One win and one lost are highlighted in an issue marked by an unusually large number of technical rulings and bad omens from the Supreme Court.

In the first of the highlighted cases, the Ninth Circuit holds,Morris v. Woodford, that the trial court's instructions and a typographical error on the sentencing form left the jury with mistaken belief that a deadlocked jury would automatically equate a sentence of life with the possibility of parole. Under state a sentence of life without parole would be imposed in a deadlock. The error was not harmless in light of juror deadlock prior to instruction.

In the other hot listed case,Valdez v. Cockrell,the Fifth Circuitl, in a split decision, holds deference is due to a state court's decision making even where there has been a "denial of a full and fair hearing" in the state court. Similar "technical" rulings this week are also noted from the Ninth Circuit,Fail v. Hubbard(availability of equitable tolling post-Duncan), and the Eleventh Circuit,Pruitt v. United States(relation back and tolling).

The Supreme Court in a series of moves has signaled potentially bad omens for death sentenced petitioners. InStewart v. Smiththe Court has granted certiorari pending certification of a question to the Arizona Supreme Court relating to adequate and independent state grounds for denying relief. In Cone v. Bell the Court has granted certiorari on the standards under the AEDPA for granting penalty phase relief for failing to investigate (see below). Likewise the Court has granted certiorari to examine the scope of Apprendi, in Harris v. United States (for an example of briefing on this issue seeBrown v. Florida). Finally, inUnited States v. Knights, the Court has held that a probationer may be searched at any time, for any reason, if his probation order so states, without violating the Fourth Amendment.

The Focus this week is also on the technical aspects of federal habeas corpus. Following the Supreme Court's decision in Duncan v. Walker the issue of tolling has become a significant issue for every petitioner with an unexhausted claim. Incredibly timely & insightful, "TOLLING OF THE AEDPA STATUTE OF LIMITATIONS: BENNETT, WALKER AND THE EQUITABLE LAST RESORT" by Virginia E. Harper-Ho, 4 Cal. Crim. Law Rev. 2, is a should read for anyone in this awkward situation and is the Focus of the week.

For future editions of the weekly I am looking for the following information:

[1] Unpublished opinions from the Fifth Circuit and the Texas Court of Criminal Appeals, but only if there is a "secret stash" somewhere on the web with the unpublished opinions.

[2] Over 170 Texas Death Row and General Population inmates are on a hunger strike. These people are protesting by means of a hunger strike for better food and treatment from the directors of the TDCJ systems. Any information, press releases, etc, will be appreciated; and

[3] Next week will be the final edition for the year. If you have anything you would like to include in the yearly round up please feel free to drop a line.

Since the last edition there has been one domestic execution.

12 Vincent Cooks Texas

There are no remaining scheduled executions considered likely for December:

Assalaam alaikum warahmatullah wabarakathu wamaghfiratuhu.

HOT LIST CASES

Morris v. Woodford, 2001 U.S. App. LEXIS 26030 (9th Cir. 12/06/2001) Improper charging of the jury as to the range of possible penalties, combined with a typographical error on the impact of a sole hold out for life, requires relief.

Petitioner argues, first, that there is a reasonable likelihood [*35] that some or all of the jurors understood special instruction 60 to mean that, if they could not agree unanimously on a penalty, then Petitioner would receive life with parole. We agree. That is the most logical inference that can be drawn from their question to the trial court. When they presented their question to the court, they had reached an initial impasse; they could not unanimously agree whether Petitioner should receive death or life without parole. So they asked the court "what would be the sentence imposed" if they could not unanimously agree. At the same time, they asked for clarification of special instruction 60.

Because they asked about that instruction at the same time that they asked about the effect of a deadlock, it is logical to assume that they thought that instruction 60 spoke to the issue of deadlock. After all, no other penalty-phase instructions contained an explanation of what happens in the event of a deadlock; understandably, the jurors were not instructed that, if they were unable to make this terribly difficult decision, they would be sent home and the state would try again with a new jury. And it is clear from their first inquiry to the court that [*36] they believed that Petitioner would receive some sentence (rather than a new penalty-phase trial) if they deadlocked. Recall that their question was not "what will happen if we cannot agree 100%," but, rather, "what would be the sentence imposed" in those circumstances. (Emphasis added.)

Special instruction 60 can be read as answering that question. The instruction is directed to individual jurors and instructs them that, if they have reasonable doubt about the appropriate sentence, they should impose the lesser sentence. But, if the instruction is read as applying not to individual jurors but to the jury as a whole, then it has a somewhat different import. So read, it appears to state that, if the jury as a whole cannot decide on the appropriate sentence, then it must impose a particular sentence. In other words, the instruction can be read as a "deadlock instruction" that informs the jurors of the consequences if the jury cannot agree unanimously on a punishment.

So, it is clear that the jurors initially were deadlocked and that they did not know what would happen if they remained deadlocked. And it appears likely that they thought that special instruction 60 [*37] was relevant to that question. It is also apparent that they were confused by the instruction, and rightly so; they repeatedly had been instructed that the only sentences available to them were death and life without parole, but the instruction as typed appeared to provide that, if they could not choose one of those sentences, then Petitioner would receive life with parole.

The jurors took their questions to the trial court, which unwittingly exacerbated the problem. First, in response to the jurors' question about what would happen if they deadlocked, the court (properly) urged them to go back and try again to reach a unanimous verdict. The court also informed them that "the statutes provide for what happens in the event that you folks aren't able to reach a decision, but I can't tell you what that is at this point in time." Second, in response to their request for clarification of special instruction 60, the court stated that "the instruction itself is self-explanatory. And we hope that with that in mind, that you might be able to reach a decision." In sum, the court informed the jury that (1) there was a consequence if they came back deadlocked; (2) the consequence was [*38] mandated by "statutes"; (3) the court would not tell them what the consequence was; (4) the mistyped jury instruction was self-explanatory; and (5) "with that in mind," they should try to reach a decision.

In the circumstances, there is a reasonable likelihood that one or more of the jurors interpreted the instruction as Petitioner suggests. If the instruction is deemed to be self-explanatory, then clearly it can be read to mean that, if the jury cannot choose between penalty A and penalty B, the court would impose penalty C. If one or more jurors understood the instruction in that manner, then the error is of constitutional significance. So understood, the instruction would suggest to any holdout juror that, if he or she did not join the majority of the other jurors, then Petitioner would be eligible for parole. That suggestion is, of course, incorrect, and its coercive potential is obvious; in effect, it would place such a juror in the apparent position of choosing between death and life with parole.

The state presents several arguments in opposition to Petitioner's claim. First, it argues that there is no reasonable possibility that the jury misinterpreted the erroneous instruction, [*39] because it repeatedly had been instructed that the only possible sentences were death and life without parole. In the circumstances, the state argues, it would be a logical impossibility for Petitioner to receive any other sentence. In the same vein, the state notes that the jury did not receive a "life with parole" verdict form.

It is clear from the instructions that the jury was told that it could only agree to sentence Petitioner to death or life without parole. But that is not the difficulty here. The question that the jury posed was what would happen if it could not agree on either sentence. Special instruction 60, as written, appears to answer that question. To be sure, the answer that it gives is puzzling. But it is not a logical impossibility. Everyone is familiar with the tactic of forcing a choice between two alternatives by threatening an unpleasant third alternative ("I want to rent Alladin! ""But I want to rent Tarzan!" "If you kids can't decide in five minutes, we're not renting anything!"). As lawyers, we know that such sentencing coercion was a legal impossibility under California law, but these jurors were not lawyers. They logically could have [*40] believed that the self-explanatory special instruction 60 meant what it appeared to say: If they could not make up their minds between the two available sentences, "statutes "would require an unpleasant third alternative.

Valdez v. Cockrell, 2001 U.S. App. LEXIS 25890 (5th Cir 12/3/2001) (Dissent) Even after the "denial of a full and fair hearing before the state habeas court, the AEDPA's review provisions, as set forth in 28 U.S.C. §§ 2254 (d) and (e)," are applicable."

The district court found that the AEDPA standards of review "largely did not apply" because it "held an evidentiary hearing in order to consider evidence improperly excluded from consideration by the state habeas court." See Valdez, 93 F. Supp. 2d at 777. The district court applied a presumption of correctness only to the specific findings of fact made by the state habeas court, namely: it is common for Hispanic males in the Corpus Christi, Nueces County, Texas area to drop out of school; the fact that Valdez "dropped out of school did not put [trial counsel] on notice of any potential mental problem"; and trial counsel's "failure to request the entire court jacket for the Hockley County charge did not fall below standard of conduct for defense attorneys." Id. at 778 n.20. It declined to review the state habeas court's conclusions of mixed law and fact under § 2254(d)(1)'s unreasonable application prong. Additionally, it did not apply § 2254(e)(1)'s presumption of correctness to those findings of fact implicit in the habeas court's mixed law and fact conclusions.*fn11 Thus, the district court selectively applied the presumption of correctness, and did not apply § 2254(d)'s standards.*fn12

The Director asserts that while the district court had the discretion to hold an evidentiary hearing, the district court's finding of the denial of a full and fair hearing and holding of a plenary hearing does not permit the district court to avoid the application of deference to the state court's adjudication on the merits.*fn13 In response, Valdez contends that a determination that a petitioner has received a full and fair hearing before the state court is a prerequisite to a finding that the state court reached an adjudication on the merits, and, thus, a prerequisite to the application of § 2254(d)'s deference as well as the presumption of correctness under § 2254(e)(1). We disagree with Valdez's contention and conclude that a full and fair hearing is not a prerequisite to the application of AEDPA's deferential framework.

Prior to the AEDPA amendments, § 2254(d) provided in relevant part:

a determination . . . made by a State court . . . evidenced by a written finding . . . or other reliable and written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit --

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing; . . .

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding. 28 U.S.C. § 2254(d) (1994) (repealed 1996).

Once a petitioner established one of the situations set forth under § 2254(d)(1)-(7), such as the denial of a full and fair hearing, the presumption no longer operated*fn14; instead, the district court reviewed the claim de novo and reached its own independent factual determinations. See 28 U.S.C. § 2254(d) (1994) (repealed 1996) (providing where one of the situations in (d)(1)-(7) was not shown "the burden shall rest upon the applicant to establish by clear and convincing evidence that the factual determination by the State court was erroneous"); Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir. 1996) ("'[A] federal court is to accord a presumption of correctness to findings of state court proceedings unless particular statutory exceptions to § 2254(d) are implicated.'" (quoting Williams v. Collins, 16 F.3d 626, 631 (5th Cir. 1994))). Thus, this pre-AEDPA presumption "merely erect[ed] a starting place or presumption, that [was to] be examined in light of the state court record." Moore v. Johnson, 194 F.3d 586, 603 (5th Cir. 1999).

Apart from simply establishing a starting place, the pre-AEDPA presumption of correctness was of limited application and it was § 2254's only source of deference to state court adjudications. The presumption applied only to findings of fact. See Crane v. Johnson, 178 F.3d 309, 311 (5th Cir. 1999); Mason v. Balcom, 531 F.3d 717, 722 (5th Cir. 1976). It did not apply to mixed questions of law and fact nor did it apply to pure questions of law. See Thompson v. Keohane, 516 U.S. 99, 111-12, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995) (holding that questions with a "uniquely legal dimension" were outside § 2254(d)'s presumption of correctness). Under the now repealed version of § 2254, we reviewed such questions de novo, granting no deference to state court adjudications. See, e.g., Muniz v. Johnson, 132 F.3d 214, 219 (5th Cir. 1998) (reviewing questions of law de novo); Lee, 499 F.2d at 461 (finding that the district court "was under no constraint to defer to the state [court's] conclusions" as to mixed questions of law and fact).

In 1996, Congress enacted AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996), amending § 2254. These amendments jettisoned all references to a "full and fair hearing" from the presumption of correctness accorded state court findings of fact, along with the other situations which previously swept aside the presumption. The presumption of correctness erected in its place at § 2254(e)(1), now simply provides that unless the petitioner can rebut the findings of fact through clear and convincing evidence, those findings of fact are presumed to be correct.*fn15 To reintroduce a full and fair hearing requirement that would displace the application of § 2254(e)(1)'s presumption would have the untenable result of rendering the amendments enacted by Congress a nullity. See, e.g., Am. Nat'l Red Cross v. S.G., 505 U.S. 247, 263, 112 S. Ct. 2465, 2475, 120 L. Ed. 2d 201 (1992) (a "change in statutory language is to be read, if possible, to have some effect").

Furthermore, as discussed above, AEDPA put into place a deferential scheme, under which we must defer to a state court adjudication on the merits. See 28 U.S.C. § 2254(d).*fn16 In the prefatory paragraph to (d)(1) and (d)(2), the statute provides that an application for a writ of habeas corpus "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings." The word "shall" is mandatory in meaning. See, e.g., In re Armstrong, 206 F.3d 465, 470 (5th Cir. 2000); City of Dallas, Tex. v. FCC, 165 F.3d 341, 358 (5th Cir. 1999). Thus, we lack discretion as to the operation of this section. See Lopez v. Davis, 531 U.S. 230, 240-41, 121 S. Ct. 714, 722, 148 L. Ed. 2d 635 (2001); Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772-77, 104 S. Ct. 2105, 2110-2113, 80 L. Ed. 2d 753 (1984). The use of "any" makes clear that this section applies to all cases adjudicated on their merits in state court. The term "adjudication on the merits," like its predecessor "resolution on the merits," refers solely to whether the state court reached a conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for procedural reasons. See Neal v. Puckett, 239 F.3d 683, 686-87 (5th Cir. 2001); Mercadel, 179 F.3d at 274 (5th Cir. 1999). It does not speak to the quality of the process. See Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997) (rejecting pre-AEDPA contention that "the resolution on the merits prerequisite is a proxy for the quality of the legal process resolving a dispute"); Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir. 2000) (applying Green to "adjudication on the merits"). This mandatory and all-encompassing language combined with the meaning of "adjudication on the merits" leaves no room for judicial imposition of a full and fair hearing prerequisite.

Moreover, casting aside AEDPA's standards of review in the fashion urged by Valdez has another untenable result. Valdez asks us to inject a full and fair hearing as a prerequisite to the new deferential scheme applied to conclusions of law and mixed law and fact, which Congress put in place of our de novo review. In asking us to read the statute in this manner, Valdez would have us ignore the fact that Congress has excised this prerequisite from § 2254's presumption of correctness, and apply it to a deferential scheme which did not exist prior to AEDPA. The plain meaning of the text simply will not bear such a reading. Therefore, we hold that a full and fair hearing is not a precondition to according § 2254(e)(1)'s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)'s standards of review.*fn17

In response, Valdez attempts to undercut this statutory interpretation with three contentions. First, Valdez contends that this reading of the statute renders an evidentiary hearing in cases like his a useless exercise. Second, Valdez asserts that this holding overrules our Circuit's precedent. Third, he urges us to adopt the approach taken by the Tenth Circuit.

First, Valdez asserts that our view of the statute renders impotent an evidentiary hearing held where the petitioner received an adjudication on the merits after a state hearing that was less than full and fair. We disagree. Where a district court elects, in instances not barred by § 2254(e)(2), to hold an evidentiary hearing, the hearing may assist the district court in ascertaining whether the state court reached an unreasonable determination under either § 2254(d)(1) or (d)(2). An evidentiary hearing is not an exercise in futility just because §§ 2254(d) and (e)(1) require deference.

Second, Valdez maintains that we have elsewhere held that a full and fair hearing is a prerequisite to a determination that a state court has adjudicated a habeas applicant's petition on the merits. In support of this contention, Valdez directs us to Morris v. Cain, 186 F.3d 581 (5th Cir. 2000); Singleton v. Johnson, 178 F.3d 381 (5th Cir. 1999); and Hughes v. Johnson, 191 F.3d 607 (5th Cir. 1999). Valdez is correct that we stated in Morris that a full and fair adjudication of a petitioner's claims in state court is a prerequisite for the application of AEDPA's standards of review. See 186 F.3d at 584. Additionally, we used similar language in Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998) ("In this Circuit, provided the state court conducted a full and fair adjudication of the petitioner's claims, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1).").

To the extent that these references to a "full and fair" adjudication refer to a full and fair state court hearing, they were dicta. Neither in Morris nor in Corwin were we confronted with a claim that the petitioner had been denied a full and fair hearing. See Morris, 186 F.3d at 584 ("In this appeal, [the petitioner] argues that the state court's unreasonable instruction led to his conviction under a standard contrary to settled federal law"); Corwin, 150 F.3d at 472 ("Corwin argues that . . . all state court determinations of federal constitutional issues in habeas proceedings should be subject to de novo review by the federal courts"). In Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997), on which Morris relies for the "full and fair adjudication" proposition, we evinced concern that the state court had not adequately adjudicated the petitioner's claim. While we stated our concern, we resolved the petitioner's claim on other grounds and did not delve further into the possible import of the way in which the state habeas court adjudicated the petitioner's claim.*fn18

Apart from being dicta, these references also appear to conflate the adjudication on the merits requirement with a full and fair hearing requirement, referring to the adjudication on the merits as a "full and fair adjudication on the merits." Morris, 186 F.3d at 584; Corwin, 150 F.3d at 472. Where we have conducted an examination of whether an "adjudication on the merits" occurred, we have looked at whether the state court reached the merits of the petitioner's claim rather than deciding it on procedural grounds. See Murphy, 205 F.3d at 813 (finding that there was an adjudication on the merits because the state court reached the merits of the petitioner's claim); Fisher, 169 F.3d at 300 (concluding a state court's denial of relief on waiver grounds constituted a procedural, rather than a substantive, resolution of the case, and as such was not an adjudication on the merits). In short, we find that Morris and Corwin give us no guidance as to whether a full and fair hearing is a precondition to the operation of the AEDPA standards of review.

Furthermore, Valdez's reliance on Hughes is misplaced. In Hughes, we did not address the applicability of the AEDPA standards where a full and fair hearing had been denied. Instead, we addressed solely the question of whether Hughes was entitled to an evidentiary hearing. See 191 F.3d at 630. Thus, Hughes offers Valdez no support.

Valdez's reliance on Singleton is likewise misplaced. In Singleton, the trial court granted the petitioner habeas relief in part and, in so doing, issued findings of fact. The Texas Court of Criminal Appeals reversed and denied Singleton relief without issuing an opinion. See 178 F.3d at 384. Concluding that there were no findings of fact to which the presumption of correctness could attach, we remanded the case to the district court for a de novo evidentiary hearing. See id. at 385. While we found that Singleton was entitled to a "full and fair evidentiary hearing," we did not pass upon the question as to whether the absence of such a hearing precluded the operation of § 2254(d). Id. More importantly, we rejected Singleton's assertion that in the absence of any factual findings, the Texas Court of Criminal Appeals had not reached an adjudication on the merits, rendering § 2254(d) inoperative. See id. at 384. In doing so, we implied that § 2254(d) applied to such a summary disposition, even where the petitioner was entitled to an evidentiary hearing. Therefore, as with Morris and Hughes, we find that Singleton offers Valdez no support.

Third, Valdez urges us to adopt the approach of the Tenth Circuit. In Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998), the state habeas court denied the petitioner relief on the merits of his claim without an evidentiary hearing. See id. at 1253. Our sister circuit found that in the absence of a state hearing the petitioner was entitled to a federal evidentiary hearing. See id. More importantly, the Tenth Circuit concluded that the district court should not afford AEDPA's deference to the state court's mixed law and fact conclusions. See id. at 1254. For this conclusion, the court rested solely on Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir. 1997). See Miller, 161 F.3d at 1253. The Nguyen court, however, did not apply AEDPA to the petitioner's claims because he had filed before the Act's effective date, rendering AEDPA's standards inapplicable. See Nguyen, 131 F.3d at 1345. Thus, in reaching its conclusion, the Tenth Circuit did not ground its decision on a reading of the statute, but in reliance on a case applying pre-AEDPA § 2254. Because of the rather tenuous footing of the Tenth Circuit's decision, we decline to adopt its approach.

Instead, our interpretation is in step with the Fourth Circuit's view of AEDPA deference. In an en banc decision, the Fourth Circuit recently rejected its prior decision in Cardwell v. Greene, 152 F.3d 331 (1998), which had adopted an approach akin to Miller. See Bell v. Jarvis, 236 F.3d 149, 158-160 (2000). In Cardwell, like Miller, the state court summarily denied the petitioner's request for relief without an evidentiary hearing. See Cardwell, 152 F.3d at 335. The Fourth Circuit found that the failure to develop the claim occurred through no fault of the petitioner, and, thus, § 2254(e)(2) did not bar an evidentiary hearing. See id. at 337. While the summary disposition qualified as an adjudication on the merits, see id. at 339, the court concluded that the absence of an articulated rationale rendered the difference "between de novo review and 'reasonableness' review [] insignificant." Id. at 339, (quoting Cardwell v. Greene, 971 F.Supp. 997, 1015 (E.D. Va. 1997)). The Fourth Circuit rejected Cardwell's treatment of AEDPA's standards of review "to the extent that Cardwell requires federal habeas courts to conduct a de novo or effectively de novo review of a summary state court decision, or to grant habeas relief based upon an independent determination that the state court has violated the constitutional rights of the petitioner." Bell, 236 F.3d at 160. In reaching this conclusion, the Fourth Circuit relied on the Supreme Court's recent elucidation of the AEDPA standards in Terry Williams. The court concluded that, in Terry Williams, "the Supreme Court has made it clear that de novo, independent, or plenary review of state court adjudications is no longer appropriate, that there are indeed important distinctions between the 'reasonableness' review called for by the AEDPA and the de novo review." Bell, 236 F.3d at 160.*fn19

Admittedly, the focus of the Bell court was the summary nature of the state court's disposition, not that the state court denied Bell an evidentiary hearing. Nevertheless, the absence of a hearing is precisely a situation under our pre-AEDPA law where we would have found that the state court denied the petitioner a full and fair hearing, potentially making a federal evidentiary hearing mandatory. See, e.g., Austin v. McKaskle, 724 F.2d 1153, 1156 (5th Cir. 1984) (finding the denial of a full and fair hearing where no state evidentiary hearing was held). Likewise, the Fourth Circuit, pre-AEDPA would have found this to be the denial of a full and fair hearing. See, e.g., Bacon v. Lee, 225 F.3d 470, 489-90 (4th Cir. 2000) (applying pre-AEDPA law and finding that in the absence of hearing, the petitioner had not received a full and fair hearing). In spite of what pre-AEDPA would have been the denial of a full and fair hearing, the Fourth Circuit found that the AEDPA standards applied, implying that there is no full and fair hearing requirement under AEDPA. Moreover, the Fourth Circuit's reasoning is sweeping, finding that AEDPA standards of review apply whenever there has been an adjudication on the merits.

In sum, we conclude the district court erred in determining that, where there had been a denial of a full and fair hearing, AEDPA's deferential framework, as set out in § 2254(d) and (e), did not apply to a state court's adjudication on the merits

SUPREME COURT CASES & NEWS

Stewart v. Smith, 534 U.S. ---; No. 01–339 (2001) Certification of question to the Arizona Supreme Court:

We hereby grant certiorari to review the Ninth Circuit Court of Appeals’ determination that the Pima County Superior Court’s procedural ruling was not independent of the merits of respondent’s claims of ineffective assistance of trial and appellate counsel under the Sixth Amend-ment. In order to determine whether the District Court may review these claims, we first must know whether the Court of Appeals properly interpreted Arizona law con-cerning Rule 32.2(a)(3). Therefore, we certify the following question to the Arizona Supreme Court pursuant to that court’s rule concerning Certification of Questions of Law from Federal and Tribal Courts (Ariz. Sup. Ct. Rule 27 (West 2000)):

At the time of respondent’s third Rule 32 petition in 1995, did the question whether an asserted claim was of “sufficient constitutional magnitude” to require a knowing, voluntary and intelligent waiver for pur-poses of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3), comment (West 2000), depend upon the merits of the particular claim, see State v. French, 198 Ariz. App. 119, 121–122, 7 P. 3d 128, 130–131 (2000); State v. Curtis, 185 Ariz. App. 112, 115, 912 P. 2d 1341, 1344 (1995), or merely upon the particular right alleged to have been violated, see State v. Espinosa, 200 Ariz. App. 503, 505 29 P. 3d 278, 280 (2001)?

We respectfully request that the Arizona Supreme Court accept our certification petition. That court’s answer to this question will help determine the proper state-law predicate for our determination of the federal constitu-tional questions raised in this case.

The Clerk of this Court is directed to transmit to the Supreme Court of Arizona an original and six certified copies of this opinion, the briefs and records filed in this Court in this case, and a list of the counsel appearing in this matter along with their addresses and telephone numbers, pursuant to Ariz. Sup. Ct. Rules 27(a)(3)(c) and (a)(4) (West 2000). Judgment and further proceedings in this case are reserved pending our receipt of a response from the Supreme Court of Arizona.

Bell v. Cone, No. 01-400, decision below, 243 F.3d 961 (6th Cir. 2001) Question Presented:

(1) By applying de novo standard of review to habeas petitioner's claim of ineffective assistance of counsel, does court of appeals' ruling conflict with Williams v. Taylor, 529 U.S. 362 (2000), which sets standard of review under 28 U.S.C. 2254(d)(1) for granting habeas relief to state prisoners on claims that have been previously adjudicated on merits in state court?

(2) May federal court of appeals bypass prejudice prong of Strickland v.Washington, 466 U.S. 668 (1984), and presume prejudice under United States v. Cronic, 466 U.S. 648 (1984), to find violation of Sixth Amendment right to counsel in case in which defense counsel conduced thorough pretrial investigation, presented lay and expert witness testimony in support of mental health defense at trial, conducted direct and cross-examination, and addressed jury at both guilt and sentencing phase on behalf of his client, and state and district courts have previously determined that petitioner demonstrated no actual prejudice from any deficiencies identified in defense counsel's performance?

Harris v. United States, 2001 WL 716327, No. 00-10666 (Dec. 10, 2001) (case below: 243 F.3d 806 (4th Cir. 2001)). The question presented is as follows:

Given that a finding of 'brandishing', as used in 18 U.S.C. Sec. 924(c)(1)(A), results in an increased mandatory minimum sentence, must the fact of 'brandishing' be alleged in the indictment and proved beyond a reasonable doubt?

United States v. Knights, 534 U.S. ---; 2001 U.S. LEXIS 10950 (11/6/2001) A probationer may be searched at any time, for any reason, if his probation order so states, without violating his Fourth Amendment rights.

A California court's order sentencing respondent Knights to probation for a drug offense included the condition that Knights submit to search at anytime, with or without a search or arrest warrant or reasonable cause, by any probation or law enforcement officer. Subsequently, a sheriff's detective, with reasonable suspicion, searched Knights's apartment. Based in part on items recovered, a federal grand jury indicted Knights for conspiracy to commit arson, for possession of an unregistered destructive device, and for being a felon in possession of ammunition. In granting Knights's motion to suppress, the District Court held [*2] that, although the detective had "reasonable suspicion" to believe that Knights was involved with incendiary materials, the search was for "investigatory" rather than "probationary" purposes. The Ninth Circuit affirmed.

Held: The warrantless search of Knights, supported by reasonable suspicion and authorized by a probation condition, satisfied the Fourth Amendment. As nothing in Knights's probation condition limits searches to those with a "probationary" purpose, the question here is whether the Fourth Amendment imposes such a limitation. Knights argues that a warrantless search of a probationer satisfies the Fourth Amendment only if it is just like the search at issue in Griffin v. Wisconsin, 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164, i.e., a "special needs" search conducted by a probation officer monitoring whether the probationer is complying with probation restrictions. This dubious logic -- that an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it -- runs contrary to Griffin's express statement that its "special needs" holding made it "unnecessary to consider whether" warrantless searches [*3] of probationers were otherwise reasonable under the Fourth Amendment. Id., at 878, 880. And this Court need not decide whether Knights's acceptance of the search condition constituted consent to a complete waiver of his Fourth Amendment rights in the sense of Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041, because the search here was reasonable under the Court's general Fourth Amendment "totality of the circumstances" approach, Ohio v. Robinette, 519 U.S. 33, 39, 136 L. Ed. 2d 347, 117 S. Ct. 417, with the search condition being a salient circumstance. The Fourth Amendment's touchstone is reasonableness, and a search's reasonableness is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed to promote legitimate governmental interests. Wyoming v. Houghton, 526 U.S. 295, 300, 143 L. Ed. 2d 408, 119 S. Ct. 1297. Knights's status as a probationer subject to a search condition informs both sides of that balance. The sentencing judge reasonably concluded that the search condition would further the two primary goals of probation -- rehabilitation and protecting society from future criminal [*4] violations. Knights was unambiguously informed of the search condition. Thus, Knights's reasonable expectation of privacy was significantly diminished. In assessing the governmental interest, it must be remembered that the very assumption of probation is that the probationer is more likely than others to violate the law. Griffin, supra, at 880. The State's interest in apprehending criminal law violators, thereby protecting potential victims, may justifiably focus on probationers in a way that it does not on the ordinary citizen. On balance, no more than reasonable suspicion was required to search this probationer's house. The degree of individualized suspicion required is a determination that a sufficiently high probability of criminal conduct makes the intrusion on the individual's privacy interest reasonable. Although the Fourth Amendment ordinarily requires probable cause, a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. See, e.g., Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. The same circumstances that lead to the conclusion that reasonable suspicion is constitutionally sufficient [*5] also render a warrant requirement unnecessary. See Illinois v. McArthur, 531 U.S. 326, 330, 148 L. Ed. 2d 838, 121 S. Ct. 946. Because the Court's holding rests on ordinary Fourth Amendment analysis that considers all the circumstances of a search, there is no basis for examining official purpose. Pp. 4-9.

219 F.3d 1138, reversed and remanded.

POSITIVE CAPITAL CASE RESULTS

See above.

CAPITAL CASES - RELIEF DENIED

Clayton v. State, 2001 Mo. LEXIS 96 (Mo. 12/04/2001) Clayton, who suffered horrifically severe neurological damage from an industrial accident, was not denied effective assistance of counsel when trial counsel presented two differing theories of the defense, failed to investigate and present diminished capacity evidence, failed to argue incompetency to stand trial, and failure to present certain mitigation witnesses

People v. Taylor, 2001 Cal. LEXIS 8156 (Cal. 12/03/2001) Relief denied most notably on claims relating to inflammatory examination of witnesses on extraneous information, prosecutorial attacks on counsel, admission of inflammatory evidence, guilt phase victim impact evidence, evidence of other crimes, severance, denial of motion for a new penalty phase jury, and "anti-sympathy" instruction.

Stuart v. Idaho, 2001 Ida. LEXIS 146 (Id. 12/4/2001) Monitoring of attorney phone calls harmless due to exceptions to the exclusionary rule including eventual discovery.

Bruno v. Florida, 2001 Fla. LEXIS 2285 (FL 12/6/2001) Relief denied on claims relating to: "(1) Bruno was denied his right to counsel because of trial counsel's grossly negligent or intentional conduct, or because of an act of God, in the destruction of the case file in this matter; (2) Bruno was denied access to the files and records pertaining to his case; (3) Bruno's counsel labored under an irreconcilable conflict of interest when he revealed confidential information to the court and the State; (4) Bruno was denied effective assistance of counsel during the guilt phase of his trial; (5) Bruno's son, Mike Bruno, Jr., was incompetent to testify; (6) the State presented false testimony and failed to disclose exculpatory information; (7) the State violated the rule of sequestration of witnesses; (8) Bruno was denied effective assistance of counsel during the penalty phase of his trial; (9) Bruno was denied a competent mental health examination and counsel was ineffective for failing to investigate and arrange such an examination; (10) the State failed to disclose an incriminating statement made by Bruno to Diane Liu regarding a "killing party" and related testimony and affirmatively misled the defense into believing such a statement did not exist; (11) the jury instructions at the penalty phase were unreasonably vague and confusing, and as a result, the instructions created a presumption in favor of death and the jurors' discretion was not suitably guided; and (12) the cumulative impact of error denied Bruno of his right to a fair trial."

DELAYED PUBLICATION, AMENDED & DEPUBLISHED OPINIONS

See below.

OTHER NOTABLE CASES

Fail v. Hubbard, 2001 U.S. App. LEXIS 25974 (9th Cir. 12/03/2001) Save other exceptional circumstances, equitable tolling is not available merely because an initial habeas petition was dismissed for nonexhaustion.

No circuit has conclusively decided whether AEDPA's one-year statute of limitation is subject to equitable tolling to account for the period when a timely filed but completely unexhausted federal habeas petition waits for a ruling from the district court. The First Circuit recently concluded that equitable tolling might be available when the earlier § 2254 petition is dismissed as mixed under Rose v. Lundy, 455 U.S. 509, 522 (1982), but took no position on the issue and remanded for the district court to develop the record and consider the issue in light of Duncan. See Neverson v. Bissonnette, No. 00-1044, 2001 WL 929892 at *5 (1st Cir. Aug. 20, 2001). At least two other circuits have denied equitable tolling sought by petitioners whose earlier § 2254 petitions were dismissed for failure to exhaust, but on facts different from those presented here. See Grooms v. Johnson, 208 F.3d 488, 489-90 (5th Cir. 1999) (per curiam) (denying equitable tolling because petitioner never tried to exhaust his claims in state court after the district court dismissed his first§ 2254 petition without prejudice); Jones v. Morton, 195 F.3d 153, 159-60 (3d Cir. 1999) (same).

In this circuit, equitable tolling is warranted only by extraordinary circumstances beyond the petitioner's control which made it impossible to file a timely federal habeas petition. See Frye v. Hickman, No. 99-15935, 2001 WL 877022 at *1-2 (9th Cir. Aug. 6, 2001); Miles v. Prunty , 187 F.3d 1104, 1107 (9th Cir. 1999). Unlike the First Circuit in Neverson, we have the benefit of a sufficiently developed record and the parties' supplemental briefs addressing the impact of Duncan. Cf. Neverson, No. 00-1044, 2001 WL 929892 at *5. The district court's delay in dismissing Fail's Petition No. 1 was beyond his control, but, as the State contends, such delays are routine and not extraordinary. See, e.g., Duncan, 121 S. Ct. at 2130 (Stevens, J., concurring) (citing with approval Justice Breyer's observations in dissent that "district courts on average take 268 days to dismiss petitions on procedural grounds; 10% remain pending more that 2 years").

Our circuit law requires petitioners to demonstrate"extraordinary circumstances" that are particular to the individual seeking relief, to qualify for equitable tolling. Applying our law, we must conclude that equitable tolling is not warranted in cases like the one before us, where a petitioner is affected only by routine delay in the district court and a"perceived omission on the part of Congress." See id. at 2130-31 (Stevens, J., concurring); Frye, 2001 WL 877022 at *1-2; cf. Miles, 187 F.3d at 1107 (permitting equitable tolling where prison authorities delayed in mailing habeas petition and filing fee to the district court); Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 541-42 (9th Cir. 1998) (en banc) (death row inmate's mental incompetency equitably tolled statute of limitation until court could make a competency determination), cert. denied, 526 U.S. 1060 (1999); Calderon v. United States Dist. Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997) (affirming equitable tolling for death penalty petitioner based on counsel's withdrawal and shoddy work product), overruled in part on other grounds by Kelly, 163 F.3d at 540.

Without the benefit of equitable tolling to account for Petition No. 1, AEDPA's one-year statute of limitation ran well before Fail returned to state court to exhaust his claims.

Crider v. Oklahoma, No. F-99-1422 (OK Crim App 10/11/2001) A forensic odontologist's testimony should have been excluded because it involved a method wholly lacking validity. What is more important, however, is that the court says that such an expert may not testify unless his conclusions are at least "probable," as opposed to "possible." (Thanks go to Michael Morehead for passing this gem along)

Bramlett v. Champion, No. 00-6213 (10th Cir. 11/30/2001) (unpublished) Remand ordered for evidentiary hearing on Brady evidence.

Pruitt v. United States, No. 98-3769 (11th Cir. 12/03/2001) "The key question on appeal is this: when a petition for habeas corpus is filed before enactment of the AEDPA, and an amended petition is filed more than one year after the date of the Act, does the limitations period bar the amendments? We hold that the claims sought to be added by amendment are not barred if they "relate back" to the claims in the initial petition, but are barred if they do not "relate back." The district court held that the claims made by amendment in this case do not "relate back" to the claims made in the original petition and thus were untimely. We affirm."

Thomas v. Hubbard, No. 00-17050 (9th Cir. 12/05/2001) Petitioner "contends that the jury was prejudiced by several confrontation and due process clause violations at trial including: (1) the improper introduction of triple hearsay statements; (2) prosecutorial misconduct in eliciting evidence about the prior use of firearms in violation of an in limine order; and (3) the improper truncation of the cross-examination of the lead investigating officer regarding the attempts of the purported eyewitness (who, according to the defense's theory, was the actual killer) to evade the police. In light of the fact that the prosecution's case was based almost entirely on the eyewitness testimony of a single accusing witness who himself had the opportunity and a possible motive to commit the offense, we hold that collectively the errors require the issuance of the writ."

Sistrunk v. Armenakis, No. 99-36000 (9th Cir. 10/16/2001) (dissent) (amended) Relief denied in a he-said/she-said rape conviction due to "insufficient evidence of actual innocence to allow consideration of his procedurally barred claims." As the dissent, Kozinski, J., notes a supporting prosecution expert witness committed perjury & the genitalia of the defendant does not have the unique biological abnormality (nor have they ever) that the victim claims her assailant had.

FOCUS

Following the Supreme Court's decision in Duncan v. Walker the issue of tolling has become a significant issue for every petitioner with an unexhausted claim. Incredibly timely & insightful, "TOLLING OF THE AEDPA STATUTE OF LIMITATIONS: BENNETT, WALKER AND THE EQUITABLE LAST RESORT" by Virginia E. Harper-Ho, 4 Cal. Crim. Law Rev. 2 (Pincite using paragraph numbers, e.g. 4 Cal. Crim. Law Rev. 2, ¶11) offers suggestions and advice.

V. Arguing the Last Resort: Equitable Tolling under the AEDPA

¶23 If a petitioner has filed his application outside the statutory period and no tolling is available under § 2244(d)(2), the only remaining avenue available to prevent dismissal of the claim is for the court to find that the petitioner is entitled to tolling of the statute on equitable grounds. As the following discussion shows, arguments for equitable tolling will rarely prevail, and even where grounds for equitable tolling might otherwise exist, courts have refused to grant it where a petitioner has not been "reasonably diligent" in pursuing the claim. Given the narrow application within which courts have permitted tolling, the availability of equitable tolling will be irrelevant to most inmates and does nothing to lessen the impact of the AEDPA limitation.

A. § 2244(d)(2) is a Statute of Limitations, not a Jurisdictional Bar

¶24 Soon after the passage of the AEDPA, courts confronted the question of whether the AEDPA is a statute of limitations or a jurisdictional bar. Principles of equitable tolling do "not apply to overcome a jurisdictional bar, where ‘strict satisfaction of a time limit may be required as a precondition to jurisdiction over a matter.’"[66] However, appellate courts, relying on both the language of the AEDPA and its legislative history,[67] have uniformly found 28 U.S.C. § 2244(d) to be a statute of limitations, subject to equitable tolling principles, rather than a mandatory jurisdictional bar.[68]

¶25 To reach this conclusion, courts have expressly rejected policy-based arguments that equitable tolling is inconsistent with the text of the AEDPA and therefore should not be permitted even if § 2244(d) is viewed as a statute of limitations. As explained by the Fourth Circuit in Harris v. Hutchinson,[69] the explicit exceptions to the one-year limit set forth in § 2244(d)(1)(B-D) and § 2244(d)(2) merely reflect Congress’ decision to "make the writ available to address later arising circumstances" and to permit exhaustion of state post-conviction remedies, and do not indicate an intent to make the limitation period absolute.[70] However, if the Court in Walker reaches this issue, it may reject the Fourth Circuit’s approach and find that the AEDPA does not provide for tolling outside the express provisions if it concludes that these exceptions do in fact evidence Congressional intent to prevent equitable tolling.[71] On the other hand, an interpretation of § 2244(d) that permits equitable tolling may be required to avoid a constitutional violation of the "Suspension Clause . . . in the ‘rare case’ where strict application of the one year limitations period would create ‘an unreasonable burden’" on its exercise.[72] And in any event, the circuits have uniformly found that equitable tolling is, as a general matter, permissible under the AEDPA.

B. Narrowing the Scope of Equitable Tolling: "Extraordinary Circumstances" under the AEDPA

¶26 Appellate courts have by and large restricted the availability of equitable tolling to cases in which the petitioner is prevented from complying with the statutory time limit by "extraordinary circumstances beyond his control."[73] As the Third Circuit has explained:

Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Generally, this will occur when the petitioner has "in some extraordinary way ... been prevented from asserting his or her rights." The petitioner must show that he or she "exercised reasonable diligence in investigating and bringing [the] claims."[74]

Simply stated, "equitable tolling will not be available in most cases."[75]

¶27 However, a mere showing of extraordinary circumstances is not sufficient - the inmate must also show “reasonable diligence” in pursuing federal relief.[76] In the words of the Second Circuit, this requires demonstrating "a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of [the] filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances."[77] Reasonable diligence is most often at issue in cases where the inmate is physically or mentally incapable of filing for temporary periods.[78]

1. Actions of Third Parties

¶28 Courts have rarely found "extraordinary circumstances" under § 2244(d)(2). However, nearly all cases where equitable tolling has been or would be granted involve actions of third parties whose actions prevented timely filing of a petition.[79] For example, the Second Circuit held in Valverde v. Stinson, that "the confiscation of a prisoner's legal papers by a corrections officer shortly before the filing deadline [if proven, would] justify equitable tolling and permit the filing of a petition after the statute of limitations ordinarily would have run."[80] The Ninth Circuit granted equitable tolling under similar circumstances where the plaintiff submitted a petition pro se five days before the statute of limitations expired with instructions to mail his materials to the court with a check drawn from his prison trust account for the filing fee.[81] The prison authorities failed to issue the check and file the petition in time, at which point the materials were returned to the plaintiff, who immediately resubmitted them.[82] The court compared the case to one of fraud on the petitioner, stating that "any delay on the part of prison officials in complying with [plaintiff’s] instructions was not within [his] control," and therefore constituted "exceptional circumstances."[83] The Ninth Circuit also found exceptional circumstances in a capital case where the third party was petitioner’s counsel. In that instance, the attorney withdrew after accepting employment in another state, and much of the work product relating to the preparation of the prisoner’s petition was unusable by replacement counsel, making it impossible for the prisoner to file in time.[84] The Fifth Circuit has suggested that equitable tolling would be appropriate if the defendant "actively misled" the plaintiff about the cause of action.[85]

¶29 Actions of a court that affirmatively prevent the filing of a timely petition present a somewhat clearer case for equitable tolling, although such cases are not common. The lone example of this is the Kelly case, where the Ninth Circuit upheld a grant of equitable tolling on two independent grounds: 1) where a court-ordered stay of habeas proceedings prohibited counsel from filing a petition, and 2) where timely federal habeas proceedings were pending at one time, but were mistakenly dismissed under a writ of mandamus.[86] Under these circumstances, "it was [the court’s] mistake that deprived Kelly of the opportunity to have his first federal habeas petitions considered on the merits."[87]

2. Ineffective Assistance of Counsel or Attorney Error

¶30 Despite the courts’ acknowledgment that circumstances beyond a petitioners’ control may be sufficient grounds for equitable tolling, courts have consistently rejected claims that attorney error, though admittedly impossible for a petitioner to prevent, constitutes "exceptional circumstances" sufficient to justify tolling. This is perhaps analogous to the courts’ general refusal to provide relief to an inmate for errors not meeting the high Strickland standard of ineffective assistance of counsel, even where the inmate suffered prejudice as a result of the error.[88] Under the AEDPA, the Fourth and Seventh Circuits have followed this principle in holding that a lawyer’s misinterpretation of the statute or miscalculation of a limitation period is not sufficient grounds for equitable tolling.[89] In Sandvik v. United States,[90] the Eleventh Circuit refused to toll the similar § 2255 limitations period where the prisoner’s delay was admittedly the result of a lawyer’s decision to mail the petition by ordinary mail rather than to use some form of expedited delivery.[91]

¶31 Moreover, even ineffective assistance of counsel claims may not support a grant of equitable tolling under the AEDPA. In Molo v. Johnson,[92] the Fifth Circuit held that a clear violation of the right to counsel at the first appeal does not toll the AEDPA’s statute of limitations.[93] However, in United States v. Griffin[94] the district court found that equitable tolling under the AEDPA was justified for ineffective assistance of counsel where a lawyer failed to carry out a client’s instruction to file an appeal that would have tolled the time bar.[95] Even in a circuit which adopts the approach in Griffin, the difficulty of proving ineffective assistance of counsel in the first place still significantly reduces the possibility that equitable tolling would be granted on that ground.[96]

¶32 Whether these decisions reflect the courts’ belief that attorney error or lack of counsel are too common to be "extraordinary" or rather a fear that the time limitation could be rendered a nullity if every failure to file could be blamed on attorney error, it is clear that a petitioner hoping for equitable tolling of the statute on the basis of attorney conduct will face an uphill battle.

3. Ignorance of the Law

¶33 Ignorance of the law and, in nearly all cases, ignorance due to lack of access to text of the AEDPA as well, are unlikely to justify equitable tolling, even in the case of pro se prisoners.[97] Courts have consistently found that proceeding pro se, lack of familiarity with the legal process, incarceration prior to the passage of the AEDPA, or the prison library not receiving copies of the AEDPA for even up to several months are typical circumstances in many cases, and therefore cannot be “extraordinary” as required for equitable tolling.[98] Claims that illiteracy, or an inability to speak and write English constitute “extraordinary circumstances” have also been rejected.[99]

¶34 Because the Supreme Court has held that the Sixth Amendment right to counsel extends only to the trial and first appeal, many inmates file habeas petitions pro se. [100] A petitioner’s pro se status may lead a court to grant more flexibility in applying procedural bars to the filing of petitions for state post-conviction review, which are critical if the petitions are to toll the AEDPA statute of limitations.[101] However, as the cases discussed above demonstrates, the one-year statutory period presents a particularly high barrier to appeal when the inmate is proceeding without the benefit of counsel.

4. Physical or Mental Illness

¶35 Courts addressing physical and mental illness as cause for equitable tolling have acknowledged it as a potential "extraordinary circumstance," though few have found facts sufficient to meet the "high standard" necessary to toll in the case before them.[102] Deafness, temporary blindness and even AIDS-related mental and physical illness and hospitalization have been found insufficient to warrant equitable tolling without a showing that the condition renders the inmate unable to pursue his legal rights.[103] Long-term physical conditions, particularly at or near the statutory period, may provide a more persuasive case, though no circuit courts to date have confronted such facts.

¶36 "Outright mental incompetency" may be sufficient to support equitable tolling, particularly because of the constitutional due process concerns implicated in the conviction of the incompetent.[104] In Kelly, the Ninth Circuit allowed equitable tolling pending a district court competency determination when there had been a threshold showing of mental incompetency, reasoning that mental incompetency is "a condition that is, obviously, an extraordinary circumstance beyond the prisoner’s control [which] renders the petitioner unable to assist his attorney in the preparation of a habeas petition." However, below-average mental ability is unlikely to qualify as an "extraordinary circumstance."[105] And again, to prevail based on mental health grounds the petitioner must present specific evidence of mental illness and demonstrate how it prevented compliance with the statutory period.[106] A mere allegation of mental illness is generally insufficient.[107]

5. Actual Innocence

¶37 There is considerable debate and no direct precedent on the question of whether the AEDPA, to survive constitutional challenge, must necessarily be read to include an actual innocence exception.[108] A number of circuits have recognized that if it does not, then denial of habeas to a party claiming actual innocence raises serious Eighth Amendment and Due Process concerns and may render § 2244(d) an unconstitutional violation of the Suspension Clause, particularly where all other avenues for judicial review are foreclosed.[109] The Second Circuit’s solution in a case arising under § 2255 of the AEDPA (a parallel provision to § 2244) was to permit the petitioner to file for review under § 2241.[110] In that case, petitioner had a legal claim of innocence because a subsequent and retroactive Supreme Court decision rendered the underlying conduct not illegal. Although the constitutional implications of actual innocence claims make it possible that equitable tolling would be granted in an appropriate case, it is far from clear what type of showing a petitioner must make to uphold it, particularly where the claim is one of factual, rather than legal, innocence. Because many prisoners maintain their innocence, a mere assertion of innocence will not likely be deemed "extraordinary" for the purposes of § 2244(d).[111]

6. Delays of the Underlying State Determination

¶38 § 2244(d)(1)(D) provides for equitable tolling "when the facts on which a federal habeas claim is based would not have been discovered by a duly diligent petitioner."[112] In Ybanez v. Johnson, the plaintiff argued for equitable tolling because the basis of the untimely federal habeas petition was a challenge to errors made in a decision on a state habeas petition not rendered until after the statutory period had expired.[113] The Fifth Circuit rejected the argument, finding it "extraordinary" if "facts" were not evidence or events, but rather a state court ruling. While the facts of Ybanez do not present the best case for a finding of reasonable diligence, the case shows the unlikelihood that given the one-year limitation, a petitioner would be able to raise constitutional challenges to state post-collateral review proceedings (such as determinations of ineffective assistance of counsel) on federal habeas, even with § 2244(d)(2) tolling during the pendency of the state proceeding.

C. Equitable Irrelevance?

¶39 Given the effective limitation on equitable tolling to cases involving third party action, the "loophole" of equity is narrow indeed. Only the Ninth and Fifth Circuits have ever granted it, and the Fifth Circuit has rejected equitable tolling arguments in every other instance.[114] Where multiple grounds for equitable tolling can be shown, the court may be more likely to grant it, as in Kelly. However, it is unlikely that courts will view multiple, independently insufficient grounds for equitable tolling as sufficient through aggregation.[115]

VI. Conclusion

¶40 Recent decisions of the circuit courts and the Supreme Court indicate that the bounds of the AEDPA statute of limitations remain unclear. While the Court’s decision in Bennett relieved the burden of adding state procedural bars to the restrictive one-year limitation, the Court will be hard-pressed to find grounds for a similarly generous interpretation of the language at issue in Walker. An affirmance of the Second Circuit, though improbable, would further relieve the severity of the short limitations period. However, if the Court reverses, the practical effect will be that where no state filings toll the statute, an untimely application will render the inmate completely barred from federal court. Despite the practical, physical, or even mental inability of many inmates to comply with the statute in a timely fashion, equitable tolling, the last resort, will almost certainly fail.

ERRATA

TheDeath Penalty Information Centerreports:

Bryan Stevenson, Equal Justice Initiative Featured in Alabama Newspaper

In a recent article, the Birmingham Post Herald highlighted the work of Bryan Stevenson and his Alabama-based group, Equal Justice Initiative. Stevenson has received many national awards and has helped overturn 40 death sentences, including a few cases where the inmate was completely exonerated. The article noted that Alabama is the worst state in terms of providing money for appeals lawyers. Stevenson created the organization that became the Equal Justice Initiative in 1989. The organization currently represents about 100 of the 185 inmates on Alabama's death row. (Birmingham Post Herald, 12/10/01), See also, Equal Justice Initiative.

Bryan Stevenson, Executive

Director, Equal Justice Initiative

U.S. Supreme Court to Decide on Ineffective Counsel, Appeal Limits

The U.S. Supreme Court will hear the case of Tennessee death row inmate Gary Bradford Cone (Bell v. Cone, 01-400) to decide whether a federal appeals court had authority to grant Cone a new sentencing hearing. The state of Tennessee is appealing a decision by the appeals court reversing Cone's death sentence after it found that his lawyer failed to present any mitigating evidence or make a closing argument. "This was not 'strategic' representation. It was nonrepresentation of the most deadly sort," wrote Appeals Court Judge James L. Ryan. The state argues that the federal appeals court had limited authority to intervene in such a case. (Associated Press, 12/10/01) See also, Supreme Court.

Virginia Commission Finds Death Penalty Applied Inconsistently

A study released by the Joint Legislative Audit Review Commission found that the death penalty in Virginia is applied more often in rural and suburban jurisdictions than in urban ones, even when the underlying crimes are similar. The study, which examined 160 of the 215 capital punishment eligible cases from 1995-1999, found that the death penalty was sought 45% of the time in suburban districts, 34% of the time in rural districts, and only 16% of the time in urban areas. "Can the disparate outcomes which flow from the proper exercise of prosecutorial discretion be accepted in a system where the ultimate sanction is execution?" asked the Commission.

In addition, the study suggested that the Virginia Supreme Court was too narrow in deciding whether a death sentence was excessive or disproportionate. The Court has never found a case of excessive sentencing in the 119 cases that have come before it since 1977. (Richmond Times-Dispatch, 12/11/01) Read the study. See also, studies on the death penalty.

NEW RESOURCES: New from NAACP Legal Defense & Education Fund's "Death Row USA"

# of inmates on death row:

January 1, 2001 - 3,726

October 1, 2001 - 3,709

States with the largest death row population:

California (602)

Texas (454)

Florida (385)

Pennsylvania (244)

North Carolina (235)

Jurisdictions with the highest percent of minorities on death row:

U.S. Government (87%)

U.S. Military (86%)

Colorado (83%)

Pennsylvania (70%)

Florida (69%)

Louisiana (69%) Race of victims in underlying crime for those executed since 1976:

White - 80.79%

Black - 13.66

Latino/a- 3.44

Asian- 1.85

Native American- .26

(Source: NAACP Legal Defense & Education Fund, "Death Row USA" Fall 2001 (numbers as of 10/1/01)) "Death Row USA" is now available from DPIC as a pdf document (requires the free program Adobe Acrobat).

Administration May Be Willing to Forgo Death Penalty in Extradition Cases

U.S officials have indicated that, in order to gain custody of suspected terrorists in Europe, they maybe willing to make concessions on both the death penalty and the use of military tribunals. Currently, England, Italy, and Spain hold suspected terrorists, but are among the over 40 nations that have signed the European Convention on Human Rights, which condemns the use of the death penalty and possibly the use of military tribunals. Spain has already said that it will not extradite the eight suspected terrorists in its custody without assurances that the death penalty will not be sought (see below). In the past, the U.S. has given such guarantees as a condition of extradition. (Associated Press, 12/1/01). See also, forum on information relating to September 11 and international death penalty.

Florida Death Row Inmate's Conviction Overturned

A Florida judge has ruled that death row inmate Juan Melendez deserves a new trial because prosecutors withheld evidence that may have changed the outcome of his trial. "Without knowledge of and access to the suppressed evidence, the defendant did not receive a fair trial," wrote Circuit Judge Barbara Fleischer. In the opinion, Fleischer pointed out that there was no physical evidence against Melendez. "The [withheld] evidence . . . helps substantiate the defense theory that someone other than the defendant committed the homicide," wrote the judge. (Associated Press, 12/5/01). Florida leads the country in the number of people exonerated and freed from death row. See also, innocence and the death penalty.

If you spot an error or questionable use in any "analysis" please do not hesitate to contact the weekly at oops@karlkeys.com so that a correction may issue.

CAPITAL DEFENSE WEEKLY SUBSCRIPTION INFORMATION:To subscribe to Capital Defense Weekly just drop an email tocdw@karlkeys.com& remember to put subscribe somewhere in the e-mail. The introduction to Capital Defense Weekly is published at http://capitaldefenseweekly.com/CDW. Back issues can also be located at http://capitaldefenseweekly.com/CDW. Capital Defense Weekly is published 40 times (or so) a year.

FAX IT! A new update feature is being offered. Several courts are unable to post their decisions on the net & they don't appear in Westlaw or Lexis until months well after publication & therefore they wont appear here. Your help is needed. Feel free to telefax any opinion (or even winning motion) you think may be germane to (617)249-0219 or (617)249-0557 which have been set up to turn your fax into a document file so that it can be used

RELATED RESOURCES You might want to check out the following internet resources other than this newsletter. Findaw.com's new service provides e-mail style newsletters on a wide variety of subjects at http://newsletters.findlaw.com, including both a free weekly criminal law and state court decisions. Similarly, www.lidb.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender) have many prepackaged motions and law guides dealing with death penalty issue. Finally, the discussion groups above can help you with any questions you might have.

DISCUSSION LIST FOR LEGAL PROFESSIONALS:A discussion list for legal professionals invoved with capital litigation has been formed. The list is private & limited to just legal professionals at this time due to the natue of the conversations. With only the most limited of exceptions, you must be a lawyer or other legal professional to join the discussion list. The hope of the list is to get some cross-pollination of ideas, as often what is winning in one stae has yet to be heard of in another. Subscribe:capitaldefense-subscribe@onelist.com

NOTICES, DISCLAIMERS & CREDITS

DISCLAIMER:Karl R. Keys, Esq*, is an attorney duly admitted in the Commonwealth of Massachusetts. This weekly has been prepared for educational & information purposes only save as noted below. Pursuant to the applicable rules governing attorney conduct this weekly & related website may or may not be construed as legal advertising, however, at of an abundance of caution please treat it as such. No claim as to legal specialization within the meaning of that term as applied lawyer advertising is made as no certification body exists in the Commonwealth, or elsewhere, to make such a specialization finding. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html. Submissions related to this letter may be reproduced without further notice.Translation:Reading this newsletter & writing to me does not make me (or those I work with, for or for me) your lawyer. Although I'm not taking on any additional capital clients, to be on the safe side I am complying with Massachusetts lawyer advertising rules. If you are in a jam call a lawyer in your state.

FAIR USE NOTICE:This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of political, human rights, economic, democracy, scientific, & social justice issues, etc. We believe this constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who've expressed a prior interest in receiving the included information for research & educational purposes. For more information go to:http://www.law.cornell.edu/uscode/17/107.shtmlIf you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.Copyright waived for noncommercial use, save for the copyrights owned by others.Translation: You can use my stuff if you don't charge, but don't use materials I quote because under federal law I simply can't give away the rights of others to their own intellectual property.

WARNING:Although the news letter & related web site are award winning and used as a resource by many, be forewarned it is usually written under the influence of extrreme caffeination at very late hour of the night/morning by someone who is well out of the mainstream of the American body poltic. Perfection takes time that doing this newsletter on a weekly basis for free, on top of a busy work week & practice schedule, simply does not allow. Please use caution before citation, which is why Lexis cites are used (see Lexisone.com on how to plug into that fantastic database system) to allow a quick double check, especially for the noncapital cases that are heavily dependent on Findlaw's weekly newsletter, a newsletter notoriously wrong on the law.

CREDITS & PUBLICATION INFORMATION: ISSN: 1523-6684