Both capital cases presented this week, Johnson v. Norris(8th Cir) and Burket v. Angeleone(4th Cir) lost. InJohnsonthe panel holds that trial counsel's bi-polar disorder at the time of trial, the court will not require a reversal. TheBurketanel denied relief chiefly on claims relating to conflict of interest and a questionable "confession."

In light of conversations with no less then three separate practitioners in the last week about funding, this week's in depth coverage is on funding, taken this time from the Ninth Circuit's Death Penalty Manual. Permission to reprint the LIDB.com resource materials remains pending.

As always, this newsletter was put together, flying by the seat of my pants, late at night, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue.

Supreme Court

No relevant reported cases.

Capital Cases

Johnson v. Norris(8th Cir)Assuming trial counsel had bi-polar disorder at the time of Johnson's trial, the court will not adopt a per se rule requiring a presumption of prejudice when prisoner alleges counsel suffered a mental illness; instead, court will examine counsel's actions at trial; based on counsel's actions at trial, Johnson failed to demonstrate ineffective assistance of counsel.

We first consider the question of whether evidence concerning Mr. Smith's bipolar disorder should have been considered only in evaluating his credibility, or whether it should have been treated as showing per se ineffective assistance of counsel which rendered the trial fundamentally unfair.

In his habeas petition, the petitioner cited numerous examples of Mr. Smith's conduct before and during trial which seem unprofessional, and perhaps bizarre. These included lying to the petitioner about his experience in capital cases, submitting a false application for malpractice insurance, being unprepared to present the petitioner's case, and appearing confused during trial. When Mr. Smith was testifying before the District Court about his performance, he stated that he had been diagnosed with bipolar disorder. He stated that according to his psychiatrist, this disorder is partly to blame for his legal problems. He stated that he was currently on medication for this disorder, which he would have to take for life. The petitioner attempted to obtain Mr. Smith's complete medical records, but Mr. Smith would not allow access to them.

To uphold a claim of ineffective assistance of counsel, a court must find that the counsel's performance was seriously deficient, and that the ineffective performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). However, the petitioner argues that he should not be held to the normal Strickland prejudice requirement. Rather, he says, Mr. Smith's bipolar disorder should be considered a structural error, which should require a per se presumption of prejudice. The petitioner relies on our decision in McGurk v. Stenberg, 163 F.3d 470 (8th Cir. 1998) (failure to notify the defendant of his right to a jury trial was structural error which did not require proving prejudice), and argues that other circuits have found structural error when counsel is not mentally present at trial. See Javor v. United States, 724 F.2d 831 (9th Cir. 1984) (counsel was per se ineffective when he slept through substantial portion of trial); Tippens v. Walker, 77 F.3d 682 (2d Cir. 1986).

We note at the outset that there is some question as to whether Mr. Smith had bipolar disorder at the time of the petitioner's trial. Mr. Smith testified before the District Court that he was diagnosed with bipolar disorder "last year," Habeas Tr. at 72, which would presumably refer to some time in 1996. He testified that he did not recall having any of the symptoms of bipolar disorder in 1990, when the trial took place, but he attributed some of his actions in 1992 and 1993 to the disorder. Id. at 73-74. Petitioner offers instances of Mr. Smith's behavior during the petitioner's trial, which are consistent with Mr. Smith's behavior in 1992 and 1993, to prove that Mr. Smith was afflicted by bipolar disorder at trial. The District Court did not resolve this issue, noting that "Mr. Smith . . . reported . . . having been diagnosed with bipolar disorder which may or may not have manifested at the time of [the petitioner's] trial.".

Even if we assume that Mr. Smith's bipolar condition existed during the petitioner's trial, we decline to adopt the petitioner's proposed rule. This is not the type of structural error envisioned in McGurk, where we recognized the limited number of circumstances in which structural-error analysis was appropriate. Our Court has previously declined to adopt a rule requiring a per se presumption of prejudice with regard to mental illness. See Pilchak v. Camper, 935 F.2d 145,149 (8th Cir. 1991). Bipolar disorder, like most mental illnesses, can have varying effects on an individual's ability to function, and the disease can vary widely in the degree of its severity. We are not convinced there is anything about Mr. Smith's bipolar condition that would not lend itself to the normal fact-specific Strickland analysis. See Bellamy v. Cogdell, 974 F.2d 302, 308 (2d Cir. 1992). Any errors Mr. Smith made, even as a result of his mental illness, should be apparent from the face of the trial record, or otherwise susceptible of proof, and thus readily reviewable.

Therefore, using specific acts or omissions of counsel at trial, the petitioner must prove that Mr. Smith's performance was deficient and prejudicial. Evidence of his bipolar disorder can be considered in attempting to prove this. However, Mr. Smith's statements about his bipolar condition, made in 1996, are not particularly probative in proving deficient performance in 1991. The District Court was correct in reasoning that this evidence is most probative in evaluating Mr. Smith's credibility and state of mind, which are relevant to the petitioner's conflict-of-interest claim. The unprofessional and perhaps bizarre behavior that the petitioner now claims was a result of Mr. Smith's bipolar disorder includes lying to the petitioner about his experience in capital cases, submitting a false application for malpractice insurance, and a general lack of trial preparedness.2 Whether a result of bipolar disorder, character flaws, or just bad lawyering, these examples do not rise to the level of constitutionally deficient performance, because they cannot be shown to have affected the outcome of the case. Without the benefit of a per se presumption, evidence of Mr. Smith's bipolar disorder does not help the petitioner to establish Strickland prejudice. The petitioner cannot point to a single example of Mr. Smith's performance where there is a reasonable probability that the result of the proceeding would have been different if Mr. Smith had done something differently. Nor can the petitioner show that there is a reasonable probability that, absent any example of Mr. Smith's unprofessional behavior, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695. Even after we consider the evidence of Mr. Smith's bipolar disorder, the petitioner's ineffective-assistance- of-counsel claim fails.

Burket v.Angeleone(4th Cir) "[1] Burket contends that his trial counsel [ ]had a conflict of interest which rendered his representation constitutionally ineffective. . . . and brings into play the federal rules of procedural default. ..... [2] Burket contends that his guilty pleas were not made knowingly and voluntarily . . . .brings back into play the federal rules of procedural default. . . . . [3] [H]e raises a procedural competency claim, contending that the state trial court was required to hold a competency hearing on its own initiative. . . . . [4]Burket raises a substantive competency claim, contending that he was incompetent to stand trial. . . . we only can consider whether cause and prejudice exists to excuse the procedural default, not whether the state court correctly applied its own law.. . . [5] Burket lodges several attacks on the state trial court's decision to decline to suppress his confession." Relief denied on all claims.

Burket contends that his trial counsel, William McGraw (McGraw),9 had a conflict of interest which rendered his representation constitu- tionally ineffective. The Virginia Supreme Court rejected this claim under the authority of Anderson, which holds that a petitioner is not permitted to challenge on state habeas the truth and accuracy of repre- sentations made by him as to the adequacy of his court-appointed counsel and the voluntariness of his guilty plea unless the petitioner offers a valid reason why he should be permitted to controvert his prior statements. See 281 S.E.2d at 888. The Virginia Supreme Court's application of Anderson brings into play the federal rules of procedural default. . . .

At the beginning of his representation, McGraw determined that Burket's mental health was an issue. McGraw retained two clinical psychologists, who reviewed approximately 1100 pages related to Burket's medical background since preschool. These medical experts did not opine that Burket was incompetent, either at present or at the time the offenses were committed, but did opine that Burket had cer- tain intellectual and emotional limitations that could be used to create a case in mitigation.The admissibility of Burket's confession was also a critical issue at trial. McGraw moved to suppress Burket's confession, raising numerous issues. McGraw vigorously challenged the admissibility of Burket's confession during a lengthy suppression hearing. Despite his efforts, the state trial court denied the motion. 15

McGraw also had his investigator conduct an extensive pre-trial investigation. However, this lengthy investigation did not lead to exculpatory evidence or plausible defenses, including a defense impli- cating Lester, III. In the face of the Commonwealth's case against Burket, Burket, in consultation with McGraw, decided to plead guilty. McGraw and Burket agreed that Burket's best chance of avoiding the death penalty was to plead guilty and allow the state trial court to decide the issue of the appropriate penalty. Burket pled guilty, and the case proceeded to sentencing. In preparation for sentencing, McGraw contacted numerous indi- viduals, including Burket's friends, associates, and former teachers. In addition to the two mental health experts he hired, McGraw contacted numerous mental health professionals that had treated Burket over time.

At sentencing, Burket's mental health experts testified on his behalf. McGraw also vigorously cross-examined the Common- wealth's mental health expert. Every person willing to testify on behalf of Burket testified. This included members of Burket's hunting club, his parents, and a woman who testified to her willingness to allow Burket to watch her children.

Notwithstanding the evidence described above which conclusively demonstrates that McGraw did not have an actual conflict of interest, Burket insists that he has a viable conflict of interest claim. Reduced to its essence, Burket's conflict of interest claim rests on the conten- tion that McGraw intentionally overlooked four critical pieces of evi- dence that allegedly implicated Lester, III in the Tafelski murders, thus creating a case of reasonable doubt for Burket. First, Burket con- tends that McGraw overlooked the fact that the blue washcloth found near Katherine Tafelski's body contained seminal fluid consistent with HLA DQa types of both him and his brother. Second, Burket contends that McGraw overlooked the facts that several casts of foot- prints found in the Tafelskis' yard were smaller than Burket's shoe size and Lester, III's shoe size is three sizes smaller than Burket's. Third, Burket contends that McGraw overlooked the facts that the murder weapon was a mechanic's tool and Lester, III was a master mechanic. Finally, Burket contends that McGraw overlooked the fact that Lester, III was previously convicted of a crime involving a sexual offense.

The flaw in Burket's argument is that this evidence would not have created a reasonable doubt as to Burket's guilt. That Burket and Lester, III have similar HLA DQa types is of no particular import. Burket and Lester, III are brothers, and it is not unusual that brothers have similar HLA DQa types. Second, the fact that other footprints were found in the Tafelskis' yard is not surprising when one considers the fact that many police officers were around the Tafelskis' residence during the initial stages of the investigation. Third, the facts that the murder weapon was a mechanic's tool and Lester, III was a master mechanic are of no particular import because the record reflects that the Burkets had automotive tools in their residence and in their shed, and some of these tools were similar to the tools used to inflict the injuries to the victims. Finally, that Lester, III was previously con- victed of a crime involving a sexual offense does not, when coupled with the evidence described above, create a reasonable doubt as to Burket's guilt. The Commonwealth's case against Burket was over- whelming. Burket gave a detailed confession concerning the crimes, and this confession was consistent with the forensic evidence devel- oped by the investigative team. We have no doubt that the evidence Burket contends McGraw overlooked would not have created a rea- sonable doubt as to Burket's guilt.

This case does not involve Lester, III. Other than Burket's conclu- sory allegations, there is no evidence that suggests that Lester, III committed the murders in question, or that McGraw did not pursue available leads implicating Lester, III; none existed. Moreover, Bur- ket not only confessed to the crimes, he later discussed his offenses and what motivated him with the Commonwealth's mental health expert. Thus, that Burket committed the murders was never in doubt. The outcome of the case turned on the admissibility of Burket's con- fession and his mental state. Thus, Burket's interests never diverged from Lester, III's. In short, Burket has failed to show that McGraw did not pursue a plausible defense strategy or tactic on account of an actual conflict of interest. Accordingly, we reject Burket's conflict of interest claim.

Habeas Cases

USA v. Frierson(1st Cir) Involuntary commitment in mental facility for federal prisoner reversed; "Frierson either should have been brought to court, or, as is common elsewhere when judges feel that it is unsafe for the prisoner to be brought to the courthouse, the court should have travelled to the federal medical center. The order of commitment is reversed and vacated."

Casella v. Clemmons(1st Cir) Writ denied for failing to adequately present claim in state court; "Casella's use of these federal authorities, however, only underscored that he was pressing a purely state law claim; he admits that he offered them by analogy to bolster the state law claim. Casella's other passing references to federal law are equally unavailing. We considered the myriad ways in which one might satisfy the fair presentment aspect of the exhaustion requirement in great detail in Nadworny v. Fair, 872 F.2d 1093 (1st Cir. 1989). We concluded that the proper focus of the inquiry on appeal is one of probability; the trappings of a federal claim must be likely to put a reasonable jurist on notice of the claim. See id. at 1101. While we see no reason to recapitulate that discussion here, part of our analysis is worth repeating. "

Purdy v. United States(2nd Cir) "Appeal from a judgment . . . denying petitioner's application for a writ of habeas corpus on grounds of ineffective assistance of counsel. Petitioner has filed a motion for a certificate of appealability with this court. Motion denied. "

Walker v. Artuz(2nd Cir) "Appeal ...[from an order] dismissing petitioner's second application for a writ of habeas corpus as untimely pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d). Because we hold that the statute of limitations was tolled during the time petitioner's first petition for a writ of habeas corpus was pending, we reverse the dismissal and reinstate the second petition. Reversed. "

Lurie v. USAPetition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Summary dismissal of habeas petition was proper because petitioner did not demonstrate that relief under section 2255 was inadequate or ineffective. All claims could have been asserted in timely section 2255 motion or on direct appeal.

Dejan v. USAWhile Dejan showed he was actually innocent of the gun conviction for which he pleaded guilty, he failed to show he was actually innocent of the more serious drug charge that was foregone by the government as part of his guilty plea; denial of habeas relief affirmed.

McReynolds v. KemnaCounsel's failure to urge on appeal a non-meritorious claim was not ineffective assistance of counsel.

Molo v. Johnson(5th Cir) Affirming denial of the writ where "district court dismissed the petition as barred by the AEDPA's statute of limitations set forth in 28 U.S.C. § 2244(d). Recognizing that he had missed the filing deadline, Molo urged that the exceptional circumstances of the case justified equitable tolling. The district court held that equitable tolling was available only when the petitioner had been prevented from filing on time, and that Molo made no such claim. The district court granted Molo a certificate of appealability on the question whether his were rare and exceptional circumstances that would justify equitable tolling.

Section 1983 & Related Filings

Williams v. Dept of CorrectionsCase remanded to permit plaintiff to amend his complaint to state a retaliation claim; other counts were properly dismissed as frivolous.

Hazen v. ReaganPrison Litigation Reform Act's provisions governing termination of consent decrees are not unconstitutional; consent decree which does not meet PLRA standards is not enforceable in state court as private contract.

InDepth

In light of conversations with no less then three separate practitioners in the last week about funding, this week's in depth coverage is on funding, taken this time from the Ninth Circuit's Death Penalty Manual. Permission to reprint the LIDB.com resource materials remains pending.

6.2.8 Right to and Payment of Counsel, Experts, and Investigators

In Murray v. Giarratano, 492 U.S. 1 (1989), the Supreme Court held that the United States Constitution does not require the provision of counsel for indigents seeking postconviction collateral relief from death sentences. However, congressional legislation provides a statutory right to counsel for indigent death row inmates. Prior to 1988, courts had discretion to appoint counsel in federal habeas proceedings under the Criminal Justice Act, 18 U.S.C. § 3006A. In 1988, Congress enacted the Anti-Drug Abuse Act, 21 U.S.C. § 848(q), which, among other things, established a federal death penalty for some drug-related convictions. Shortly before the final vote on the bill, a section was added to the Anti-Drug Abuse Act permitting courts to appoint counsel for death-sentenced indigents in § 2255 (habeas corpus petitions by federal prisoners) and § 2254 (habeas corpus petitions by state prisoners) cases. Section 848(q)(4)(B) of Title 21, United States Code, entitles an indigent petitioner seeking to set aside a death sentence in a § 2254 or § 2255 proceeding to the appointment of one or more attorneys. At least one appointed attorney must meet certain experience qualifications set out in subsection (B)(6). Appointed counsel must represent the defendant throughout every subsequent stage of judicial proceedings, including proceedings to determine competency and those for executive clemency. In 1996, the AEDPA changed the language in this section from "shall" to "may" when it added the following subsection to § 2254 and § 2255:

Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section [i.e. § 2254 and § 2255], and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

Section 848(q)(9) provides for investigative, expert, and other services reasonably necessary for representation. The AEDPA now provides that the court may, in its discretion, authorize such funds.The AEDPA also deleted language allowing the court to authorize such services nunc pro tunc if prior authorization is not practicable, as well as the provision that the courts conduct findings on such authorization in ex parte proceedings. Instead, the AEDPA added the following rule to § 848(q)(9):

No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made a part of the record available for appellate review.

In Bonin v. Calderon, 77 F.3d 1155 (9th Cir. 1996), cert. denied, 516 U.S. 1143 (1996), the Ninth Circuit extended its non-habeas standard for reversing a conviction for failure to provide investigative funds under § 3006A to habeas corpus cases requesting funds under § 3006A or § 848(q). Under this standard, a denial of funding warrants reversal only if the petitioner shows a denial of effective assistance of counsel as a result of the failure to provide funds. Thus, the petitioner must establish (1) that reasonably competent retained counsel would require such services for a habeas petitioner who could pay for them, and (2) by a showing of clear and convincing evidence that the lack of further investigation prejudiced the petitioner. The AEDPA lso repealed former 21 U.S.C. § 848(q)(10) providing for "reasonably necessary"compensation for counsel, investigative, and expert services notwithstanding the rates and maximums generally applicable to criminal cases and created instead a maximum attorney fee rate of $125 per hour and a total of $7,500 for investigative and expert fees. Specifically, § 848(q)(10) now provides:

(10)(A) Compensation shall be paid to attorneys appointed under this subsection at a rate of not more than $125 per hour for in-court and out-of-court time . . . .

(B) Fees and expenses paid for investigative, expert, and other reasonably necessary services authorized under paragraph (9) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge . . . as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit.

Finally, the AEDPA requires that the fee amounts authorized under both§ 848(q) and § 3006A be made public:

[18 U.S.C. § 3006A(d)(4), (e)(4)] The amounts paid under this subsection, for representation in any case, shall be made available to the public . . . .[21 U.S.C. § 848(q)(10)(C)] The amounts paid under this paragraph for services in any case shall be disclosed to the public, after the disposition of the petition.

Supreme Court:

McFarland v. Scott, 512 U.S. 849 (1994) (holding that because § 848(q) creates statutory right to counsel for capital defendants during federal habeas corpus proceedings, counsel should be appointed before the petition is actually filed to assist in its preparation).

Coleman v. Thompson, 501 U.S. 722, 755–56 (1991) (holding that there is no constitutional right to postconviction counsel). In re Berger, 498 U.S. 233 (1991) (per curiam) (holding that, under § 848(q)(10), counsel appointed in a capital habeas case should be able to recover compensation for proceedings before Supreme Court in an amount not to exceed $5,000).

Murray v. Giarratano, 492 U.S. 1 (1989) (holding that state is not constitutionally required to provide counsel for indigent death row inmates seeking state postconviction relief).

Wainwright v. Torna, 455 U.S. 586 (1982) (holding that defendant has no constitutional right to effective assistance of counsel to pursue discretionary state appeals or Supreme Court review).

Ninth Circuit:

Calderon v. United States Dist. Ct. for the E. Dist. of Cal. (Gordon) 107 F.3d 756 (9th Cir.) (holding that state lacked standing to challenge fee request because request is ex parte proceeding; district court properly considered request even though no petition was pending; holding that AEDPA's amendments do not apply to pre-enactment fee requests), cert. denied, 118 S. Ct. 265 (1997).

United States v. Salemo, 81 F.3d 1453 (9th Cir. 1996) (holding that the CJA does not authorize the district court to compensate attorney whose services as legal advisor are requested by defendant; noting that judge may appoint counsel to serve exclusively by benefit of court under 5 U.S.C. § 3109, to protect the integrity of proceedings from pro se misconduct).

Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996) (holding that there is no constitutional right to effective assistance of counsel in state or federal habeas proceedings).

Bonin v. Calderon, 77 F.3d 1155 (9th Cir. 1996) (extending non-habeas standard for reversing a conviction for failure to provide investigative funds under § 3006A to habeas corpus cases requesting funds under § 3006A or § 848(q)), cert. denied, 516 U.S. 1143 (1996).

Daniels v. United States Dist. Ct. for the Cent. Dist. of Cal., 76 F.3d 385 (9th Cir. 1995) (unpublished) (granting mandamus petition alleging insufficient grant of funds under § 848(q); holding that district court erred in denying request for investigative funds based on faulty legal premise that death sentence is no different from other types of sentences).

Simmons v. Lockhart, 931 F.2d 1226 (8th Cir. 1991) (holding that Anti-Drug Abuse Act is not retroactive; allowing compensation for associate's time in appointed counsel's firm because of case's complexity; refusing to adopt the Berger $5,000 maximum because appellate court had experience necessary to examine fee requests on case-by-case basis).

Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (holding that, although not required by Sixth Amendment, complexity of issues on remand and death penalty nature of case require district court to appoint counsel for petitioner).

Other Circuits:

Fuller v. Johnson, 14 F.3d 491 (5th Cir. 1997) (finding that district court erred in not discussing the expert necessity issue and in allowing state participation in what should have been an ex parte proceeding, but denying COA because error was harmless due to district court's implicit finding that claims to which expert testimony applied were procedurally defaulted), cert. denied 118 S. Ct. 399 (1997).

District Courts in Other Circuits:

Patrick v. Johnson, 48 F. Supp. 2d 645 (N.D. Tex. 1999) (holding that petitioner was not entitled to compensation for an investigator and experts to develop a claim that was likely defaulted; stating that § 848(q) was not designed to provide petitioners with unlimited funds to investigate speculative claims).

United States v. Heatley, No. S2 96-515, 1996 WL 700923 (S.D.N.Y. Dec. 5, 1996) (setting payment procedures for § 848(q) counsel).

Federal Statutes:

18 U.S.C. § 3006A(d)(4), (e)(4) (1998) (requiring that counsel and service fee amounts be made public).

21 U.S.C. § 848(q)(9) (1998) (providing for expert and investigative services reasonably necessary for representation).

21 U.S.C. § 848(q)(10) (1998) (creating maximum rates for counsel and expert/investigative services).

28 U.S.C. § 2254(h) (1998) (providing counsel for applicant who has become financially unable to afford counsel).

28 U.S.C. § 2255 (1998) (providing counsel for applicant who has become financially unable to afford counsel).

See generally:

Steven M. Latino, Comment, Reversing Twenty Years of Supreme Court Postconviction Jurisprudence: Enlarging the Indigent Capital Defendant's Right to Postconviction Counsel in McFarland v. Scott, 22 New Eng. J. on Crim.& Civ. Confinement (1996) (arguing that McFarland marks a total departure from Supreme Court jurisprudence of the last twenty years, and proposing an alternative method of assistance during pre-application federal habeas corpus review).

Brian L. McDermott, Comment, Defending the Defenseless: Murray v. Giarratano and the Right to Counsel in Capital Post Conviction Proceedings, 75 Iowa L. Rev. 1305 (1990) (summarizing and criticizing Girarratano; examining the "death is different" doctrine and arguing that court should have applied due process balancing test).

Geraldine S. Moohr, Note, Murray v. Giarratano: A Remedy Reduced to a Meaningless Ritual, 39 Am.U.L.Rev. 765 (1990)(examining prisoners' constitutional right to meaningful court access; focusing on relief available to death row inmates denied access to state habeas; tracing history and Giarratano and arguing that it is not supported by either precedent or policy).

Scott E. Rogers, Note, Constitutional Law/Access to Courts–Limiting the Relief Available to Indigent Death Row Inmates Denied Meaningful Access to the Courts: Murray v. Giarratano, 17 Fla. St. U. L. Rev. 399 (1990) (examining prisoners' constitutional right to meaningful court access; focusing on relief available to death row inmates denied access to state habeas; tracing history and Giarratano and arguing that it is not supported by either precedent or policy).

Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 Buff. L. Rev. 329 (1995)(arguing that the primary obstacle to fair, consistent, non-arbitrary capital sentencing is chronic and severe underfunding of state and local indigent defense services).

6.2.8.1 Section 848(q) and State Exhaustion

Section 848(q) has no legislative history, and very few courts have published decisions interpreting this section. Therefore, a number of questions exist regarding § 848(q) and its applicability in § 2254 cases, which are often sent back to state court for exhaustion. See infra § 6.3.3. For example, subsection (B)(8) of § 848(q) requires that federally appointed counsel represent the defendant throughout every subsequent stage of available judicial proceedings. The current versions of §§ 2254 and 2255 allow a federal court to appoint counsel "in all [§ 2254 or § 2255] proceedings . . . , and any subsequent proceedings on review." Exhaustion of state remedies, see infra § 6.3.3, at the direction of a federal court arguably constitutes such a "subsequent proceeding." Most federal courts, however, have been unwilling to pay counsel for the exhaustion of remedies in state court, following the Eleventh Circuit in In re Lindsey, 875 F.2d 1502 (11th Cir. 1989).Another question is whether a court may or should authorize payment of investigative or expert services on unexhausted claims. District courts in the Ninth Circuit disagree on this issue. Some, following the Lindsey rationale, have refused to authorize such use of CJA funds. The Eastern District of California, in Gordon v. Vasquez, 859 F. Supp. 413 (E.D. Cal. 1994), however, held that CJA funds can be used to finance an investigation for purposes of exhaustion in state court.

Ninth Circuit:

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (extending standard for reversing non-habeas convictions for failure to provide investigative funds under § 3006A to requests for funds under § 848(q); requiring petitioner to show deprivation of effective assistance of counsel; petitioner must establish (1) reasonably competent retained counsel would have requested services, and (2) by clear and convincing evidence that lack of further investigation prejudiced defense).

Jackson v. Vasquez, 1 F.3d 885 (9th Cir. 1993) (holding that § 848(q) authorizes federal funding for expert and investigative services, and does not authorize district court to issue ex parte coercive order compelling action from a state official at state expense).

District Courts in Ninth Circuit:

Rowland v. Calderon , No. C 94-3037 (N.D. Cal. Aug. 15, 1996) (unpublished order) (ordering petitioner to comply with amended § 848(q)(9) regarding confidentiality in order to make ex parte motion for funds).

Gordon v. Vasquez, 859 F. Supp. 413 (E.D. Cal. 1994) (disagreeing with Lindsey, holding instead that CJA funds may be used for investigation of unexhausted state claims).

Hamilton v. Vasquez, No. C-89-3578, 1992 U.S. Dist. LEXIS 16015 (N.D. Cal. Oct. 9, 1992) (allowing petitioner to make ex parte investigation requests pursuant to § 848(q)(4)(B) and § 3006A).

Coleman v. Vasquez, 771 F. Supp. 300 (N.D. Cal. 1991) (providing federal funds under § 848(q) for investigative services before filing habeas petition; citing McCleskey for rationale that first habeas petition required thorough investigation to avoid procedural default; authorizing federal funds to conduct research on unexhausted issues; indicating that federal funds may not be used to pursue unexhausted state claims).

McKinney v. Paskett, 753 F. Supp. 861 (D. Idaho 1990) (holding that neither 21 U.S.C. § 3006A nor 28 U.S.C. § 848(q) requires that the court hear a habeas petitioner's request for expert or investigative services ex parte; holding that § 848(q) does not authorize federal payment of counsel to exhaust state remedies).

Other Circuits:

Tucker v. Scott, 66 F.3d 1418 (5th Cir. 1995) (following Joiner and Sterling and holding that petitioner has no right to assistance of federally appointed counsel to exhaust state remedies; state's refusal to appoint habeas counsel does not excuse exhaustion).

In re Joiner, 58 F.3d 143, 144 (5th Cir. 1995) (noting that McFarland did not decide whether § 848(q) right to counsel in "every subsequent stage of proceedings" extended to state collateral review, and thus does not change Fifth Circuit's rule that § 848(q) does not authorize federal funds for state exhaustion).

Sterling v. Scott, 57 F.3d 451 (5th Cir. 1995) (holding that petitioner has no right to paid appointed counsel under § 848(q) for purpose of exhausting state postconviction claims).

Hill v. Lockhart, 992 F.2d 801, 803–04 (8th Cir. 1993) (relying on Lindsey and rejecting request for compensation under § 848(q) for services performed in state clemency proceedings).

In re Lindsey, 875 F.2d 1502 (11th Cir. 1989) (holding that 21 U.S.C.§ 848(q)(4)(B)'s provision for appointment of counsel in certain death penalty cases does not entitle state death row inmate to appointed counsel for pursuit of state postconviction remedies).

District Courts in Other Circuits:

Strickler v. Greene, 57 F. Supp. 2d 313 (E.D. Va. 1999) (distinguishing Lindsey and granting counsel's fee application for services rendered in the preparation of petitioner's state petition for executive clemency).

Patrick v. Johnson, 48 F. Supp. 2d 645 (N.D. Tex. 1999) (holding that petitioner was not entitled to compensation for an investigator and two experts to aid in the development of a claim that was procedurally barred).

Wilson v. Horn, No. 96-7838, 1997 WL 137343 (E.D. Pa. 1997) (declining to appoint counsel for pursuit of state claims).

Moseley v. Freeman, 977 F. Supp. 733 (M.D.N.C. 1997) (interpreting§ 848(q)(4)(B) to require, absent extraordinary circumstances, completion of state direct and postconviction proceedings before requesting counsel to file § 2254 petition).

Death Row Prisoners of Pennsylvania v. Ridge, 948 F. Supp. 1278 (E.D. Pa. 1996) (stating that in "exceptional circumstances § 848(q) counsel can be appointed prior to exhaustion to assist inmate in preparing habeas corpus petition," where there is an "immediate need for habeas counsel even though there has not been exhaustion;" determination must be made in context of legislative scheme of Anti-Drug Abuse Act, AEDPA, and reasoning in McFarland).

United States ex rel. John Whitehead v. Page, 914 F. Supp. 1541 (N.D. Ill. 1995) (holding that § 848(q)(B)(4) cannot be construed to authorize appointing counsel as provided in McFarland before claims are exhausted in state court).

Federal Statutes:

28 U.S.C. § 2254 (1998) (providing counsel for § 2254 proceedings and all subsequent proceedings).

28 U.S.C. § 2255 (1998) (providing counsel for § 2255 proceedings and all subsequent proceedings)..

Errata

The Death Penalty Information Centeroffers the following news:

Tennessee Executions Stayed

Robert Coe who was to be the first person put to death in Tennessee in 40 years, received a stay from a federal court just hours before his April 5th scheduled execution. Doubts have been raised about his mental capacity. Moments later the same court issued a stay for Philip Workman, who was scheduled to be executed on April 6. Workman argues that there is new evidence that he did not kill the victim in his case. (Associated Press, 4/4/00)

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