This week's edition brings three decisions, one win and two losses. The headline news of this edition, however, lies in the Supreme Court grant of a stay and certiorari in Williams v. Taylor which will impact on nearly every capital case in the country as the issues in that certiorari grant include the interpretation of the AEDPA and the meaning of ineffective assistance of counsel in the penalty phase of a capital trial.

In Focus -- Capital Cert Alert

The Supreme Court on Monday granted certiorari in Williams v. Taylor, ___S.Ct.___, 1999 WL 148296 (April 5, 1999) (decision below: Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998)) a capital case whose determination will examine IAC in the penalty phase (Issue 1), and perhaps more importantly, will set the limits of adjudication under the AEDPA (Issue 2 &3). Williams may well be the most important capital case decision in over five years. Full coverage will be given as it develops.

I. Where both the federal district court judge and state trial court judge who had originally sentenced Petitioner to death concluded that counsel's deficient performance was prejudicial under the test this Court articulated in Strickland v. Washington, did the Fourth Circuit err in denying relief by reformulating the Strickland test so that:

a. ineffective assistance of counsel claims may be assessed under the "windfall" analysis articulated in Lockhart v. Fretwell even where trial counsel's error was no "windfall"; and

b. the petitioner must show that absent counsel's deficient performance in the penalty phase, all twelve jurors would have voted for life imprisonment, even where state law would have mandated a life sentence if only one juror voted for life imprisonment?

II. Did the Fourth Circuit err in concluding that, under 28 U.S.C. §2254(d)(1), a state habeas court's decision to deny a federal constitutional claim cannot be "contrary to" clearly established Federal law as determined by the Court unless it is in "square conflict" with a decision of this Court that is "controlling as to law and fact"?

III. Did the Fourth Circuit err in concluding that, under 28 U.S.C. §2254(d)(1), a state habeas court's decision to deny a federal constitutional claim cannot involve "an unreasonable application of" clearly established Federal law as determined by the Court unless the state court's decision is predicated on an interpretation or application of relevant precedent that "reasonable jurists would all agree is unreasonable"?

Capital Cases

Jones v. Johnson Fifth Circuit denies habeas relief on claims relating chiefly to: [1] failure to instruct on lesser included offenses, [2] ineffective assistance of counsel, [3] Fourth Amendment/Miranda, [4] Penry, and [5] Batson. On the two issues the court appears to focus on:

The Lesser Included Offense Claim

A capital defendant is constitutionally entitled to instructions on a lesser-included offense only if he has demonstrated that the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. Jones' contentions that he killed the victim because of his homosexual advances are contradicted by the unequivocal language in his own confession that the theft motivated the murder.Because the jury could not have rationally acquitted Jones of the underlying felony - the essential difference between capital murder and murder - the jury's verdict necessarily was returned on the question of Jones' intent to kill.

Jones further contends that his mental capabilities lowered his culpable mental state. He points to the capital murder statute, which provides that a murder committed in the course of a robbery must be done intentionally, and the murder statute, which provides that the murder be done intentionally or knowingly. Jones contends that because he fit the profile of a "mentally deficient disorganized offender," the jury could have believed that he lacked the mental capacity to form the conscious objective or desire required of an intentional crime, and thus he killed knowingly but not intentionally. Because of this, his contention continues, he was necessarily entitled to an instruction on the lesser included offense of murder, as a murder committed knowingly in the course of a robbery lacks the higher level of intent and cannot be capital murder.

This contention is without merit. The evidence of record simply does not support a rational finding that Jones acted knowingly but not intentionally. Jones stated that he consciously decided to kill the victim so that he would not be recognized as the thief of the victim's stereo. The brutal, drawn-out nature of the murder is also evidence of the intentional nature of this crime. Further, the jury had the opportunity to distinguish between knowing and intentional conduct during the sentencing. The first punishment phase issue required the jury to find, beyond a reasonable doubt, that the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that death would result. The judge defined "deliberate" as "something more than intentional" and as a "conscious decision [embracing] more than a will to engage in conduct." Any suggestion that the jury rationally could have found Jones guilty of killing knowingly but not intentionally is foreclosed by the affirmative response to the greater mental element during the sentencing phase.

The Penry Claim

Jones contends that the jury was precluded from making a reasoned moral response to the mitigating evidence of mental retardation.To support his Penry claim, Jones relies on the testimony of Dr. Jerry Landrum, a psychologist, who testified that he found Jones "within the borderline mentally retarded range of intellectual abilities" through testing and conversation with him, and that Jones was "significantly limited" in his understanding of surrounding events. Jones also relies on testimony by the state psychiatrist that the IQ test scores underestimated Jones' alertness and understanding of what went on around him. Jones also contends that the court not only failed to give a Penry instruction, it expressly instructed the jury away from consideration of mitigating evidence by not allowing the jury to impose a sentence less than death based on the mitigating value of the evidence beyond its relevance to the special issues submitted.

We are not persuaded that a special instruction regarding Jones' mental retardation was required. We have noted that to have a valid Penry claim, the evidence must show "(1) a uniquely severe handicap with which the defendant was burdened through no fault of his own, . . . and (2) that the criminal act was attributable to this severe permanent condition." Jones has failed to show that his mental abilities were so limited as to constitute a uniquely severe handicap. Only one IQ test was performed by a non-testifying expert, and the results placed Jones in the dull normal range of intelligence. Although Dr. Landrum, Jones' defense witness, initially testified that Jones' IQ was between 73 and 77, and thus within the borderline mentally retarded range, he did not perform an IQ test. Even Dr. Landrum's low figures, however, fall within the borderline area between mild retardation (below 70) and dull normal intelligence. We have found that a showing of borderline or below average intelligence does not constitute a showing of mental retardation. Even assuming arguendo that Jones' limited abilities constitute a severe handicap, Jones has not presented any evidence showing the requisite nexus between his handicap and the criminal act. Therefore, Jones' Penry claim must also fail.

Nor do we find merit in Jones' contention that the instructions given did not properly empower the jury to consider a sentence less than death based on the mitigating value of evidence beyond its relevance to the special issues submitted. As discussed above, Jones presented no evidence of mental retardation and thus his evidence of mental retardation was not mitigating evidence outside the scope of the special issues. Further, in addition to the three special issues presented, the jury was given an additional instruction in which it was told that it could consider "any evidence, which . . . mitigates against an answer of "yes" to each issue, including aspects of the Defendant's character or record, and any of the circumstances of the commission of this offense which [the jury members] find to be mitigating." The jury was directed to consider all mitigating evidence, and thus Jones' claim must fail.

Rich v. Calderon Ninth Circuit upholds the conviction and death sentence in this California capital case.

The cursory examination of issues relating to Denial of discovery, evidentiary hearing, pre-indictment publicity, grand jury selection, jury instructions, defense counsel conflict of interest, shackling, prosecutorial misconduct, mental competence. Issues of particular interest include:

Habeas Discovery

Rich contends he was denied the opportunity to dis-cover and present evidence supporting his claims. In fact, the Magistrate Judge established an entirely reasonable process to deal with the claims for which Rich sought discovery and a hearing. The process required Rich to identify which of his claims remained unexhausted, which actually presented federal questions, and those as to which habeas relief might be available if favorable evidence were developed. Despite being given more than five months to investigate and prepare as well as a full day of argument to identify claims that might colorably entitle him to relief, Rich was unable to do so.

Habeas is an important safeguard whose goal is to cor-rect real and obvious wrongs. It was never meant to be a fish ing expedition for habeas petitioners to "explore their case in search of its existence." Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996) (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). An evidentiary hearing on a claim is required where it is clear from the petition that: (1) the allegations, if established, would entitle the petitioner to relief; and (2) the state court trier of fact has not reliably found the relevant facts. See, Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992). Nothing in Rich's submissions below suggests he could meet either requirement.

A habeas petitioner does not enjoy the presumptive entitlement to discovery of a traditional civil litigant. Bracy v. Gramley, 520 U.S. 899, 903-05, 117 S. Ct. 1793, 1796-97 (1997). Rather, discovery is available only in the discretion of the court and for good cause shown. See Rules Governing Section 2254 Cases, Rule 6(a) 28 U.S.C. foll. S 2254. This is consistent with our caselaw that there is no general right to discovery in habeas proceedings. See Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993). Other decisions cited by Rich do not establish a contrary proposition. Crandell v. Bunnell, 25 F.3d 754 (9th Cir. 1994), Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir. 1993), and McKenzie v. Risley, 915 F.2d 1396 (9th Cir. 1990) all involve petitioners who presented evidence in support of claims that colorably entitled them to relief. None of Rich's claims meet this standard.

Grand Jury Selection.

Rich broadly complains of the process by which the grand jury that indicted him was selected and composed. The district court properly limited Rich's equal protection claim under Teague v. Lane to the exclusion of Native Americans. Rich's claim fails because he did not set forth a prima facie case of systematic exclusion of members of that group. The 1980 Census for Shasta County showed that the overall popu- lation consisted of 2.7% "American Indian, Eskimo, and Aleut." A survey of the cases show that the exclusion of a group constituting 7.7% or less of the total population is, standing alone, generally insufficient to establish a prima facie case of systematic exclusion. See United States v. Cannady, 54 F.3d 544, 548 (9th Cir. 1995); United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir. 1982); United States v. Potter, 552 F.2d 901, 906 (9th Cir. 1977). There was no constitutional error in the selection and composition of the grand jury that returned Rich's indictment.

Jury Instructions.

Rich claims that the trial court misled the jury by failing to instruct, after the jury had reached a temporary impasse, that a failure to reach agreement on penalty would result in a life sentence. This argument fails because such an instruction would have been contrary to California Penal Code section 190.4(b) and inconsistent with established caselaw that a trial court need not inform a jury of the consequences of deadlock. See People v. Memro, 905 P.2d 1305, 1359, 11 Cal. 4th 786, 882 (Cal. 1995). Intermediate California appellate decisions suggesting a contrary rule fly in the face of our recognition of the California Supreme Court as the "final expositor of California law." Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). There is no error, constitutional or otherwise, in the failure to give the requested instruction.

Defense Counsel Conflict of Interest.

Rich claims that his trial counsel labored under an "economic conflict" of interest because of pressures put on him by Shasta County funding authorities. The result of these pressures, Rich claims, was twofold: (1) his counsel was "chilled" from obtaining experts "untainted " by a confession that was ultimately suppressed; and (2) an investigator was not hired to look into jailhouse conditions and their impact on Rich.

Even under the deferential standard the district court applied to this claim, it fails because Rich cannot show that: (1) his counsel actively represented conflicting interests; and (2) an actual conflict of interest adversely affected counsel's performance. See id. at 825. Rich's failure to make out such a prima facie case relieved the district court of any responsibility to hold an evidentiary hearing on the claim. See Williams v. Calderon, 52 F.3d 1465, 1484 (9th Cir. 1995).

A claim that a conflict produced adverse impact is not made out by simply claiming such; it must be an impact that significantly worsens the client's representation. See United States v. Mett, 65 F.3d 1531, 1535-36 (9th Cir. 1995). Rich's trial counsel provided an affidavit discussing the financial pressures he perceived at the time, which does not even suggest that he gave in to those pressures in any way that produced demonstrable harm of any kind to Rich's defense.

The finding below that Rich was not denied the effective assistance of counsel at trial is supported by substantial evidence.

Shackling.

Asked at argument to identify the most serious error affecting Rich's trial, his habeas counsel chose this one. The underlying facts are straightforward and not in essential dis- pute. Rich was in fact shackled with ankle chains during the course of his trial. The shackles were behind a curtain or "skirt" placed around the defense table to insure that they were not visible to the jury. He was not handcuffed and was able to take notes and communicate freely with his defense counsel. The record is devoid of any suggestion that the skirt was not effective in screening Rich's shackles from the jury's view. Neither the trial judge, who insisted on the shackling, nor Rich's defense counsel, who objected to it, made any comment about the jury being able to see the shackles in the courtroom during the trial. Our caselaw is clear: where care is taken to ensure that a defendant's shackling is not visible to the jury in the courtroom, no error results. See United States v. Collins, 109 F.3d 1413, 1418 (9th Cir. 1997); Castillo v. Stainer, 983 F.2d 145, 148 (9th Cir. 1992), as amended 997 F.2d 669 (9th Cir. 1993) (no constitutional error from brief jury viewing of shackled defendant outside the courtroom). No constitutional error resulted from the shackling methods employed here.

Collier v. Turpin Eleventh Circuit on petitioner for rehearing, while still vacating Petitioner's sentence of death, revisits its prior reasoning.

Supreme Court Cases

Mitchell v. United States The Supreme Court holds that the right to remain silent is not vitiated with a guilty plea and that during sentencing no adverse inference can be drawn from that silence.

1. In the federal criminal system, a guilty plea does not waive the self-incrimination privilege at sentencing. Pp. 6—12.

(a) The well-established rule that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details is justified by the fact that a witness may not pick and choose what aspects of a particular subject to discuss without casting doubt on the statements’ trustworthiness and diminishing the factual inquiry’s integrity. The privilege is waived for matters to which the witness testifies, and the waiver’s scope is determined by the scope of relevant cross-examination. Brown v. United States 356 U.S. 148, 154. The concerns justifying cross-examination at trial are absent at a plea colloquy, which protects the defendant from an unintelligent or involuntary plea. There is no convincing reason why the narrow inquiry at this stage should entail an extensive waiver of the privilege. A defendant who takes the stand cannot reasonably claim immunity on the matter he has himself put in dispute, but the defendant who pleads guilty takes matters out of dispute, leaving little danger that the court will be misled by selective disclosure. Here, petitioner’s “some of” statement did not pose a threat to the factfinding proceeding’s integrity, for the purpose of the District Court’s inquiry was simply to ensure that she understood the charges and there was a factual basis for the Government’s case. Nor does Rule 11 contemplate a broad waiver. Its purpose is to inform the defendant of what she loses by forgoing a trial, not to elicit a waiver of privileges that exist beyond the trial’s confines. Treating a guilty plea as a waiver of the privilege would be a grave encroachment on defendants’ rights. It would allow prosecutors to indict without specifying a drug quantity, obtain a guilty plea, and then put the defendant on the stand at sentencing to fill in the quantity. To enlist a defendant as an instrument of his or her own condemnation would undermine the long tradition and vital principle that criminal proceedings rely on accusations proved by the Government, not on inquisitions conducted to enhance its own prosecutorial power. Rogers v. Richmond, 365 U.S. 534 , 541. Pp. 6—10.

(b) Where a sentence has yet to be imposed, this Court has already rejected the proposition that incrimination is complete once guilt has been adjudicated. See e.g.,Reina v. United States, 364 U.S. 507, ” Estelle, supra, at 463. Estelle was a capital case, but there is no reason not to apply its principle to noncapital sentencing hearings. The Fifth Amendment prevents a person from being compelled in any criminal case to be a witness against himself. To maintain that sentencing proceedings are not part of “any criminal case” is contrary to the Federal Rules of Criminal Procedure and to common sense. Pp. 10—12.

2. A sentencing court may not draw an adverse inference from a defendant’s silence in determining facts relating to the circumstances and details of the crime. The normal rule in a criminal case permits no negative inference from a defendant’s failure to testify. See Griffin v. California, 380 U.S. 609, 614. A sentencing hearing is part of the criminal case, and the concerns mandating the rule against negative inferences at trial apply with equal force at sentencing. This holding is a product not only of Griffin but also of Estelle’s conclusion that there is no basis for distinguishing between a criminal case’s guilt and sentencing phases so far as the protection of the Fifth Amendment privilege is concerned. There is little doubt that the rule against adverse inferences has become an essential feature of the Nation’s legal tradition, teaching that the Government must prove its allegations while respecting the defendant’s individual rights. The Court expresses no opinion on the questions whether silence bears upon the determination of lack of remorse, or upon acceptance of responsibility for the offense for purposes of a downward adjustment under the United States Sentencing Guidelines. Pp. 12—16.

Conn v. Gabbert Supreme Court holds that a defendant's counsel does not have a cognizable civil claim under the due process clause concerning interference with representation during grand jury proceedings. From the syllabus:

Fourteenth Amendment right to practice his profession by executing a searchwarrant while the attorney’s client is testifying before a grand jury. To prevail in a §1983 action for civil damages from a government official performing discretionary functions, the qualified immunity defense requires that the official be shown to have violated clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818. There is no support in this Court’s cases for the Ninth Circuit’s conclusion that the prosecutors’ actions in this case deprived Gabbert of a liberty interest in practicing law. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578; Meyer v. Nebraska, 262 U.S. 390, 399. The cases relied upon by the Ninth Circuit or suggested by Gabbert all deal with a complete prohibition of the right to engage in a calling, and not the sort of brief interruption as a result of legal process which occurred here. See, e.g., Dent v. West Virginia, 129 U.S. 114. Gabbert’s argument that the search’s improper timing interfered with his client’s right to have him outside the grand jury room and available to consult with her is unavailing, since a grand jury witness has no constitutional right to have counsel present during the proceeding, and none of this Court’s decisions has held that such a witness has a right to have her attorney present outside the jury room. This Court need not decide whether such a right exists, because Gabbert had no standing to raise the alleged infringement of his client’s rights. Although he does have standing to complain of the allegedly unreasonable timing of the search warrant’s execution to prevent him from advising his client, challenges to the reasonableness of the execution of a search warrant must be assessed under the Fourth Amendment, not the Fourteenth, see Graham v. Connor, 490 U.S. 386, 395. Pp. 4—7.

Wyoming v. Houghton Supreme Court holds that once the police have probble cause to search a car they may inspect the purse of anyone in the car. From the syllabus:

Police officers with probable cause to search a car, as in this case, may inspect passengers’ belongings found in the car that are capable of concealing the object of the search. In determining whether a particular governmental action violates the Fourth Amendment, this Court inquires first whether the action was regarded as an unlawful search or seizure under common law when the Amendment was framed, see, e.g., Wilson v. Arkansas, 514 U.S. 927, 931. Where that inquiry yields no answer, the Court must evaluate the search or seizure under traditional reasonableness standards by balancing an individual’s privacy interests against legitimate governmental interests, see, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652—653. This Court has concluded that the Framers would have regarded as reasonable the warrantless search of a car that police had probable cause to believe contained contraband, Carroll v. United States, 267 U.S. 132, as well as the warrantless search of containers within the automobile, United States v. Ross, 456 U.S. 798. Neither Ross nor the historical evidence it relied upon admits of a distinction based on ownership. The analytical principle underlying Ross’s rule is also fully consistent with the balance of this Court’s Fourth Amendment jurisprudence. Even if the historical evidence were equivocal, the balancing of the relative interests weighs decidedly in favor of searching a passenger’s belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property they transport in cars. See, e.g., Cardwell v. Lewis, 417 U.S. 583, 590. The degree of intrusiveness of a package search upon personal privacy and personal dignity is substantially less than the degree of intrusiveness of the body searches at issue in United States v. Di Re, 332 U.S. 581, and Ybarra v. Illinois, 444 U.S. 85. In contrast to the passenger’s reduced privacy expectations, the governmental interest in effective law enforcement would be appreciably impaired without the ability to search the passenger’s belongings, since an automobile’s ready mobility creates the risk that evidence or contraband will be permanently lost while a warrant is obtained, California v. Carney, 471 U.S. 386; since a passenger may have an interest in concealing evidence of wrongdoing in a common enterprise with the driver, cf. Maryland v. Wilson, 519 U.S. 408, 413—414; and since a criminal might be able to hide contraband in a passenger’s belongings as readily as in other containers in the car, see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 102. The Wyoming Supreme Court’s “passenger property” rule would be unworkable in practice. Finally, an exception from the historical practice described in Ross protecting only a passenger’s property, rather than property belonging to anyone other than the driver, would be less sensible than the rule that a package may be searched, whether or not its owner is present as a passenger or otherwise, because it might contain the object of the search. Pp. 3—11.

Cases of Note

USA v CamorlingaNinth Circuit holds, on direct appeal on undisputed facts, that violation of a foreign nationals right to consul, upon a showing of prejudice, must result in the suppression of evidence.

We see no reason why the same standard should not apply in this case. Upon a showing that the Vienna Convention was violated by a failure to inform the alien of his right to contact his consulate, the defendant in a criminal proceeding has the initial burden of producing evidence showing prej-udice from the violation of the Convention. If the defendant meets that burden, it is up to the government to rebut the showing of prejudice.

In this case, Lombera-Camorlinga filed a motion to suppress his post-arrest statements because he was not first advised of his rights under the Vienna Convention. The district court denied his motion to suppress without making a determination of prejudice. We therefore reverse and remand to the district court for a determination whether in making his post-arrest statements, Lombera-Camorlinga was prejudiced by the violation of the Vienna Convention.

Habeas Cases

Furman v. Wood Ninth Circuit, in this case where the death penalty was vacated by the state Washington Supreme Court on the grounds that Furman was a minor at the time of the crime, denies this petition on grounds that the burden has not been met on allegations of prosecutorial misconduct, ineffective assistance of counsel based on examination of a witness, and that petitioner's jury was unduly conviction prone due to death qualifying during voir dire.

Morse v. Hanks Seventh Circuit holds no Batson violation where state court accepted prosecutor's assertion that strikes were not based on racial bias.

McCandles v. Vaughn Third Circuit, while finding several issues procedurally defaulted, holds that the right to confront witnesses was violated when the state failed to produce a key witness at trial but had admitted into the record in its place her preliminary hearing testimony.

Prisoner's Rights/Governmental Misconduct Cases

Williams v. Johnson Fifth Circuit upholds parole revocation despite state's failure to produce a key witness in that hearing.

Montero v. Travis Second Circuit upholds dismissal sua sponte of a complaint brought under 42 U.S.C. § 1983, which alleged that defendant parole board commissioners unconstitutionally revoked plaintiff's parole as parole board officials have absolute immunity when deciding whether to grant, deny or revoke parole..

Wong v. Warden, FCI Raybrook Second Cricuit denies relief on claims that the petitioner was denied a transfer to a Canadian prison due to his race and national origin or in retaliation for his exercise of constitutional rights.

Hadix v. Johnson Sixth Circuit, in another episode of a Michigan prisoner's right suit, remands for a determination of "actual injury" as required by Lewis v. Casey, but we affirms the district court's grant of a preliminary injunction to the plaintiffs in order to maintain the status quo until a hearing on the merits can be concluded and a new determination made.

DISCLAIMER & CREDITS -- Written and edited by Karl R. Keys, Esq., a Massachusetts practitioner, who focuses his practice on the defense of condemned. (c) 1998. THIS NEWSLETTER AND ALL INFORMATION ON THE SITE IS RELEASED INTO THE PUBLIC DOMAIN as long as attribution and my email address are included -- this excludes, however, federal materials (which are already in the public domain) and any copyrighted information owned by others. This newsletter is no substitute for legal research as it doesn't cover unpublished cases, and frequently misses cases. Similarly nothing posted is warranted as to accuracy, typos, or for that much of anything else. For educational use only. USE DOES NOT CONSTITUTE THE ESTABLISHMENT OF THE ATTORNEY CLIENT RELATIONSHIP & MAY BE CONSIDERED ADVERTISING UNDER THE RULES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. LJX materials are reproduced pursuant to the subscriber agreement ¶ 3(b). Requests for assistance are gladly forwarded to the appropriate parties, but solicitation for counsel can not, unfortunately be forwarded at this time. In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state.