area." Chief Justice A.A. McGiverin held, however, that although Mr. Breuer had a legitimate expectation of privacy in the hallway, the police officer's conduct in opening the outer door and climbing the stairs to his apartment, was not an unreasonable invasion of that expectation. Andrew M. Breuer was convicted of possession of a controlled substance. . . . . .

-- Karl R. Keys, Esq.

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