This issues offers not a single reported victory in a capital case.InRamdass v. Angelone (4th Cir) the panel splits on the right to have a fully informed jury on the issue of the true range of sentencing options. InBryson v. Ward (10th Cir) the exclusion of mitigation evidence and questionable jury instructions, resulted in no constitutional infirmity or was harmless error. The Fourth Circuit, this time in Williams v. Taylor again denies relief,chiefly on issues of supression of evidence relating to the prosecution's star witness. Finally, in an opinion that delves into the complexity of the AEDPA, Morris v. Horn(3rd Cir) examines a growing problem with the interplay between the one year statute of limitations under the AEDPA and the requirements of exhaustion.

In Missouri a highly unusual event this week, three death sentences have been vacated by three separate courts. On Monday, a federal judge in Kansas City announced he had commuted Faye Copeland's sentence to life in prison. On Tuesday, a three judge panel of the 8th U.S. Circuit Court of Appeals overturned the death sentence of Jahn Parker as the trial jury wouldn't have ordered him executed if not for the mistaken impression that Parker murdered a girlfriend because she was going to testify against him on an earlier assault charge. U.S. District Judge Charles Shaw's office confirmed Wednesday, though he issued the ruling Monday, that William Weaver had been granted relief.

Capital Cases

Bryson v. Ward (10th Cir) "On appeal, Bryson asserts the trial court (1) violated his right to due process under the Fifth, Sixth, and Fourteenth Amendments when it determined he was competent to stand trial; (2) violated his rights under the Eighth and Fourteenth Amendments by excluding from the capital sentencing proceeding a videotape of his confession to authorities, which he offered as mitigating evidence; (3) erred in failing to instruct the jury that it had the option to return a life sentence even if it found that the aggravating circumstances outweighed the mitigating circumstances; (4) erred in refusing to instruct the jury on the lesser included offenses of second degree murder and first degree manslaughter; and (5) erred in refusing to give the mitigation instructions he requested."

1. Competency

Bryson next makes both substantive and procedural due process competency claims.(4)

He argues that the trial court violated his substantive due process rights by determining he was competent to stand trial. He also argues the trial court did not provide the competency hearing required by Oklahoma statute and did not consider the affidavits of trial counsel or one of his mental health experts, Dr. Murphy, both indicating that he was incompetent. Bryson further contends that the trial court's consideration only of its observation of Bryson at the motion hearing was an abuse of discretion and denial of a meaningful hearing. Bryson, rather, contends that the trial court should have examined Dr. Murphy before making a competency determination. (5)

On direct criminal appeal, the Oklahoma Court of Criminal Appeals concluded the trial court did not abuse its discretion in finding there was no doubt as to petitioner's competency. See Bryson, 876 P.2d at 249. On habeas, the district court thoroughly considered the evidence in the record. The court concluded the trial court's finding that petitioner was competent to stand trial and denial of a full evidentiary hearing on competency "were based upon a reasonable determination of the facts in light of the evidence presented." Dist. Ct. R. Doc. 27 at 25-26.

Competency to stand trial is a factual question. See United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998), cert. denied, 119 S. Ct. 828 (1999). A state court's factual finding of competency is presumed correct. See 28 U.S.C. § 2254(e)(1). A petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See id. A federal court may not issue a writ of habeas corpus unless the state courts' competency decisions were based on an unreasonable determination of the facts in light of the evidence. See id. § 2254(d)(2).

It is settled that trying an incompetent defendant violates due process. See Cooper, 517 U.S. at 354. The test for determining competency is whether a defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding­and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (quotation omitted); see also Walker, 167 F.3d at 1343.

In determining whether a full hearing on competency is required, a trial court considers evidence of a defendant's irrational behavior, his courtroom demeanor, and any medical opinion bearing on competency. See Drope v. Missouri, 420 U.S. 162, 180 (1975). A trial court may rely on its own observations of the defendant's comportment. See Boigegrain, 155 F.3d at 1189. Defense counsel is often in the best position to determine whether a defendant's competency is questionable. See Watts v. Singletary, 87 F.3d 1282, 1288 (11th Cir. 1996). Nonetheless, the concerns of counsel alone are insufficient to establish doubt of a defendant's competency. See Reynolds v. Norris, 86 F.3d 796, 800 (8th Cir. 1996); see also Drope, 420 U.S. at 177 n.13 (although trial court need not accept counsel's representations regarding defendant's competency without question, court should consider such representations as a factor). A full competency determination is necessary only when a court has reason to doubt a defendant's competency. See Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993); see also Drope, 420 U.S. at 180 ("no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed").

The record in this case reflects that trial was scheduled to start on a Monday. (6) On the preceding Friday, Bryson filed an application for determination of competency.(7) He alleged only the following:

1) [Bryson] is currently incompetent to undergo further proceedings in the above-styled action;

2) That the following facts are sufficient to raise a doubt as to the competency of [Bryson];

3) [Bryson] is unable to comprehend his attorney or to meaningfully assist in the defense of his case;

4) [His] mental state and communication abilities are such that they seriously interfere with the understanding of the proceedings against him and with his capability of aiding his attorney in preparation for trial.

Original R. Vol. 2 at 576.

At a hearing held that day, counsel stated that based upon her personal observations, as well as the opinions of mental health experts, she believed that Bryson may be incompetent. She responded vaguely to the court's questions, failing to give specific reasons why she believed Bryson was incompetent. See Motions Hr'g of Mar. 10, 1989 at 288-90 (counsel indicated that she wanted an ex parte hearing to avoid disclosure of privileged information). Although she indicated that she wanted to submit affidavits of the mental health experts in an ex parte hearing, she admitted that these experts had not examined Bryson for competency to stand trial.

The trial judge examined Bryson at the hearing. The judge advised Bryson that he would not question him about the charged crimes and that Bryson should not provide information about them. Bryson indicated that he understood these instructions. In response to the judge's questions, Bryson indicated that he knew his name, his age, his date of birth, the last year he attended school, the last school he attended, his parents' names and address, he and his co-defendants were charged with murder, the date his trial was to start, who his attorney was and her name, he could receive the death penalty, and he would have a jury trial. He denied, and perhaps was confused about, being questioned by police officers in the Oklahoma City Jail. He did not know what crimes he had been charged with other than murder. See id. at 300 (Bryson stated that he knew he was charged with "killing somebody"). He admitted at times he had trouble understanding his attorney, but he did not know if he had problems making her understand him. Also, he did not know if he had given her the information he thought she needed for the case.

At the conclusion of the hearing, the trial judge stated that based on his observations of Bryson and Bryson's answers to his questions, he had no reason to question Bryson's mental competency to stand trial or to assist his counsel. In a written order, the trial court stated there was no doubt that Bryson was competent. The court found that Bryson understood the nature of the charges and proceedings brought against him and he was able to effectively and rationally assist his attorneys.

Bryson subsequently requested a jury trial on the issue of competency and an ex parte hearing before the trial court in order to submit the affidavits of two mental health experts. He sought an ex parte hearing because the affidavits allegedly presented material protected under the attorney-client privilege and attorney work-product doctrine. To support this motion, Bryson's attorney submitted her own affidavit indicating that the mental health experts' affidavits had not been available for the Friday hearing. Counsel again indicated her belief that Bryson was incompetent was based not only upon the opinions of the mental health professionals, but also upon her personal observations. According to counsel, Bryson "has begun to make statements that can only be classified as delusional. He does not seem to be able to differentiate fact from fiction and in this regard cannot rationally and meaningfully assist his attorneys with his defense." Original R. Vol. 2 at 598. It does not appear that the trial court specifically addressed this subsequent request.

The record before the district court and before this court includes only the affidavit of Dr. Murphy.

He stated that although he did not conduct his interviews and testing to determine Bryson's mental competency at that time, it was his opinion that there was a "substantial doubt" that Bryson was competent to stand trial and that further testing was required to "remove the doubt as to his ability to meaningfully and rationally assist his counsel with his defense." Affidavit of Philip J. Murphy at 2.

It appears, as the district court noted, that the trial court may not have considered Dr. Murphy's affidavit. Nevertheless, a state court can find a defendant competent without ordering an evidentiary hearing even if there is psychiatric testimony indicating that he is incompetent. See Carter v. Johnson, 131 F.3d 452, 461 (5th Cir. 1997), cert. denied, 118 S. Ct. 1567 (1998). Here, Dr. Murphy did not state Bryson was incompetent. He merely indicated that Bryson might be incompetent. Also, Dr. Murphy admitted that he had not examined Bryson to determine his competency.

While it may have been preferable for the trial court to have expressly indicated that it had considered and rejected Dr. Murphy's affidavit, failure to do so was not error. This evidence, viewed objectively, did not raise either a bona fide or real, substantial or legitimate doubt as to Bryson's competency. See Walker, 167 F.3d at 1343-44 (standards applicable to procedural and substantive due process claims). Furthermore, the transcript of the hearing shows that Bryson responded rationally, coherently, and lucidly to the trial court's questions. He communicated effectively and answered only the questions asked without providing extraneous information. His answers also indicated that he understood the factual nature of the proceedings against him and the possible penalty for conviction and was able to assist counsel. See Godinez, 509 U.S. at 401 n.12, 402. Although there is no precise quantum of proof for establishing sufficient doubt, see Branscomb v. Norris, 47 F.3d 258, 261 (8th Cir. 1995), the record does not contradict the trial court's assessment, after observing Bryson, that there was no doubt Bryson was competent, see United States v. Newman, 733 F.2d 1395, 1401 (10th Cir. 1984).

Thus, the trial court's finding that Bryson's testimony established he was competent and had a rational and factual understanding of the proceedings against him is entitled to a presumption of correctness. Bryson points to no evidence, other than conclusory assertions of incompetency, to rebut this presumption. He has therefore failed to rebut the presumption by clear and convincing evidence. On these facts, the trial court was not required to hold a full competency hearing. See Godinez, 509 U.S. at 401 n.13.

Also, Bryson did not make a sufficient showing that the trial court should have held an ex parte hearing. There is no Oklahoma statutory authority for an ex parte hearing. See Okla. Stat. tit. 22, § 1175.3. Furthermore, Bryson failed to show that confidential information actually was at stake, thus requiring an ex parte hearing. See Wise v. Bowersox, 136 F.3d 1197, 1204 (8th Cir.), cert. denied, 119 S. Ct. 560 (1998).

Bryson's counsel continued to question his competency immediately before the start of trial and during the guilt and sentencing phases of trial; she indicated that Bryson would not testify due to his incompetency. See Trial Tr. Vol. I at 3-4 (during hearing on pretrial motions counsel sought reconsideration of Bryson's competency); id. Vol. V at 1449 (counsel states Bryson will not testify at trial because he is not competent based upon unexplained "things" he told counsel); id. Vol. VI at 1688 (counsel states that Bryson will not testify at sentencing because he is delusional, is incapable of testifying, and would not make sense), id. at 1690 (counsel asserts, without further explanation, that Bryson has changed "dramatically"). Counsel's statements regarding competency, however, were general and vague.

"[A] trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Drope, 420 U.S. at 181. Here, however, nothing in the record indicates that Bryson engaged in any irrational or unusual behavior during the trial which would lead the trial court to change its decision and to question Bryson's competency. See Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998).

Likewise, at his sentencing, it appeared that Bryson was competent and understood the nature of the proceedings. He testified that he recalled the jury's verdict. He indicated that he desired to appeal and wanted court-appointed counsel to do so. Except for indicating he did not understand 1) that an appellate court would decide if he was to be executed, and 2) how he could pay a fine if he was executed, Bryson stated he understood all of the questions the court asked. His failure to understand the first does not indicate incompetency and the district court stated that his failure to understand the second was more likely sarcasm than a lack of understanding.

The record from the state trial court indicates that its competency decision was not based upon an unreasonable determination of the facts in light of the evidence presented to it. See 28 U.S.C. § 2254(d)(2). Also, the trial court did not err in failing to hold a competency hearing. See Sena v. New Mexico State Prison, 109 F.3d 652, 655 (10th Cir. 1997).

B. Exclusion of Mitigating Evidence

Bryson argues that the trial court violated the Eighth and Fourteenth Amendments by excluding a videotape of his confession, which he sought to admit at the sentencing proceeding as mitigating evidence. The Oklahoma Court of Criminal Appeals held that, while the trial court's exclusion of this mitigating evidence was constitutional error, it was, nonetheless, harmless. See Bryson, 876 P.2d at 256-57. Respondent does not dispute that the trial court erred in refusing to admit the videotape.

Clearly established Supreme Court precedent provides that a capital sentencer may not refuse to consider, nor be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any circumstance of the offense which the defendant proffers as a basis for the imposition of a sentence less than death. See, e.g., Skipper v. South Carolina, 476 U.S. 1, 4 (1986) (citing Eddings v. Oklahoma, 455 U.S. 104, 110, 114 (1982), and Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality)). The Court, however, has never specifically addressed whether the erroneous exclusion of mitigating evidence can ever be harmless. Cf. Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987) (granting habeas relief, after noting government made no attempt to argue that sentencer's improper refusal to consider nonstatutory mitigating factors was harmless error); Skipper, 476 U.S. at 7-8 (refusing to deem erroneously excluded mitigating evidence as only cumulative and its exclusion harmless). The Oklahoma Court of Criminal Appeals' application of a harmless error analysis to the improper exclusion of this mitigating evidence, therefore, was not "contrary to . . . clearly established" Supreme Court precedent. 28 U.S.C. § 2254(d)(1).

Nor was the state court's application of a harmless error analysis an unreasonable application of general Supreme Court principles. This court has previously applied a harmless error analysis to the exclusion of mitigating evidence. See Dutton v. Brown, 812 F.2d 593, 601 & n.8 (10th Cir. 1987) (reh'g en banc) (determining exclusion of mitigating evidence was not harmless). And, although not controlling here, several other circuits have also applied a harmless error analysis in similar circumstances. See, e.g., Boyd v. French, 147 F.3d 319, 322, 327-28 (4th Cir. 1998), cert. denied, 119 S. Ct. 1050 (1999); Sweet v. Delo, 125 F.3d 1144, 1158-59 (8th Cir. 1997) (in dicta), cert. denied, 118 S. Ct. 1197 (1998); see also Knight v. Dugger, 863 F.2d 705, 710 (11th Cir. 1988), and cases cited therein (noting harmless error analysis applies to Lockett errors, but that precise guidelines of analysis are unsettled). See generallyO'Brien v. Dubois, 145 F.3d 16, 20-21, 25, 26-27 (1st Cir. 1998) (federal case law, inferior to Supreme Court precedent, may serve as guide in determining reasonableness of state court's application of Supreme Court law). The state court's application of a harmless error analysis to the trial court's erroneous exclusion of the videotape, therefore, was not "an unreasonable application of[] clearly established" Supreme Court precedent, § 2254(d)(1).

Further, we agree with the district court that the exclusion of the videotape did not have a "substantial and injurious effect or influence in determining the jury's verdict," and was, therefore, harmless error. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Bryson argues that the videotape would have shown his remorse, demeanor, state of mind, and motive for the killing, as well as explained the nature and extent of his relationship with Marilyn Plantz. The videotaped confession does not tend to show any remorse. Further, despite the exclusion of the videotape, Bryson was able to present other evidence concerning these mitigating factors. The excluded videotape did not tend to establish any facts concerning Bryson's relationship with Plantz that had not already been presented to the jury. In addition, the record, even without the videotape, contains evidence regarding the victim's alleged abuse of Marilyn Plantz, which Bryson asserts was his motivation for the killing. The erroneous exclusion of the videotape, therefore, was harmless. See Boyd, 147 F.3d at 328; Sweet, 125 F.3d at 1158-59.

1. Option to Return a Life Sentence

Bryson argues the trial court erred in failing to instruct the jury that it had the option to return a life sentence even if it found the aggravating circumstances outweighed the mitigating circumstances. The Oklahoma Court of Criminal Appeals rejected this argument, and held that there is no entitlement to such an instruction. See Bryson, 876 P.2d at 262-63. On habeas, the district court determined that the "instructions fairly and adequately charged the jury that imposition of the death penalty was not required even if the aggravating circumstances were found." Dist. Ct. R. Doc. 27 at 93.

Instruction No. 12 provided that

Should you unanimously find that one or more aggravating circumstances existed beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death.

If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existed, you are prohibited from considering the penalty of death. In that event, the sentence must be imprisonment for life or imprisonment for life without parole.

Original R. Vol. 2 at 675; Trial Tr. Vol. VI at 1744.

This court has upheld this instruction in cases raising the same argument Bryson raises here. See Johnson v. Gibson, 169 F.3d 1239, 1254 (10th Cir. 1999); Duvall v. Reynolds, 139 F.3d 768, 789-91 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998); see also Cooks v. Ward, 165 F.3d 1283, 1290-91 (10th Cir. 1998) (rejecting same argument for substantially similar jury instruction), petition for cert. filed, (U.S. May 14, 1999) (No. 98-9420). In Duvall, this court held that this particular instruction contains "permissive language, which informs the jury that they were not required to impose the death penalty upon a finding of an aggravating circumstance." See Duvall, 139 F.3d at 790. Rather, it "authorized [the jury] to consider imposing a sentence of death" if it found unanimously that one or more aggravating factors existed. Original R. Vol. 2 at 675 (emphasis added); Trial Tr. Vol. VI at 1744 (same). Neither this instruction nor any other instruction precluded the jury from considering mitigating evidence. Furthermore, the trial court did not instruct the jury that it was required to impose the death penalty if it found the aggravating circumstances outweighed the mitigating circumstances. See Duvall, 139 F.3d at 790.

Instruction No. 12 is, therefore, constitutionally permissible. See id. It effectively instructed the jury of its discretion to decline to impose the death penalty, "including by implication the option to impose life imprisonment even if the aggravating circumstances outweighed the mitigating." See id. at 790 & n.8; see also Buchanan v. Angelone, 522 U.S. 269, 277 (1998) (approving instruction providing that when aggravating circumstance exists beyond reasonable doubt, jury "may" impose death penalty); Coleman v. Saffle, 869 F.2d 1377, 1394 (10th Cir. 1989) (requiring instructions to preserve jury's responsibility and authority to exercise discretion in sentencing determination).

Bryson relies upon the Oklahoma Uniform Jury Instruction Criminal Second (OUJI-CR 2d) adopted in 1994. OUJI-CR 2d 4-80 expressly instructs a jury that if aggravating circumstances outweigh mitigating circumstances, it may impose either a life sentence or a life sentence without parole. Bryson contends Duvall is not controlling because it did not consider OUJI-CR 2d 4-80 and that the instructions given did not set forth existing Oklahoma law.

This uniform instruction clearly sets forth the settled law. Under Duvall and Johnson, however, the failure expressly to give such an instruction is not constitutional error.

1. Failure to Give Requested Mitigation Instructions

Bryson argues the trial court erred in refusing to give his requested mitigation instructions. Bryson requested an instruction that the jury consider the following mitigating factors: 1) one or both of the co-defendants exerted considerable influence over him; 2) Marilyn Plantz led him to believe that the victim was beating and raping her; 3) he acted in defense of his lover; and 4) Marilyn Plantz provided alcohol and crack cocaine to him. Recognizing that the jury could consider all of the evidence it heard, Bryson argues that without specific reference to the four alleged mitigating circumstances the jury may have believed that it could only consider the factors listed in the instructions. Bryson argues that failure to allow the jury to consider all mitigating evidence is not harmless error. On direct appeal, the Oklahoma Court of Criminal Appeals held that the instructions allowed the jury to consider fully any relevant mitigating evidence. See Bryson, 876 P.2d at 257, 258. The district court, on habeas, agreed.

It is settled that a jury may not be precluded from considering any "constitutionally relevant mitigating evidence." Buchanan, 522 U.S. at 276; see Johnson v. Texas, 509 U.S. 350, 361 (1993). "[T]he state may shape and structure the jury's consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence." Buchanan, 522 U.S. at 276; see Johnson, 509 U.S. at 362. In shaping consideration of mitigating evidence, a jury instruction may list specific mitigating circumstances if it also indicates that the jury may consider any other mitigating evidence. See Blystone v. Pennsylvania, 494 U.S. 299, 307-08 (1990).

These standards were met in this case. Instruction No. 15 listed, among others, the following mitigating circumstances: 1) the age of Bryson at the time of the offense; 2) his age when he first met Marilyn Plantz; 3) the crime was the idea of a co-defendant; 4) Bryson had been consuming alcohol and crack cocaine before the murder; 5) Bryson had a neuropsychological deformity made worse by drug use; 6) Bryson's emotional and intellectual development made him susceptible to the suggestions of an older person; and 7) Bryson was less able than an emotionally and chronologically mature adult to make responsible decisions and consider consequences. Additionally, Instruction No. 13 directed the jurors that they were to determine the mitigating circumstances under the facts and circumstances of the case.

The Oklahoma Court of Criminal Appeals and the district court correctly determined that the instructions sufficiently encompassed Bryson's first requested mitigating circumstance that one or both of his co-defendants exerted considerable influence over him. Those courts also correctly determined that no evidence supported the third requested mitigating circumstance that Bryson was acting in defense of his lover at the time of the murder.

Instruction No. 15 did not specifically mention the alleged rape and abuse of Marilyn Plantz by the victim or that it was Marilyn Plantz who provided alcohol and crack cocaine to Bryson. There was, however, evidence presented to support these alleged mitigating circumstances. Even though these mitigating circumstances were not listed in the jury instructions, the jurors were instructed that they were to determine the mitigating circumstances under the facts and circumstances of the case. The instructions therefore did not foreclose the jury's consideration of this or any other mitigating circumstances. See Buchanan, 522 U.S. at 277.

Although it may have been preferable for the trial court either to have listed these two as mitigating circumstances or to have specifically instructed the jury that it could consider mitigating factors other than those listed in Instruction No. 15, the instructions as a whole, considered along with the trial record, did not preclude the jury from giving effect to any mitigating circumstances. Cf. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (ambiguous instruction considered in context of instructions as whole and trial record). It cannot be concluded that there is a reasonable likelihood that the jury applied the mitigating instructions such that they prevented consideration of constitutionally relevant evidence. See Boyde v. California, 494 U.S. 370, 380 (1990). Thus, the Oklahoma Court of Criminal Appeals decision was not contrary to, or did not involve an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).

Morris v. Horn(3rd Cir) Reexamining the AEDPA's interplay with exhaustion and statute of limitations, the panel avoids one Gordain knot of procedural complexity (whether the failure to exhaust an issue, resulting in dismissal, may trigger the statute of limitations under the AEDPA barring consideration of the petition) in order to examine another. Petitioner's second knot, a motion to reconsider under Rule 60(b), is dismissed because Petitioner has offered no basis for not appealing original order from which he now seeks reconsideration.

The District Court agreed with the Commonwealth that Morris's petition was mixed, and concluded that it had no choice but to dismiss the petition without prejudice. The Court recognized, however, that this dismissal could result in a possible statute of limitations problem for Morris. This problem would arise if the District Court dismissed Morris's habeas petition, and then the state courts determined that Morris's second PCRA petition was not filed within the time limits set for PCRA petitions (the Commonwealth has in fact moved to dismiss Morris's second PCRA petition on these grounds). The AEDPA statute of limitations on § 2254 petitions is only tolled during the pendency of"a properly filed application for State post-conviction relief or other collateral review." 28 U.S.C. § 2244(d)(2). As the District Court noted, a state collateral relief petition is"properly filed" only if it is "submitted according to the state's procedural requirements, such as the rules governing the time and place of filing."Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Thus, if the state court dismisses Morris's second PCRA petition for untimeliness, the AEDPA statute of limitations would not have been tolled during its pendency, and the limitations period would have run out.

The District Court therefore attempted to fashion a remedy to prevent this eventuality. The Court determined that it could avoid this possibility by dismissing the petition without prejudice to Morris's right to file an amended petition pursuant to the relation-back provision of Federal Rule of Civil Procedure 15(c)(2) upon exhausting his state remedies.3See Morris v. Horn, 1998 WL 150956, at *1 (E.D. Pa. Mar. 19, 1998). At the same time, however, the District Court granted Morris a certificate of appealability in order to challenge the dismissal without prejudice:

It is further ordered that because the facts of this case raise the possibility that petitioner will be barred from re-filing a habeas corpus petition in federal court after exhausting his state court remedies, the Court finds that Petitioner "has made a substantial showing of the denial of a constitutional right" within the meaning of 28 U.S.C. § 2253(c)(2), and a certificate of appealability is hereby issued.

Id. at *1.

In spite of the grant of the certificate of appealability, Morris did not appeal the District Court's order, but the Commonwealth did. In dismissing the Commonwealth's appeal for lack of standing, we wrote that "the appellants have not been aggrieved by the order of the district court dismissing the petition for habeas corpus for failure to exhaust state remedies." Order of May 28, 1998, App. at 12

[Petitioner proceeded to file a Rule 60(b) motion]

The Commonwealth contends that this is not an "extraordinary circumstance" because it is at best speculative that Morris will be harmed by the District Court's original order. Morris can litigate his second PCRA petition -- he apparently is presently doing so before Judge James Fitzgerald of the Philadelphia Common Pleas Court -- and, if it is considered and rejected on the merits, the AEDPA statute of limitations will be tolled and Morris can file all of his federal habeas claims upon exhausting state procedures. Under that scenario, the District Court's denial of 60(b) relief will not harm him in any way. If the PCRA petition is dismissed as untimely, however, the parties spin out various possibilities, all of which hinge upon Morris's ability to take advantage of the relation back order or of equitable tolling (though it is possible that there is some other avenue of relief yet to be explored). 5 It is possible that, if the second PCRA petition is dismissed as untimely, holding Morris's petition in abeyance would have been better for him than invoking the relation back order or equitable tolling, but the Commonwealth emphasizes that this is only a possibility.

The harm to Morris is even more speculative than it at first appears. If his second PCRA petition is dismissed by

the state courts as untimely, not only would the AEDPA statute of limitations not be tolled, but the claims themselves might not be a basis for relief in a federal habeas petition because of the doctrine of procedural bar. A federal court cannot grant a petitioner habeas relief on claims with respect to which the petitioner failed to follow state rules of procedure at trial, on appeal, or on state post- conviction review. A claim on which the petitioner did not follow state procedures will only be excused from procedural default if the petitioner can show good cause for the failure to follow state procedure and actual prejudice resulting therefrom.

Thus, even if the District Court were to have held Morris's petition in abeyance pending resolution of the second PCRA petition (thereby almost certainly avoiding any AEDPA statute of limitations problem), if the state courts dismissed his PCRA petition for untimeliness, he could not obtain federal relief on the claims stated in the second PCRA petition because of procedural default, unless he could show cause and prejudice. Thus, the risks he faces are (1) that he will be time-barred from presenting meritorious claims from his first PCRA petition in federal court even though they were properly exhausted, and (2) that he will be time-barred from presenting meritorious claims from his second PCRA petition even though he can show cause and prejudice to excuse his procedural default on them. Whether he could show cause and prejudice on the claims in the second PCRA petition adds another level of speculation onto Morris's contention that he might be harmed by the District Court's order.

Morris, however, contends that the "extraordinary circumstance" justifying Rule 60(b) relief is the possibility that he may never, because of AEDPA's statute of limitations, be able to present his claims in federal court. The Commonwealth is of course correct that the harm is at most probabilistic, but that does not avoid the fact that, if he is harmed, there will then be nothing he can do about it.

While Morris clearly faces serious consequences if his second PCRA petition is rejected as untimely and the District Court's relation back order is ultimately rejected, we conclude that this risk does not constitute "extraordinary circumstances" because, as we will explain, these consequences were readily apparent as of the District Court's initial order, and Morris should have appealed therefrom.

Morris contends that our previous order dismissing the Commonwealth's appeal, and specifically the proviso therein stating that the dismissal was without prejudice to the Commonwealth's later arguing that an amended petition is untimely, is a changed circumstance justifying relief from the District Court's original order. He contends that the District Court's prior order was intended to ensure that he would be able to exhaust his claims and then bring a federal habeas petition without facing AEDPA's time bar. Our order, he argues, raises the possibility that the District Court's order will not achieve that result.6

What Morris is attempting to raise as a Rule 60(b) motion is in fact what he should have brought as an appeal. "A litigant faced with an unfavorable district court judgment must appeal that judgment within the time allotted by Federal Rule of Appellate Procedure 4, whether or not the litigant first files a Rule 60(b) motion (where the Rule 60 motion is filed more than 10 days following judgment)."

The Commonwealth raises several issues surrounding this second ground for Rule 60(b) relief. It first notes that Morris did not raise this ground for relief in the District Court, and therefore should be barred from arguing it now. Second, the Commonwealth contends that courts have repeatedly held that Rule 60(b)(1) and 60(b)(6) are independent and separate grounds for relief, and thus Morris's assertion that he is entitled to relief by reason of mistake undermines his contention that the circumstances have changed. We need not dwell on these arguments at length, as we reject Morris's more general argument on this point; as we will explain, the District Court's order was clear enough that there were no reasonable grounds for mistaking its import.

Morris contends that he was misled (lulled into submission) by the District Court's initial order so that he reasonably did not think he needed to appeal from it because he believed it protected his rights. We disagree. In the initial order itself the District Court granted Morris a certificate of appealability so that he might appeal from the dismissal without prejudice. It specifically noted in doing so that "the facts of this case raise the possibility that petitioner will be barred from re-filing a habeas corpus petition in federal court after exhausting his state court remedies."

Nor did our order dismissing the Commonwealth's appeal constitute a change in circumstances, because the dismissal merely recognized that the Commonwealth can make certain arguments that it has been at all times free to make. We dismissed the appeal for "lack of standing," as we found that the Commonwealth was not "aggrieved by the order of the district court." This dismissal for lack of standing constitutes a dismissal for lack of jurisdiction.SeeSteel Co. v. Citizens for a Better Envt., 118 S. Ct. 1003, 1016 (1998).

Ramdass v. Angelone (4th Cir) Panel splits 2-1 on the issue of jury instructions relating to parole eligibility under Simmons. On the remaining issues the court 3-0 denies relief: (1) the Virginia Supreme Court's determination that he was eligible for parole as of the time of sentencing under Virginia law was so arbitrary as to violate due process; (2) the denial of access to assistance from a mental health expert violated his right to due process; (3) the ineffective assistance of counsel denied him the constitutional right to counsel; and (4) the denial of funds for expert assistance and an evidentiary hearing violated his right to due process.

A. Understanding first the precise rule in Simmons will aid our analy- sis of Ramdass' claims. In Simmons v. South Carolina, 512 U.S. 154 (1994), the prosecutor had argued to the jury during the penalty phase of trial that the death sentence was appropriate because Simmons, who had assaulted and killed several elderly women, was a future danger to society. To rebut this argument, Simmons contended that because he was only a threat to elderly women, none of whom he would ever encounter in prison, he did not pose such a danger. He proffered evidence that he was legally ineligible for parole and requested an instruction to the jury that if sentenced to life imprison- ment, he would remain imprisoned "for the balance of his natural life." Id. at 160. The trial court denied Simmons' request to inform the jury, either by argument or instruction, of his ineligibility for parole under South Carolina law. The United States Supreme Court ruled that this denied Simmons due process as guaranteed by the Fourteenth Amendment. Id. at 156, 171 (Blackmun, J., plurality opin- ion); id. at 178 (O'Connor, J., concurring). We recognize Justice O'Connor's concurrence as the controlling opinion in Simmons because it represents the narrowest grounds upon which a majority of the Court agreed. See Keel v. French, 162 F.3d 263, 270 (4th Cir. 1998), cert. denied, No. 98-9324, 1999 WL 317623 (U.S. June 14, 1999); Townes v. Murray, 68 F.3d 840, 849 (4th Cir. 1995); see also O'Dell v. Netherland, 521 U.S. 151, 158 (1997).

Writing for the plurality, Justice Blackmun held"that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sen- tencing jury be informed that the defendant is parole ineligible." Simmons, 512 U.S. at 156. When the jury lacks such information, the plurality noted, there is a real danger that the state will "succeed[ ] in securing a death sentence on the ground, at least in part, of . . . future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its noncapital sentencing alternative, namely, that life imprisonment meant life without parole." Id. at 162.

In her concurrence, Justice O'Connor recognized that when a state prosecutor argues future dangerousness to the jury, the defendant's only opportunity to rebut that argument will often be by telling the jury that "he will never be released from prison." Id. at 177. Justice O'Connor went on to conclude that in such a case the defendant should be allowed to bring his parole ineligibility to the jury's attention--by way of argu- ment by defense counsel or an instruction from the court-- as a means of responding to the State's showing of future dangerousness. And despite our general deference to state decisions regarding what the jury should be told about sen- tencing, I agree that due process requires that the defendant be allowed to do so in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future. Id.

Accordingly, the grounds on which both the plurality and Justice O'Connor agree are summarized in Townes v. Murray, 68 F.3d 840, 850 (4th Cir. 1995):

Simmons does not hold, as the plurality opinion at one point put it, that "due process requires that the sentencing jury be informed that the defendant is parole ineligible," id. at [156] (plurality opinion). It only holds more narrowly that "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due pro- cess entitles the defendant to inform the capital sentencing jury -- by either argument or instruction -- that he is parole ineligible." Id. at [177] (O'Connor, J.). . . . Put in terms familiar from philosophical and jurisprudential debates over the proper meaning of "equality" and "equal protection," the defendant's right, under Simmons, is one of opportunity, not of result.

In short, a defendant in a capital case is constitutionally entitled, under Simmons, to inform the sentencing jury of parole ineligibility by argument or, on his request, by instruction from the court when (1) the prosecution makes the "future dangerousness" argument that the defendant will pose a threat to society in the future and (2) the only available alternative sentence to death is life imprisonment without the possibility of parole.

It is undisputed in this case that Ramdass meets the first require- ment. The prosecutor at Ramdass' sentencing proceeding argued that the death penalty was necessary solely because Ramdass was a future danger to society. Whether Ramdass meets the second requirement is the principal source of dispute in the appeal before us. Resolution of this issue depends on how Simmons defines parole ineligibility and whether, under the standards for making that determination, Ramdass was ineligible for parole at the time of the penalty phase of trial.

B. In Ramdass II, the Virginia Supreme Court held that Simmons did not apply to Ramdass' case because Simmons required legal ineligi- bility for parole and Ramdass was not ineligible for parole under Vir- ginia law. The Court concluded that if sentenced to life imprisonment on the Kayani murder, Ramdass would not have been"convicted of three separate felony offenses" of murder, rape, or armed robbery as required for parole ineligibility under Virginia's three-strikes statute. Va. Code Ann. § 53.1-151(B1). According to the court, Ramdass' qualifying convictions at the time were (1) the Pizza Hut armed rob- bery conviction, upon which judgment had been entered, and (2) the Kayani murder conviction. The court acknowledged that a jury had also returned a verdict finding Ramdass guilty of armed robbery in the Domino's Pizza incident. But, relying on Smith v. Commonwealth, 113 S.E. 707 (Va. 1922), which held that conviction does not occur until judgment is entered, the court concluded that the Domino's Pizza robbery could not be counted as the third strike under the Vir- ginia statute because the court had not entered judgment on that guilty verdict at the time that the jury in this case was deliberating Ramdass' sentence. See Ramdass II, 450 S.E.2d at 361.

Ramdass contends that the Virginia Supreme Court misconstrued Simmons as requiring a state law determination of parole ineligibility rather than "the functional and common-sense[im]possibility of parole" as the trigger for the right to inform the jury of parole ineligi- bility. Moreover, even if state law governs the parole ineligibility determination for purposes of applying Simmons , Ramdass, in sub- stance, accuses the Virginia Supreme Court of attempting to avoid the application of Simmons by adopting a novel and highly technical defi- nition of "convicted" in the three-strikes provision. Further, Ramdass maintains that even if a conviction requires the entry of judgment, as Ramdass II held, the Domino's Pizza guilty verdict should count as a conviction because the entry of judgment was nondiscretionary, purely ministerial, and legally insignificant. In short, Ramdass argues for a pragmatic, functional, nonlegalistic concept of when a defendant is ineligible for parole.

Because Ramdass advances an erroneous interpretation of Simmons, we must begin by turning to Simmons itself. Simmons grants capital defendants a due process right in state trials to advise a jury of parole ineligibility only when the only alternative to a sen- tence of death is a sentence of life imprisonment without the possibil- ity of parole. That condition cannot be a general question of practicality determined by a federal habeas court, as Ramdass argues. Parole eligibility is a state law question. Under Simmons, only those capital defendants who are parole ineligible under state law at sen- tencing are constitutionally entitled to inform the jury that they will be ineligible for parole if sentenced to life imprisonment. In other words, a trial court must determine the question of whether Simmons applies to a particular defendant based on whether state law renders that defendant ineligible for parole. See Simmons, 512 U.S. at 156 (Blackmun, J., plurality opinion) (limiting the holding to situations where "state law prohibits the defendant's release on parole"); id. at 176 (O'Connor, J., concurring) (citing South Carolina statutes to dem- onstrate that for Simmons "the only available alternative sentence to death . . . was life imprisonment without the possibility of parole").

When Ramdass argues that Simmons' applicability is not condi- tioned on "a state's determination of `parole ineligibility' at the moment of capital sentencing" but rather on a nonlegalistic "common- sense [im]possibility of parole," he advances a new interpretation of Simmons that is simply incompatible with the logic of Simmons itself. In relying on Justice O'Connor's statement that Simmons applies in "cases in which the only available alternative sentence to death . . . is life imprisonment without possibility of parole," id. at 177, to argue that a federal, functional standard applies to parole ineligibility deter- minations, Ramdass ignores the Simmons plurality's repeated refer- ence to state law as the determining factor for whether or not a defendant is ineligible for parole. See, e.g., id. at 156 ("We hold that where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligi- ble" (emphasis added)); id. at 165 (observing that the defendant's ability to use parole ineligibility to rebut a future dangerousness argu- ment depends "on the fact that he was legally ineligible for parole" (emphasis added)); id. at 165 n.5 ("The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution's arguments of future dangerousness with the fact that he is ineligible for parole under state law" (empha- sis added)). Moreover, his reliance on Justice O'Connor's language is also misplaced. Ramdass' interpretation not only reads too much into Justice O'Connor's phraseology, but it also takes the phrase out of context. Nothing in Justice O'Connor's concurrence indicates that she disagreed with the plurality and believed that the parole eligibility determination was governed by anything other than state law. On the contrary, she cited state law to show that Simmons himself was ineli- gible for parole, see id. at 176, and she concluded that Simmons was entitled to communicate his parole ineligibility to the jury because "the only alternative sentence to death under state law was life imprisonment without possibility of parole," id. at 178 (emphasis added). See also id. at 176 ("In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact").

In addition, Ramdass' argument for equating legal parole ineligibil- ity with a common-sense impossibility of parole is at odds with case law from this circuit. Under Ramdass' theory, defendants who are, as a practical matter, unlikely to be paroled -- perhaps because a state only rarely grants parole or because the defendant would be over a hundred years old when finally legally eligible-- would be entitled to a Simmons instruction. Yet, we have consistently refused to apply Simmons to cases in which the defendants were not legally ineligible for parole at the time of sentencing. See, e.g., Roach v. Angelone, 176 F.3d 210, 220 (4th Cir. 1999) (refusing to extend Simmons to apply to a defendant who would not become eligible for parole for twenty- five years, under state law); Keel v. French, 162 F.3d 263, 270 (4th Cir. 1998) (holding that "[s]ince Keel would have been eligible for parole had he not been sentenced to death, [citing state law], he is not entitled to any relief under our current interpretation of Simmons"), cert. denied, No. 98-9324, 1999 WL 317623 (U.S. June 14, 1999); Fitzgerald v. Greene, 150 F.3d 357, 367 (4th Cir.) (declining to apply Simmons after Virginia Supreme Court determined defendant was not ineligible for parole under the three strikes statute because his convic- tions arose out of the same transaction), cert . denied, 119 S. Ct. 389 (1998).

Finally, as a matter of simple logic, the fact that a defendant will have no possibility of parole if given a life sentence can only stem from the legal conclusion that state law bars eligibility for parole. Because parole eligibility is entirely a creature of state law, Ramdass' conception of practical or functional parole eligibility must inevitably collapse into a determination of state law.

Even were we persuaded by Ramdass' theory that practical rather than legal parole ineligibility suffices to trigger Simmons, we would conclude that it was not "clearly established" as required by 28 U.S.C. § 2254(d)(1). Cf. Keel, 162 F.3d at 269. This statutory provision, which requires that the state court decision at issue be inconsistent with "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), "imports an anti- retroactivity principle into federal habeas law." Green v. French, 143 F.3d 865, 873 (4th Cir. 1998). It resembles, but does not simply cod- ify, the anti-retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989). In fact, we have observed that the standard of § 2254(d)(1) is "even more stringent" than Teague. Weeks v. Angelone, 176 F.3d 249, 266 n.9 (4th Cir. 1999); see also Gosier v. Welborn, 175 F.3d 504, 510 (7th Cir. 1999) (noting that § 2254(d)(1)"closes the escape hatches in Teague").

C. Having determined that Simmons applies only to a capital defen- dant who, under state law, is legally ineligible for parole at the time of sentencing, we turn to the question of whether Ramdass meets this threshold requirement. The Virginia Supreme Court held that, under the three-strikes statute, he did not. See Ramdass II, 450 S.E.2d at 361. The district court held that the state court's conclusion was an unreasonable determination of fact. See Ramdass v. Angelone, 28 F. Supp.2d at 365.

As an initial matter, we clarify that the parole eligibility determina- tion is a question of law, not fact, as the Virginia Supreme Court has recognized. See Fitzgerald, 150 F.3d at 367 (citing Fitzgerald v. Commonwealth, 455 S.E.2d 506, 510 (Va. 1995)). Accordingly, to the extent that the district court's decision to grant the writ rested on the unreasonable-determination-of-fact rationale, it cannot stand.

More significantly, parole eligibility is a question of state law and therefore is not cognizable on federal habeas review. The AEDPA provides explicitly that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in cus- tody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). Because the definition of what constitutes a conviction in Virginia's three-strikes statute and the application of that state law definition to the facts of Ramdass' case are purely questions of state law, we have no power to revisit these questions on federal habeas review.

Even if we were not so constrained, however, we would be unper- suaded by Ramdass' argument that the Virginia Supreme Court adopted an artful, form-over-substance interpretation of the three- strikes statute to thwart his Simmons claim. At most, Ramdass can complain about the effect of the random timing of his trials. If judg- ment had been entered on the Domino's Pizza robbery verdict 19 days earlier, then Ramdass would have been ineligible for parole under the three-strikes statute and accordingly entitled to inform the jury of that fact. However, given that Ramdass committed the Pizza Hut robbery, the Domino's Pizza robbery, the Kayani murder and robbery, and sev- eral other potentially qualifying offenses within several days of each other, the random order in which he was tried for these various offenses was entirely foreseeable, dictated only by the docket of the relevant county court. In fact, it is equally possible that Ramdass could have been tried on the most serious charge-- the Kayani mur- der -- first, in which case he would have had only one qualifying con- viction at the time of sentencing and, thus, would be an additional conviction short of making a valid Simmons claim.

Second, Ramdass characterizes the Virginia Supreme Court's reli- ance on Smith v. Commonwealth, 113 S.E. 707 (1922) (discussing the meaning of the term "conviction" in the context of a statute removing public officials from office upon conviction of crimes of moral turpi- tude), as a judicial version of grasping at straws. Yet, sound reasoning supports Smith's holding that conviction requires an entry of judg- ment, rather than simply a jury verdict. Cf. Fed. R. Crim. P. 32(d)(1) (requiring an entry of judgment signed by the judge). Even though Smith's factual predicate is wholly unrelated to parole eligibility, the age-old rationale underlying its definition of conviction is designed to protect defendants. Requiring the entry of judgment-- even if it appears to be only a formal step of the process-- in contexts in which additional negative consequences are to be imposed based on the con- viction, provides an additional layer of procedural protection against unfairness or corruption.

Third, Ramdass attempts to portray the Smith decision as an irrele- vant relic. While the Virginia Supreme Court had not cited this case in a published opinion since the 1920s, the intermediate appellate court has observed that "Virginia courts have defined the word `con- victed' in accordance with Smith, but only in the context of a defen- dant who has been confronted with some type of forfeiture." Fields v. Commonwealth, 361 S.E.2d 359, 362 (Va. Ct. App. 1987) (purport- ing to limit Smith to its facts). As a type of forfeiture, parole ineligi- bility fits neatly within the narrow circumstances in which the Smith definition of conviction is appropriate, or even necessary. Upon amassing a given number of convictions for certain crimes, a defen- dant forfeits his right to be considered for parole under the standard operation of the parole system. This is precisely the kind of serious deprivation that should not occur without the solemn imprimatur of the court's entry of judgment on the decision of the jury. Finally, the fact that the Virginia Supreme Court has remanded for re-sentencing upon finding a Simmons violation in another case defeats the implica- tion that the Virginia Supreme Court is somehow hostile to enforcing the Simmons right. See Mickens v. Commonwealth, 457 S.E.2d 9 (Va. 1995).

We have included this discussion only in an effort to dispel Ram- dass' insinuation that the Virginia Supreme Court acted craftily in denying his Simmons claim. In the end, however, we reiterate that this dispute about the meaning of the Virginia three-strikes statute is wholly a question of state law that cannot provide the basis for a fed- eral court to grant the writ of habeas corpus. See 28 U.S.C. § 2254(a).

Williams v. Taylor(4th Cir) Relief denied on issues arising out of a jurors failure to reveal her contacts with a key prosecution witness, suppression of evidence relating to the mental state of a key prosecution witness, prosecution suppressed an alleged informal plea agreement that the Commonwealth had with a witness in violation ofBrady,that the prosecutor violated his Sixth Amendment right to be present at trial and to confront adverse witnesses.

Williams maintains he was entitled to an evidentiary hearing in the district court to establish several claims. Two of those claims arise under the Sixth Amendment. First, Williams claims that one of the jurors failed to answer honestly questions put to her on voir dire.SeeUnited States v. Bynum, 634 F.2d 768 (4th Cir. 1980). Specifically, Williams contends that juror Bonnie Stinnett failed to disclose that she had once been married to Deputy Sheriff Claude Meinhard -- who would testify for the Commonwealth -- when Stinnett was asked whether she was related to any witness in the case. Williams also maintains that Stinnett withheld the fact that prosecutor Robert Woodson had represented her in her divorce proceedings. Second, Williams claims that the prosecutor improperly failed to correct the dishonest juror. Williams argues that Woodson failed to disclose both of these pieces of information and thereby violated his right to a fair trial.See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993).

With respect to his other claim, Williams maintains that the Com- monwealth failed to provide him with exculpatory evidence as required underBrady v. Maryland, 373 U.S. 83(1963). In particular, Williams claims that the Commonwealth failed to disclose a psychiat- ric evaluation that indicated Cruse had little specific recollection of the events surrounding the Keller murders.

A. The district court denied Williams an evidentiary hearing on these claims. Section 2254(e)(2) provides: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that --

(A) the claim relies on --

(i) a new rule of constitutional law, made retro- active to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be suffi- cient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact- finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). The district court held that whatever else Wil- liams could show, he could not demonstrate actual innocence as required by section 2254(e)(2)(B).

Williams argues that the district court erred in applying section 2254(e)(2) to his request at all. He maintains that section 2254(e)(2) applies only when the petitioner "hasfailedto develop the factual basis of a claim in State court."Id.(emphasis added);see alsoCardwell v. Greene, 152 F.3d 331, 337 (4th Cir.),cert. denied, 119 S. Ct. 587 (1998). According to Williams, he did not"fail" to develop the factual foundation for any of these claims in state court. Williams argues that he had no way of knowing the specific facts underlying his claims. This is especially true, Williams maintains, because the Supreme Court of Virginia denied his requests for discovery, a hear- ing, and expert and investigative assistance. Williams contends, there- fore, that section 2254(e)(2) should not apply to his request for a hearing in district court. We disagree. To escape the requirements of section 2254(e)(2), a petitioner must "diligently . . . develop the factual basis of" his claim in state court.Cardwell, 152 F.3d at 337;see also Wright v. Angelone, 151 F.3d 151, 164 (4th Cir. 1998) (in order to obtain evidentiary hear- ing petitioner must show "why the factual predicate for this claim could not have been discovered earlier"). Ignorance in and of itself is not sufficient to show diligence; that ignorance must be reasonable.See Coleman v. Thompson, 501 U.S. 722, 753(1991) (to be excused, legal basis of a claim must not be reasonably available). Nor may a petitioner's requests for investigative assistance, hearings, and discov- ery on state habeas be vague and conclusory. Rather, a petitioner must tie his requests to his specific claims and state with some particularity the need for assistance. To hold otherwise would permit criminal defendants to avoid the strictures of section 2254(e)(2) simply by churning out unsupported, boilerplate requests for state court discov- ery, hearings, and investigative and expert assistance.

Williams clearly has not "diligently sought to develop the factual basis of" his claims for federal habeas relief.Cardwell, 152 F.3d at 337. The documents supporting Williams' Sixth Amendment claims have been a matter of public record since Stinnett's divorce became final in 1979. Indeed, because Williams' federal habeas counsel located those documents, there is little reason to think that his state habeas counsel could not have done so as well. Williams' request for investigative assistance was also deficient. He alluded vaguely to "ir- regularities, improprieties and omissions" with regard to jury selec- tion and asked for an investigator to examine "all circumstances relating to the empanelment of the jury and the jury's consideration of the case." This request in no way alerted the state habeas court to any specific claim.See Picard v. Connor, 404 U.S. 270, 275(1971) ("[I]t would be unseemly in our dual system of government for a fed- eral district court to upset a state court conviction without an opportu- nity to the state courts to correct a constitutional violation." (internal quotation marks omitted)). The failure to develop the Sixth Amend- ment claims was thus attributable to petitioner, not to the Supreme Court of Virginia's rejection of a fishing expedition request.

The same is true of Cruse's psychiatric evaluation. In support of his claim that the Commonwealth suppressed the evaluation, Williams provides nothing more than an affidavit from his state habeas counsel attesting to "no recollection of seeing this report in Mr. Cruse's court file." In light of the fact that Williams' federal habeas counsel located the evaluation in this very file, state habeas counsel's failure to see the report is insufficient to demonstrate diligence. Indeed, that failure tends to show that counsel didnotact diligently.

Thus, it is clear that section 2254(e)(2) applies to Williams' request for a hearing. It is equally clear that Williams is ineligible for a hear- ing in federal court under this section. To be eligible, Williams must be able to demonstrate both due diligence and that"but for [the alleged] constitutional error, no reasonable factfinder would have found [him] guilty of the underlying offense." 28 U.S.C. § 2254(e)(2)(A)(ii)-(B).

The discussion above makes plain that Williams was not duly dili- gent. Nor can Williams show that no reasonable factfinder would have found him guilty of capital murder. At trial Williams himself testified that he robbed the Kellers at gunpoint, was at least an accom- plice to the rape of Mrs. Keller, and was the first person to shoot Mr. Keller in the head. The Commonwealth's Assistant Chief Medical Examiner, who performed the autopsy on Mr. Keller, testified that each gunshot wound suffered by Mr. Keller contributed to his death. Moreover, although Williams denied that he raped Mrs. Keller, tests on seminal fluid retrieved from her body revealed that some of the fluid could be attributed only to Williams.

Under Virginia law, this evidence was more than sufficient to con- vict him of capital murder.See Strickler v. Commonwealth, 404 S.E.2d 227, 235 (Va. 1991) ("We adhere to the view that where two or more persons take a direct part in inflicting fatal injuries, each joint participant is an `immediate perpetrator' for the purposes of the capi- tal murder statutes.");Briley v. Commonwealth, 273 S.E.2d 57, 63 (Va. 1980) (holding that it is only necessary to prove that defendant was immediate perpetrator in the murder and accomplice in the rape to convict of capital murder). In sum, it is not surprising that the dis- trict court found that based "on this evidence alone, Williams cannot demonstrate by `clear and convincing evidence' that no reasonable juror would have found him guilty of the capital murder of Mr. Kel- ler," that "Williams cannot make the requisite showing of `innocence' under 28 U.S.C. § 2254(e)(2)," and that"he is not entitled to an evi- dentiary hearing on his remaining claims."

B.Even were section 2254 not to apply, Williams would be unable to show his eligibility for a hearing under pre-AEDPA law.SeeCardwell, 152 F.3d at 337 ("If, on the other hand, the applicant has not `failed to develop' the facts in state court, the district court may proceed to consider whether a hearing is appropriate, or required under [pre-AEDPA law]."). Williams can show neither cause for nor prejudice from his failure to raise the aforementioned Sixth Amend- ment andBradyclaims in state court.See Keeney v. Tamayo-Reyes, 504 U.S. 1(1992).

To demonstrate cause, Williams must establish that"`some objec- tive factor external to the defense impeded counsel's efforts.'"McCleskey v. Zant, 499 U.S. 467, 493(1991) (quotingMurray v.Carrier, 477 U.S. 478, 488(1986)). As noted, Williams' failure to develop the facts in state court was due to his own lack of diligence. Williams neither brought forth reasonably available facts, nor made reasonable efforts to convince the Supreme Court of Virginia that additional discovery was warranted.

Williams is also unable to demonstrate prejudice. In order to do so, he must show that, absent the alleged constitutional violation, the out- come of the case likely would have been different.See Carrier, 477 U.S. at 494. As we have indicated, Williams' trial testimony alone was enough to convict him.See Fitzgerald v. Greene, 150 F.3d 357, 366 (4th Cir.) (finding no actual prejudice based on overwhelming evidence of guilt, future dangerousness, and vileness of crime),cert.denied, 119 S. Ct. 389 (1998). Moreover, Williams' claims with respect to juror Stinnett weremarginal. It is hardly clear that Stinnett was related to Deputy Sheriff Meinhard given that the two divorced some fifteen years before Williams' trial. Furthermore, Meinhard's testimony was brief and did not speak to the critical facts of the trial. In fact, Williams' trial attorneys saw no need to cross-examine him. And the prosecutor explained his failure to notify the court of the rela- tionship in an affidavit in which he stated that he simply did not remember being involved in Stinnett's divorce -- a plausible claim given that the divorce occurred fifteen years prior to Williams' trial and was uncontested. Finally, it is anything but clear that a divorce from one of the Commonwealth's witnesses would predispose a juror toward the Commonwealth's case. For all of these reasons, the district court properly denied Wil- liams' request for an evidentiary hearing.

A.Williams next argues that the district court misinterpreted 21 U.S.C. § 848(q)(9). Section 848(q)(9) governs the granting of expert assistance to indigent prisoners in connection with their federal habeas proceedings, providing that

Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defen- dant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attor- neys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under paragraph (10).No ex parte pro-ceeding, communication, or request may be considered pur-suant to this section unless a proper showing is madeconcerning the need for confidentiality. Any such proceed- ing, communication, or request shall be transcribed and made a part of the record available for appellate review.

Id.(emphasis added).

Williams contends that the district court erred in interpreting this section to require Williams to show a need for confidentiality in an adversary hearing. When the district court made that determination, Williams refused to participate in an adversary hearing, and the dis- trict court denied his request for expert assistance.

We agree with the district court. In limitingex parterequests for expert assistance, Congress was clearly addressing the routine approval of such requests even in those instances where expert or investigative services were unnecessary. Section 848(q)(9) explicitly provides that there shall be no "ex parte . . . communication . . . pursu- ant to this section" without a showing of a need for confidentiality.Id.Allowing anex partehearing to determine the need for anex partehearing not only seems convoluted, but it also runs afoul of the plain language of the statute.See United States v. Gonzales, 150 F.3d 1246, 1264 (10th Cir. 1998) (process is one that "isnotto be held ex parteunlessa proper showing is made concerning the need for confidential- ity." (emphasis added) (internal quotation marks omitted)),cert.denied sub nom. Albuquerque Journal v. Gonzales, 119 S. Ct. 918 (1999);Patrick v. Johnson, 37 F. Supp. 2d 815, 816 (N.D. Tex. 1999) ("Section 848(q)(9) clearly requires `a proper showing . . . concerning the need for confidentiality' before the Court may considerany ex partecommunication or request." (emphasis added) (quoting 21 U.S.C. § 848(q)(9))).

The district court also rightly denied Williams' request for expert assistance. When Williams refused to proceed after the district court required him to demonstrate his need for confidentiality in an adver- sary hearing, he necessarily failed to show that expert services were "reasonably necessary." 21 U.S.C. § 848(q)(9).

Habeas Cases

Moore v. Ponte (1st Cir) Use of the prisoner's dock and state court instructions on malice violated due process, but both errors were harmless.

Krevsky v. USA (2nd Cir) Failure to inform a federal defendant of his rights to appeal a sentence required a granting of the writ and remand for resentencing.

Brown v. O'Dea (6th Cir) Fugitive status disentitled petitioner to his right to habeas review.

Coleman v. Johnson (5th Cir) Petition dismissed as untimely under AEDPA and the equitable tolling doctrine.

"The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable."Davis, 158 F.3d at 810 (citation and internal quotation marks omitted). "Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights."Rashidi v. American Presidential Lines, 96 F.3d 124, 128 (5th Cir. 1996). A "'garden variety claim of excusable neglect'" does not support equitable tolling.Id. (citation omitted).

If Coleman indeed deposited his state application with prison officials for mailing on September 4, 1996, as he asserts, and he were to be granted equitable tolling from that date until the date it was actually stamped "filed," the pendence of that application between September 4, 1996, and May 28, 1997, would have tolled the one-year limitations period for 266 days. This would have been more than sufficient to place the § 2254 claims within the one-year limitations period of § 2244(d)(1).

Documents attached by Coleman to his reply to the respondent's answer suggest that he did mail both state applications on September 4 or 5, 1996. Those documents appear to support Coleman's contention that he mailed both applications in the same envelope, but that the state clerk mistakenly filed them together and separately filed the application concerning the instant conviction only after Coleman contacted the clerk about the error approximately one month later. The respondent, the magistrate judge, and the district court failed to address any of these contentions or documents.

We nevertheless conclude, however, that Coleman is not entitled to equitable tolling. In order for equitable tolling to apply, the applicant must diligently pursue his § 2254 relief. In this case, Coleman did not file his § 2254 petition until approximately six months after learning of the denial of his state postconviction application. As this court has noted, "equity is not intended for those who sleep on their rights."SeeFisher v. Johnson, 174 F.3d 710 (5th Cir. 1999) (citingCovey v. Arkansas River Co., 865 F.2d 660, 662 (5th Cir. 1989)). Coleman should have attempted to expediently file his federal habeas petition upon receiving notice that his state petition had been denied. Because Coleman does not explain the six-month delay between being notified about his state application and filing his federal petition, we hold that his circumstance is not extraordinary enough to qualify for equitable tolling under § 2244(d)(1).

983399P.pdf Predka v. State of Iowa Iowa drug tax stamp law does not violate the Commerce Clause; contraband is not protected by the Commerce Clause.

983056P.pdf Brown v. Caspari Confession obtained in second interrogation session after Brown invoked his Miranda rights during first interrogation was properly admitted because the officers immediately halted the first interrogation, a significant period of time elapsed between the two sessions and he was given a fresh set of Miranda warning prior to the second session.

Barnes v. Johnson (5th Cir) "Barnes had a significant interest in confronting [his accuser]. At the revocation hearing the hearing officer balanced that interest against the State's interest and concluded that the fear of a mentally retarded complainant of testifying in the presence of the man who allegedly assaulted her outweighed Barnes's interest in being present in the hearing room given the procedures the hearing officer implemented to assure an effective cross-examination of Odom by Barnes's attorney. The district court, by not also considering and balancing those competing interests, failed to follow the requirements of Morrissey v. Brewer and our decisions applying it."

Gawkins v. Harrigan (10th Cir) Relief denied on issues of ineffective assistance of trial and appellate counsel, and the denial of his right to confront and cross-examine the victim at trial.

Brown v. Shanks(10th Cir) Case remanded with instructions due to failure to exhaust.

Prisoner's Rights/Governmental Misconduct Cases

Blyden v. Mancusi (2nd Cir) Arising out of the retaking of Attica a generation ago and bloody retaliation by prison officials that followed, the panel concluded appellant's Seventh Amendment right to a jury trial was violated by allowing the damages phase juries to revisit many of the same issues as were considered by the liability jury.

William v. Mehra (6th Cir en banc) Sixth Circuit examines medical deliberate indifference.

The constitutional right at issue is the Eighth Amendment proscription against "cruel and unusual punishments." Before we can use the Eighth Amendment as a practical legal standard, we must interpret its very abstract language into a more concrete form. In the context of medical care for prisoners, the Supreme Court has long held that the standard for asserting an Eighth Amendment claim is deliberate indifference: an inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Thus, properly stated, the right at issue is Wade's right not to have his serious medical needs treated with deliberate indifference.

McElligott v Foley (11th Cir) The district court erred in finding that the facts, viewed in the light most favorable to the plaintiff, did not establish deliberate indifference to Elmore's serious medical needs.

Long v. Satz (5th Cir) Absolute immunity for prosecution's decision to suppress evidence of innocence in this civil suit brought by an innocent mentally retarded man who spent 9 years in prison for crimes in which the prosecution hid evidence of the real perpetrator.

Gohier v. Enright (10th Cir) Although dismissing the majority of the claims relating to excessive force, the Tenth Circuit remands on the issue of the arrest of person with disabilities under the American with Disabilities Act

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