This is arguably the most packed edition to date, eight capital cases and three criminal decisions from the Supreme Court (including two habeas decisions of note). In Mata v. Johnson the Fifth Circuit remands on Mata's earlier competency to abandon collateral review of his capital murder conviction and sentence. The Sixth Circuit finds numerous potentially meritorious issues procedurally defaulted in Scott v. Mitchell. The Eleventh Circuit denies relief in Holladay v. Haley on issues chiefly arising from the putative denial of effective assistance of counsel in the penalty phase. The Eleventh Circuit, likewise, in High v. Head, holds counsel should have included claims relating to a "newly discovered" film in an early petition. The Florida Supreme Court grants relief Randall v. Florida while examining what differentiates first degree from second degree murder. Two capital cass out of Texas asserting violations of the Vienna convention, Flores. v Johnson (5th Cir) and Rocha v. Texas (Tex Crim App), reach the same conclusions, suppression of a confession is not an appropriate remedy for the violation of that treaty. Finally, the testimony of Dr. Death , Dr. James Grigson, and what has been called "junk science" is at issue in the Fifth Circuit's opinion in Hill v. Johnson.

Three Supreme Court decisions are also covered. In Slack v. McDaniel the Court holds that a habeas petition dismissed for exhaustion and later returned to federal court is not "abusive " for purposes of the AEDPA's § 2253. In Edwards v. Carpenter the Court holds that a petitioner can procedurally default the "cause" portion of the "cause and prejudice" requirements which would be required to reach the merits of a "procedurally defaulted" claim. In a similarly technical opinion, the Court holds that the groping of luggage by police without cause in a public space violates the Fourth Amendment in Bond v. United States. With almost all of the major sections of the AEDPA under review this Term now resolved by the Court, commentators agree, things could have been much worse than the new standards.

Due to positive feedback, where briefs are readily accessible for cases covered in a given week will have links to those briefs (at this point only United States Supreme Court and some Florida cases only courts that have web accessible briefs). Similarly, certain Supreme Court decisions (particularly those that are capital cases or habeas corpus actions) will feature some brief analysis of the case. In order to balance out the load, section 1983 cases will be strictly limited to prisoner's rights cases. Coverage from here forward will also cover major cases from around the country, this week from the Texas Court of Criminal Appeals and Florida Supreme Court.

Due to the length of this week's edition, the "In Depth" section will not run this week.

In celebration of the Third Anniversary of this web presence, on May 1 a brief bank containing all of this year's Supreme Court docket, various boilerplate motions, and several appellate briefs from both federal and Florida litigation will be made available, as well as an easy tool to help you participate in this site and get a little something back for yourself.

Supreme Court

Slack v. McDaniel Under the AEDPA "[a] habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition."

1. Where a habeas petitioner seeks to initiate an appeal of the dismissal of his petition after April 24, 1996 (AEDPA’s effective date), the right to appeal is governed by the requirements now found at §2253(c)–which provides, inter alia, that such an appeal may not be taken unless a circuit Justice or judge issues a certificate of appealability (COA), §2253(c)(1), and that the COA may issue only if the applicant has made a substantial showing of the denial of a constitutional right, §2253(c)(2)–even though the habeas petition was filed in the district court before AEDPA’s effective date. Slack argues incorrectly that the pre-AEDPA version of the statute, not §2253(c), controls his case because, in Lindh v. Murphy, 521 U.S. 320, 327, this Court held that AEDPA’s §2254 amendments governing entitlement to district court habeas relief applied to cases filed after AEDPA’s effective date. In implementing Lindh, it must be recognized that §2554 is directed to district court proceedings while §2253 is directed to appellate proceedings. Just as §2254 applies to cases filed in the trial court post-AEDPA, §2253 applies to appellate proceedings initiated post-AEDPA. Although Lindh requires a court of appeals to apply pre-AEDPA law in reviewing the trial court’s ruling in cases commenced there pre-AEDPA, post-AEDPA law governs the right to appeal in cases such as the present. While an appeal is a continuation of the litigation started in the trial court, it is a distinct step. E.g., Hohn v. United States, 524 U.S. 236, 241. Under AEDPA, an appellate case is commenced when the application for a COA is filed. Ibid. When Congress instructs that application of a statute is triggered by the commencement of a case, the relevant case for a statute directed to appeals is the one initiated in the appellate court. Because Slack sought appellate review of the dismissal of his habeas petition two years after AEDPA’s effective date, §2253(c) governs here, and Slack must apply for a COA. The Ninth Circuit should have treated his notice of appeal as such an application. Pp. 4—6.

2. When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Pp. 6—9.

(a) The Court rejects the State’s contentions that, because §2253(c) provides that a COA may issue upon the “substantial showing of the denial of a constitutional right,” only constitutional rulings may be appealed, and no appeal can be taken if the district court relies on procedural grounds to dismiss the petition. In setting forth the preconditions for issuance of a COA under §2253(c), Congress expressed no intention to allow trial court procedural error to bar vindication of substantial constitutional rights on appeal. This conclusion follows from AEDPA’s present provisions, which incorporate earlier habeas corpus principles. Except for substituting the word “constitutional” for the word “federal,” the present §2253 is a codification of the CPC standard announced in Barefoot v. Estelle, 463 U.S. 880, 894. See Williams v. Taylor, ante, at ___. Under Barefoot, a substantial showing of the denial of a right includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “ ‘adequate to deserve encouragement to proceed further.’ ” 463 U.S., at 893, and n. 4. Pp. 6—8.

(b) Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the district court’s procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal. Each component is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. Resolution of procedural issues first is allowed and encouraged by the rule that this Court will not pass upon a constitutional question if there is also present some other ground upon which the case may be disposed of. Ashwander v. TVA, 297 U.S. 288, 347. Here, Slack did not attempt to make a substantial showing of the denial of a constitutional right, instead arguing only that the District Court’s procedural rulings were wrong. This Court does not attempt to determine whether Slack could make the required showing of constitutional error, for the issue was neither briefed nor presented below because of the view that the CPC, rather than COA, standards applied. It will be necessary to consider the matter upon any remand for further proceedings. The Court does, however, address the second component of the §2253(c) inquiry, whether jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect. Pp. 8—9.

3. A habeas petition which is filed after an initial petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a “second or successive” petition as that term is understood in the habeas corpus context. Pp. 9—13.

(a) The District Court erred in concluding to the contrary. Because the question whether Slack’s pre-AEDPA, 1995 petition was second or successive implicates his right to relief in the trial court, pre-AEDPA law governs. See Lindh v. Murphy, supra. Whether the dismissal was appropriate is controlled by Rule 9(b) of the Rules Governing §2254, which incorporates the Court’s prior decisions on the subject, McCleskey v. Zant, 499 U.S. 467, 487, and states: “A second or successive petition [alleging new and different grounds] may be dismissed if … the judge finds that the failure … to assert those grounds in a prior petition constituted an abuse of the writ.” The “second or successive petition” phrase is a term of art given substance in, e.g., Rose v. Lundy, 455 U.S., at 510, which held that a district court must dismiss habeas petitions containing both exhausted and unexhausted claims, but contemplated that the prisoner could return to federal court after the requisite exhaustion, id., at 520—521. Thus, a petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as any other first petition and is not a second or successive petition. Neither Rose v. Lundy nor Martinez-Villareal supports the State’s contention that the prisoner, upon his return to federal court, should be restricted to the claims made in his initial petition. It is instead more appropriate to treat the initial mixed petition as though it had not been filed, subject to whatever conditions the court attaches to the dismissal. Accordingly, Slack’s 1995 petition should not have been dismissed on the grounds that it was second or successive. To the extent that the Court’s ruling might allow prisoners repeatedly to return to state court and thereby inject undue delay into the collateral review process, the problem can be countered under the States’ power to impose proper procedural bars and the federal courts’ broad powers to prevent duplicative or unnecessary litigation. Pp. 9—13.

(b) Thus, Slack has demonstrated that reasonable jurists could conclude that the District Court’s abuse of the writ holding was wrong. Whether Slack is otherwise entitled to the issuance of a COA is a question to be resolved first upon remand. P. 13.

Reversed and remanded.

Kennedy, J., delivered the opinion of the Court, Part I of which was unanimous, Part II of which was joined by Rehnquist, C. J., and O’Connor, Scalia, Thomas, and Ginsburg, JJ., and Parts III and IV of which were joined by Rehnquist, C. J., and Stevens, O’Connor, Souter, Ginsburg, and Breyer, JJ. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Souter and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined.

Petitioner [ PDF]

Respondents [ PDF]

Petitioner - Reply [ PDF]

Respondents - Supplemental [ PDF]

Petitioner - Supplemental [ PDF]

Respondents - Supplemental - Reply [ PDF]

Petitioner - Supplemental - Reply [ PDF]

Amicus: Rutherford Institute [ PDF]

Amicus: National Association of Criminal Defense Lawyers et al. [ PDF]

Amicus: United States [ PDF]

Amicus: Criminal Justice Foundation [ PDF]

Amicus: State of California [ PDF]

Edwards v. Carpenter Relying heavily on Coleman v. Thompson, 501 U.S. 722, 730 (1991), the Court holds that a habeas petitioner who procedurally defaults a claim can not meet the requirements for showing "cause and prejudice" by using as cause an ineffective assistance of counsel claim that was itself procedurally defaulted (i.e., the claim of ineffective assistance of counsel when exhausted in the state court system did not meet the state filing requirements by being filed out of time).

Petitioner contends that the Sixth Circuit erred in failing to recognize that a procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the “cause and prejudice” standard with respect to the ineffective-assistance claim itself. We agree.

The procedural default doctrine and its attendant “cause and prejudice” standard are “grounded in concerns of comity and federalism,” Coleman v. Thompson, 501 U.S. 722, 730 (1991), and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack, Murray v. Carrier, 477 U.S. 478, 490—492 (1986). “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S., at 732. We therefore require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim. Id., at 750. The one exception to that rule, not at issue here, is the circumstance in which the habeas petitioner can demonstrate a sufficient probability that our failure to review his federal claim will result in a fundamental miscarriage of justice. Ibid.

Although we have not identified with precision exactly what constitutes “cause” to excuse a procedural default, we have acknowledged that in certain circumstances counsel’s ineffectiveness in failing properly to preserve the claim for review in state court will suffice. Carrier, 477 U.S., at 488—489. Not just any deficiency in counsel’s performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution. Ibid. In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim. And we held in Carrier that the principles of comity and federalism that underlie our longstanding exhaustion doctrine–then as now codified in the federal habeas statute, see 28 U.S.C. § 2254(b), (c)–require that constitutional claim, like others, to be first raised in state court. “[A] claim of ineffective assistance,” we said, generally must “be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.” Carrier, supra, at 489.

The question raised by the present case is whether Carrier’s exhaustion requirement for claims of ineffective assistance asserted as cause is uniquely immune from the procedural-default rule that accompanies the exhaustion requirement in all other contexts–whether, in other words, it suffices that the ineffective-assistance claim was “presented” to the state courts, even though it was not presented in the manner that state law requires. That is not a hard question. An affirmative answer would render Carrier’s exhaustion requirement illusory.3

We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: “In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court… . The independent and adequate state ground doctrine ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases.” Coleman, supra, at 732. We again considered the interplay between exhaustion and procedural default last Term in O’Sullivan v. Boerckel, 526 U.S. 838 (1999), concluding that the latter doctrine was necessary to “‘protect the integrity’ of the federal exhaustion rule.” Id., at 848 (quoting id., at 853 (Stevens, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by “‘letting the time run’” so that state remedies were no longer available. Id., at 848. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have “concededly exhausted his state remedies,” it could hardly be said that, as comity and federalism require, the State had been given a “fair ‘opportunity to pass upon [his claims].’” Id., at 854 (Stevens, J., dissenting (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)).

To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim. Indeed, the Sixth Circuit may well conclude on remand that respondent can meet that standard in this case (although we should note that respondent has not argued that he can, preferring instead to argue that he does not have to). Or it may conclude, as did the District Court, that Ohio Rule of Appellate Procedure 26(B) does not constitute an adequate procedural ground to bar federal habeas review of the ineffective-assistance claim. We express no view as to these issues, or on the question whether respondent’s appellate counsel was constitutionally ineffective in not raising the sufficiency-of-the-evidence claim in the first place.

Petitioner [ PDF]

Respondent [ PDF]

Petitioner - Reply [ PDF]

Amicus: States of Texas et al. [ PDF]

Bond v. United States The groping of luggage without cause in a public space by the police violates the Fourth Amendment.

Held: Agent Cantu’s physical manipulation of petitioner’s carry-on bag violated the Fourth Amendment’s proscription against unreasonable searches. A traveler’s personal luggage is clearly an “effect” protected by the Amendment, see United States v. Place, 462 U.S. 696 , 707, and it is undisputed that petitioner possessed a privacy interest in his bag. The Government’s assertion that by exposing his bag to the public, petitioner lost a reasonable expectation that his bag would not be physically manipulated is rejected. California v. Ciraolo, 476 U.S. 207 , and Florida v. Riley, 488 U.S. 445,, are distinguishable, because they involved only visual, as opposed to tactile, observation. Physically invasive inspection is simply more intrusive than purely visual inspection. Under this Court’s Fourth Amendment analysis, a court first asks whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.” Smith v. Maryland, 442 U.S. 735 , 740. Here, petitioner sought to preserve privacy by using an opaque bag and placing it directly above his seat. Second, a court inquires whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.” Ibid. Although a bus passenger clearly expects that other passengers or bus employees may handle his bag, he does not expect that they will feel the bag in an exploratory manner. But this is exactly what the agent did here. Pp. 2—5.

167 F.3d 225, reversed.

Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed a dissenting opinion, in which Scalia, J., joined.

Petitioner [PDF]

Amicus: National Association of Criminal Defense Lawyers, et al. [PDF]

Amicus: Pro Bono Criminal Assistance Project [PDF]

Amicus: National Association of Police Organizations [PDF]

Capital Cases

Scot v. Mitchell (6th Cir)"Before this court, Scott defends the district court's reasoning that the unanimity instruction could have had the impermissible effect of causing one or more jurors to believe that unanimity was required not only as to the net weight of the mitigating factors versus the aggravating factors, but also as to the existence of each mitigating factor. The Warden, on the other hand, maintains that Scott's challenge to this instruction is procedurally barred from habeas review for failure to lodge a contemporaneous objection to the instruction in the trial court, and that, in any case, the instruction had no such effect on the finding of mitigating factors. Scott's cross-appeal further argues that (1) two other penalty-phase instructions, namely those telling the jury to ignore considerations of mercy in reaching its decision and advising that its recommendation of death would not be binding on the court, were unconstitutional; (2) Scott was prejudiced by comments made by the trial judge to the jury venire regarding media coverage of Prince's shooting and Scott's involvement in it; (3) Scott's trial counsel were ineffective in the penalty phase for failing to interview or present witnesses in mitigation and instead pursuing a residual doubt strategy; (4) the cumulative effect of two allegedly erroneous jury instructions violated Scott's due process rights; and (5) Ohio's death penalty is unconstitutional on its face and as applied to Scott for a variety of reasons." Relief denied. On the most persuasive nondefaulted claim:

B. The Trial Judge's Comments to the Jury Venire

We examine this claim de novo, with deference to facts found in state court, for denial of fundamental fairness. It is not procedurally barred.

Scott challenges a remark made by the trial judge which he claims communicated to the jury the court's belief that Scott participated in the crime. During voir dire, the judge explained to the jury that the court knew there was notoriety surrounding the case because he had seen a newspaper article on it. The judge mentioned some details of the crime, then continued, "Not only was Mr. Scott - at least from the newspaper reports that I think I had read - was involved in this, there were three other--. . . ." At that point, the defense objected, and received a sidebar. The Court gave a curative instruction explaining the court's lack of knowledge on the case beyond the article. Scott moved for a mistrial, which the prosecution reluctantly joined. Denying the motion, the Court gave another instruction reiterating its neutrality and the jury's duty to decide based solely on the evidence.

Dissenting from Scott's denial of certiorari, Justices Marshall and Brennan lambasted the Ohio courts for upholding such an "extraordinary error" that "overwhelmed the presumption of innocence." Scott v. Ohio, 480 U.S. at 925. They also pointed out that empaneling another jury would have been easy at the voir dire stage. For this reason and because the prosecutor joined the mistrial motion, the district court found this issue a "close call." Nonetheless, the court found no fundamental unfairness. It viewed the comments as reporting to the jury the media's conclusion, and the fact that even the judge had seen the coverage, in an attempt to determine the jury's ability to be impartial. It concluded by noting that the verdict would likely have been upheld under Supreme Court precedent even if the jury themselves had read the article.

We find no error in the district court's conclusion. The threat of prejudicial comments from the court usually arises in response to evidence presented at trial. In this context, we have said

It is the duty of the trial judge to conduct an orderly trial with the goal of eliciting the truth and attaining justice between the parties. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. The district judge may not assume the role of a witness. He or she may, however, analyze and dissect the evidence, as long as the district judge does not distort or add to it. When commenting on the evidence, the trial judge must take great care to avoid undue prejudice of the jury.

United States v. Blakeney, 942 F.2d 1001, 1013 (6th Cir. 1991) (citations, quotations and alterations omitted). Hence, the judge did not exceed his authority merely by pointing out the existence of the article and discussing its contents as a basis to judge juror impartiality.

Allegations of jury bias must be viewed with skepticism when the challenged influence occurred before the jurors took their oath to be impartial. Holding that pretrial publicity did not bias a juror in Patton v. Yount, 467 U.S. 1025, 1036 (1984), the Court said that the partiality of a juror "is plainly a question of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." Accordingly, the Court held that such a determination by a state court was entitled to a presumption of correctness on habeas review under 28 U.S.C. § 2254(d). This is especially so in light of the two curative instructions the court gave, which we must presume to have been effective unless there is an "overwhelming probability" that they were ignored. Richardson v. Marsh, 481 U.S. 200, 208 (1987).

Scott's scenario of jury bias is not nearly tenable enough to overcome these presumptions. Scott and Justice Marshall cited Quercia v. United States, 289 U.S. 466 (1933), for the proposition that the judge's comments warped the jury's perception beyond all hope of repair. The extremity of that case's facts, however, provide a perfect foil to demonstrate the mildness of the instant case. In Quercia, the trial judge instructed the jury that he believed every word the defendant said to be a lie because the defendant had wiped his hands while on the stand. See id. at 468-69. Here, we have only Scott's inference that the court's facially innocuous statement may have been understood as a "frank, unguarded admission" of the judge's opinion, which would then have a prejudicial effect on a juror's verdict. All we know for certain is that the court communicated the existence of pretrial publicity, which Patton held not to be an indelible influence on a juror's mind. See also United States v. Peters, 754 F.2d 753, 762-63 (7th Cir. 1985) (recounting several studies demonstrating capital jurors' ability to put media reports out of their minds and vote exclusively on the evidence). This alone does not destroy fundamental fairness.

Hill v. Johnson (5th Cir) "Hill seeks a COA from this court on four issues relating to his state trial. Hill alleges that the district attorney failed to reveal implied understandings for leniency between himself and several witnesses, failed to correct false and misleading testimony, and failed to disclose impeachment evidence. He also asserts that his due process and equal protection rights were violated when the Texas Court of Criminal Appeals failed to utilize the "reasonable alternative hypothesis" construct for review of the sufficiency of circumstantial evidence entered against him, in direct contravention of its own decision to apply that construct to cases such as his. In addition, Hill challenges the district court's denial of his motions requesting additional discovery, and the assistance of a forensic expert and of an investigator, and its granting of Respondent's motion for summary judgment."

Hill's second and third grounds for relief deal with the sentencing phase of his trial, and in particular, the testimony of a psychiatric expert, Dr. James Grigson, regarding the probability that Hill would in the future be a danger to society. Before the state habeas court, Hill contended the State withheld the existence and the contents of the "Kinne Report," which purportedly was in the possession of Dr. Grigson and described the conduct of individuals whom he had testified would "with certainty" be future dangers. The Report purportedly indicated that those individuals whose sentences were commuted to life imprisonment were model, or at least well-adapted, prisoners. Hill contended that, had he had been given the Report, he could have used it to impeach Dr. Grigson's testimony regarding his predictions of future dangerousness.

Hill charges the State with both the failure to provide him with the Kinne Report in violation of Brady v. Maryland, 373 U.S. 83 (1963), and failure to correct false and misleading testimony given by Dr. Grigson about the accuracy of his predictions in violation of Napue v. Illinois, 360 U.S. 264 (1959). We have indicated above what Hill must prove in order to establish a Brady violation. In order to show that the State failed to correct false and misleading testimony, Hill must demonstrate that (1) "'the testimony was actually false,'" (2) "'the state knew it was false,'" and (3) "'the testimony was material.'" Pyles, 136 F.3d at 996 (quoting Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996)).

The state habeas court did not conduct an evidentiary hearing on these issues. It found that the State had no knowledge of the Kinne Report at the time of Hill's trial, that the Kinne Report was "nothing more than a list of a certain number of inmates from Dallas County and a report of their conduct while in prison," that the letter did not contain information that made Dr. Grigson's predictions more or less probable, that Dr. Grigson was not an "arm of the prosecution," and that the defense's expert ably impeached Dr. Grigson's testimony. The state court concluded that Hill's claims were not supported by credible evidence in the record, or by evidence submitted to the state habeas court.

The district court concluded that Hill's claims failed because he had not demonstrated that (1) Dr. Grigson's testimony was perjured, (2) the Kinne Report was in possession of Dr. Grigson or the prosecution, and (3) the Kinne Report was unattainable through reasonable diligence. In Hill's discovery motion, he stated he was requesting additional discovery in part to obtain information related to his second and third claims. That information regarded when Dr. Grigson became aware of the contents of the Kinne Report, whether he communicated the contents to members of the district attorney's office, and the nature of the relationship between Dr. Grigson and that office. As we noted above, the district court denied his motion.

Beyond arguing that the state court's findings are not deserving of the statutory presumption of correctness, Hill's challenge to the state court's action focuses on its application of law underlying its finding that Dr. Grigson was not an "arm of the state," and its conclusion that the Kinne Report was not "impeachment" evidence.(4) We begin with an assessment of Hill's contention that the state habeas court's finding that Dr. Grigson was not an "arm of the prosecution" reflected an improper application of law to the facts. Hill relies principally on the Supreme Court's description of Dr. Grigson's role in Estelle v. Smith, 451 U.S. 454, 467 (1981) ("When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent's future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting."), to support his challenge to the state court's finding. Hill interprets the Court's language as suggesting that when Dr. Grigson testifies as to an individual's future dangerousness, he is necessarily an agent of the State. This is not what the Supreme Court held. Moreover, Hill has given us no reason to believe that his case was factually similar to that of the defendant in Smith.(5) We therefore conclude that the Court's language in Smith is not applicable to Hill's case.

With no other basis for challenging the state habeas court's finding that Dr. Grigson was not an arm of the prosecution, Hill cannot meet his burden of making a substantial showing of a denial of a constitutional right. Hill contends that the state court's findings should not be presumed correct because the state court denied him an evidentiary hearing. However, we have frequently noted that the absence of an evidentiary hearing at the state level does not lead to the conclusion that the state court's findings should not be presumed correct. See, e.g., Carter v. Johnson, 131 F.3d 452, 460 n.13 (5th Cir. 1997) ("We have consistently recognized that, to be entitled to the presumption of correctness, a state court need not hold an evidentiary hearing . . . ."), cert. denied, 523 U.S. 1099 (1998). As we recently observed, this court has "repeatedly found that a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues underlying his claims, especially where . . . the trial court and the state habeas court were one and the same." Murphy, 2000 WL 235553, at *5 (citing Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996)).

Hill was given an opportunity during the state habeas proceedings to provide evidence supporting any allegation he may have made that the State (as distinguished from Dr. Grigson) possessed the Kinne Report, or knew of its existence and contents, and to argue that the Report was material, i.e., that in its absence, he did not receive "a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995). The state court found that the State did not have knowledge of the Kinne Report at the time of Hill's trial, and that even without that Report, defense counsel ably impeached Dr. Grigson's testimony.

Hill attempted to gain evidence rebutting these findings through additional discovery. However, his request for additional discovery indicates that he had no evidence supporting knowledge on the part of the State (as distinguished from Dr. Grigson) while before the district court.(6) In a previous case, we concluded that "[m]ere speculative and conclusory allegations that the [State] might have known about [the alleged impeachment material] are not . . . sufficient to entitle [a petitioner] to discovery . . . ." East v. Scott, 55 F.3d 996, 1003 (5th Cir. 1995); see also Murphy, 2000 WL 235553, at *3. We conclude that Hill has not shown that jurists of reason would find debatable the question whether the district court abused its discretion in denying Hill's request for additional discovery. We must therefore decline his request for a COA on his second and third grounds for relief.

Flores. v Johnson (5th Cir) Relief denied on Vienna Convention claim relating to suppression of a confusion, as well as on an ineffective assistance claims.

The United States Senate ratified the Vienna Convention on December 24, 1969. At that time, the provisions of the Convention became binding on the individual states. U.S. Const. arts. VI, cl. 2; art. II, § 2, cl. 2. The Vienna Convention provides:

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his right under this sub-paragraph.

21 U.S.T. 78, Apr. 23, 1963, art. 36(b) (emphasis added).

On his arrest and interrogation, Flores was not advised of his rights under the Convention. It appears to be undisputed that officials were aware of his citizenship. Flores urges that a failure to abide by the terms of the Convention is structural error and hence he need not demonstrate that the violation prejudiced his right to a fair trial; that there is no harmless error analysis for structural defects. Alternatively, Flores urges that the "violation" of the Convention "seriously harmed" him. The argument continues that while in custody, Flores was "compelled to make four tape recorded statements" without an attorney, that had the consulate been informed of his rights, the consulate would have obtained a Spanish speaking attorney for him. The State replies that Flores has lived his life in the United States, was educated in its public schools, and his first language is English. Further, that he did not want assistance.

At the outset we must confront the question of whether the Vienna Convention conferred rights enforceable by individuals. Here Flores points to our decision in Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996). In Faulder we observed that there had been a violation of Faulder's Vienna Convention rights. However, the panel found the omission to be "harmless error," which did not merit reversal:

[T]he district court correctly concluded that Faulder or Faulder's attorney had access to all of the information that could have been obtained by the Canadian government. While we in no way approve of Texas' failure to advise Faulder, the evidence that would have been obtained by the Canadian authorities is merely the same or cumulative of evidence defense counsel had or could have obtained.

We do not read our opinion in Faulder as recognizing a personal right under the Convention. Rather, the panel dispatched the claim with its conclusion that any violation was harmless. Any negative implication inherent in rejecting the claim as harmless lacks sufficient force to support a contention that the panel held that the Convention created rights enforceable by individuals. While we conclude that Faulder has not decided the question, we do not reach its merits because at best Flores's assertion is Teague barred.

The Supreme Court in Breard v. Greene, 118 S. Ct. 1352, 1355 (1998), noted that "[t]he Vienna [C]onvention . . . arguably confers on an individual the right to consular assistance following arrest." Thus, even the Court admits the possibility that the Vienna Convention does not confer such rights, and therefore, such a finding would create a new exclusionary rule, which is prohibited in a collateral habeas attack because of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). See Breard, 118 S. Ct. at 1354-55 (holding that the Vienna Convention must be applied "in conformity with the laws and regulations" of the United States, including the rules forfederal habeas relief).

Holladay v. Haley (11th Cir) "Holladay argues on appeal that his attorneys provided ineffective assistance of counsel with respect to his sentence. In this regard, he charges his former counsel with (a) failing to present in a meaningful way records in their possession at trial, (b) failing to provide those records to the State's evaluating psychiatrists and psychologists, (c) failing to procure independent mental health examinations, and (d) failing to discover prior mental health difficulties. Next, he claims ineffective assistance of counsel with respect to guilt and sentence because (e) his former attorneys elicited prejudicial information on direct examination. Finally, Holladay asserts a substantive claim that his trial was rendered fundamentally unfair by the excessive security in the courtroom and the fact that he appeared in shackles; and he also asserts that his trial and appellate counsel provided ineffective assistance of counsel with respect to this claim." On the first three ineffective assistance of counsel claims:

• Ineffective Assistance of Counsel at Sentencing for Failure to Present Records in a Meaningful Way

Holladay claims that his trial counsel, Kathleen and Howard Warren, did not use the records that they uncovered in a meaningful way at the penalty phase. The Warrens obtained records from the Department of Pensions and Securities from 1957 to 1981 that detailed the Holladay family history. However, Holladay asserts that his counsel did nothing more than present those records to the jury and even advised the jury not to read through all of the records. Furthermore, he maintains that they were entered into evidence outside of the jury's presence. Finally, Holladay states that the Warrens did not draw attention to his mental retardation.

Citing Stephens v. Kemp, 846 F.2d 642 (11th Cir. 1992), and Turpin v. Lipham, 270 Ga. 208, 510 S.E.2d 3962 (1998), Holladay maintains that the Warrens were as deficient in their representation as counsel were in those cases. In Stephens, this Court found that an attorney who made no use in the penalty phase of the trial of records of the defendant's mental illness, did not procure an independent expert analysis of the defendant, and did not comment in closing argument upon the records or the defendant's mother's testimony regarding the manifestations of the defendant's mental illness, was not within "the wide range of professionally competent assistance." Stephens, 846 F.2d at 653. In Turpin, the Georgia Supreme Court found counsel to be ineffective in the penalty phase because they introduced 2,500 pages of records from the defendant's stays at various psychiatric institutions and children's homes, without any testimony commenting on the contents, and merely urged the jury to use the records in their deliberations.

The conduct of the counsel in this case was markedly different. Unlike the counsel in Stephens, Mrs. Warren in her closing argument reminded the jury of Holladay's manifold problems, including his family circumstances, his abuse and neglect as a child, and his mental problems. She argued that those problems "contributed to the place that he is in right now." She called two mitigation witnesses who talked about Holladay's childhood, abuse, neglect, illiteracy, and learning difficulties. Holladay's father testified to his neglect, abuse at the hands of foster parents, and enrollment in special education classes.(2) The performance of counsel here was far superior to that in either Stephens or Turpin.

Holladay's attack on the efficacy of Mrs. Warren's use of the records is misplaced. Mrs. Warren discussed the contents of the records that she exhorted the jury to read and stated that the reason for giving them the 142 pages of records was that they provided a chronological record of the traumatic events in Holladay's childhood. Although Holladay is correct that Mrs. Warren stated that she did not expect the jury to read all of the records, the emphasis was clearly upon all. Indeed, a sentence later she urged the jury again to look at the records. Finally, a careful reading of the transcript reveals that the records were entered into the record while the jury was present.

Counsel did present Holladay's mental retardation to the jury. In his testimony, Holladay's father stated that Holladay had been in a special school for slow learners. The records presented to the jurors were replete with references to Holladay's mild retardation and many of these references are in the first few pages. Counsel also mentioned Holladay's retardation in her closing argument at the penalty phase, and discussed how well he can mask it. Even the prosecutor, in his closing, acknowledged that Holladay was slightly mentally retarded. Finally, the court instructed the jury that they may consider Holladay's mental retardation as a mitigating factor.

Our careful review of the transcript of the sentencing phase, including Mrs. Warren's closing argument, persuades us that counsel's performance was not constitutionally deficient with regard to her presentation of the mitigating evidence, including the family history records. Rather, we conclude that Mrs. Warren presented the evidence in a concise and effective way, explaining how "those problems have contributed to the place that he is in right now." [Trial Transcript at 1740].

• Ineffective Assistance of Counsel for Failure to Provide Those Records to the Evaluating Psychiatrists and Psychologist

Next Holladay claims that his trial counsel were ineffective because they did not provide the records to the psychiatrists and psychologist who evaluated him at Taylor Hardin Secure Medical Facility. At that facility, Holladay was evaluated for competency to stand trial by the "lunacy commission." Had counsel provided the records, he maintains, the lunacy commission members would have been compelled to acknowledge the evidence of statutory and nonstatutory mitigation contained within.

Counsel did not unreasonably withhold the records from the commission; she simply did not have the records in question at that time.(3) In her testimony at the Rule 20 hearing, Mrs. Warren stated that she provided the lunacy commission with all of the information that she had at the time of their evaluation: "As far as I know what Taylor Hardin requested I give them[,] I provided them all of the information I had at that time." [Rule 20 Transcript at 719]. Indeed, in her cover letter accompanying the completed lunacy commission's questionnaire, Mrs. Warren stated that at that point she had only had minimal contact with Holladay. In her questionnaire, Mrs. Warren did relay information that she obtained from Holladay's father: that Holladay had a low IQ or was retarded, had trouble in school, and was illiterate. Mrs. Warren's failure to provide records she did not have at the time did not fall outside of the wide range of competency.

Furthermore, Holladay is unable to prove that the provision of these records would have changed the evaluation of the commission in any way. The records later obtained included IQ tests taken when Holladay was a child and notations that he might be retarded. However, the commission tested Holladay and found him to be in the Borderline Intellectual Functioning range. Thus the commission would likely have discounted the earlier tests because the test it administered would be considered more accurate since it was more recent. Additionally, contrary to Holladay's assertions, the commission examined him for more than competency and sanity; the report also discusses his intelligence and rejects the idea that he was retarded. Holladay spent more than a month in residence at Taylor Hardin, giving the mental health experts ample opportunity to complete a thorough evaluation. Holladay has not proved that there is a reasonable probability that the commission would have decided differently and therefore cannot show he was prejudiced by this omission.

• Ineffective Assistance of Counsel at Sentencing for Failure to Procure Independent Mental Health Examinations

Holladay charges that the Warrens were ineffective when they did not seek an independent mental evaluation of him after the examination at Taylor Hardin. Holladay asserts that counsel unreasonably accepted the commission's determination that he did not have any statutory or nonstatutory mitigation despite the evidence contained in the records detailing Holladay's history from 1957 to 1981.

At the Rule 20 hearing, Holladay presented two expert witnesses who testified with respect to his mental retardation. The two witnesses, Dr. Michael Norko, a psychiatrist, and Dr. Brad Fisher, a clinical psychologist, testified that Holladay is mildly mentally retarded. Dr. Norko also testified that Holladay suffered from organic personality syndrome, explosive type. The Rule 20 court credited the testimony of the state's expert witness, Dr. Joe Dixon, over that of Holladay's two experts. The court's decision was based on Holladay's experts' relative inexperience with retardation, and based in part on their inability to explain why they reached drastically different results than the seven other mental health practitioners who had examined him. The court also discounted Dr. Norko's diagnosis because his only source was Holladay's self-reporting and affidavits of friends and family.

Counsel is not necessarily required to seek independent mental evaluations in order to render effective assistance. In Bertolotti v. Dugger, 883 F.2d 1503, 1511 (11th Cir. 1989), we held that counsel is not required to seek an independent evaluation when the defendant does not display strong evidence of mental problems. Additionally, the choice not to seek out such an evaluation is a tactical decision, which "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Whether the tactical decision is reasonable is a question of law.

The Rule 20 court found that Mrs. Warren made a tactical decision not to seek additional expert opinion, after receiving the report from the several mental health experts at Taylor Hardin. Holladay does not challenge the fact that such a tactical decision was made; he argues only that it was not a reasonable decision. Reviewing the decision for reasonableness, we find that counsel was justified in her decision not to seek an additional mental evaluation after she received the report from the lunacy commission. Holladay spent over a month at the Taylor Hardin facility, during which time he was seen by four mental health specialists. During his stay, Holladay's IQ was tested and found to be 71, in the borderline range. The report also stated that his "speech and history of autonomous living suggest that he is a rather streetwise individual and, apart from well documented criminal tendencies, not the kind of person who would require extensive supervision on the basis of intellectual dysfunction." [R2-7-1279]. One of the psychiatrists stated that Holladay was of normal intelligence. [R2-7-1298]. Each of the psychiatrists and the psychologist found Holladay to be lucid about the criminal activity with which he was charged. At the Rule 20 hearing, Mrs. Warren testified that she found Holladay to be "articulate, affable, he is one of the kind of people that seems to want to be friendly towards people." [Rule 20 Transcript at 652]. She found him cooperative and that he could recall dates, times, places, and motivations clearly and without hesitation. Id. The ease of her contacts and Holladay's apparent clarity of thought convinced her that she need not seek further evaluation. Id. at 653.

Given the content of the lunacy commission report and her own contacts with the petitioner, it was reasonable for counsel to rely on the records alone for evidence of mental problems and not seek another evaluation. The report prepared by the four specialists suggested that Holladay was not retarded and thus counsel could have reasonably assumed that the same result would be reached by a fifth specialist. Furthermore, her own impression of Holladay was that he was normal and indeed, as she testified at the Rule 20 hearing, more competent than some of her other clients. It reasonably appeared that the only evidence that she would be able to elicit of retardation would be found in the records. Finally, the determination of the Rule 20 judge that Holladay's mental health experts were not credible lends credence to her decision; it is likely that any experts introduced at trial would likewise have been less credible than those of the state. For the foregoing reasons, we cannot conclude that this tactical decision was unreasonable and thus Holladay cannot satisfy the performance prong of the ineffective assistance of counsel analysis. Moreover, in light of the findings of the Rule 20 court discrediting the opinions of the two experts offered by Holladay at the Rule 20 hearing, we also conclude that Holladay could not satisfy the prejudice prong.

High v. Head (11th Cir) "High asserts claims based on the previously missing film, as well as a claim based on his pre-trial counsel's conflict of interest." "The petitioner conceded at oral argument that he has abandoned the remainder of the claims he raised in the district court." "All of his claims raised on appeal were claims dismissed by the district court under the abuse of the writ doctrine." On the first portion of the abuse of the writ analysis:

In examining whether High has demonstrated cause, it is helpful to distinguish, as the district court did, between a) his claims based upon what he did and did not say during the filmed interview, and b) his claim relating to his demeanor as revealed by the film. We discuss each category in turn.

(a) Claims Based Upon What High Said or Did Not Say--the Audiotape

With respect to this category, the factual basis of those claims would have been fully revealed, in the absence of the missing film itself, by an audiotape of the interview. The trial transcript reveals the existence, at the time of trial, of such an audiotape.(5)

While it is not entirely clear whether High's trial attorney specifically requested a copy of the audiotape after Agent Robert Ingram of the Georgia Bureau of Investigation ("GBI") testified that he had it in his pocket, High does not suggest that his first federal habeas counsel made any attempt whatsoever to obtain the audiotape.

High contends, nevertheless, that he had cause for not earlier raising his claims based upon the filmed interview because the factual basis of the claims was unavailable to him. He further argues that the reason the basis of these claims was unavailable was the State's misleading conduct; he asserts that what happened during the filmed interview was misrepresented under oath by the State's witnesses and argues that nothing in the state's inculpatory descriptions of the interview suggested a basis to investigate, much less plead, a Brady or Giglio violation. By this argument, High seeks to excuse his first federal habeas counsel's failure to attempt to obtain the audiotape of the interview.

We reject High's contention that he has shown cause for not raising these claims in his first federal petition. As noted, the trial transcript clearly reveals the existence of the audiotape of the interview. Moreover, High's first habeas counsel either had actual knowledge of facts, or should have discovered facts, that suggest the potential existence of Brady and Giglio claims--or at the very least, indicate a definite reason to investigate the possibility of such claims. High's trial attorney stated in his affidavit submitted in the second state habeas proceeding that, "Jose High always denied shooting the victims in this case, and always said that he had told the investigators that he did not shoot the victims." This statement is inconsistent with the law enforcement officers' testimony at trial as to what High said during the filmed interview and during the prior statements he made.(6)

If High's first federal habeas counsel did not have actual knowledge of what High said to defense counsel John Ruffin, he certainly could reasonably have discovered this information from Ruffin.(7)

Thus, we find High's argument that his first habeas counsel had no reason to investigate much less plead a Brady or Giglio violation unpersuasive and insufficient to excuse his counsel's failure to seek to obtain the audiotape at the time of his first federal habeas petition.(8) Had counsel sought and obtained the audiotape, he would have had all the facts needed to support High's current claims based on what he did and did not say during the filmed interview.

High also seeks to rely on the prosecution's general representation, before trial, that it had complied with its obligation under Brady, arguing that that representation, combined with the inculpatory prosecution description of the tape, invited defense reliance. High further asserts that Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936 (1999) stands for the proposition that a defendant can rely upon the State's representation that it has revealed and produced all exculpatory evidence. We conclude, however, that Strickler does not control this case. The Supreme Court did find on the particular facts of Strickler that it was reasonable for the petitioner's trial counsel, as well as his collateral counsel, to rely on the presumption that the prosecutor would fully perform his duty under Brady and on the implicit representation that all such materials would be included in the open files tendered to the defense. See id. at --, 119 S.Ct. at 1949-52. We do not read Strickler, however, to indicate that defense reliance on a general government representation of compliance with Brady establishes cause for failing to pursue available exculpatory evidence where collateral counsel had actual knowledge or reasonably could have discovered knowledge clearly suggesting that the prosecution may have misinterpreted that evidence as nonexculpatory. As noted, High's first habeas counsel either knew or could reasonably have discovered that High's statements to his trial attorney concerning what he told the investigators were inconsistent with what the investigators said he told them during the filmed interview. Moreover, expressly disclaiming a holding that would control this case, the Court in Strickler stated:

We do not reach, because it is not raised in this case, the impact of a showing by the State that the defendant was aware of the existence of the documents in question and knew, or could reasonably discover, how to obtain them.

Id. at -- n.33, 119 S.Ct. at 1951 n.33 (emphasis added).

We also reject High's contention that Amadeo v. Zant, 486 U.S. 211, 108 S.Ct. 1771 (1988) controls this case. In Amadeo, the petitioner first raised a constitutional challenge to the composition of his juries on direct appeal to the Georgia Supreme Court, based upon a newly discovered memorandum from the District Attorney Office's of Putnam County evidencing a scheme to intentionally underrepresent black people and women on the master jury lists from which all grand and traverse juries were drawn. See id. at 217-218, 108 S.Ct. at 1774. The state courts refused to hear the claim because it had not been raised earlier, but the federal district court judge found that petitioner had established sufficient cause and prejudice to excuse the procedural default. See id. at 219-220, 108 S.Ct. at 1775. A divided panel of this Court reversed, but the Supreme Court reversed this Court's decision, finding that sufficient evidence in the record supported the district court's factual findings and that this Court should not have set them aside. See id. at 229, 108 S.Ct. at 1780. Unlike this case, however, there is no indication in Amadeo that the petitioner's attorneys had any idea that the D.A.'s memorandum, direct evidence of discrimination, even existed until it was discovered by "mere fortuity"(9) by an attorney working on a different case. Id. at 224, 108 S.Ct. at 1778. High's first habeas counsel knew, or should have known from the face of the record, that an audiotape of the filmed interview existed and was in the State's possession, yet he made no effort to obtain it at the time High filed his first federal habeas petition.

By making absolutely no effort to obtain an item of evidence the existence of which he was aware and which reasonably discoverable evidence suggested might in fact be exculpatory, High did not conduct the "reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition" that McCleskey requires. 499 U.S. at 498, 111 S.Ct. at 1472. Having made no attempt to obtain the audiotape which Agent Ingram testified at trial was in his pocket, High has not shown "some external impediment preventing [him] from constructing" his claims based on what he did and did not say during the filmed interview. Carrier, 477 U.S. at 488, 106 S.Ct. at 2645. Thus, with respect to those claims, we conclude that "by reasonable means [High] could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process . . . ." McCleskey, 499 U.S. at 498, 111 S.Ct. at 1472.

Mata v. Johnson (5th Cir) "We granted Mata a Certificate of Probable Cause to appeal a single issue: whether the district court conducted a constitutionally adequate fact-finding inquiry to make a reliable determination of Mata's competency to abandon collateral review of his capital murder conviction and sentence." Remanded to the district court with instructions to hold a hearing on the matter.

C. Constitutionally adequate procedures

Although we have located no controlling precedent, we find that jurisprudence developed in the context of waiver of due process safeguards and related competency questions in criminal trial proceedings instructive. We start from the proposition that the conviction of a legally incompetent(2) defendant violates constitutional due process. See Pate v. Robinson, 383 U.S. 375, 378 (1966). A habeas petitioner may, on collateral review of his state conviction, obtain relief if he can show that the state procedures were inadequate to ensure that he was competent to stand trial, for example if the trial court failed to conduct a competency hearing. See Carter v. Johnson, 131 F.3d 452, 459 n.10 (5th Cir. 1997)(citing Pate v. Robinson, 383 U.S. 375). A state court must conduct an inquiry into the defendant's mental capacity sua sponte if the evidence raises a bona fide doubt as to competency. See id. In determining whether there is a "bona fide doubt" as to the defendant's competence, the court considers: (1) any history of irrational behavior, (2) the defendant's demeanor at trial, and (3) any prior medical opinion on competency. See Davis v. Alabama, 545 F.2d 460, 464 (5th Cir. 1977). If the trial court received evidence, viewed objectively, that should have raised a reasonable doubt as to competency, yet failed to make further inquiry, the defendant has been denied a fair trial. See Carter, 131 F.3d at 459 n.10.

Assuming, arguendo, that a court has not received evidence raising a bona fide doubt as to competency, Supreme Court jurisprudence nonetheless mandates that courts indulge every reasonable presumption against waiver of fundamental constitutional rights. See Hodges v. Easton, 106 U.S. 408, 412 (1982). Johnson v. Zerbst, 304 U.S. 458 (1938), the classic case delineating the standard for measuring an effective waiver of a constitutional right, requires that a waiver be an "intentional relinquishment or abandonment of a known right." The Supreme Court refined the Johnson standard in Brady v. United States, 397 U.S. 742 (1970), by requiring that valid waivers be not only voluntary but also "knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Id. at 748. The cases draw no distinction between waiver of the right to remain silent during interrogation, the right to confer with counsel, the right to representation by competent counsel at trial, the right to contest accusations of criminality through a plea of not guilty, the right to trial by jury and the right to be present at trial. See United States v. Garcia, 517 F.2d 272, 276 (5th Cir. 1975). From the courts' applications of these constraints to the waiver of a wide range of constitutional protections, we infer that similar constraints are appropriate in the case at bar.

Applying the rationale employed in Pate and Carter to the question of whether a death row inmate is competent to drop his collateral attack on his conviction and sentence, we conclude that a habeas court must conduct an inquiry into the defendant's mental capacity, either sua sponte or in response to a motion by petitioner's counsel, if the evidence raises a bona fide doubt as to his competency. See id. The extent and severity of the petitioner's history of mental health problems which have been brought to the court's attention influence the breadth and depth of the competency inquiry required. In Drope v. Missouri, 420 U.S. 162 (1975), a criminal defendant claimed that he had been deprived of due process of law by the failure of the trial court to order a psychiatric examination to determine his competence to stand trial for forcible rape of his wife, a capital offense. Drope's attorney moved for a continuance of the trial "in order that petitioner might be examined and receive psychiatric treatment." Id. at 164. Treatment had been suggested by a psychiatrist who had examined petitioner at his counsel's request and whose report was attached to the motion. See id. at 165. The trial court denied the continuance. At trial, Drope's wife testified that Drope had tried to choke her the night before the trial commenced. The second morning of trial, Drope attempted suicide by shooting himself in the abdomen. The trial judge denied Drope's counsel's motion for mistrial, finding that Drope had waived his right to be present at his capital trial, because his absence "was due to his own voluntary act in shooting himself." Id. at 902. The Supreme Court reversed, concluding that "when considered together with the information available prior to trial and the testimony of petitioner's wife at trial, the . . . suicide attempt created a sufficient doubt of his competence to stand trial to require further inquiry on the question." Id. at 180. Drope teaches that, in order to adequately protect the petitioner's due process rights, "the correct course was to suspend the trial until [a psychiatric] evaluation could be made." Id.

Following Drope, the Fifth Circuit has held that a suicide attempt, by itself, is not necessarily sufficient to create "reasonable cause" for a competency hearing. State v. Davis, 61 F.3d 291, 304 (5th Cir. 1995). Instead, that evidence must be weighed in conjunction with all other evidence presented with respect to a defendant's mental stability and competence. See id.

The opportunity for face-to-face dialogue between the court and the petitioner and the ability of the court to personally observe the petitioner is likewise important to the equation. The Supreme Court held that Drope's absence from trial after the suicide attempt bore on its analysis, in that "the trial judge and defense counsel were no longer able to observe him in the context of the trial and to gauge from his demeanor whether he was able to cooperate with his attorney and to understand the nature and object of the proceedings against him." Drope, 420 U.S. at 181. The Fifth Circuit has instructed that a district court, faced with a criminal defendant who wishes to waive his right to a conflict-free defense attorney, should "follow a procedure akin to that promulgated in rule 11 [of the Federal Rules of Criminal Procedure] whereby the defendant's voluntariness and knowledge of the consequences of a guilty plea will be manifest on the face of the record." United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975). The trial court was directed to "scrupulously" and "carefully" evaluate the defendant's effort to waive his constitutional rights and to "actively participate in the waiver decision." Id. at 277. "As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation." Id. at 278. The court should seek to elicit a narrative response from the defendant that he has been advised of his rights, that he understands the details and has discussed the matter with his attorney, and that he wishes to waive his constitutional protections. See id.

The district court, of course, retains discretion to determine the best course of action in each particular case. For instance, in some cases an expert report already in the record may be sufficiently current that a new examination is not necessary, or a court may be able to decide the issue on documents without taking live testimony. In any event, the procedures employed must satisfy basic due process concerns. In sum, if the evidence before the district court raises a bona fide issue of petitioner's competency to waive collateral review of a capital conviction and death sentence, the court can afford such petitioner adequate due process by ordering and reviewing a current examination by a qualified medical or mental health expert, allowing the parties to present any other evidence relevant to the question of competency and, on the record and in open court, questioning the petitioner concerning the knowing and voluntary nature of his decision to waive further proceedings.

D. Adequacy of the Procedures Employed in Mata's Case

1. Details of the procedures employed by the district court

We now turn to the issue of whether the district court acted within these due process boundaries in resolving the question of Mata's competency. Mata wrote letters to the court, to his lawyers and to the prosecutor dropping, then later reinstating, his appeals in state court in 1991 and in February and May of 1994. In 1994, the state judge set a competency hearing and appointed Dr. Allen Childs, M.D., a psychiatrist, and Dr. Murphey, a psychologist, to evaluate Mata. After the evaluations were completed, but before the hearing in state court, Mata again changed his mind and decided to continue his appeals, whereupon the state judge canceled the competency hearing. After his state habeas petition was denied in January 1995, Mata continued to vacillate between pursuing post conviction relief in federal court and dropping his appeals. In 1996, the district court initially denied Mata's first federal habeas petition. In 1997, we reversed that decision in part and remanded Mata's Sixth Amendment fair trial claim for an evidentiary hearing. See Mata v. Johnson, 105 F.3d 209 (5th Cir. 1997). As the parties were preparing for the evidentiary hearing on the merits of the remanded claim, Mata wrote a letter to the district court abandoning his collateral attack. On July 10, 1998, Mata's attorney filed a Motion to Declare Petitioner Incompetent or, in the Alternative, to Hold a Competency Hearing. The motion related that Mata had thirty years of documented mental health problems, had made repeated suicide attempts and had engaged in numerous hunger strikes while incarcerated on death row. The motion requested that the district court declare Mata incompetent based on reports of the mental health experts appointed by the state court in 1994 who had concluded that Mata was not competent to drop his appeals, as well as extensive medical records from the Texas Department of Criminal Justice. The motion requested, in the alternative, that the district court hold a hearing to determine Mata's competency. The district court allowed oral argument on the motion, at which the district court characterized Mata's attorney's position as "trendy and trashy psycho-analytical analysis." The district court then entered an order informing Mata that if he did not desire to abandon his habeas action, he must inform the court by July 24, 1998, and had it delivered directly to Mata, who had not been present at the hearing. On July 16, 1998, Mata filed a second letter with the court asking that his habeas action be dismissed. On July 22, 1998, the district court dismissed Mata's petition for writ of habeas corpus without ruling on the competency motion.

Mata's attorneys appealed on his behalf. On December 17, 1998, Mata indicated his desire to reinstate his federal collateral review. On February 3, 1999, we remanded the case to the district court for a determination of Mata's competence on July 16, 1998 and December 17, 1998, requiring the district court "to set forth not just its conclusion but its findings and reasoning in sufficient detail to allow meaningful review by this court." Mata v. Johnson, No. 98-20756 (5th Cir. 1999) (unpublished). On remand, the Respondent filed a motion requesting that the court appoint a disinterested expert to evaluate Mata's competency (1) at the present time, (2) in December 1998, and (3) in July 1998. Although Respondent advised the court that the motion was opposed, Mata's attorneys filed nothing further on the issue. Mata again wrote to the district court on July 25, 1999, urging the court grant the Respondent's motion for a competency exam, but stating that he did not want to continue with his appeals and wished to be executed as soon as possible.

On August 3, 1999, the district court entered findings of fact, without benefit of an expert examination of Mata or any further evidence or hearings. The district court found that Mata was competent on July 16, 1998, based on the 1985 expert reports finding him legally competent to stand trial for capital murder. The district court stated that [s]ince that time, nothing indicates that he has become incompetent. The psychological reports in the record support Mata's competence." The district court made no mention of Dr. Childs's report and conclusion to the contrary. The district court went on to find Mata competent on December 17, 1998, when he asked to reinstate his appeal, and July 25, 1999, when he again wrote the district court abandoning his legal attacks on his sentence.

2. Evidence raising bona fide question of Mata's competence

The record contains evidence that Mata suffers from an organic brain disorder resulting from closed head injuries and has a history of mental health problems both before and after his capital murder trial. Since 1986, physicians at the Texas Department of Criminal Justice have prescribed numerous psychotherapeutic and antidepressant medications to alleviate the symptoms of mental illness.(3) He has made numerous suicide attempts and engaged in several hunger strikes. There is a report from Dr. Allen Childs detailing his findings in 1994 that Mata suffers from delusional disorder with paranoid and erotomanic features and borderline personality organization. Dr. Childs opined that Mata's efforts at suicide as well as his delusions of seeing and talking with his murder victim are genuine. Dr. Childs also wrote a letter in 1998, based on his examination of Mata in 1994, stating that Mata was not competent to drop his appeals. We conclude that all the evidence presented with respect to Mata's mental stability and competence is sufficient to create "reasonable cause" for a competency hearing. See State v. Davis, 61 F.3d 291, 304 (5th Cir. 1995).

3. Current examination by an expert

The district court based his fact finding on the expert examination performed twelve years earlier in conjunction with Mata's original trial. The lapse of time, coupled with extensive evidence of change in Mata's condition, lead us to conclude that the district court did not base its decision on a current examination by an expert.

4. Opportunity for the parties to present other evidence

Except for the attachments to the original motion, no evidence was presented to the court on the issue of Mata's competence. The court never afforded the parties the opportunity to present testimony or documentary evidence. The court's statement that nothing indicates that Mata had become incompetent since his trial in 1985 is meaningless in the absence of a hearing or even a summary judgment-type procedure in which the parties could develop the record. We therefore find that the district court did not afford the parties a meaningful opportunity to present evidence relevant to the question of Mata's competency to discontinue his appeals.

5. District court dialogue with Mata

Mata has not personally appeared before the district court since the question of his competency to drop his appeal arose. The district court received some hand written notes from Mata, but there has been no face-to-face dialogue between the court and the petitioner and no opportunity for the court to personally observe Mata.

6. Proceedings inadequate

Because the evidence submitted by Mata raised a bona fide question that he lacked competency to drop his appeal, and because there is no current evaluation of Mata's competence by a medical expert, no opportunity for the parties to present evidence, and no appearance by Mata in open court, we conclude that the proceedings in this case failed to afford the minimum due process guaranteed by the Constitution.

Randall v. Florida (FL) "The jury returned a verdict of guilty on both counts of first-degree murder and made unanimous recommendations of death for each of the two murders. The trial court agreed with the jury's recommendations and sentenced Randall to death. Randall appeals in this Court, raising five claims. We find Randall's fourth claim concerning premeditation to be dispositive as to Randall's appeal of his first-degree murder conviction. Our resolution of this issue renders moot Randall's fifth claim, which is a penalty-phase issue. Relevant to the guilt phase of Randall's trial, we also address Randall's first claim as to Williams rule evidence, his second claim as to evidence of flight, and his third claim concerning a comment by the trial judge to prospective jurors."

In cases in which there is no underlying statutorily enumerated felony, premeditation is the essential element that distinguishes first-degree murder from second-degree murder. SeeGreen v. State, 715 So. 2d 940, 943 (Fla. 1998). Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose to kill may be formed a moment before the act but must also exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.

Wilson v. State, 493 So. 2d 1019, 1021 (Fla. 1986). Where the State's proof fails to exclude a reasonable hypothesis that the homicide occurred other than by premeditated design, a verdict of first-degree murder cannot be sustained. Green, 715 So. 2d at 944; Coolen v. State, 696 So. 2d 738, 741 (Fla. 1997); Kirkland v. State, 684 So. 2d 732, 734 (Fla. 1996).

Randall contends that the State's evidence did not prove that Randall committed the murders of Evans and Pugh with a premeditated design. He argues in this appeal that the prosecution, by presenting evidence of Randall's history of choking women to heighten sexual arousal, actually demonstrated a reasonable hypothesis that the homicides were other than by premeditated design. SeeCoolen, 696 So. 2d at 741. Randall argues here that the State's circumstantial evidence is consistent with the reasonable hypothesis that Randall began forcefully choking the murder victims during consensual sex and then when they struggled more than his girlfriend or ex-wife would have struggled, Randall became enraged and continued to choke them. This is consistent with the episodes described by both Howard and Randall's former wife. In view of the fact that the other women that Randall choked during sexual activity did not die, it is reasonable to infer that Randall intended for his choking behavior to lead only to sexual gratification, not to the deaths of his sexual partners. Randall contended at trial that, at most, the evidence established second-degree murder under section 782.04(2), Florida Statutes (1995) (second-degree murder is perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life).

We agree in this wholly circumstantial case that the evidence does not support premeditated murder to the exclusion of a reasonable doubt. The evidence does support second-degree murder. Ironically, the testimony by Linda Randall Graham and Terry Jo Howard as to choking during sexual activity, which we have found to be properly admissible as evidence of Randall's identity as the perpetrator of the crimes, is the evidence that makes Randall's argument compelling.

In Kirkland, this Court reversed a first-degree murder conviction, finding that the circumstantial evidence in the strangulation killing of one victim was not inconsistent with any reasonable exculpatory hypothesis as to the existence of premeditation. See 684 So. 2d at 734. Although this case involves two murders, unlike Kirkland, we find our reasoning in Kirkland to be controlling here. Seeid. at 735. As in Kirkland, there was no suggestion here that Randall exhibited, mentioned, or possessed an intent to kill the victims at any time prior to the homicides. Moreover, there was no evidence that either of the two murders was committed according to a preconceived plan.

Therefore, although the pattern of strangulation and the similarities between the murders of Evans and Pugh are sufficient to establish the identity of Randall as the killer of both women, we find that this evidence is insufficient to prove premeditation. Accordingly, we reverse the convictions for first-degree murder and vacate the death sentences.

Rocha v. Texas (Tex Crim App) In a sharply split holding on the question of the Vienna Convention, the majority holds that suppression of a confession is not an appropriate remedy for the violation of that amendment.

In point of error five, appellant contends that the trial court should have suppressed his oral statements under Article 38.23 because law enforcement officers failed to give him warnings required by the Vienna Convention. "The Vienna Convention on Consular Relations grants a foreign national who has been arrested, imprisoned or taken into custody a right to contact his consulate and requires the arresting government authorities to inform the individual of this right 'without delay.'" Maldonado v. State, 998 S.W.2d 239, 246-247 (Tex. Crim. App. 1999)(citing Vienna Convention on Consular Relations, April 24, 1963, art. 36(1)(b), 21 U.S.T., 77, 100-101, 595 U.N.T.S. 261, 292 (ratified by the United States on Nov. 24, 1969)).

A Vienna Convention claim has been raised before this Court on two previous occasions. In Ibarra v. State, 1999 W.L. 956173 (Tex. Crim. App. 1999), we rejected a defendant's claim as being procedurally defaulted, because the defendant did not complain about the issue until a hearing on his motion for new trial. Id. at *7. In Maldonado, we observed that a violation of the Vienna Convention treaty "would arguably fall under the language in Article 38.23(a)" because states must adhere to treaties under the Supremacy Clause of the United States Constitution "and give them the same force and effect as any other federal law." 998 S.W.2d at 247 (emphasis added). But we did not have to determine whether the treaty did in fact fall within the language of Article 38.23. We rejected the defendant's claim because the evidence did not establish that the defendant was in fact a foreign national, and hence, no violation of the Vienna Convention treaty was established. Id. at 247. In the present case, appellant raised the issue in his written motion to suppress his confession, which the trial court denied by written order. Moreover, there existed ample, uncontroverted evidence that appellant was in fact a Mexican citizen.(9) And the evidence is undisputed that appellant was in custody during the oral interview conducted on April 25, 1996. Further, the undisputed evidence established that appellant was not informed of his rights under the Vienna Convention.

We find it appropriate to address now the issue left open in Maldonado: Does Article 38.23 provide a remedy for violations of the Vienna Convention treaty? To answer this question, we must decide whether Article 38.23's exclusionary rule applies to treaties. Article 38.23(a) provides in relevant part:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

The key issue is whether the word "laws," as used in this statute, includes treaties.(10)

We begin with the cardinal rule of statutory construction in Texas: a statute is to be interpreted solely in accordance with the plain meaning of its language, unless the language is ambiguous or the plain meaning leads to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). In Article 38.23, "laws" is placed in a series with "Constitution." The Supremacy Clause of the United States Constitution also places "laws" in a series with other terms:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

United States Constitution, Article VI, Clause 2 (also known as the "Supremacy Clause")(emphasis added). The Supremacy Clause indicates that "constitution," "laws," and "treaties" all constitute separate items that are in turn the "supreme law of the land." When used in a series, then, "laws" would appear to be distinct from treaties. On the other hand, "law," when used as an overarching concept, encompasses constitutions, laws, and treaties. Because "laws" and "Constitution" both appear in Article 38.23, the narrower meaning of laws, as being distinct from treaties, would appear to apply. To hold otherwise would render the word "Constitution" redundant in Article 38.23 because a constitution and a treaty both constitute "law" in the broad usage of that word. "We generally presume that every word in a statute has been used for a purpose and that each word, phrase, clause, and sentence should be given effect if reasonably possible." State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997).

The orthographic difference between "laws" and "law" should also be noted. In the Supremacy Clause, "laws" is used as a countable plural that refers to statutes. On the other hand, "law" is used by the Supremacy Clause as a collective noun -- a singular noun referring to plural objects -- to refer to several different types of governmental commands (i.e. constitution, statutes, treaties). Under Supremacy Clause usage then, constitutions and treaties are "law" but are not "laws." Article 38.23 uses the countable plural "laws" -- an indication that the provision refers to statutes and not to "law" in a more general sense.

Professors Dix and Dawson suggest that, "Given the construction of 'laws' of Texas, 'laws' of the United States probably means federal statutes." George E. Dix and Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, 4.44 (1995). In their view, "[L]aws of the state of Texas," as that is used in Article 38.23 of the Code of Criminal Procedure, is limited to legal requirements 'promulgated by the Legislature,' i.e. statutes." Id. at 4.45. In the supplement, they note the existence of, but do not take a position on, the issue of whether a treaty constitutes a "law" under Article 38.23. Dix and Dawson, 4.44 (Supp. 1999).

We have held that disciplinary rules do not constitute "laws" under Article 38.23, but that privileges may, depending upon the circumstances. Compare Pannell v. State, 666 S.W.2d 96 (Tex. Crim. App. 1984)(disciplinary rule) to Henderson v. State, 962 S.W.2d 544, 553-554 (Tex. Crim. App. 1997), cert. denied, U.S. , 119 S. Ct. 437 (1998)(attorney-client privilege). That privilege rules may be considered "laws" is due in part to their statutory lineage. Henderson, 962 S.W.2d at 553 (privileges derived from rulemaking power given to this Court to replace legislatively drafted statutes); see also Dix and Dawson, 4.45 (Supp. 1999).(11)

In addition, the Federalist Papers, written by the framers of the United States Constitution, draw a clear distinction between treaties and legislative enactments:

I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to the exertion of the common strength. Its objects are CONTRACTS with foreign nations, which will have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive.

Alexander Hamilton, THE FEDERALIST PAPERS, No. 75 (italics added, capitalization in the original). Treaties are agreements between sovereigns rather than regulations of a sovereign's subjects.(12) If a contract between sovereigns is broken, the party ordinarily expected to seek redress is the sovereign, not an individual subject:

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamation, so far as the injured parties choose to seek redress....It is obvious that with all this the judicial courts have nothing to do and can give no redress.

United States v. Li, F.3d , , 2000 W.L. 217891, *5 (1st Cir., en banc, February 29, 2000)(quoting Head Money cases, 112 U.S. 580, 598 (1884))(ellipsis in Li). Article 38.23 would seem ill-suited to address intersovereign disputes, and there is no reason to believe that the Texas Legislature ever anticipated that Article 38.23 would be used to enforce a treaty.

In evaluating a statute with ambiguous language, we are empowered to look at the object sought to be attained by the provision in question and the consequences of a particular construction. Tex. Gov't Code 311.023(1) & (5); Lane v. State, 933 S.W.2d 504, 514-516 (Tex. Crim. App. 1996). Perhaps in this vein, Judge Holland contends that there are "compelling policy reasons" for enforcing this provision of the Vienna Convention through Article 38.23's exclusionary rule. In support of her contention, Judge Holland relies heavily upon pronouncements by the State Department concerning the importance of complying with the Vienna Convention rules. However, the State Department takes the position that suppression of evidence is an inappropriate remedy for a violation of this provision of the Vienna Convention. United States v. Lombera-Camorlinga, F.3d , , 2000 W.L. 245374, *5 (9th Cir., en banc, March 6, 2000); United States v. Li, 2000 W.L. at *8-*9.(13)

Strong policy interests might be implicated if our decision prevented the reciprocal enforcement of the treaty's protections to United States citizens in other countries. Judge Holland contends that the "treaty is an important protection to Texans traveling in other nations. This State should extend the same protections to foreign nationals in Texas that we expect to be extended to our citizens when they are abroad" (emphasis added). But this contention assumes that foreign countries enforce the Vienna Convention through their own exclusionary rules. They do not: "The State Department also points out that no other signatories to the Vienna Convention have permitted suppression under similar circumstances, and that two (Italy and Australia) have specifically rejected it." Lombera-Camorlinga, 2000 W.L. at *6; see also Li, 2000 W.L. at *10.(14) Our refusal to enforce an exclusionary rule for Vienna Convention violations would actually promote harmony in the interpretation of this international agreement. Id.

And, in en banc opinions, the First and Ninth Circuits recently decided that exclusion of evidence is an inappropriate remedy for a violation of the Vienna Convention provision at issue. Li, 2000 W.L. at *2; Lombera-Camorlinga, 2000 W.L. at *3. These cases may well find themselves in the United States Supreme Court. If we find, now, that the Vienna Convention treaty must be enforced through the exclusionary rule provided by Article 38.23, Texas may soon find itself to be the only jurisdiction in the entire world that enforces the treaty through the use of an exclusionary rule sanction.(15) It is difficult to see how such a state of affairs would do anything to ensure the protection of Texans abroad.

Relying upon the Vienna Convention Treaty's preamble, the Supreme Court of Virginia has held that the treaty creates no "legally enforceable individual rights" but "merely deals with notice to be furnished to the consular post of a foreign state." Kasi v. Commonwealth, 508 S.E.2d 57, 64 (Va. 1998), cert. denied, U.S. , 119 S. Ct. 2399 (1999).(16)

The State Department takes the same position:

The [Vienna Convention] and the US-China bilateral consular convention are treaties that establish state-to-state rights and obligations....They are not treaties establishing rights of individuals. The right of an individual to communicate with his consular official is derivative of the sending state's right to extend consular protection to its nationals when consular relations exist between the states concerned.

Li, 2000 W.L. at *8 (quoting Department of State Answers to the Questions Posed by the First Circuit in United States v. Nai Fook Li at A-3)(bracketed material and ellipsis in Li). The State Department position continues:

The [only] remedies for failures of consular notification under the [Vienna Convention] are diplomatic, political, or exist between states under international law.

Id. (bracketed material in Li).(17)

Likewise, the First Circuit has found that the Vienna Convention is "facially ambiguous on the subject of whether [it] creates individual rights at all," and its preamble "explicitly disclaims any attempt to create individual rights." Li, 2000 W.L. at *7. If, in fact, the Vienna Convention Treaty does not create individual rights, then the "core rationale" for applying Article 38.23 would not be met. See Chavez v. State, 2000 W.L. 21091, *4 (Tex. Crim. App. 2000)(Price, J. concurring). The First Circuit did not decide whether the Vienna Convention Treaty actually conferred individual rights, see Li, 2000 W.L. at *4, and neither do we. That the Vienna Convention Treaty may not confer any rights at all is a reason to be circumspect about enforcing such a treaty as a "law" through Article 38.23.

Moreover, a holding that Article 38.23 does not apply to treaties does not mean that there is no enforcement mechanism for the Vienna Convention provision. "The State department indicates that it has historically enforced the Vienna Convention itself, investigating reports of violations and apologizing to foreign governments and working with domestic law enforcement to prevent future violations when necessary." Lombera-Camorlinga, 2000 W.L. at *5. In light of the State Department's activities, the Ninth Circuit has suggested that judicial enforcement of an exclusionary rule may result in a conflict between the executive and judicial branches. Id. at *5. A concurring opinion in the First Circuit has gone even farther, suggesting that judicial activity in this arena could seriously hamper United States' foreign policy:

There is an elaborate regime of practices and institutions by which the United States and other nations enforce commitments inter sese or decide that, in the national interest, promises given by or to another sovereign should not be enforced in a specific case. Sometimes this is done purely for reasons of prudence, sometimes for convenience, or sometimes to secure advantage in unrelated matters. Incalculable mischief can be wrought by gratuitously introducing into this often delicate process court enforcement at the instigation of private parties. We believe that such a course is to be avoided unless it can be said that private enforcement was clearly agreed to and envisioned by the contracting States in the treaties themselves. That is plainly not the case here [with the Vienna Convention].

Li, 2000 W.L. at *12 (Selya and Boudin, JJ. concurring). "[W]hen foreign affairs are involved, the national interest has to be expressed through a single authoritative voice. That voice is the voice of the State Department, which in such matters speaks for and on behalf of the President." Id.

Finally, holding that Article 38.23 does not apply to treaties does not preclude the application of a federal exclusionary rule. If the United States Supreme Court decides that all jurisdictions in the United States must enforce Vienna Convention violations through an exclusionary rule, then this Court would be bound, under the Supremacy Clause, to give effect to that holding. See, for example, Baker v. State, 956 S.W.2d 19, 24 (Tex. Crim. App. 1997)(Miranda violations not enforceable under Article 38.23 although enforceable under federal exclusionary rule principles). A treaty that can be enforced under the Supremacy Clause should not be dependent upon state law for its implementation.(18)

The effect of a treaty and the consequences of its violation are ultimately federal questions that only the United States Supreme Court can finally and definitively answer. We ordinarily think of state legislatures as free to confer upon individuals more expansive protection than that conferred by the federal government. But legislation conferring more remedies than a treaty actually confers could conceivably violate the Supremacy Clause if that legislation were found to be contrary to the language and the purpose of the treaty, because international treaties are exclusively federal matters. In the present case, it would seem likely -- although not a foregone conclusion -- that the Legislature could impose remedies for violations of the Vienna Convention that are in addition to remedies contemplated by the treaty itself without violating the Supremacy Clause. But, when faced with statutory ambiguity, we should not assume that the Legislature intended a certain remedy to extend to violations of an international treaty when it is not at all clear that the treaty contemplates such a remedy. At the very least, we have found reason to exclude the Vienna Convention treaty from Article 38.23's reach, even if one rejected the idea of holding the statute inapplicable to treaties in general. However, the Vienna Convention Treaty illustrates well the proposition that Article 38.23 is not a suitable enforcement mechanism for international treaties. Given the language of Article 38.23, the purpose and function that treaties provide, and the uniquely federal aspect involved in enforcing international agreements, we hold that treaties do not constitute "laws" for Article 38.23 purposes. Point of error five is overruled.

Habeas Cases

Riggs. v United States (6th Cir) "Riggs claims that his conviction was invalid for two reasons. First, Riggs argues that he received ineffective assistance of counsel, because his attorney, a former Assistant United States Attorney, had a conflict of interest. Second, Riggs claims that the government violated 18 U.S.C. § 201(c)(2), because his conviction was based, in part, on testimony that the government obtained from witnesses in exchange for leniency in their own criminal prosecutions. Both of these claims are without merit . . . ."

Amiel v. United States (2nd Cir). "Appellant claims that her trial counsel provided ineffective assistance because he labored under an actual conflict of interest. We vacate the district court's order insofar as it denied appellant's ineffective assistance claim and remand for further proceedings."

Harris v. Hutchinson (4th Cir) "The language of § 2244(d) provides unambiguously that the one-year period within which a federal habeas petition must be filed com- mences on the "conclusion of direct review." This language does not contribute to a misunderstanding that would have the time commence on the "conclusion of State post-conviction proceedings. In short, a mistake by a party's counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party's control where equity should step in to give the party the benefit of his erroneous understanding."

Fleming v. Uphoff (10th Cir) "[P]laintiff's allegations of delay reflect nothing more than his general disagreement with the course of his medical treatment. This, at most, involves a claim of medical malpractice or negligence that is not actionable under the Eighth Amendment."

Witherspoon v. Purkett (8th Cir) On ineffective assistance of counsel claim, Witherspoon failed to show that had counsel interviewed an eyewitness to a shooting, Witherspoon would not have pleaded guilty; witness's deposition testimony revealed key inconsistencies with Witherspoon's version of the events and counsel would not have changed his recommendation to enter a guilty plea based on this witness's information.

Means v. Alabama (11th Cir) Petition remanded so that petition styled § 2254 could be re-entered as a § 2255 petition as a federal prisoner was challenging a state court conviction that was used to enhance the sentence.

Washington v. Cambra (9th Cir) District court holding petitioner's claim to be barred due to procedural default misapplied the the state's "untimeliness" bar, as that bar excludes claims where a federal constitutional right is in issue as a matter of state law.

Campbell v. Vaughn (3rd Cir) "Campbell contends that, because his trial counsel did not properly inform him of his right to testify at trial, counsel rendered ineffective assistance by interfering with his constitutional right to testify. In the alternative, Campbell seeks a new evidentiary hearing, pursuant to 28 U.S.C. S 2254(e)(2), so that the District Court can complete the factual record on which his substantive claim rests." Relief pursuant to AEDPA denied.

Cook v. Riley (11th Cir) "We hold that the 1995 version of Regulation 550.58, as applied through P.S. Statement 5162.02(7), which excluded from consideration for a § 3621(e)(2)(B) sentence reduction a prisoner serving a sentence for being a felon in possession of a firearm, in violation of § 922(g), constitutes a reasonable implementation of 18 U.S.C. § 3621(e)(2)(B)."

Haugh v. Booker (10th Cir) "Because a section 2255 motion must be brought in the district in which the defendant was sentenced, the district court here lacked jurisdiction. Jurisdictional defects that arise when a suit is filed in the wrong federal district may be cured by transfer under the federal transfer statute, 28 U.S.C. § 1631, which requires a court to transfer such an action "if the transfer is in the interest of justice." Federal Deposit Ins. Corp. v. McGlamery, 74 F.3d 218, 220 (10th Cir. 1996). Mr. Haugh would now be time-barred if we upheld the dismissal and he had to file a new proceeding in the sentencing court in Massachusetts, a factor which the courts have recognized as militating in favor of transferring in the interest of justice.( 4) See Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (factors warranting transfer include finding that new action would be barred as untimely and fact that original action filed in good faith). See also Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999). Nonetheless, as the court recognized in Phillips, a court is authorized to consider the consequences of a transfer by taking "a peek at the merits" to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed. Id. at 610-11. As we discuss briefly below, our quick look at the merits here convinces us that Mr. Haugh's request for relief is without merit."

Habteselassie v. Novak (10th Cir) "[W]e hold that a state petition that is dismissed on the basis of procedural default does not render the petition not "properly filed," and we find that the district court therefore erred in dismissing Habteselassie's habeas petition as untimely . . . . As a final matter, the Appellee suggests that Habteselassie's "Motion for Post-Conviction Relief Pursuant to Rule 35(c)" does not qualify as an "application for State post-conviction or other collateral review" under § 2244(d)(2) . . .the record reflects. . . that the state court treated Habteselassie's motion as a motion for post-conviction relief. For this reason, we find that his state motion was an "application for State post-conviction or other collateral review" within the meaning of § 2244(d)(2).

Section 1983 & Related Filings

DeGenova v. DuPage (7th Cir) "[S]ince Illinois sheriffs are county officers when they manage the jail, the Eleventh Amendment does not bar this official capacity suit."

In Depth

Due to the length of this week's edition this section is on hold.

Errata

The Death Penalty Information Center offerings to return next week.

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's, who may not be at a public defender's office or similar non-profit, a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

Post message: capitaldefense@onelist.com

Subscribe: capitaldefense-subscribe@onelist.com

Unsubscribe: capitaldefense-unsubscribe@onelist.com

List owner: capitaldefense-owner@onelist.com