Five federal capital habeas cases were decided in the week that has just passed and yet only one win, Dyer v. Calderon. In order to save space and fit under the maximum e-mail length for most internet services, again I eliminated the "In Depth" section until a week in which cases settle down a little bit more.

In Focus

Capital Case Victory Dyer v. Calderon Judge Kozinski writing the Ninth Circuit en banc's holding, relating to a juror who lied about whether she was related to a victim of violent crime, "[h]ow can someone who herself does not comply with the duty to tell the truth stand in judgment of other people's veracity? Having committed perjury, she may believe that the witnesses also feel no obligation to tell the truth and decide the case based on her prejudices rather than the testimony."

Given the extremely delicate situation when a juror is suspected of prejudice or misconduct, the trial judge must assume the "primary obligation . . . to fashion a responsible procedure for ascertaining whether misconduct actually occurred and if so, whether it was prejudicial." United States v. Boylan, 898 F.2d 230, 258 (1st Cir. 1990). While a trial is ongoing, lawyers may not conduct the kind of aggressive investigation of jurors they would of other witnesses. In such circumstances the trial judge fulfills his duty only if he "erects, and employs, a suitable framework for investigating the allegation [of bias] and gauging its effects[.]" Id. Where juror misconduct or bias is credibly alleged, the trial judge cannot wait for defense counsel to spoon feed him every bit of information which would make out a case of juror bias; rather, the judge has an independent responsibility to satisfy himself that the allegation of bias is unfounded.

Here, Burris did quite a bit, given the constraints of time and circumstance. He promptly advised the court that one of the jurors may have failed to disclose highly relevant information during voir dire. At the trial judge's direction, he obtained corroboration for the information from the prosecutor, including the case file. He requested that Provost be brought in for questioning, and when that request was denied, he had co-counsel interview Provost in jail and then reported what he said to the court. At the hearing, Burris asked Freeland the right questions and timely objected when the court ruled against him. And immediately following the hearing he drew the court's attention to the key fact contained in the file, namely that "the blue card from the prosecution . . . certainly suggests that her brother was shot in the back of the head and died in somewhat of a violent manner." Given the delicate circumstances and the fact that the penalty phase of the trial was moments away, it's hard to fault Burris for not doing more. It seems to us that counsel did enough to alert the trial court to the problem; it was then up to the judge to give the matter the attention it obviously deserved.

We are not unmindful that the trial judge too was in a difficult position. Through no fault of his own, the verdict in a five week murder trial was suddenly in jeopardy. Freeland was the last alternate juror; removing her would have required the court to set aside the guilty verdict, empanel a new jury and start from scratch. Had Freeland's omissions been discovered during voir dire, another juror could have been selected. With five weeks of trial completed and a verdict in hand, the problem had no comfortable solution. No judge would be eager to discover bias in these circumstances, and we attribute the trial judge's complacency to an ostrich-like desire to avoid learning anything that would jeopardize the verdict.

Whatever the reason, the judge did not avail himself of evi- dence that was, almost literally, right under his nose. Instead, he made a finding that Freeland told the truth--a finding that is nearly inexplicable given what he knew, and positively irra- tional given what he could easily have learned. If what hap- pened here is an adequate investigation into juror bias, we are at a loss to say what is not.

Capital Cases

Provenzano v. Singletary Eleventh Circuit in this capital claims rejects claims as to change of venue, guilt phase ineffective assistance of counsel, penalty phase ineffective assistance of counsel, prosecutorial misconduct, right of an indigent to public funds under Ake v. Oklahoma claim, the adversarial testing claim, the aggravating circumstances claim, competency to stand trial, ineffective assistance of appellate counsel, the mitigating circumstances jury instruction claim, the mitigating circumstances findings claim, jury instruction penalty phase under Caldwell v. Mississippi claim. Relating to the claims of ineffective assistance of counsel and the right to a defense under Ake.

In Waters, as in this case, counsel presented mental state expert witnesses at the guilt stage in support of a not guilty by reason of insanity plea; much of the testimony of those witnesses at the guilt stage was relevant to mitigating circumstances; and counsel chose not to recall them and attempt to elicit additional mitigating circumstance evidence from them at the sentence hearing. Seeid. at 1512-13. Rejecting the contention that effective assistance required counsel to recall expert witnesses at the penalty stage in such circumstances, we noted in Waters that which witnesses to call "is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess," and we held that a reasonable lawyer could decide to leave well enough alone and not subject to another round of cross-examination witnesses from whom he had already obtained during the guilt stage substantial evidence of serious mental problems. Seeid. at 1512. Exactly the same is true here.

In this case, Provenzano has brought forth a report from another mental state expert indicating that additional mitigating circumstance evidence could have been put before the jury. Seeid. We noted in Waters that it is "a common practice" to file affidavits from witnesses who say they could have provided additional mitigating circumstance evidence, but "the existence of such affidavits, artfully drafted though they be, usually proves little of significance." Seeid. at 1513. We reiterated in that decision what we had said more than once before: "The mere fact that other witnesses might have been available or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel." Id. at 1514, quotingAtkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992); Foster v. Dugger, 823 F.2d 402, 406 (11th Cir. 1987).

In this case, Provenzano's experienced criminal defense attorneys retained investigators, interviewed myriad witnesses including family members, examined medical records, and assembled background information about their client. They forwarded that information to the mental state experts they obtained. SeeProvenzano v. Singletary, manuscript op. at 33, 1997 WL 909440 at *19. At trial, they presented two mental state experts, who were well versed in Provenzano's background and behavior, and who testified to his serious mental problems, giving their opinion that he was insane at the time of the crime. Seeid., manuscript op. at32-33, 59-61, 1997 WL 909440 at *19, *32-34. Counsel used that expert testimony skillfully in arguments to the jury at the penalty stage. Seeid., manuscript op. at 59-60, 1997 WL 909440 at *32-*34.

Provenzano's counsel also used his sister as a guilt stage witness on the insanity issue. She testified in depth about her brother's life and problems. At the penalty stage, counsel called a detective who testified about Provenzano's paranoid behavior, and also about Provenzano having told officers about explosives in his apartment because he did not want them to get hurt. They also called Provenzano himself as a witness in his own behalf at penalty stage, and it appears from the record that he testified for about two hours. SeeWaters v. Zant, 46 F.3d at 1519 (recognizing that skilled defense counsel sometimes put a capital defendant on the stand to "humanize" him, because "it may be more difficult for a jury to condemn to death a man who has sat on the stand a few feet from them, looked them in the eyes, and talked to them."). Provenzano received effective assistance of counsel at the penalty stage.

* * * * * To the district court's discussion of the Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087 (1985), claim, we add that this Circuit's leading decision on Ake, which is Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), forecloses Provenzano's claim that the mental health assistance he received violated the Ake rule. Clisby holds that Ake is a due process doctrine, see 960 F.2d at 928-29, which requires the petitioner in all but the most unusual circumstances to show that he requested from the trial court something in the way of mental health expert assistance that the trial court refused to give him. Seeid. at 934 ("Petitioner's claim of a due process violation collapses as soon as one seeks to identify the trial court's ruling that purportedly rendered petitioner's trial fundamentally unfair.") Provenzano was given all that he requested from the trial court in the way of expert witnesses on the mental health issues.

We did speculate in Clisby that under certain limited circumstances due process might require the trial court to intervene to ensure that a defendant receives the assistance of a competent mental health expert, but we held that there was no indication the examination of the psychiatrist in that case was anything less than adequate. Seeid. at 934 n.12. The mental health experts who examined Provenzano and testified on his behalf at trial were fully competent. Moreover, the assistance they rendered Provenzano, seeProvenzano v. Singletary, manuscript op. at22-23, 32-33, 59-61, 1997 WL 909440 at *12, *19, *32-*34, far exceeded what Clisby held was adequate in that case, see 960 F.2d at 930-33. There was no Ake violation.

Dyer v. Calderon (see above).

Walls v. Bowersox Eighth Circuit holds that the district court erred in finding counsel ineffective in this capital case; death sentence reinstated on the strength of state's case and the aggravating factors court concludes result would have been the same even if counsel had acted as defendant wished. On the question of duty to investigate the Eighth Circuit panel holds:

The duty to investigate derives from an attorney's basic function, which is "to make the adversarial testing process work in the particular case." Strickland, 466 U.S. at 690. "Because that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies, . . . counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (quotation omitted).

Here, the defense team made an extensive effort to investigate Wall's family background and to secure the family's testimony at trial. Walls identified sixteen potential witnesses for the penalty phase. The social worker who had been retained by defense counsel attempted to contact each witness. (4) At the 29.15 hearing, Wall's mother testified that the social worker telephoned her repeatedly and engaged her in "lengthy" conversations. Additionally, the social worker had several discussions with Walls's father, stepmother, and numerous other relatives. The second chair attorney also talked to Walls's mother, father, and stepmother several times. Finally, lead counsel himself spoke with Walls's mother, father, stepmother, and sister prior to the penalty phase of the trial. This is not a case in which counsel failed to conduct a reasonable inquiry into potential mitigation witnesses. See, e.g., Kenley, 937 F.2d at 1306-07 (counsel ineffective when he failed to investigate defendant's troubled family life and mental instability, and rejected offers by family and social worker to assist in investigation); Thomas v. Lockhart, 738 F.2d 304, 308 (8th Cir. 1984) (counsel's investigation deficient where he did nothing beyond reading police file); Pickens v. Lockhart, 714 F.2d 1455, 1467 (8th Cir. 1983) (counsel ineffective where he failed to make any investigation whatsoever and "abdicated all responsibility for defending his client in the sentencing phase").

In all of their contacts with the defense team, the family steadfastly refused even to attend the trial, much less to testify. Walls's mother declined to come because she "didn't want to get involved." Walls's sister testified that she was "scared . . . because it was so highly publicized." Walls's father explained that "I didn't want to get my name . . . drug into this." Walls argues that counsel was ineffective in failing to change his relatives' minds. Although counsel was unable to procure the testimony of the family members, we cannot say it was from lack of effort.

Poland v. StewartNinth Circuit holds that "Poland is not entitled to habeas relief based on alleged trial error unless he can establish that the error resulted in 'actual prejudice.' This requires Poland to show that the trial court's denials of the challenges for cause "had substantial and injurious effect or influence in determining the jury's verdict." Key to the denial of of relief, the ever tightening strictures imposed on habeas by the Court and Congress:

A petitioner may be relieved from a procedural default on a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977). As the Court later said:"[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).

Poland makes several arguments concerning cause. He first appears to argue that his counsel on appeal was ineffec- tive for failing to raise the defaulted claims, and that this inef- fectiveness constitutes cause for the default. This argument has no merit. "[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Id. at 486.

Second, Poland argues that his counsel on the first PCR petition were ineffective for failing to raise the defaulted claims in that proceeding, and that this ineffectiveness consti- tutes cause for his procedural default. This argument is also without merit. Ineffective assistance of counsel constitutes cause for procedural default only if counsel's performance was constitutionally ineffective. Id. at 488. Because "[t]here is no constitutional right to an attorney in state post- conviction proceedings," there cannot be "constitutionally ineffective assistance of counsel in such proceedings." Coleman, 501 U.S. at 752. Poland's claim of ineffective assis- tance of counsel in his first PCR proceeding does not, there- fore, constitute cause for his procedural default. See id. at 752-53; Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir. 1996); Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993).

Third, Poland argues that since counsel on his first PCR proceeding were appointed by the trial court, their deficien- cies should be charged to the State, as is the situation with trial counsel. He attempts to distinguish Coleman on the basis that petitioner's counsel there was pro bono, and Bonin on the basis that this court did not consider the effect of court- appointed counsel on the issue.

Counsel for Patrick Poland appeared as amicus in Michael Poland's case. They there advanced this same argu- ment, and we squarely rejected it. Michael Poland, 117 F.3d at 1106. We do so again: The fact that counsel in a collateral proceeding is appointed by the court does not change the rule that petitioner is not entitled to effective assistance of counsel in those proceedings.

Poland has not shown cause for the defaults declared by the state courts, so we need not reach the issue of preju- dice.

Pruett v. Norris Eighth Circuit holds district court erred in granting habeas relief on claim of prejudicial pre-trial publicity. Other issues of note include: delay between crime and trial, jury selection of impartial jury and admission of hypnotically refreshed testimony at sentencing was harmless. Death sentence reinstated. The panel noted on the pre-trial publicity issue:

Contrary to the district court's apparent conclusion, this is not a case in which scrutiny of the venire reveals a level of widespread corruption resulting from exposure to pretrial publicity so pervasive and unrelenting as to constitutes inherent prejudice. According to the district court, 22 of the 77 potential jurors (29 percent) acknowledged during voir dire that they likely could not be impartial or accord Pruett a presumption of innocence. See Pruett, 959 F. Supp. at 1075. In our view, such a figure does not evince a "pattern of deep and bitter prejudice" against Pruett that would allow prejudice to be presumed. Snell, 14 F.3d at 1295 (constitutional error resulting from pretrial prejudice could not be presumed where 18 of 49 potential jurors (37 percent) expressed bias against defendant); see also Faul, 748 F.2d at 1213 (affirming denial of relief on similar grounds where 39 of 78 potential jurors (50 percent) were excluded as potentially partial); Murphy, 421 U.S. at 803 (fact that 20 of 78 potential jurors (26 percent) were prejudiced against defendant "by no means suggests a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own").

Habeas

Taylor v. Singletary Eleventh Circuit holds no errror in the prosecutorial impeachment of petitioner "with testimony that petitioner gave pursuant to an informal immunity agreement at a federal drug-smuggling trial a few years earlier."

§ 2254 win on the merits Henderson v. Frank Third Circuit holds -- in granting relief -- that "[t]he judgment of the district court will be reversed and the proceedings remanded to the district court for entry of a writ of habeas corpus, which shall be conditioned upon the Commonwealth affording petitioner a new hearing on his motion to suppress his confession and, if the Commonwealth still wishes to pursue the charges, a new trial that will abide the decision reached following the suppression hearing."

Mahaffey v. Page Seventh Circuit denies relief on this appeal raising issues concerning a Batson challenge, prosecutorial misconduct at Mahaffey's sentencing hearing, as well as ineffective assistance of trial counsel at the suppression hearing & at the sentencing hearing.

Williamson v. Gregoire Ninth Circuit examines the habeas "in custody" requirement, and holds "that the Washington sex offender law does not place Williamson "in custody" for purposes of federal habeas corpus."

Rattigan v. USA Sixth Circuit holds "the basis of Rattigan's collateral attack on his conviction is his contention that an instruction given to the jury during his trial on the term "use" was erroneous in light of Bailey v. United States, 516 U.S. 137 (1995)," but no harm suffered by petitioner.

Avila v. U.S. Tenth Circuit holds that accusations relief on this writ of error coram nobis as petitioner has failed to establish the required prejudice.

§ 2255 win on defining AEDPA Spotville v. Cain Fifth Circuit holds "that the habeas corpus petition of a pro se prisoner litigant is filed for purposes of determining the applicability of the AEDPA at the time the petitioner tenders the petition to prison officials for mailing."

§ 2255 win on defining AEDPA Shepeck v. US Seventh Circuit allowing a "[f]or purposes of second §§ 2244 and 2255 para. 8, then, an order granting a sec.2255 petition, and reimposing sentence, resets to zero the counter of collateral attacks pursued."

Prisoner Rights & Police Misconduct Cases

Prisoner'r rights win Whitlock v. Johnson Seventh Circuit holds inmates at "revocation of good-time credits have a qualified right to call witnesses in their defense."

Royce v. Hahn Third Circuit examines the community notification requirements for federal prisoners after release as to whether there crime was one of violence or not.

Evans v. Ill. Dept. of Corrections Seventh Circuit examines what constitutes 3 strikes for the purposes of the PLRA and the procedures for implementing the strikes.

Prisoner's rights victory Schneider v.V Doc Ninth Circuit holds the district court erred in holding "inmates in California do not have a protected property interest in the interest earned on [ITAs]" and dismissed the prisoners' complaint without leave to amend on that basis. (see other perspectives below)

Wray, et al. v. Clarke et al. Eighth Circuit holds that in this prisoner civil rights settlement that that the settlement was global and failure to include attorneys' fees precluded subsequent claim for fees.

Other Perspectives

As I do most weeks, find below the nation's premiere legal online provider, The National Law Journal (http://www.ljx.com) Courthouse section's analysis of cases covered here first last week, as well as those few cases that seem to slip through the net of coverage.

Prisoner's rights victory CALIFORNIA Department of Corrections' withholding of interest on inmate trust accounts contravenes the takings clause of the Fifth Amendment, the 9th U.S. Circuit Court of Appeals held Aug. 4. Schneider v. DOC, 97-15820. Reversing, Judge Diarmuid F. O'Scannlain said that it is "established under English common law since at least the mid-1700's, '[I]nterest shall follow the principal, as the shadow the body.'" Inmates in California state prisons brought this action to challenge the California statute that provides that interest accrued from an Inmate Trust Account, or ITA, be donated to the Inmate Welfare Fund. Because inmates are not permitted to carry cash, an ITA is necessary to buy items such as soap or toothpaste from the prison canteen. Judge O'Scannlain rejected arguments that a state statute barring interest on prison accounts terminated the prisoners' property interest. "Notwithstanding the State's protestations to the contrary, property rights can--and often do--exist wholly independently of statutes recognizing them....[W]ere the rule otherwise, States could unilaterally dictate the content of--indeed, altogether opt out of--both the Takings Clause and the Due Process Clause simply by statutorily recharacterizing traditional property-law concepts."

Direct appeal & "double jeopardy" victory GOVERNMENT MAY not use a judgment in a criminal case following a plea of guilty to collaterally estop a defendant from relitigating an issue in a subsequent criminal proceeding, the 10th U.S. Circuit Court of Appeals held July 28. U.S. v. Gallardo-Mendez, 97-4062. Reversing, Judge Wade Brorby stated, "We are not convinced [that] according preclusive effect to guilty pleas would...serve the interest of 'wise public policy and common sense judicial administration.' The prospect of being collaterally estopped at some future date may discourage criminal defendants from settling criminal charges by pleading guilty." . . . .. The court noted the distinction between a guilty plea which requires only a factual basis and a guilty verdict which requires proof beyond a reasonable doubt.

Direct appeal victory DEFENDANT WHO presented a stolen and forged check to a teller at a check-cashing business by placing the check in a chute in a walk-up window could not be convicted check-cashing business Supreme Court of California ruled July 30. People v. Davis, S058743. . . . "[A] burglary may be committed by using an instrument to enter a building--whether that instrument is used solely to effect entry, or to accomplish the intended larceny or felony as well. [However,] [i]nserting a stolen ATM card into an ATM, or placing a forged check in a chute in the window of a check-cashing facility, is not using an instrument to effect an entry within the meaning of the burglary statute. Neither act violates the occupant's possessory interest in the building as does using a tool to reach into a building and remove property." . . .

DEFENDANT WHO waived his Miranda rights at the time police started to question him was not entitled to a second warning after the questioning had been interrupted to investigate a portion of his story, the Supreme Court of Indiana ruled July 29. Ogle v. State, 19S00-9610-CR-00640. Affirming, Justice Brent Dickson said that although it might be the better practice to reiterate such warnings after an interruption of questioning, a readvisement is only necessary when the interruption deprived the suspect of an opportunity to make an informed and intelligent assessment of his interests. . . .

Direct appeal victory COMBINATION OF innocent, innocuous circumstances will not justify a prolonged traffic stop as they do not satisfy a totality-of-the-circumstances test, a divided 10th U.S. Circuit Court of Appeals held July 28. U.S. v. Salzano, 97-3337. Reversing, Judge David M. Ebel quoted, "Although the nature of the totality of the circumstances test makes it possible for individually innocuous factors to add up to reasonable suspicion, it is impossible for a combination of wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation." Robert Salzano was stopped by a trooper when his rented motor home strayed onto the shoulder of the highway. At the time of the stop, the trooper noted that a strong smell of evergreen was coming from within the vehicle, Mr. Salzano's hands were shaking and Mr. Salzano was traveling alone, although the rental agreement indicated that three persons were to travel in the vehicle. Mr. Salzano told the trooper that he was travelling from California to visit his father in Massachusetts and that, together, they would return to California, stopping in South Dakota to visit friends. The trooper searched the vehicle and found 494 pounds of marijuana. The district court refused to suppress this evidence. The appeals court found wholly innocent each factor that the trooper relied on in formulating his suspicion that criminal activity was afoot. In a strenuous dissent, Judge Mary Beck Briscoe wrote, "If a factor can be discounted simply because we can supply an innocent explanation for it, there would never be reasonable suspicion because all factors (short of those which would supply probable cause) can be discounted."

Prosecutorial civil suit victory CIVIL RIGHTS claim based on an illegal search is not barred by the plaintiff's conviction based in part on the fruits of that search, the 7th U.S. Circuit Court of Appeals held Aug. 4. Copus v. City of Edgerton, et al., 97-2112. Reversing Judge Daniel A. Manion found that the plaintiff's action was not necessarily barred by his conviction on charges stemming from the fruits of the unwarranted search. . . . "It is quite possible that the court would have admitted the evidence uncovered during that search under the independent source and inevitable discovery doctrines....After all, the record reveals that Copus consented to at least one search a day later, and his wife (who resided in the house with him) invited the police to search the home and pointed the police, along with ATF officers, to several additional firearms inside the house....We cannot say with certainty that success on Copus' Sec. 1983 claim 'necessarily' would impugn the validity of his conviction."

Direct appeal victory THE "MERE EXISTENCE of an arrest warrant does not authorize entry into a defendant's home, where there is no necessity to enter because the defendant can be arrested at the threshold of that home," the 9th U.S. Circuit Court of Appeals held July 31.

PLEASE NOTE: I am unsure whether there will be an edition next week. I am in the process of moving both my apartment and office this week. I have been informed the new phone hook up may be delayed due to the recent strike by the telephone union workers here on the eastern seaboard. If I can get dial tone, there will be an edition, if not, the following week will be a double edition. My apologies again.

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