For the first time in several months and despite this being a double issue, there is no "Hot Case" listed for the covered period. The one germane Supreme Court opinion covered this week,Massaro v. United Statesholding an ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. section 2255 even if it could have been raised the on direct appeal, likewise offered nothing that was unexpected. The Court has, however, granted certiorari inBanks v. Cockrell, four issues were presented to the Court, which one(s) it is interested in remains unknown.

A stay was had of the previously scheduled execution for Robert Ladd in Texas on the basis of Atkins v. Virginia by the Fifth Circuit. In Tennessee a stay was had when the Sixth Circuit ordered a full blown competency to be executed & to waive appeals hearing. Opinions for both cases are not yet available.

Excerpts from the Petitioner's brief inBanks v. Cockrellare the covered this week in the Focus section.

Finally, in the last edition it was improperly noted in the introduction that Darks v. Mullinswas a win. The body of the edition was correct when it noted, "habeas denied even though the court below 'held that the trial court had violated Beck v. Alabama by failing to instruct on first degree manslaughter as a lesser included offense of capital murder and had unconstitutionally coerced the death verdict by giving the jury a supplemental instruction.'" My apologies for any confusion.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

April

9 Earl Bramblett Virginia

17 Larry Jackson Oklahoma

The following executions dates for the next few weeks that are considered serious:*

May

2 Kevin Hough Indiana

6 Roger Vaughn Texas

6 Carl Isaacs Georgia

14 Jerome Campbell Ohio

14 John Clayton Smith Missouri---volunteer

15 Newton Slawson Florida

15 Bruce Jacobs Texas

21 Eric Moore Texas

27 Robert Knighton Oklahoma

28 Percy Walton Virginia

29 Glenn Holladay Alabama

June

5 Kenneth Charm Oklahoma

11 Kia Johnson Texas

13 Joseph Trueblood Indiana

18 Ernest Martin Ohio

18 Kenneth Thomas Texas

18 Abu-Ali Abdur'Rahman Tennessee

24 Lewis Williams Ohio

28 Troy Kell Utah

HOT LIST'

No cases noted in this edition

SUPREME COURT

Massaro v. United States, --- US --- (04/23/03) An ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. section 2255, whether or not the petitioner could have raised the claim on direct appeal.

Petitioner Massaro was indicted on federal racketeering charges in connection with a murder. The day before his trial began, prosecutors learned of a bullet allegedly recovered from the car in which the victim's body was found, but did not inform defense counsel until the trial was underway. Defense counsel more than once declined the trial court's offer of a continuance so the bullet could be examined. Massaro was convicted and sentenced to life imprisonment. On direct appeal his new counsel argued that the District Court had erred in admitting the bullet in evidence, but did not raise an ineffective-assistance-of-trial-counsel claim. The Second Circuit affirmed. Massaro later moved to vacate his conviction under 28 U. S. C. §2255, claiming, as relevant here, that his trial counsel had rendered ineffective assistance in failing to accept the trial court's offer of a continuance. The District Court found his claim procedurally defaulted because he could have raised it on direct appeal. In affirming, the Second Circuit adhered to its precedent that, when the defendant is represented by new counsel on appeal and the ineffective-assistance claim is based solely on the trial record, the claim must be raised on direct appeal; failure to do so results in procedural default unless the petitioner shows cause and prejudice.

Held:An ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under §2255, whether or not the petitioner could have raised the claim on direct appeal. Requiring a criminal defendant to bring ineffective-assistance claims on direct appeal does not promote the procedural default rule's objectives: conserving judicial resources and respecting the law's important interest in the finality of judgments. Applying that rule to ineffective-assistance claims would create a risk that defendants would feel compelled to raise the issue before there has been an opportunity fully to develop the claim's factual predicate, and would raise the issue for the first time in a forum not best suited to assess those facts, even if the record contains some indication of deficiencies in counsel's performance. A §2255 motion is preferable to direct appeal for deciding an ineffective-assistance claim. When a claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record that is not developed precisely for, and is therefore often incomplete or inadequate for, the purpose of litigating or preserving the claim. A defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial. Stricklandv. Washington, 466 U. S. 668. The evidence introduced at trial, however, will be devoted to guilt or innocence issues, and the resulting record may not disclose the facts necessary to decide either prong of the Stricklandanalysis. Under the rule announced here, ineffective-assistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial. The court may take testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance. In addition, the §2255 motion often will be ruled upon by the district judge who presided at trial, who should have an advantageous perspective for determining the effectiveness of counsel's conduct and whether any deficiencies were prejudicial. This Court does not hold that ineffective-assistance claims must be reserved for collateral review, as there may be cases in which trial counsel's ineffectiveness is so apparent from the record that appellate counsel will raise the issue on direct appeal or in which obvious deficiencies in representation will be addressed by an appellate court sua sponte. In such cases, certain questions may arise in subsequent §2255 proceedings concerning the conclusiveness of determinations made on the claims raised on direct appeal; but these implementation matters are not before the Court. Pp. 3-9.

27 Fed. Appx. 26, reversed and remanded.

Kennedy, J.,delivered the opinion for a unanimous Court.

CAPITAL CASES(Favorable Disposition)

Johnson v. Missouri, 2003 Mo. LEXIS 66 (Mo 4/22/2003) New sentencing hearing ordered in light of Atkins v. Virginia. "The Atkins rule was not presented to the jury, nor was testimony indicating his possible retardation."

Sanders v. Arkansas, 2003 Ark. LEXIS 173 (Ark 4/10/2003) Rehearing granted so that counsel could get paid for post-conviction representation.

CAPITAL CASES(Unfavorable Disposition)

Rowsey v. Lee, 2003 U.S. App. LEXIS 7735 (4th Cir 4/24/2003) "Rowsey's judicial bias claim meets the § 2253 criteria for issuance of a COA, that claim is without merit under the deferential AEDPA standard. Rowsey fails to make a substantial showing of the denial of a constitutional right on any of his other claims."

Roberts v. Arkansas, 2003 Ark. LEXIS 181 (Ark 4/10/2003) (dissent) Relief denied. "The first two points concern the trial court's refusal to suppress Roberts's statement and the physical evidence gained as a result thereof. The third point concerns the seating of a juror that the defense attempted to remove for cause. The fourth point challenges the evidence to support the aggravating circumstance that the crime was committed in an especially cruel or depraved manner."

Gore v. Florida, 2003 Fla. LEXIS 523 (FL 4/17/2003) Relief denied on claims of: "Gore argued that the trial court erred in (1) denying the motion to suppress Gore's statements; (2) allowing the State to present evidence of collateral crimes; (3) denying a motion for continuance regarding a defense witness and in not allowing Gore to attend that witness's deposition; (4) denying the motion for acquittal as to the kidnapping charge; (5) excusing the victim's stepmother from the rule of sequestration; (6) allowing the prosecutor to question the defense expert about Gore's sanity at the time of the offense; and (7) finding the CCP, prior conviction, and murder in the course of a kidnapping aggravators. See Gore, 599 So. 2d at 980-87."

Randolph v. Florida,2003 Fla. LEXIS 633 (FL 4/24/2003) Relief denied on claims of: "(1) denial of a neutral detached judge in violation of the rights to due process and a fair trial; (2) ineffective assistance of counsel with respect to (a) the investigation and presentation of mitigation evidence, (b) expert assistance, (c) closing argument, (d) prosecutorial misconduct, and (e) jury instructions; (3) denial of a full and fair postconviction evidentiary hearing with respect to (a) the trial court's denial of Randolph's discovery motion, (b) the trial court's failure to admit the affidavit of Timothy Calhoun into evidence, and (c) the trial court's failure to grant Randolph's motion for a continuance; (4) ineffective assistance of counsel in the guilt phase with respect to (a) concessions of guilt, (b) available voluntary intoxication evidence, (c) consultation and advice, (d) lack of a complete record, and (e) defendant's absence from a proceeding which took place before the penalty phase; (5) defense counsel harbored an undisclosed conflict of interest; (6) the trial judge harbored an undisclosed bias in violation of due process; and (7) the heinous, atrocious, or cruel aggravating factor and jury instruction violated the Eighth Amendment."

California v. Maury, 2003 Cal. LEXIS 2623 (CA 4/24/2003) Relief denied on a grab bag of issues including: severance; sufficiency; admissibility of statements; IAC; prosecutorial misconduct; denial of polygraphs; prosecutorial discretion in seeking death; DA's discretion in seeking death; constitutionality of the statute; & proportionality.

Brown v. Florida, 2003 Fla. LEXIS 630 (FL 4/24/2003) Relief denied on claims: "(1) that trial counsel rendered ineffective assistance of counsel, (2) that he is entitled to a new trial based on newly discovered evidence, and (3) that the cumulative effect of the errors resulted in an unfair proceeding." Specific IAC claims include: "(1) insufficient impeachment, (2) failure to object, (3) opening the door to damaging testimony by FBI agent Robert Childs, and (4) improper argument."

Chandler v. Floirda, 2003 Fla. LEXIS 525 (FL 4/17/2003) Relief denied on whether "(1) the trial court erred in denying Chandler an evidentiary hearing regarding his claim that defense counsel was ineffective for failing to seek a venue change; (2) the trial court erred in failing to find that trial counsel was ineffective in dealing with evidence of a similar crime that was introduced at trial pursuant to Williams v. State, 110 So. 2d 654 (Fla. 1959), (Williams Rule evidence); and (3) the trial court erred in failing to find that trial counsel was ineffective for failing to object to various statements the prosecutor made in the guilt phase closing arguments."

Wiley v. Mississippi, 2003 Miss. LEXIS 187 (Miss 4/17/2003) Relief denied on issues relating to the appointment of post-conviction counsel. "Additionally, he has not presented any new evidence that was "not reasonably discoverable" at trial or that would have caused a different result if introduced, nor has he provided evidence of any violation of any fundamental rights. Furthermore, Wiley has failed to demonstrate that his claims are not procedurally barred pursuant to Miss. Code Ann. § 99-39-21(6), and he has failed to prove ineffective assistance of counsel. "

Barnett v. Missouri, 2003 Mo. LEXIS 64 (Mo 4/22/2003) Relief denied on claims that: "(1) The motion court erred in denying his post-conviction claims without an evidentiary hearing; (2) Defense counsel failed to fully investigate Barnett's family history; (3) Defense counsel failed to timely object to the State's late disclosure of testimony; (4) Defense counsel failed to conduct an adequate voir dire into the critical facts of the case; (5) Defense counsel failed to object to repeated references to alleged prior bad acts; (6) Defense counsel failed to call Clifford and Leona Barnett's children as witnesses; (7) The motion court erred in failing to vacate his death sentences; and (8) The motion court erred in failing to reappoint motion counsel before reaching the merits of his post-conviction relief motion."

Oregon v. Oatney, 2003 Ore. LEXIS 247 (Ore 4/10/2003) (dissent) Relief denied, most notably, on the question of the appropriateness of a certain accomplice-witness instruction under state precedent.

Pennsylvania v. Strong, 2003 Pa. Super. LEXIS 788 (Pa. Super. 4/23/2003) The trial court erred on retrial in not permitting (in a pretrial ruling) prior pro-prosecution post-conviction testimony made by an unavailable witness.

Arnold v. Tennessee, 2003 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App 4/15/2003) (dissent) The pro se petitioner below "presented only a bare and conclusory allegation as to a constitutional violation, and, as such, his claim was not colorable so as to avoid summary dismissal."

Missouri v. Gilbert, 2003 Mo. LEXIS 65 (Mo 4/22/2003) Relief denied on claims relating to (1) not asking whether prospective jurors ever had made any formal speeches or writings about the death penalty; (2) whether the state is required to plead, in the information, the statutory aggravating circumstances that are submitted during the penalty phase; (3) disjunctive verdict directors allowing them to find Gilbert guilty of first-degree murder if they found that he committed the murders or acted together with or aided Elliott in committing the murders; (4) sufficiency; (5) mental health testimony; (6) statements Gilbert made to a police officer after his arrest in New Mexico; (7) the prosecutor's statement that Gilbert is a serial killer and properly instructed the jury to disregard that statement; (8) Gilbert's claim that he unlawfully was extradited from Oklahoma to Missouri lacks merit; (9) proportionality

Moody v. Alabama, 2003 Ala. Crim. App. LEXIS 90 (Ala. Crim. App. 4/18/2003) Relief denied in a grab bag of issues in this appeal from the killing of a US Court of Appeals judge.

NOTABLE NONCAPITAL CASES

Burdge v. Palmatter, 2003 Ore. App. LEXIS 526 (Ore App 4/17/2003) Where a statute has yet to be interpretted by the courts "reasonably competent defense counsel was required to raise the plausible interpretation of the statute that would have assisted petitioner in his defense."

FOCUS

The Focus section this week contains out takes from the NAACP LDF's brief for Delma Banks in the recently granted certioriari inBanks v. Cockrell. See alsoBrief of Amici.

ARGUMENT

The Fifth Circuit’s Reversal on the Farr ClaimIs Entirely At Odds With Strickler v. GreeneAnd Precedents from Other CircuitsThe panel concluded that the district court erred in granting sentencing relief because thekey evidence presented in support of the claim – the testimony of informant Robert Farr andDeputy Huff – was not first presented to the state courts, and because Mr. Banks failed toestablish adequate cause to excuse this failure. Moreover, the panel held that relief should alsohave been denied because the non-disclosed information was not material. Respectfully, boththese conclusions are contrary to governing law and warrant review.

a. The panel’s “cause”determination is inconsistent with Strickler v. Greene In concluding that Mr. Banks failed to take sufficient steps to discover the Farr and Huff evidence while the case was pending before the state habeas court, the panel accepted the Director’s argument that the state had not interfered with Mr. Banks’ access to either witness and that there was an insufficient showing as to why Mr. Banks could not have spoken to Farr prior to the conclusion of these proceedings. But neither the panel nor the Director discuss the case that governs this issue, Strickler v. Greene, 527 U.S. 263 (1999), nor explain why it does not require affirmance of the district court’s opinion on this point.

In Strickler, a Virginia capital habeas petitioner attempted to raise a Brady claim in federal district court without having first presented either the claim or supporting evidence in state court. The claim was based upon a number of police documents Strickler obtained pursuant to discovery in the federal court that contained impeachment material concerning an important state witness. At trial, the prosecutor had maintained an open file policy and the defense reviewed the file on several occasions. However, several documents later uncovered in federal discovery were not included in the trial file. During state post-conviction proceedings, new counsel for Strickler alleged that trial counsel had been ineffective for failing to file a discovery motion seeking Brady material. The state responded that such a motion was unnecessary because of the open file policy, and the state courts dismissed the petition. After discovering the documents while in federal court, Strickler pleaded a Brady claim. The district court found adequate cause for the failure to present the claim in state court because Strickler had no independent access to the documents and state actors had repeatedly withheld them throughout the state proceedings. The court of appeals reversed. The panel concluded that Strickler defaulted the claim in state post-conviction because he could have developed the factual basis there but did not. He knew that the witness had been interviewed by police on several occasions prior to trial, and state law allowed him to seek discovery; had he filed a motion it is likely the state court would have granted it.

This Court rejected that analysis. The Court focused upon the circumstances in the trial court as those events would naturally influence the reasonable decisions of state habeas counsel. In Strickler, the habeas attorney knew that prior to trial, Strickler’s counsel received open file discovery, but the key documents were not disclosed. It was reasonable for trial counsel to assume that the prosecutor would discharge his duty and disclose all exculpatory material. The Court concluded that “if it was reasonable for trial counsel to rely on, not just the presumption that the prosecutor would fully perform his duty to disclose all exculpatory material, but also the implicit representation that such material would be included in the open files tendered to defense counsel for their examination, we think such reliance by counsel . . . in state habeas proceedings was equally reasonable.” 527 U.S. at 284. Thus, events concerning discovery in the trial court are highly relevant to a habeas petitioner’s duty to investigate in state post-conviction proceedings. In this case, the panel ignored this controlling rule of law.

In Mr. Banks’ case, the trial prosecutors not only assured him that all discoverable material would be provided without the need for a discovery motion, there were explicit representations (later proven to be untrue) that Farr was neither an informant nor had been paid for his services in this case. Prior to trial, trial prosecutors wrote to counsel and explained they were prepared to provide discovery; there was no need for Mr. Banks to file a discovery motion. Mr. Banks had previously asked Deputy Huff to disclose the identity of the informant he mentioned in pretrial testimony. Huff had refused. At neither phase of trial did Farr tell jurors that he was an informant or had been paid in this case. Indeed, he expressly denied receiving any such payment when asked. The prosecutors not only did not correct this misrepresentation, they assured the jury that Farr had been honest. Thus, in the trial court proceedings, the state promised to disclose such material, did not correct the witness when he failed to disclose his true status, and then guaranteed jurors that Farr’s testimony had been completely truthful.

Given these circumstances, Strickler teaches, trial counsel and Mr. Banks could reasonably conclude that whomever the informant was, it was not Robert Farr. And, as Strickler makes clear, if it was reasonable for trial counsel to so conclude, it was equally reasonable for habeas counsel to conclude similarly, as neither counsel nor Mr. Banks had any reasonable way to determine otherwise.12 See also Williams v. Taylor, 529 U.S. 420 (2000)(juror bias and prosecution misconduct claims not barred in federal court because of petitioner’s failure to raise in state court as underdevelopment of claims were attributable to juror and prosecutor; defense counsel did not default claim by failing to check public records concerning each juror).13

b. Materiality Determination Is Also Inconsistent with Settled Law The materiality inquiry requires a court to determine whether the missing “evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995). A review of the entire trial record is necessary to make this determination reliably. In Strickler, one important factor the Court focused on repeatedly was how the case was cast for the jury by the prosecution. See Strickler at 307-08. Here, the panel’s analysis failed to focus upon such factors critical to the materiality analysis.

Farr offered uniquely damaging evidence. He testified that Mr. Banks was going to Dallas to obtain a weapon so that Banks could commit armed robberies, and, if necessary, kill reluctant victims. This testimony was both the heart and soul of the state’s case for the death penalty and was uncorroborated.14 The jury was explicitly urged to rely heavily on this evidence in its deliberations. One prosecutor characterized Farr’s testimony to be “of the utmost significance,” because it established Banks posed a “danger to friends and strangers alike.” 9SR at 2593. The other prosecutor assured jurors they could trust Farr as he had been “open and honest with you in every way.” 9SR at 2579.

It is now beyond debate that Farr was not “open and honest . . . in every way;” he lied about not being a paid informant. Further, his narrative that made Mr. Banks appear exceedingly dangerous – that Banks was going to Dalles to get a gun so he could commit violent crimes and kill, if necessary – was a fiction. The prosecutor’s plea to the jury to consider Farr’s testimony as it was “of the upmost significant” is irrefutable evidence of the importance of Farr and his misleading narrative to the state’s case for future dangerousness.

The panel’s decision reversing the grant of relief is contrary to this Court’s precedents beginning with Giglio v. United States, 405 U.S. 150 (1972), with other circuit decisions, see e.g., Crivens v. Roth, 172 F.3d 991 (7th Cir. 1999)(evidence undermining credibility of key witness material); Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989)(misleading remarks byprosecutor that key witness had been completely forthcoming both improper and highly prejudicial); United States v. Scheer, 168 F.3d 445 (11th Cir. 1999)(witness testimony material particularly where prosecutor makes repeated reference to it in closing argument), and even other Fifth Circuit precedent. East v. Johnson, 123 F.3d 235 (5th Cir. 1999)(Brady violation concerning witness prosecutors placed more reliance upon than any other witness to establish future dangerousness was material). Review is warranted to provide guidance to the lower courts.

The Panel Opinion Reversing the Grant of Relief Based on Counsel’s Ineffectiveness at the Penalty Phase Ignores Settled Precedent to the Contrary The panel committed similar error in rejecting the district court’s determination that Mr. Banks demonstrated that trial counsel’s plainly deficient performance showed a reasonable probability that, but for that performance, the jury would have rejected the death penalty.

a. The panel decision is flatly inconsistent with Williams v. Taylor In Williams v. Taylor, 529 U.S. 362 (2000), the Court considered an ineffective assistance of counsel claim that is nearly identical to the one raised by Mr. Banks.15 Williams’ trial counsel, like Mr. Banks’, made next-to-no preparation for the penalty phase and had presented evidence at the sentencing phase only to the effect that Williams was a nice guy and had turned himself in. 529 U.S. at 369. During state habeas proceedings, new counsel proved that trial counsel had not begun to prepare for the sentencing phase until a week prior to trial and that readily available evidence could have shown the jury that, as a child, Williams had been repeatedly beaten by his father, had been sorely neglected by his parents, was slow mentally and yet was a good candidate to be an obedient prisoner. After hearing this evidence, the sentencing judge found that it raised a reasonable probability that the sentencing decision would have been different and recommended relief. Id. at 371. The state supreme court rejected this recommendation. It characterized the new mitigating evidence as showing only that Williams was not violent and could cope well in a structured environment, but when it compared the evidence with Williams’ extensive criminal history, concluded there was no reasonable probability that the sentencing decision would have been different. Id. at 371-2 The Court found this judgment not only to be a mistaken application of Strickland v. Washington, but also to be an objectively unreasonable one. First, the panel demanded that Williams show the outcome of his sentencing proceeding would have been different, a standard Strickland expressly rejected. Second, the decision was unreasonable because it failed to evaluate the totality of the mitigating evidence in the record against the aggravating evidence. Id. at 397- 8.

The panel decision here is similarly sharply at odds with Williams. First, the panel, like the state supreme court in Williams, never evaluated all of the mitigating evidence in this record against the aggravating evidence. Second, as the mitigating evidence in this record is very similar in quantity and character with that in Williams, and as the aggravating evidence in Williams was vastly greater than the evidence here, proper application of Williams requires affirmance of the district court’s grant of habeas relief. The court below, however, considered the mitigation evidence in the record by separating it into categories, and then asking whether each type of evidence, in isolation from the other, was sufficient to raise a reasonable possibility that the jury would not have returned the death penalty. See App A at 37-41. It characterized the psychological evidence from Dr. Pina – who thoroughly documented a long list of neurological and psychological problems in addition to a history of several significant childhood traumas of a deeply scarring nature – as only “possibly mitigating,” and concluded this evidence does not satisfy Strickland’s prejudice prong. Id., at 39. It next briefly summarized the family dysfunction evidence from Mr. Banks’ parents and again concluded the evidence, by itself, did not establish Strickland prejudice. Id., at 40. At no time did the panel consider all of the evidence together in addressing the question of whether counsel’s uncontested deficient performance raised a reasonable probability of a different sentencing decision. This is plain error under Williams. When all of the record evidence is considered, Mr. Banks’ mitigation case is indistinguishable from the one the Williams Court found sufficient to warrant habeas relief. Mr. Banks, at the time of his trial, was a man of limited intellectual functioning; he had clearly defined neurological deficits and organic injury that significantly impaired his memory and ability to plan or deal with changing events. RES’s RE at Tab 15 p. 3-4. Moreover, he had endured a number of deeply traumatic events in his childhood, and, through no fault of his own, was highly allergic to many substances, and these allergies caused severe skin disfigurement. He was shunned and ridiculed by his peers throughout his life. Furthermore, his father was chronically abusive and alcoholic and regularly beat and terrorized Mr. Banks, his mother and siblings. RES’s RE at Tab 7 p. 1-5 &Tab 15 p. 4-5. Nevertheless, Mr. Banks was a very good candidate for peaceful adjustment to the prison structured environment. RES’s RE at Tab 15 p. 7. As the Williams opinion makes clear, this type of sentencing portrait, which Mr. Banks’ jury never heard and the state never rebutted, is precisely the type of evidence that can persuade a jury to reject imposition of a capital sentence.

Indeed, in Williams, the Court held that such evidence is significantly mitigating, so much so that even strong aggravating evidence does not defeat a Strickland claim. The amount and character of aggravating evidence in Willliams is staggering in comparison with the evidence in this record. While Mr. Banks had no prior criminal record, Williams had two prior felony convictions, one for armed robbery and, shortly before committing the murder of the elderly victim in the capital prosecution, had severely beaten an elderly woman leaving her in a vegetative stage. 529 U.S. 362 at 368-9. Yet all of this aggravating evidence was not sufficient to persuade this Court that the mitigating evidence the jury never heard would not have raised a reasonable probability of a different sentencing result.16

The Panel Opinion Denying A Certificate of Appealability On Whether Fed. R. Civ. P. 15(b) Applies To Evidentiary Hearings In Habeas Proceedings Is Sharply Inconsistent with Governing Law Mr. Banks is entitled to a certificate of appealability and to review of his meritorious claim concerning the state’s suppression at trial of the lengthy pretrial statement authorities took from key witness Charles Cook that contains a comprehensive array of impeachment evidence. The district court refused to review the claim pursuant to Fed. R. Civ. P. 15(b), and the panel denied issuance of the certificate because Mr. Banks failed to show that an evidentiary hearing is the functional equivalent of a trial for Rule 15(b) purposes. This decision is entirely inconsistent with case law that shows not only that this is a debatable point, but that 15(b) applies to habeas cases.

Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts provides that “the Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.” The Court has long applied a functional approach in determining which rules of civil procedure apply in the habeas context. See McFarland v. Scott, 512 U.S. 849, 866 n.2 (1994)(Thomas, J., dissenting)(“The Federal Rules of Civil Procedure apply in the context of habeas suits to the extent that they are not inconsistent with the Habeas Corpus statute.”). Thus, the Court has held that while the broad discovery provisions of the rules of civil procedure do not apply because Rule 6 of the Rules Governing Section 2254 Cases limits discovery “to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise,” see Harris v. Nelson, 394 U.S. 286 (1969), Rules 52(b) and 59, which govern motions to reconsider, do apply as there is “no reason to hold to the contrary.” Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 270 (1978).17

With regard to Rule 15(b) and habeas corpus proceedings, the Court has sent strong signals that the rule applies to habeas corpus proceedings without qualification. See generally Calderon v. Ashmus, 523 U.S. 740, 750 (1998)(Breyer, J., concurring)(pre-AEDPA habeas regime consistent with Rule 15 amendment standard). Indeed, the Court has previously assumed that Rule 15(b) applies to habeas proceedings. In Harris v. Nelson, 394 U.S. 286, 294 n.5 (1969), the Court referenced the rule as one of a number of “noncontroversial rules” that the federal courts have applied in habeas proceedings. More recently, in Withrow v. Williams, 507 U.S. 680 (1993), the Court again made the same assumption. There, a prisoner had filed a one-claim petition alleging that his custodial statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The district court agreed, found that statements taken prior to the administration of Miranda warnings should have been suppressed and ordered a new trial. In addition, the court determined that statements taken after the administration of the warnings were involuntary. The warden argued that this second ruling was improper because Williams had not raised the involuntariness claim in either the state courts or in his habeas corpus petition. Williams argued that while he had not pleaded the due process claim in his federal petition, the matter was tried by implied consent of the parties. The Court assumed Rule 15(b) applied to habeas proceedings, but reversed the lower court’s grant of relief on the due process ground because the record “reveals neither thought, word, nor deed of [the Warden] that could be taken as any sort of consent to the determination of an independent due process claim, and [the Warden] was manifestly prejudiced by the District Court’s failure to afford her an opportunity to present evidence bearing on the claim’s resolution.” 507 U.S. at 696.

This line of authority suggests strongly that Rule 15(b)’s application to habeas corpus evidentiary hearings is, at the very least, one that “jurists of reason would find debatable.” Moreover, it further suggests that jurists of reason would conclude that the Withrow Court’s assumption -- that Rule 15(b) governs the question of whether an issue was or wasn’t adjudicated by implied or express consent – is correct, as habeas evidentiary hearings are conducted similarly to civil trials. And unlike the discovery context, where civil and habeas practice is decidedly different, there is no reason to treat the litigation by consent of a claim not specifically pleaded in a civil trial differently from a claim not so raised in a habeas petition. In this capital proceeding, some court should review the lawfulness of the state’s suppression of a transcript revealing that the state’s key witness was unworthy of belief. The record unambiguously shows that the state suppressed this document from the time of trial until, nearly 19 years later, the Magistrate Judge ordered it disclosed. The circumstances of its suppression were fully litigated below, after the Director had ample notice that Mr. Banks’ pleaded Brady claim included this issue. Certiorari is appropriate to confirm what the Court has strongly intimated in Harris and Withrow – that Rule 15(b) applies to habeas proceedings.

The Panel’s Holding That Mr. Banks’ Swain Claim Is Defaulted Conflicts With Established Law The panel below refused to issue a Certificate of Appealability to address Mr. Banks’ meritorious Swain claim, because it determined that jurists of reason would not find debatable whether the failure of trial counsel to object defaulted the claim, or whether Mr. Banks could establish sufficient “prejudice” to excuse the default. Both ruling are in sharp conflict with governing law.

a. No Firm Rule Required Swain Objection at Trial The Court has made clear that in order to constitute an adequate and independent ground sufficient to support a finding of procedural default, a state rule must be "firmly established and regularly followed" at the time of the alleged default. Ford v. Georgia, 498 U.S. 411, 423-24 (1991), quoting James v. Kentucky, 466 U.S. 341, 348 (1984); see also Johnson v. Mississippi, 486 U.S. 578 (1988). Throughout this litigation, neither the Director nor the lower courts have identified the existence of such a rule in force and effect at the time of the alleged default – September, 1980.

If such a rule existed, the State would surely have asserted this argument when Mr. Banks first raised his Swain claim during his first state post-conviction proceeding in 1983. The State did no such thing, and argued instead that the claim should be denied on the merits. As the record shows, both the trial court and Court of Criminal Appeals rejected this claim on its merits, even though there had been no objection at trial. App. A at 63-64.

Indeed, when Mr. Banks again raised this claim in his 1992 state petition, the State initially made no claim of default, though it did argue that other claims were defaulted because of a failure to raise them at trial. The first assertion of default of the Swain claim came on appeal. Even then, the State cited no case holding a trial objection was required for Swain claims in 1980.

After the 1993 evidentiary hearing on this claim that had been ordered by the Court of Criminal Appeals, the trial court found that (1) trial counsel had not raised an objection during the trial proceedings, and (2) this failure constituted a default. App. E at 2-4. But the sole authority cited for this rule was Matthews v. State, 768 S.W.2d 731 (Tex. Crim. App. 1989), a case decided nine years after Mr. Banks’ trial holding (for the first time) that claims based upon Batson v. Kentucky, 476 U.S. 79 (1986) would be treated as defaulted in the absence of a trial objection. It relied upon no case pre-dating Mr. Banks’ trial placing trial counsel on notice that a Swain claim would be defaulted if not raised at trial. When the Court of Criminal Appeals adopted the trial court’s decision, it identified no case setting forth a firm default rule applicable in 1980. App. D.

The district court denied relief, in part, because of the absence of a trial court objection, but, like the state courts, identified no case that placed Mr. Banks on notice that a Swain claim must be asserted at trial or lost. See App. C at 35. And in the court below, the Director did no better. He conceded that the one state decision that was available at the time of trial, Chambers v. State, 568 S.W.2d 313 (Tex. Crim. App. 1978), did not set forth a clear trial default rule for Swain claims, and that the Court of Criminal Appeals did not clarify the status of such a rule until Williams v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988), well after Mr. Banks’ trial. See Director’s Reply Br. at 59-60. The case upon which Mr. Banks relies – Ex Parte Haliburton, 755 S.W.2d 131 (Tex. Crim. App. 1988) – cannot be written off as an “occasional act of grace.” Rather, it confirms that the absence of a trial objection in 1980 did not bar merits review of a Swain claim in later post-conviction proceedings. Haliburton’s trial, like Mr. Banks’, took place in 1980, and his counsel made no Swain objection at trial. He was allowed to be heard on his Swain claim in his third state post-conviction proceeding because the absence of a trial objection did not bar the claim from being litigated in the later proceeding.

The Fifth Circuit’s decision lacks the fundamental ingredient to sustain the state court’s default holding: a clearly established rule that the failure to make a trial objection would bar later review of a Swain claim. Ford v. Georgia, supra.

b. The Panel’s “Prejudice” Determination is Also Erroneous While the panel determined that Mr. Banks showed adequate “cause” to overcome trial counsel’s default, it held that, for COA purposes, “Banks has failed to show prejudice sufficient to overcome the bar. In light of the state court’s findings of a prima facie Swain violation, the State proved that, for Banks’ trial, no black venire member was excluded because of his or her race.” App. A at 74.

This ruling relies entirely upon the state court decision that the prosecution had sufficiently overcome the prima facie case. But that ruling was fundamentally flawed because it refused to consider much of the evidence Mr. Banks introduced to demonstrate that a firmly established policy of excluding black jurors from jury service – and not a careful evaluation during voir dire – motivated the removal of the four black jurors in this case.

Mr. Banks’ evidence looked at jury striking behavior from January, 1975 through September, 1980. This evidence showed that in seventeen felony cases tried in 1979 and 1980, 524 jurors qualified to serve. Pet. Tab K. Of this number, the race of 494 were identified. Blacks accounted for 84 of these jurors; prosecutors removed peremptorily 76 of them. Id. Of a total of 204 jurors who actually served on juries, only 6 were black. In fifteen of the seventeen juries, the jury was either all-white or contained only one black juror. Id.

Data from 1975 through 1978 showed nearly identical rates of exclusion of blacks. While 84 African Americans made up 13% of the pre-peremptory pool, 79, or 94% ,were peremptorily struck by the State. Pet. RE Tab L. Of the 204 jurors who sat on juries, only five were black. Id. This evidence shows a stark pattern and practice that resulted in more than 9 out of every 10 qualified blacks peremptorily struck.

All of this evidence was plainly relevant to Mr. Banks’ Swain challenge. Swain itself requires a showing of purposeful removal over a significant period of time. And because establishment of a particularly stark practice of discrimination strengthens the inference of intent, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977); Washington v. Davis, 426 U.S. 229, 241-42 (1976), it is relevant when assessing whether the justifications for the strikes are race-neutral or pretextual.

The state court refused to consider all of Mr. Banks’ evidence from 1975 through 1978 because “no State action was taken against Mr. Banks by the Bowie County District Attorney’s Office under Mr. Cooksey,” the District Attorney at the time. App. E at 4. The Court seemed to reason that because there was a change in the District Attorney in 1979, the evidence from before that time was not relevant.

The evidence Mr. Banks presented shows a seamless pattern of purposeful exclusion from 1975 though Mr. Banks’ 1980 trial. Throughout, the prosecutors accepted more than 80% of the qualified white jurors and struck more than 90% of the black jurors. Race-coding of juror forms was practiced throughout the time period. And the record from 1979 through Mr. Banks’ trial of the surviving prosecutor who tried Mr. Banks clearly shows adherence to the policy to remove black jurors. He participated in two trials prior to Mr. Banks’ case, and although thirteen black jurors were in the pre-peremptory strike pool in those cases and Mr. Banks’ case, none of those jurors served; each was removed by the State’s peremptory strike, and each of the three juries was all-white. SHTr.3 at 894-95, 912. Moreover, the prosecutor had observed the seating of six additional juries prior to Mr. Banks’ trial. In those cases, prosecutors struck a total of 23 of 27 Black jurors in the pre-peremptory pools. Id. at 915. Even Elliott agreed that the total numbers of jurors who served in those nine trials–127 white jurors and only 3 Black jurors–was a “striking disparity.” Id. at 916.

The refusal of the state court to consider much of Mr. Banks’ pattern and practice evidence – both in determining the strength of his prima facie case, and also when considering the legitimacy of the reasons provided by the State justifying removal of the four black jurors in this case – is a clear mistake of law. Arlington Heights; Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08 (1977). Such evidence is relevant and uniquely probative of motivation. Indeed, the Court has before it in Miller-el v. Cockrell, No. 01-7662, the related question of the role of pattern and practice evidence in the Batson v. Kentucky, 476 U.S. 79 (1986) context. At the very least, the role of pattern and practice evidence in the determination of justifications for strikes is an issue that jurists of reason would find debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Thus, certiorari is warranted because the Fifth Circuit’s ruling that Mr. Banks’ meritorious Swain claim is defaulted is contrary to this Court’s jurisprudence.

OTHER RESOURCES

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

NEW VOICES: California Legislator Calls for Special Commission to Review Death Penalty

California Senator Gloria Romero of Los Angeles, who chairs the Select Committee on the California Correctional System, is calling for a special commission to study the state's death penalty. After a Senate hearing featuring more than a dozen witnesses, including prosecutors, defense lawyers, prison officials, relatives of murder victims, and former Illinois Governor George Ryan, Romero raised specific concerns about racial and geographic disparities in the imposition of the death penalty. She stated, "At a time when Gov. David is proposing that we build a state-of-the-art, $220 million death row, even though we have a $34-billion budget deficit, I think it is an appropriate moment to study (how the death penalty is working in California)." (Los Angeles Times, April 23, 2003) See New Voices and Race.

North Carolina Senate Passes Death Penalty Moratorium Bill

By a vote of 29-21, the North Carolina Senate passed a measure that imposes a two-year moratorium on executions while the state's death penalty is examined (see below). Read the the Associated Press news story.

Death Penalty Costs Concern State Leaders

In Texas, Montague County District Attorney Tim Cole and prosecutors in other small Texas counties that struggle to pay for costly capital punishment trials are calling for state lawmakers to pass a bill creating the sentencing option of life in prison without the possibility of parole. "You are more likely to face the death penalty in Houston or Dallas than in a small county. That's just fact," said Cole. "I have no philosophical problem with the death penalty. It's just that stopping my office for 6 weeks to try a case is a problem." (Associated Press, April 26, 2003)

Senator Steve Morris, who chairs the Kansas Senate Ways and Means Committee, recently voiced concern about the money needed to fund death penalty cases. Morris noted that if the costs of providing lawyers from the Kansas Board of Indigents Defense Services can't be contained, the state should reconsider its death penalty laws. Earlier this year, Kansas lawmakers added $1.3 million to the Board's $14.7 budget, largely because of expenses associated with two death penalty cases. (Associated Press, April 27, 2003) See Costs.

"FRONTLINE" to Explore Death Row Exonerations

On Thursday, May 1st, the PBS program "Frontline" will investigate what happens to wrongly convicted inmates on death row after they've been exonerated and re-enter society. The program explores the many social, psychological, and economic challenges facing death row exonerees, many of whom are released with no financial or transitional assistance whatsoever. Watch a preview of this program. See Innocence.

North Carolina Senate Committee Approves Death Penalty Moratorium

The North Carolina Senate Judiciary Committee has approved a measure that imposes a two-year moratorium on executions while the state's death penalty is examined. The Senate committee's approval of the bill comes shortly after new trials were ordered for two North Carolina death row prisoners. In each case, trial judges ruled that prosecutors failed to hand over evidence to defense attorneys that may have helped their clients. Supporters of the moratorium bill state that the temporary halt to executions and the comprehensive study of the state's death penalty would enable lawmakers to address questions of fairness and accuracy. The bill now goes to the full Senate for consideration. (Associated Press, April 29, 2003) See Innocence and Recent Legislative Activity.

Jury Acquits Man on Alabama's Death Row

An Alabama jury has acquitted death row inmate Wesley Quick of the 1995 double murder for which he was sentenced to death in 1997. The jury acquitted Quick at the conclusion of his third trial for this crime. Quick's first trial ended in a mistrial because of juror misconduct, but he was convicted in 1997 by a second jury. The Alabama Court of Criminal Appeals overturned that verdict in 2001, stating that the judge in Quick's second trial was wrong to deny him a free copy of the transcript from the previous mistrial in light of his indigent status. During Quick's third trial for the double murder, at which he received experienced representation, he testified that he did not commit the murders, but admitted he was at the scene and saw the state's star witness against him, Jason Beninati, kill the men. Quick remains in jail and faces burglary charges. (The Birmingham News, April 22, 2003) See Innocence.

Illinois Governor to Maintain Moratorium on Executions

Illinois Governor Rod Blagojevich has announced that he will continue the state's moratorium on executions, stating: "I don't feel any artificial pressure to lift the moratorium. I'd like to one day be in the position to do that, if I thought the position was foolproof. But I don't believe a series of reforms that the Legislature will pass, most of which I support, will do enough to have me feel that the system won't make those kinds of mistakes." Illinois lawmakers are currently considering legislation to require the of taping police interrogations, to improve access to DNA analysis, and to limit the crimes eligible for capital punishment. (Associated Press, April 24, 2003) See Innocence and Illinois Commission on Capital Punishment.

Dallas Morning News Calls for Passage of Death Penalty Moratorium Bill

In an editorial following the Supreme Court's decision to hear the appeal of Delma Banks (see below), a Texas death row inmate who claims prosecutorial misconduct and ineffective defense counsel denied him a fair trial, the Dallas Morning News voiced its support for a bill that would halt executions in the state:

The fact that the U.S. Supreme Court agreed this week to hear another Texas death penalty case should get Austin off the dime. The court's consideration of inmate Delma Banks Jr.'s appeal indicates questions still surround the state's death penalty.

. . .

The state now awaits a ruling. But Texas legislators shouldn't sit back. They should address the death penalty themselves.

Lawmakers should start with approving a moratorium. No more executions until experts have reviewed every case, top to bottom.

. . .

A moratorium will allow prosecutors, defenders and others to ensure Texas' death penalty works properly. That is humane and conservative.

(Dallas Morning News, April 24, 2003) See Innocence and Editorials.

Circuit Court Halts Texas Execution to Allow Consideration of Mental Retardation Claim

Nine hours before the scheduled execution of Texas death row inmate Robert Charles Ladd, the U.S. Court of Appeals for the Fifth Circuit stayed the execution to allow Ladd's attorneys time to file an appeal in a lower court raising questions about their client's IQ. Ladd's attorneys claim that a childhood test put Ladd's IQ at 67. A person with an IQ of 70 or lower is generally considered to have mental

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit:http://www.lidab.com/(Louisiana's public defender),probono.net(ABA/ABCNY) &http://www.capdefnet.org/(federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue.Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects atnewsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).