This week brings tidings of good news, for the last week of July 1999 no reported federal capital case affirming a death sentence was to be had. The only federally reported capital case,Taylor v. Lee(4th Cir), resulted in the reinstatement of the right to habeas review where the district court had denied tolling for part of the period of state post-conviction review under the AEDPA.

In other news, over the course of the next few weeks the website will be moving tohttp://www.capitaldefenseweekly.com. This move will allow the ability to host more materials including an on site "brief bank," as well as webspace for individuals, clients and groups.

Supreme Court Review

Ross, Dixon and Bellhas done it again.Simon Wisenbergin conjunction withFindLaw.com, has compiled an outstanding review of the recently concluded October 1998 Supreme Court term. (Http://sol.findlaw.com)

STRICKLER V. GREENBrady Violation-Cause and Prejudice for Failure to Release

NATHANIEL JONES W. UNITED STATESCarjacking-Elements of the Offense

http://sol.findlaw.com/Carjacking-Required Intent

LILLY V. VIRGINIA Confrontation Clause-Declarations Against Penal Interest

RICHARDSON V. UNITED STATESContinuing Criminal Enterprise-Elements of the Offense

HADDLE V. GARRISONFederal Civil Rights-Obstruction

LOUIS JONES V. UNITED STATESFederal Death Penalty Act-Jury Instructions

MARYLAND V. DYSONFourth Amendment-Automobile Exception

FLORIDA V. WHITEFourth Amendment-Automobile Exception

WYOMING V. HOUGHTONFourth Amendment-Automobile Exception

MINNESOTA V. CARTERFourth Amendment-Expectation of Privacy

CITY OF WEST COVINA v. PERKINSFourth Amendment-Return of Seized property

KNOWLES V. IOWAFourth Amendment-Search Incident to Arrest

WILSON V. LAYNEFourth Amendment-Unreasonable Search

HANLON V. BERGERFourth Amendment-Unreasonable Search

CONN V. GABBERTFourteenth Amendment-Interference with Attorney at Grand Jury

MITCHELL V. UNITED STATESFifth Amendment Privilege Against Self-Incrimination-Sentencing Hearings

PEGUERO V. UNITED STATESGuilty Pleas-Required Warnings

O'SULLIVAN V. BOERCKELHabeas Corpus-Exhaustion of Remedies/Procedural Default

CALDERON V. COLEMANHabeas Corpus-Harmless Constitutional Trial Error

STEWART V. LAGRANDHabeas Corpus-Waiver and Procedural Default

UNITED STATES V. SUN DIAMOND GROWERS OF CALIFORNIAIllegal Gratuities-Required Intent

NEDER V. UNITED STATESMail Wire and Bank Fraud-Materiality

UNITED STATES V. RODRIGUEZ-MORENOVenue-18 U.S.C. §924(c)(1)

Capital Cases

Taylor v. Lee(4th Cir) AEDPA period for filing a habeas petition stayed while a post-conviction petition is properly pending in state court.

Taylor made two arguments on appeal. First, Taylor argued that the AEDPA should not apply to his case because his first federal petition for a writ of habeas corpus was dismissed without prejudice before the AEDPA was signed into law. Second, Taylor contended that the entire period of his state post-conviction proceedings should have been tolled from the limitations period of his second petition. The construction of a statute is a question of law that we reviewde novo.See Shafer v. Preston Mem'l Hosp. Corp., 107 F.3d 274, 277 (4th Cir. 1997).

The threshold issue is whether the AEDPA applies to the current appeal. This Court has held that any federal petition for a writ of habeas corpus filed after the signing of the AEDPA on April 24, 1996 is governed by the AEDPA.See Brown v. Angelone, 150 F.3d 370, 372 (4th Cir. 1998). Although Taylor filed his first habeas petition on July 6, 1993, before the adoption of the AEDPA, this first petition was dismissed without prejudice by the district court because Taylor had not yet exhausted his state remedies. It specifically instructed Taylor in its order that he "must institute a new action as the instant case is closed." Taylor initiated such a new action only with his sec- ond habeas petition. Since he filed his second petition on February 2, 1998, well after the signing of the AEDPA on April 24, 1996, the AEDPA applies in this case.Accord Graham v. Johnson, 168 F.3d 762, 775-77 (5th Cir. 1999) (rejecting a similar argument).

The second issue concerns the construction of Taylor's limitations period. We have already held that petitioners like Taylor who were still undergoing state post-conviction proceedings on April 24, 1996, had until April 23, 1997, under the AEDPA, to file a federal habeas petition.See Brown, 150 F.3d at 375-76. Both sides agree that the periods of time when Taylor's post-conviction filings were actually before a state court should be tolled from Taylor's limitations period. They disagree, however, over the period of time in between the North Carolina Superior Court's denial of Taylor's second MAR and Tay- lor's filing of a petition for a writ of certiorari from the North Caro- lina Supreme Court.

This dispute centers on the interpretation of the word "pending" in § 2244(d)(2) of the AEDPA. The State of North Carolina argued, and the district court agreed, that Taylor's state application for post- conviction review was "pending" only until the North Carolina Supe- rior Court denied his second MAR. The State argued that the period of time between when the MAR was denied and when Taylor filed a petition for writ of certiorari from the North Carolina Supreme Court (152 days) should not be tolled. According to the State's calcu- lation, Taylor's last day to file a habeas petition was September 8, 1997. The district court accepted the State's analysis, except that it tolled an additional 121 days to account for the State's transcript preparation, finding that "even the most diligent of state prisoners cannot prevent delays in the preparation of a transcript." The district court ultimately held that December 9, 1997, was Taylor's last day to file a habeas petition.

According to our research, of the federal appellate courts, only the Ninth and the Tenth Circuits have directly addressed this issue. Both circuits have interpreted § 2244(d)(2) to toll the entire period of post- conviction proceedings.See Nino v. Galaza, No. 98-55563, 1999 WL 451783, at *1; 1999 U.S. App. LEXIS 14966, at *1 (9th Cir. July 6, 1999) ("We conclude that . . . the time must be tolled for the entire period in which a petitioner is appropriately pursuing and exhausting his state remedies.");Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999) ("We conclude [that] the term[`pending'] must be con- strued more broadly to encompass all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies. . . .").

While not directly addressing this issue, the Supreme Court recently reinforced the Ninth and Tenth Circuits' reasoning. InO'Sullivan v. Boerckel, the Supreme Court held that a habeas peti tioner must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." 526 U.S. ___, ___, 119 S.Ct. 1728, 1732 (1999).

In contrast, our research indicates that the only court to adopt the State's "gap theory" in a published opinion is a district court in the Middle District of North Carolina.See Moseley v. French, 961 F.Supp. 889, 892 (M.D.N.C. 1997) ("The one-year period is given for the very purpose of preparing petitions, motions, etc. and, therefore, cannot be considered a tolling event."). In the current case, the district court's tolling of the additional 121 days for transcript preparation was not consistent withMoseleybecause that period was for the very purpose of preparing a motion.

After review, we find the reasoning of our sister Ninth and Tenth Circuits persuasive. We reject the gap theory for two reasons.

First, we agree with the district court that a transcript "is often a necessary part of the trial court record filed for appellate review" and that "the time required for the State to prepare and deliver the tran-cript" is "a matter completely out of a prisoner's control." Unfortu- nately, the gap theory does not allow for tolling of events such as transcript preparation.

Second, we believe that tolling the entire period of state proceed- ings upholds "[t]he principle of comity that underlies the exhaustion doctrine."Murray v. Carrier, 477 U.S. 478, 489(1986).See Gaskins, 1999 WL 447129, at *2; 1999 U.S. App. LEXIS 15061, at *5 ("Applying the tolling provision encourages respect for the principle of comity and compliance with the requirement that, ordinarily, a state prisoner must first exhaust his state court remedies before seek- ing federal habeas relief."). We agree with the Ninth Circuit that a "contrary construction would be antithetical to the entire theory of state remedy exhaustion and would inevitably lead to the filing of protective federal petitions."Nino, 1999 WL 451783, at *2; 1999 U.S. App. LEXIS 14966, at *6.

We therefore hold that under § 2244(d)(2) the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review), is tolled from the limitations period for federal habeas corpus petitioners who were already involved in state post-conviction proceedings on April 24, 1996.

Habeas Cases

Smalls v. Batista(2nd Cir) Granting habeas the court notes, "We therefore affirm the district court's decision that the coercive nature of the charge in this case requires the issuance of a writ. We emphasize that the charge was coercive as much for what it omitted as for what it included. This is so particularly because the charge lacked cautionary instructions reminding the jurors that they were not to surrender their conscientiously held beliefs. While a proper charge can encourage dialogue and debate and inform jurors that they may attempt to convince others that a particular view is correct, such a charge must caution the jurors never to abandon their conscientiously held beliefs, even if holding firm will result in a deadlock. The charge here was not harmless error."

Hartey v. Vaughn(3rd Cir.) Denying relief the panel notes that but for the quality of counsel in his post-conviction proceedings (both state and federal on issues regarding the right to confront one's accusers) relief would have been granted.

At the outset of our discussion of the merits of Hartey's claims we refer to our recent opinion in McCandless v. Vaughn, 172 F.3d 255. In that habeas corpus proceeding under 28 U.S.C. § 2254, we granted a writ to McCandless, Hartey's co-defendant, on the ground "that the prosecution did not fulfill its duty to protect McCandless's constitutional right to confront the key witness[John Barth] against him." See McCandless, 172 F.3d at 258. Hartey, however, did not raise this Confrontation Clause claim before the Pennsylvania state courts or in the district court. In fact, Hartey did not advance this point even in his primary briefs to this court; instead, he challenged his incarceration based on this confrontation violation only after we requested the parties to submit letter briefs detailing what effect, if any, McCandless had on this appeal. Thus, Hartey cannot raise the

confrontation issue at this late date, and McCandless cannot control our result on this appeal. See Baker v. Barbo, 177 F.3d 149, 156 n.7 (3d Cir. 1999).

Kleve v. Hill(9th Cir) Leniency in charging (attempted first degree murder versus the charged offense of attempted second degree murder) is not grounds for vacating a conviction.

Alvarez v. Gomez(9th Cir) Questions by petitioner concerning the availability of counsel were sufficient to invoke Miranda and statements made thereafter held volitive of American basic law.

Scoggin v. Kaiser(10th Cir.) Appellate ineffectiveness claim turned aside as petitioner can show no prejudice from failure to raise a jury instruction issue.

Prisoner's Rights/Governmental Misconduct Cases

Zitto v. Crabtree(9th Cir) Federal parole commission's use of a prior DUI as a basis of revocation held permissible where petitioner was given the option of asking for a continuance to defend against the charge.

Warren v. Crabtree(9th Cir) Bureau of Prisons determination that petitioners were ineligible for reduction of sentence as persons convicted of a "nonviolent offense" upheld.

Abraham v. Raso(3rd Cir.) Summary judgment is affirmed in part and reversed in part in a detailed examination of the extent of liability of parties in an off duty mall police shooting

Glauner v. Mill(9th Cir) Nevada's statutes and parole board's rule governing "sexual predators" when examined under rational basis review is held permissible.

Asquith v. Department of Corrections(3rd Cir) A halfway house versus a prison to serve one's sentence is not a protected liberty interest.

In Focus

During these dark days it often seems odd to celebrate, however, this week brings some joy to the weekly. capitaldefenseweekly.com is up and running. The site is intended to provide no cost/no advertising web space for the criminal and capital defense community, including webspace for clemency drives and abolitionists. CDW will over the next few weeks be moving to the site (the archives have already been moved), the brief bank, and several new collaborations with the e-zine. Sufficient webspace exists to post anything you may need to post in a secure environment. If you need webspace and/or internet advertising ideas please let me know (email is always convenient for me). One additional benefit of the site is the chance to host several local non-profits, several art commissions on which I sit, the temporary home of one of the oldest churches in the US, as well as several small local businesses (including at least one in which I am involved).

The email address here has slightly changed, however, the service will remain the same. If you happen to see a case not listed here that should be, as well as to subscribe, unsubscribe or change subscription information, please drop me a line at capdefense@geocities.com.

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