This issue brings tales of hope and glad tidings. Relief has been granted in Hogan v. Gibson (10th Cir) on the failure to instruct on lesser included offenses. North Carolina's governor has granted clemency to Wendell Flowers became the fifth prisoner granted clemency this year. In Tokar v. Bowersox (8th Cir) relief, unfortunately, relief was denied on a handful of issues, most notably question as to the quality of counsel and jury instructions i the penalty phase.

As he does every year, the executioner is on holiday to prevent appearing unseemly during the Christmas season. Not since the Truman years have we killed so many. Ninety-eight killed. We killed those with substantial claims of innocence. We killed youthful offenders. We killed the clearly insane. The names of those killed are listed in the "Errata" section.

Capital Cases

Hogan v. Gibson (10th Cir) Hogan was denied his constitutional rights under Beck v. Alabama, 447 U.S. 625 (1980), when the trial court refused to instruct the jury on the lesser included offense of first-degree manslaughter.

We confront Hogan's argument that the trial court's failure to instruct the jury on first-degree manslaughter and second-degree murder denied him his constitutional due process rights as defined by Beck v. Alabama, 447 U.S. 625 (1980), and its progeny. At trial, Hogan's counsel had requested only a first-degree manslaughter instruction. Hogan's claim that the trial court committed reversible error in not giving a second-degree murder instruction was raised for the first time on post-conviction review before the Oklahoma Court of Criminal Appeals, which found the claim to be waived. See Hogan II, No. PC-95-1337, at 2 n.5.(3) We therefore begin by considering Hogan's preserved Beck claim challenging the trial court's failure to provide the jury with a first-degree manslaughter instruction. The Oklahoma Court of Criminal Appeals discussed the claim in response to Hogan's petition for rehearing of his direct appeal. SeeHogan I, 877 P.2d at 1167-68. . . ..

Respondent-appellee argues as a preliminary matter that Beck is inapplicable to Oklahoma. Unlike the procedure under review in Beck, in which the jury was forced to choose between death and acquittal, Oklahoma's capital trial procedure "allows a jury to know, during voir dire, that there are three sentencing options for first degree murder: life, life without parole, and death; therefore, the guilt determination is not dependent on the jury's feeling on whether the defendant deserves death." Willingham v. State, 947 P.2d 1074, 1082 (Okla. Crim. App. 1997), cert. denied, 118 S. Ct. 2329 (1998), overruled on other grounds by Shrum, 1999 WL 974019, at *3 & n.8. After consideration of this distinction and careful review of Beck and its progeny, however, we determined conclusively that "a defendant in a capital case [is entitled] to a lesser included instruction when the evidence warrants it, notwithstanding the fact that the jury may retain discretion to issue a penalty less than death," and we held that the rule in Beck indeed applies to Oklahoma. Hooks, 184 F.3d at 1227. We therefore consider the merits of Hogan's Beck claim. . .

Pursuant to AEDPA, the applicable standard of review depends on whether we characterize an examination of the sufficiency of the evidence for a lesser included offense instruction as a "determination of a factual issue," 28 U.S.C. § 2254(e)(1), or a legal conclusion. If the determination of insufficient evidence is a legal conclusion, we are to ask whether it was contrary to or an unreasonable application of clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). If, on the other hand, it is a factual determination, we ask whether it represented "an unreasonable determination of the facts in light of the evidence presented," 28 U.S.C. § 2254(d)(2), and give the state court's determination a presumption of correctness that can be rebutted only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). As we recently noted in Moore v. Gibson, Nos. 98-6004, -6010, 1999 WL 765893, at *22-23 (10th Cir. Sept. 28, 1999) (citing cases), our precedents have not been consistent in their treatment of whether a question of sufficiency of the evidence represents a legal conclusion or a factual determination. But cf. Bryson v. Ward, 187 F.3d 1193, 1207 (10th Cir. 1999) (treating determination that evidence did not support lesser included offense instructions as factual determination subject to presumption of correctness under 28 U.S.C. § 2254(e)(1)). We need not determine definitively which is the more appropriate analysis, however, because there is no finding discernible to us that is entitled to any kind of deference under the standards of review provided for by 28 U.S.C. § 2254(d)(2) & (e)(1). Deference to the state court under AEDPA is only required for "any claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d); see, e.g., Moore, 1999 WL 765893, at *7; Wallace v. Ward, No. 98-7116, 1999 WL 705152, at *3 (10th Cir. Sept. 10, 1999); Hooks, 184 F.3d at 1223. Here, because the Oklahoma Court of Criminal Appeals made no findings as to whether Hogan had presented sufficient evidence to warrant a first-degree manslaughter instruction, it is axiomatic that there are no findings to which we can give deference. As such, we will consider Hogan's Beck claim on the merits. Hooks, 184 F.3d at 1223. Since the state court did not decide the claim on its merits, and instead the federal district court decided the claim in the first instance, we review the district court's conclusions of law de novo and factual findings, if any, for clear error. See, e.g., Moore, 1999 WL 765893, at *7; LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

Although Beck did not establish a clear rule as to the precise quantum of evidence that would warrant an instruction on a lesser included offense, the Beck Court noted that "[i]n the federal courts, it has long been 'beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'" Beck, 447 U.S. at 635 (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)). (7) This Circuit has since adopted and applied that standard in considering the sufficiency of the evidence of a lesser included offense for Beck purposes on habeas review. See, e.g., Hatch v. Oklahoma, 58 F.3d 1447, 1454 (10th Cir. 1995) (denying Beck claim because "there is not 'evidence, which, if believed, could reasonably have led to a verdict of guilt of a lesser offense'") (quoting Hopper v. Evans, 456 U.S. 605, 610 (1982)); Parks v. Brown, 840 F.2d 1496, 1499-1502 (10th Cir. 1987), rev'd on other grounds, 860 F.2d 1545 (10th Cir. 1988) (en banc), rev'd on other grounds sub nom. Saffle v. Parks, 494 U.S. 484 (1990); see also Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988), overrulling on other grounds recognized by Vanderbilt v. Collins, 994 F.2d 189, 195 (5th Cir. 1993) (holding that "the federal standard--a lesser included offense must be given when a jury could rationally convict of the lesser offense and acquit on the greater offense--is equivalent to the Beck standard"). (8) To succeed in his claim that the trial court's failure to instruct the jury on first-degree manslaughter violated Beck, Hogan must demonstrate that the evidence presented at trial would permit a rational jury to find him guilty of first-degree manslaughter and acquit him of first-degree murder. See Hopper, 456 U.S. at 610.

The relevant portion of Oklahoma's first-degree manslaughter statute defines the crime as homicide "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon." Okla. Stat. tit. 21, § 711(2). (9) Heat of passion and the lack of design to effect death are related requirements: "[T]he 'heat of passion must render the mind incapable of forming a design to effect death before the defense of manslaughter is established.'" Allen v. State, 821 P.2d 371, 374 (Okla. Crim. App. 1991) (quoting Walker v. State, 723 P.2d 273, 284 (Okla. Crim. App. 1986)); see generally Brown v. State, 777 P.2d 1355, 1358 (Okla. Crim. App. 1989) (explaining that Oklahoma subscribes to the "minority view" of first-degree manslaughter that requires both heat of passion and no design to effect death). "The elements of heat of passion are 1) adequate provocation; 2) a passion or emotion such as fear, terror, anger, rage or resentment; 3) [the] homicide occurred while the passion still existed and before a reasonable opportunity for the passion to cool; and 4) a causal connection between the provocation, passion and homicide." Charm v. State, 924 P.2d 754, 760 (Okla. Crim. App. 1996) (citing Allen, 821 P.2d at 374).

The phrase "a design to effect death" is treated as synonymous with "an intent to kill." See, e.g., Smith v. State, 932 P.2d 521, 532-33 (Okla. Crim. App. 1996). Thus, under Oklahoma law, even if a person kills in the heat of passion, the killing may not be classified as first-degree manslaughter if the person intended death to result from the act. A defendant is thus entitled to a manslaughter instruction only if the evidence at trial would allow a jury to rationally conclude the defendant's rage rendered him or her incapable of forming a design to effect death. See Allen, 821 P.2d at 374.

We agree with the district court that the Oklahoma Court of Criminal Appeals, on direct appeal, failed "to consider what, if any, evidence supported Hogan's theory of manslaughter." Hogan III, No. CIV-97-134-R, at 14. . . .

Although Hogan's confession, along with other evidence in the record, can be read to support a conclusion that Hogan killed Stanley out of his fear of incarceration, it also may be used by a jury to rationally find that Hogan had established adequate provocation and a causal connection between Stanley's initial attack and the homicide. The confession also may evidence Hogan's fear that the victim was attempting to get another knife, that his anger and rage arose from the argument that consumed the two close friends, and that he acted before there was any reasonable opportunity for his passion to cool. In conclusion, these elements of Hogan's confession could lead a reasonable jury to find adequate provocation, heat of passion resulting from fear and terror, causation, and immediacy, so as to warrant a first-degree manslaughter instruction. SeeLe, 947 P.2d at 546-47; Charm, 924 P.2d at 760; see also Wood v. State, 486 P.2d 750, 752 (Okla. Crim. App. 1971) ("It is the general rule that passion resulting from fright or terror may be sufficient to reduce a homicide from murder to manslaughter and such a killing may be closely akin to a killing in self-defense.") (citation omitted).

Hogan's confession, the central facet of the case against him, also could have led a reasonable jury to conclude that his heat of passion rendered him incapable of forming a design to effect death. Hogan described the killing as follows: "[I]t was like I wasn't even there . . . just somebody else . . . it wasn't even me. . . . It was stabbing her and I couldn't stop him." (Hogan Interview at 4.) In his confession, Hogan also specifically denied intending to kill Stanley: "I didn't even realize that I'd killed her until the next day, all I knew was my hand hurt and she was dead," (id.); "I mean I didn't do it on purpose, I can't even sleep at night without waking up," (id.); "I didn't mean to hurt her," (id. at 3). While a jury might have disbelieved these statements as self-serving, had it believed them, it could have concluded Hogan's fear and anger rendered him incapable of forming the requisite intent.

The facts of this case strikingly resemble those of Williams, 513 P.2d at 335, in which the Oklahoma Court of Criminal Appeals found that a first-degree manslaughter instruction was warranted. The defendant in Williams, who was the only witness to his murder of his wife, testified in his own defense and provided a description of the crime remarkably similar to that which the jury in Hogan's trial heard in Hogan's confession to the police. Following an argument in which his wife warned him that "I think I'll just cut your black heart out," Williams testified. . .

The district court also erroneously concluded that the multiple stab wounds Hogan inflicted upon Stanley, viewed by themselves, "clearly indicate[] Hogan had a 'design to effect death,'" and that Hogan was therefore not entitled to manslaughter instructions. Hogan III, No. CIV-97-134-R, at 16; see Okla. Stat. tit. 21, § 702 (providing the fact of killing permits an inference of design to effect death absent reasonable doubt arising from the circumstances). Under Oklahoma law, depending on the evidence as to the totality of the circumstances surrounding the homicide, a defendant may still be eligible for a first-degree manslaughter instruction even where the defendant is alleged to have caused multiple, independently-fatal wounds. See Williams, 513 P.2d at 336-39; cf.Duvall v. State, 825 P.2d 621, 627 (Okla. Crim. App. 1991) (considering "the nature of [numerous stab] wounds and surrounding circumstances," including no evidence of heat of passion, in holding that no instruction on manslaughter was required in a capital murder trial). Furthermore, we reiterate that under Oklahoma law, evidence of intent does not necessarily prohibit a court's issuing an instruction on manslaughter. See supra note 5 (quoting Le, 947 P.2d at 546).

Nevertheless, respondent-appellee argues, under Darks v. State, 954 P.2d 152 (Okla. Crim. App. 1998), that premeditation can be inferred directly from the homicide itself, without considering the circumstances thereof. (11) Cf. Okla. Stat. tit. 21, § 702 ("A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed."). In Darks, 954 P.2d at 161, the court found that four gunshots made at close range to vital parts of the victim's body led to the conclusion that there was insufficient evidence to warrant a manslaughter instruction. The key, undisputed circumstances of the homicide in Darks, however, which involved multiple gunshots to the head and back and no mutual combat, are clearly distinguishable from the facts in the case before us. Darks and his victim had a longstanding animosity over the custody of their child, and the victim had called the police immediately before the murder and claimed that the defendant had run her car off the road and taken the child from her. See id. at 156-57. Accordingly, we cannot conclude that the Court of Criminal Appeals in Darks impliedly overruled its own long-established case law, which holds that the quantity and quality of the wounds cannot be viewed by themselves to be irrefutable evidence of premeditation precluding a first-degree manslaughter instruction.(12)

As discussed above, despite the circumstantial evidence of intent provided by the nature of the killing, there was also direct testimonial evidence by Hogan that he lacked a design to effect death. Beck requires that where the evidence supports such alternative theories, the jury be presented the option to choose between them, and not only to choose between a capital conviction and acquittal.

Based on our review of the record, we conclude that petitioner-appellant's constitutional rights were violated by the trial court's refusal to instruct the jury on first-degree manslaughter, despite evidence sufficient to warrant the instruction; that the Oklahoma Court of Criminal Appeals acted contrary to established Supreme Court precedent in its review of Hogan's Beck claim because of its failure to query whether the evidence was sufficient to warrant a lesser included offense instruction; and that the district court's conclusion that the evidence was insufficient to warrant the instruction was erroneous.

Hogan himself confessed to committing a reprehensible act of violence. By denying the jury the option to convict him on a lesser, non-capital offense supported by the evidence, thus leaving only a choice between conviction of capital murder and acquittal, Oklahoma may have "encourage[d] the jury to convict for an impermissible reason--its belief that the defendant is guilty of some serious crime and should be punished." Beck, 447 U.S. at 642. Hogan must, therefore, be retried.(13)

Having reached that conclusion, we decline to consider the other trial-related issues Hogan raises in his appeal--including his claim counsel rendered ineffective assistance in failing to seek a second-degree murder instruction--because they may not recur in his retrial. See, e.g., United States v. Torrez-Ortega, 184 F.3d 1128, 1137 n.8 (10th Cir. 1999); United States v. Sullivan, 919 F.2d 1403, 1421 (10th Cir. 1990).

Tokar v. Bowersox (8th Cir) Denial of state habeas corpus petition is affirmed; ineffective assistance of counsel claims for failure to move to suppress evidence as a result of unlawful arrest fail because no prejudice, as sufficient probable cause existed to arrest; ineffective assistance claim for counsel's failure to investigate and present evidence of inconsistencies regarding defendant's presence at crime scene fails because counsel' performance not deficient; jury instructions during penalty phase did not violate due process arguments regarding order of instructions; statement of nonstatutory mitigating factors; vagueness fail; opening and closing arguments claims are procedurally barred; proportionality review by state supreme court was sufficient; and no reason to question state supreme court's decision regarding defendant's competency.

Tokar first asserts ineffective assistance of counsel based on his counsel's failure to move to suppress evidence obtained as the result of his unlawful arrest. Tokar claims that his arrest was unlawful because it violated the Fourth Amendment in that: (1) the application for his arrest warrant was not supported by any statement of facts constituting probable cause; (2) there was no probable cause in fact to support a warrantless arrest; and (3) even if there was probable cause in fact, the arrest was still unlawful because the police lured him outside of his grandmother's house by claiming they had a valid warrant for his arrest. Tokar contends that as a result of his unlawful arrest the police were led to Stickley, and that consequently any statements and testimony obtained from Stickley should have been suppressed as fruit of the poisonous tree.

In assessing the merits of Tokar's ineffective assistance of counsel claim we keep in mind that the standard is whether, but for counsel's errors, there is a reasonable probability that the trial court would have granted the motion to suppress. First, Tokar argues that the arrest warrant was invalid because it was issued only upon a complaint containing the conclusory statement of the prosecutor that Tokar had committed the offense rather than a written affidavit of probable cause as required under Missouri law.6 The district court agreed that the complaint was not supported by an affidavit of probable cause and that there was no evidence in the record showing that the prosecutor had orally related facts to support the complaint. However, the court concluded that even if Tokar had shown the arrest warrant was invalid for this reason, he had suffered no prejudice from counsel's failure to move to suppress because Stickley would have been inevitably discovered. The district court later added another rationale for its finding in its order denying Tokar's motion to alter or amend or set aside the judgment stating: "[i]n retrospect, the Court believes that no warrant may have been required at all because there was ample probable cause to support a warrantless arrest."

We find Tokar's claim regarding the lack of a probable cause affidavit is procedurally barred because Tokar never presented this argument to the state court. See Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc) (before a state prisoner is entitled to federal habeas corpus relief, he must first exhaust his state remedies and present the habeas claim to the state court); Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995) ("If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default.") Tokar does not claim that he can demonstrate cause and prejudice for the default or that failure to consider the claim would result in a fundamental miscarriage of justice. See Abdullah 75 F.3d at 411. Furthermore, even if we were to reach the merits of this claim, we would find that the lack of a probable cause affidavit would not render Tokar's arrest invalid under Missouri law as long there was probable cause in fact to support the arrest. See State v. Adams, 791 S.W. 2d 873, 876-78 (Mo. Ct. App. 1990). As discussed later, we find ample probable cause in fact to support Tokar's arrest. We thus conclude that even if trial counsel was deficient in failing to file a suppression motion on the grounds that the warrant application lacked a probable cause affidavit, it would be impossible for Tokar to demonstrate prejudice under Strickland. See Strickland, 466 U.S. at 697 (noting that if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed).

Tokar next argues that his counsel was ineffective for failing to file a suppression motion on the ground that there was no probable cause in fact to arrest him. The existence of probable cause in fact to make a warrantless arrest depends upon whether, at the moment the arrest was made, the facts and circumstances within the arresting officers' knowledge, and of which they had reasonably trustworthy information, were sufficient to warrant a prudent person to believe that the suspect had committed or was committing an offense. See United States v. Everroad, 704 F.2d 403, 405-06 (8th Cir. 1983). Probable cause does not require a prima facie showing of criminal activity, but only the probability of criminal activity. See id. at 406. "The determination of whether probable cause exists must not rest on isolated facts; rather it depends on the cumulative effect of the facts in the totality of circumstances." Id.

The Missouri Supreme Court rejected Tokar's claim. It found that:

Witnesses identified a yellow station wagon as the vehicle in which the murderer of Johnny Douglass used to go to and from the victim's home. They also claimed the suspect was with a white female. The sheriff's office knew Tokar had been stuck in a ditch with a white female in a yellow station wagon near Centralia only days before the murder. Douglass was killed in the course of a burglary and Tokar had prior arrests for burglary and assault. Additional information existed that Tokar preferred to burglarize earth contact homes and to pack items into pillowcases. Both of these factors were also present in the Douglass home burglary. All of these circumstances demonstrate there was probable cause to arrest Tokar. Because there was probable cause to arrest Tokar, there is no ineffective assistance of counsel for not objecting to the arrest warrant. State v. Tokar, 918 S.W.2d at 767.

We presume these factual findings by the Missouri Supreme Court to be correct. See 28 U.S.C. § 2254. Tokar bears the burden of rebutting this presumption by clear and convincing evidence to the contrary. See id. Tokar argues that the Missouri Supreme Court's finding that the police knew before his arrest about Tokar's propensity to burglarize earth contact homes and to use pillowcases is clearly erroneous. He asserts that although this information was included in a report made by Sheriff Miller, the report itself was not compiled until several days after the arrest and it does not indicate when the police were aware of these additional facts. We disagree.

Although Sheriff Miller's report was not written until March 19, six days after Tokar's arrest, it clearly indicates that the police were aware of all the facts stated in the report prior to Tokar's arrest. The opening line of Sheriff Miller's report states: "The night of the homicide of John P. Douglass, Jr., our prime suspect became Jeffrey L. Tokar. I will describe the events leading to Tokar becoming our suspect." The report then catalogs the facts that Sheriff Miller relied upon, including the information about Tokar's peculiar or distinctive modus operandi. Tokar argues that Sheriff Miller testified at the 29.15 hearing that the report "had nothing to do with [Tokar's] arrest." He infers from this testimony that Miller essentially stated that he did not rely on the facts in the report to make the arrest. We can draw no such inference. Our examination of Sheriff Miller's testimony at the 29.15 hearing shows that Sheriff Miller stated nothing more than that he did not rely on the written report to support Tokar's arrest. Nowhere in his testimony does he disavow the facts underlying the report. Of course the report could have had nothing to do with the arrest because Sheriff Miller did not prepare it until after the arrest. This does not mean, however, that the sheriff's department did not have knowledge of the facts that were stated in the report before they were put down on paper, and more importantly, before Tokar was arrested. Furthermore, Sheriff Miller testified at the 29.15 hearing that all the information he filed regarding the Douglass homicide was truthful. Given the clear statement in the report regarding the timing of the sheriff department's knowledge of the facts set forth in the report, coupled with Sheriff Miller's sworn testimony, and finally Tokar's failure to present any other evidence showing that Miller was not aware of such facts at the time of Tokar's arrest, we find that Tokar has failed to show by clear and convincing evidence that the factual findings of the Missouri Supreme Court regarding probable cause are incorrect.

Our review of the record bolsters a finding of probable cause. The record shows the following information was known to the police prior to the arrest: (1) Police had information from McPike's interview with Jarad, Rebadell Douglass, and Eva Yager that the suspect was a slender white male with blond hair, driving a yellow station wagon. Tokar is a 5'7" white male with blond hair and weighs 145 pounds; (2) The police also knew, from interviewing Linda Benoit, that a short time before the murder, a white male with blond hair, 5'8" or 5'9" in height and weighing about 155 pounds, driving a yellow car, had stopped at her house, "acting strange" and asking for directions; (3) Daniel Miller, Sheriff Miller's father, had helped a man, whom he later identified as Tokar, pull a yellow station wagon from a ditch near Centralia a few days prior to the murder and Tokar had at first given him a false name; (4) Boone County authorities had informed Sheriff Miller's office that Tokar had just been released from prison for receiving stolen property from residential burglaries, that he had a prior arrest record for burglary, and that he drove a yellow station wagon registered to his mother who lived in Centralia; (5) The police also knew that Tokar liked to burglarize earth contact homes. The Douglass residence was an earth contact home; and (6) The items found bagged in the Douglass home included clothing and toiletries. Sheriff Miller's office had information that Tokar had stolen similar types of items in previous burglaries. Because, we find that there was sufficient probable cause in fact to arrest, Tokar was not prejudiced by counsel's failure to move to suppress.

Finally, Tokar contends that his counsel should have moved to suppress on the ground that even if there was probable cause, the arrest was still unlawful because the arresting officers lured him outside of his grandmother's house by claiming they had a valid warrant for his arrest when this was not the case. We find this claim is procedurally barred. Tokar never raised this particular ineffective assistance claim in either his 29.15 motion or in the appeal of the 29.15 ruling to the Missouri Supreme Court. See Lowe-Bey v. Groose, 28 F.3d 816, 819 (8th Cir. 1994) (noting that in Missouri, ineffective assistance of trial counsel claims may only be raised in a Rule 29.15 proceeding.) Tokar has not asserted any cause and prejudice for the default, and therefore, we do not address this claim. See id. at 818.

Because we uphold the district court's decision on the basis of probable cause, we need not reach the issue of whether the district court erred in finding that Stickley would have been inevitably discovered or whether the case should be remanded for an evidentiary hearing on that issue.

Habeas Cases

Cooper v. United States (7th Cir) "[T]hat one has lostthe right to relief under sec. 2255 does not automatically mean that one gets to seek relief under sec. 2241. It is only when a fundamental defect exists in the criminal conviction--a defect which cannot be corrected under sec. 2255- -that we turn to sec. 2241. A claim like Nichols' in Davenport slips through the narrow opening. A valid claim of actual innocence would be enforceable under sec. 2241 without regard to time limits under sec. 2255 if relief under that section was not, for some reason, available. But Cooper's claim simply does not present us with a fundamental defect in his conviction that would allow his stale claims to be aired."

Lovell v. Norris (8th Cir.) Failure to file a timely appeal under Arkansas rules resulted in issues being defaulted, and Lovell failed to show grounds to excuse the default; district court properly dismissed the habeas petition.

Fuller v. Alabama (11th Cir) "[E]ven if we were applying § 2254(d) in its pre-AEDPA form - under which we owed no deference at all to state-court conclusions on mixed questions of law and fact, although we respected record-supported state fact-finding - we would still have to reverse the district court. The court of criminal appeals found, and the record implies, that Griffin's story undermined Fuller's testimony that the police placed the baggies on the table in front of him. The state court also found, with record support from Griffin's affidavit, that Griffin was convicted for drug possession for his actions in the same apartment Fuller was in; thus, the jury could well have viewed Fuller as a bird of the same feather. Finally, the state court found, again with support from Griffin's affidavit, that Griffin was a convict offering exculpatory testimony to a companion at no cost to himself. That fact, as the state courts reasonably noted, cast a significant cloud on Griffin's potential credibility before the jury. All of these circumstances persuade us that there is no reasonable probability that, but for the lack of Griffin's testimony, the jury would have acquitted Fuller. Fuller thus did not satisfy Strickland's prejudice prong, and he was not entitled to relief on his Strickland claim."

Section 1983 & Related Filings

Wayne v. Jarvis (11th Cir) Summary judgment affirmed, due to statute of limitation running prior to discovery of identity of officers where such discovery could have occurred with due diligence. "The district court also entered summary judgment for the Sheriff's Department and the Sheriff in his official capacity based upon its conclusion that Wayne had failed to bring forward sufficient evidence to create a genuine issue of material fact concerning his theory of liability that there was a custom or practice of housing professed homosexual, bisexual, HIV positive, and AIDS positive inmates in the same dormitory regardless of their violent propensities.

Spivey v. Robertson (5th Cir) "[P]rosecutors were not creating or manufacturing new facts for the police officers to include in an affidavit for an arrest warrant, but suggesting legal conclusions on the facts already given to them by the police. Under Kalina, a prosecutor acts as an advocate in supplying legal advice to support an affidavit for an arrest warrant and is entitled to absolute immunity as long as a prosecutor does not personally attest to the truth of the evidence presented to a judicial officer, or exercise judgment going to the truth or falsity of evidence. Because the prosecutors were acting as advocates in supplying legal advice based on facts provide by police officers to support an affidavit for an arrest warrant, the prosecutors in the instant case are absolutely immune."

Harris v. Hegmann (5th Cir) Reversing and remanding after a summary judgment grant, panel notes "Harris alleges that the repair of his broken jaw had failed before he even left the surgery clinic. He alleges that Dr. Hegmann and nurses Boyd and James ignored his urgent and repeated requests for immediate medical treatment for his broken jaw and his complaints of excruciating pain. Harris alleges facts demonstrating that all three defendants were made aware of, and disregarded, a substantial risk to Harris's health when they denied him treatment. Harris's factual allegations satisfy both the objective and subjective components of an Eighth Amendment claim; he states a claim upon which relief may be granted."

Sealey v. Giltner (2nd Cir) Judgment as a matter of law for Defendant-Appellee Giltner after jury awarded Plaintiff-Appellant nominal damages upheld. Challenges to administrative confinement in segregated housing unit as denial of liberty interest without procedural due process dismissed as not unduly atypical.

Snider v. Melindez (2nd Cir) Plaintiff appeals order dismissing his pro se Section 1983 complaint against a prison official without prejudice for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The district court possessed inherent authority to dismiss the complaint on its own motion due to Snider's failure to comply with the statutory exhaustion requirement, it was first obligated to provide him notice and an opportunity to be heard, and (ii) the court also erred in designating the dismissal a "strike" under Section 1915(g).

InDepth

This week's installment of "in depth" returns to the study of habeas corpus and examines waiver of procedural. (From http://capdefnet.org/2_procedural_issues.htm at theHabeas Assistance Training gang from AOC).

Wilkerson v. Whitley 28 F.3d 498, 504 (5th Cir. 1994), cert. denied, 115 S.Ct. 740 (1995) Even though state attempted to waive Teague defense, court of appeals did not accept waiver.

Cupit v. Whitley 28 F.3d 532, 535 (5th Cir. 1994), cert. denied, 115 S.Ct. 1128 (1995) State waived procedural default by failing to raise defense in its district court pleadings and in its objections to magistrate's report and recommendation.

Simmons v. State of Iowa 28 F.3d 1478, 1482 n.4 (8th Cir. 1994), cert. denied, 115 S.Ct. 1163 (1995) State waived procedural default defense by failing to raise it in federal court even though the state courts found the claims to be procedurally defaulted.

Wilmer v. Johnson 30 F.3d 451, 455 (9th Cir.), cert. denied, 115 S.Ct. 439 (1994) State waived Teague defense by failing to raise it in the district court.

Lawrence v. Armontrout 31 F.3d 662, 666 (8th Cir. 1994), cert. denied, 115 S.Ct. 1124 (1995) State waived procedural default by failing to raise it in the district court.

Davis v. Zant 36 F.3d 1538, 1545 (11th Cir. 1994) State waived procedural default defense by failing to assert it either in the district court or the court of appeals in regard to the specific allegations of prosecutorial misconduct upon which the court of appeals granted relief.

Esslinger v. Davis 44 F.3d 1515, 1527-28 (11th Cir. 1994) Because procedural defenses available to state are not jurisdictional, they can be waived if state fails to raise them in a timely manner. While district court may invoke procedural bar sua sponte, to do so it must determine that doing so serves an important federal interest; ordinarily district court should assume that the waiver is justified.

Smith v. Secretary Department of Corrections 50 F.3d 801, 822, n.30 (10th Cir.), cert. denied, 116 S.Ct. 272 (1995) State waived defense of laches by failing to assert it in the district court.

Clak v. United States 59 F.3d 296, 302 (2nd Cir. 1995) Government waived Teague nonretroactivity defense by failing to raise it in its brief or at oral argument.

Odum v. Boone 62 F.3d 327, 330 (10th Cir. 1995) State waived procedural default defense claim by failing to assert it in the district court.

Miller v. Lockhart 65 F.3d 676, 680 (8th Cir. 1995) State waived procedural bar defense to evidence presented for the first time in federal court demonstrating a systematic exclusion of African-Americans by failing to raise the defense in a timely manner; State did not object at time of evidentiary hearing, but waited until filing its post hearing brief to complain.

Sinastaj v. Burt 66 F.3d 804, 805, n.1 (6th Cir. 1995) State waived Teague defense by failing to raise it in the district court.

Ford v. Norris 67 F.3d 162, 164-65 (8th Cir. 1995) State waived procedural default defense by failing to raise it in the district court.

Duckett v. Godinez 67 F.3d 734, 746 n.6 (9th Cir. 1995), cert. denied, 116 S.Ct. 1549 (1996) State waived Teague defense by failing to raise it in the district court.

Emerson v. Gramley 91 F.3d 898, 900 (7th Cir. 1996), cert. denied sub nom. Emerson v. Gilmore, 117 S.Ct. 1260 (1997) State's failure to request that court of appeals consider impact of recently passed AEDPA resulted in waiver of assertion that new Act applied to petitioner's case.

Burris v. Parke 95 F.3d 465, 469 (7th Cir. 1996) The court held that under the unique facts of Burris' case, the state waived the abuse of the writ defense by failing to raise it when Burris litigated his first habeas petition. The court also stated that "the doctrine of abuse of the writ is defunct. The term derives from section 2244(b), now wholly superseded by the new law, which nowhere uses the term. There is no longer any statutory handle for the doctrine, and in any event its role seems wholly preempted by the detailed provisions of the new statute concerning successive petitions."

Mata v. Johnson 105 F.3d 209, 210 (5th Cir. 1997) State waived any procedural default of petitioner's fair trial claim where, in response to petitioner's rehearing petition, state conceded that procedural bar relied upon by state habeas court to deny the claim did not bar federal review, and state addressed the merits of the claim both in the district court and on appeal without arguing procedural default. Petitioner was therefore entitled to have the issue remanded for an evidentiary hearing.

Tucker v. Johnson 115 F.3d 276, n. 5 (5th Cir. 1997), cert. denied, 118 S.Ct. 605 (1997) In footnote 5, the court deemed the state to have waived procedural default with regard to one of petitioner's claims because it had not pled default in the district court.

Blankenship v. Johnson 118 F.3d 312, 316 (5th Cir. 1997) The court found that the state never asserted Teague against the claim that Blankenship had a right to counsel on discretionary review," and that the "state has waived its Teague argument..."

Smith v. Horn 120 F.3d 400, 407-408 (3rd Cir. 1997), cert. denied sub nom. District Attorney of Bucks County v. Smith, 118 S.Ct. 1037 (1998) Where the state has never raised the issues of exhaustion or procedural default in any court, the court of appeals "will decline to address" either issue unless consideration of "federalism and comity, judicial efficiency, and the ends of justice . . . clearly indicates" that it should do so. Absent such compelling circumstances, the court will apply its "presumption" against sua sponte consideration of such issues "lest we subtly transform our adversarial system into an inquisitorial one."

Curtis v. Duval 124 F.3d 1, 5 (1st Cir. 1997) The Commonwealth waived the right to appellate consideration of its Teague defense to application of rule that constructive or actual denial of counsel at critical stage of proceedings constitutes prejudice per se where it failed to cite Teague or to rely on Teague's rationale. The court nevertheless invoked Teague sua sponte to defeat petitioner's claim.

Paradis v. Arave 130 F.3d 385, 390 (9th Cir. 1997) The state waived the exhaustion requirement by failing to advise either the district or circuit court whether petitioner had exhausted state remedies, and the court further determined not to insist upon exhaustion where the interests of comity, federalism and finality would not be served by such insistence.

Howard v. Moore 131 F.3d 399 n.10 (4th Cir. 1997)(en banc) The court stated that, although petitioner's claim is arguably procedurally defaulted by virtue of his failure to raise it on direct appeal, . . .[ t]he state . . . has waived the procedural default issue by failing to argue it before this Court."

Goodwin v. Johnson 132 F.3d 162, 178 (5th Cir. 1998) The state waived any procedural default defense flowing from petitioner's failure to raise the claim that his confessions were inadmissible until his second state habeas petition by failing to raise the defense in the state courts, in the district court or in the court of appeals. The court declined to raise the defense itself.

Frey v. Fulcomer 132 F.3d 916, 920 n.4 (3rd Cir. 1997), cert. denied, 118 S.Ct. 2076 (1998) The Commonwealth of Pennsylvania waived its potential Teague defense to retroactive application of Mills v. Maryland by failing to raise the defense in its appellate brief.

Earhart v. Johnson 132 F.3d 1062, 1065-66 (5th Cir. 1998), cert. denied, 119 S.Ct. 344 (1998) The Fifth Circuit affirmed the district court's decision to accept Texas' waiver of exhaustion in this capital case in which petitioner filed his federal habeas petition in order to get a stay of execution after the state courts refused to withdraw his execution date and appoint counsel for an initial round of state habeas proceedings; the Fifth Circuit reasoned that all of petitioner's claims were either questions of law or questions concerning facts already in the record, and therefore, in this case, comity did not require that the state courts be given the first opportunity to pass on petitioner's claims.

Emery v. Johnson 139 F.3d 191, 195 n.4 (5th Cir. 1998) In footnote 4, the court stated: "If the state does not plead procedural default in the district court, it is waived".

Duvall v. Reynolds 139 F.3d 768, 798 n.11 (10th Cir. 1998), cert. denied, 119 S.Ct. 345 (1998) The court "emphasize[d] that the State may waive the procedural default defense by failing to timely raise the issue." Here, the state did so with regard to one of petitioner's claims: it raised procedural default as a defense to two of petitioner's claims in the district court; the district court did not address the defense; and the state argued procedural default in connection with only one of the two claims on appeal. Because it failed to argue default of the second claim, the Tenth Circuit found the defense waived as to that claim.

Pisciotti v. Washington 143 F.3d 296, 300 (7th Cir. 1998) After noting that "the state post-conviction court held that [petitioner] waived [his IAC] claim by failing to present it on direct appeal," but found that the government waived the defense of procedural default failing to argue it in the federal habeas proceedings.

Holleman v. Duckworth 155 F.3d 906, 912 (7th Cir. 1998) The state waived the defense of procedural default by making only a "passing reference" to an arguable default as a possible ground justifying dismissal of petitioner’s habeas petition.

Turner v. Duncan 158 F.3d 449, 455 (9th Cir. 1998) The state waived the defense of abuse of the writ where, although it raised the issue before the magistrate, the state did not raise it in its objections to the magistrate’s recommendation that the district court reach the merits and grant relief on petitioner’s claim of ineffective assistance of counsel. The Ninth Circuit noted that its "inability to perform a proper review [of the abuse of the writ issue] is a result of the state’s failure to object to the magistrate’s actions," and concluded as follows: "because we see no inequity in allowing an individual, who for the first time in the history of his criminal proceedings is represented by competent counsel, to raise meritorious claims involving his right to a fair trial; and because the claims counsel raises are colorable, we will treat the abuse of writ issue as waived".

Agard v. Portuondo 159 F.3d 98, 100 (2nd Cir. 1998), cert. granted, 119 S.Ct. 1248 (1999) Agreeing with the Ninth Circuit’s decision in Boardman v. Estelle, 957 F.2d 1523 (9th Cir. 1992), "that Teague issues may, but need not, be addressed when raised only in a petition for rehearing," the court here declined the state’s invitation on rehearing to deny relief under Teague. The court remarked that "Teague itself is driven by comity[,] [b]ut comity also calls for representatives of states not to agree to federal courts expending substantial time in addressing the merits of a case, only to argue belatedly that the merits should not have been reached".

Yeatts v. Angelone 166 F.3d 255, 261-262 (4th Cir. 1999) The Fourth Circuit held that "a federal court possesses the authority, in its discretion, to decide a petitioner’s claim on the basis of procedural default despite the failure of the state to properly preserve procedural default as a defense . . ." "In determining whether it should exercise its discretion to notice a petitioner’s procedural default," the court continued, a federal habeas court "should be guided by the interests of comity and judicial efficiency that support the consideration of this issue despite the failure of the state to preserve or present the issue properly." Quoting the Fifth Circuit’s decision in Magouirk v. Phillips, 144 F.3d 348 (5th Cir. 1998), the court explained that, in exercising its discretion to recognize a default under these circumstances, a federal habeas court "should consider whether justice requires that the habeas petitioner be afforded notice and a reasonable opportunity to present briefing and argument opposing dismissal," and "should take into consideration whether the failure of the state to raise the matter of procedural default in a timely manner was intentional or inadvertant . . .." Here, the Fourth Circuit concluded that recognizing petitioner’s procedural default was proper in light of the state’s representations that its failure to raise the defense earlier was "unintentional".

Fisher v. Texas 169 F.3d 295, 302-303 (5th Cir. 1999) The state waived the defenses of procedural default and non-exhaustion by failing to raise them before the district court in this non-capital habeas case involving a claim that religion-based peremptory strikes violate the Equal Protection Clause. With regard to procedural default, the Fifth Circuit acknowledged the state’s contention "that its waiver . . . was inadvertant," but declined to exercise discretion to apply an available procedural bar under the circumstances of this case because petitioner "had absolutely no notice that procedural bar would be an issue [in the case].". As to non-exhaustion, the court again acknowledged the state’s argument "that its waiver was inadvertant," but after "‘tak[ing] a fresh look at the issue,’" as required by Granberry v. Greer, 481 U.S. 129, 134 (1987), it concluded that "the interests of comity and federalism will be better served by excusing [petitioner’s] failure to exhaust his state court remedies." Specifically, the court found that any attempt by petitioner to exhaust state remedies would be futile in light of a recent Texas Court of Criminal Appeals decision rejecting the merits of a claim like the one advanced by petitioner. Despite its refusal to accept the state’s procedural default and exhaustion arguments, the court went on to find that the relief sought by petitioner is barred by Teague v. Lane. [SeeTeague v. Lane Issues, infra]

Bennett v. Collins 852 F. Supp. 570, 573 n.4 (E.D. Tex. 1994) State waived its procedural default defense to petitioner's Batson claim by its repeated delay in filing briefs and its failure to follow procedural requirements in the district court.

United States ex rel. Johnson v. Gilmore 860 F. Supp. 1291, 1294 (N.D. Ill. 1994), aff'd, 103 F.3d 133 (7th Cir. 1996) State waived non-exhaustion defense by failing to properly raise it in its answer to the petition.

Rickman v. Dutton 864 F.Supp. 686, 706 (M.D. Tenn. 1994), aff'd, 131 F.3d 1150 (6th Cir. 1997)

Giglio claim not defaulted because state has no legitimate interest in creating procedural barriers to review of issues involving the state's presentation of false testimony.

United States ex rel. Williams v. Washington 913 F.Supp. 1156, 1160 (N.D. Ill. 1995), aff'd, 108 F.3d 1380 (7th Cir. 1997) State waived procedural default defense by failing to assert it and "thus 'waived waiver.'"

United States ex rel. Gonzalez v. DeTella 918 F.Supp. 1214, 1219 (N.D.Ill. 1996), aff'd, 127 F.3d 619 (7th Cir. 1997), cert. denied, 118 S.Ct. 1325 (1998) The district court addressed the merits of claims found by the state court to have been procedurally defaulted, and therefore addressed by the state court only in the alternative, where state failed to raise procedural default in its answer to petitioner's federal habeas petition. The court noted that it "'is not permitted to override the state's decision implicit or explicit . . . to forego that defense.'" (quoting Henderson v. Thieret, 852 F.2d 492, 498 (7th Cir. 1988).

Borrego v. United States 975 F.Supp. 520, 522 n.2 (S.D.N.Y. 1997) "In the Second Circuit, unlike other circuits, the government's failure to raise the procedural default issue cannot constitute a waiver."

Ramdass v. Angelone 28 F.Supp.2d 343, 357 (E.D.Va. 1998) The state waived the defense of procedural default by failing to argue default and choosing instead to address petitioner's claims on the merits.

Errata

In the United States this year ninety-eight persons were poisoned, gassed, or burnt alive by the state in the name of safety and security. The names of those fellows citizens include:

(thanx, as always, to Dick Dieter and the wonderful folks at DPIC)

* volunteer

+mentally retarded

# juvenile at time of the crime

~foreign national

¥ white defendant executed for black victim

DISCLAIMER & CREDITS -- Anti-copyrite 1999. ISSN: 1523-6684. Written with the legal professional in mind. 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. This weekly has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html .