In a week heavy on decisions, the focus this week is the Supreme Court's examination of the Ninth Circuit's examination ofThe Supreme Cour also issued a stay grant in Faulder v. Johnson, this week's "In Depth" examines the rights of the accused and condemned under the Vienna Convention. Finally this issue is dedicate to the memory ofJudge Leon HigginbothamJr., who was a legendary advocate for the rights of the forgotten & oppressed; Leon passed on Monday at the age of 70 in Boston, tonight he sings with Martin, Thurgood & a score of heavenly hosts.

In Focus

Coleman v. Calderon: A deeply fractured Supreme Court in a 5-4 opinion holds that jury instructions concerning the mention of clemency is to be examined under the Brecht standard in federal habeas corpus proceedings. the Court leaves undisturbed, however, the substantive holding of the Ninth Circuit, that certain jury instructions mentioning the clemency power of the Governor are volitive of due process.

Though the Court of Appeals’ constitutional analysis of the jury instruction, and the Circuit precedent on which it relied, have not been approved by this Court, we do not consider the validity of that analysis here because the State has not asked us to do so. We will simply assume at this stage that the instruction did not meet constitutional standards. The State does contend, however, that the Court of Appeals erred by failing to apply the harmless- error analysis of Brecht. We agree.

We held in Brechtthat a federal court may grant habeas relief based on trial error only when that error “‘had substantial and injurious effect or influence in determining the jury's verdict.’” 507 U.S., at 637 (quoting Kotteakosv. United States, 328 U.S. 750, 776 (1946)). This standard reflects the “presumption of finality and legality” that attaches to a conviction at the conclusion of direct review. 507 U.S., at 633. It protects the Stevens sovereign interest in punishing offenders and its “good-faith attempts to honor constitutional rights,” id., at 635, while ensuring that the extraordinary remedy of habeas corpus is available to those “‘whom society has grievously wronged,’” id., at 634 (quoting Fayv. Noia, 372 U.S. 391, 440—441 (1963)).

A federal court upsets this careful balance when it sets aside a state-court conviction or sentence without first determining that the error had a substantial and injurious effect on the jury’s verdict. The social costs of retrial or resentencing are significant, and the attendant difficulties are acute in cases such as this one, where the original sentencing hearing took place in November 1981, some 17 years ago. No. C89—1906, supra, at A—101, n. 45. The State is not to be put to this arduous task based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error. Brecht, supra, at 637. As a consequence, once the Court of Appeals determined that the giving of the Briggs instruction was constitutional error, it was bound to apply the harmless-error analysis mandated by Brecht.

The Boydetest that the Court of Appeals applied instead is not a harmless-error test at all. It is, rather, the test for determining, in the first instance, whether constitutional error occurred when the jury was given an ambiguous instruction that it might have interpreted to prevent consideration of constitutionally relevant evidence. Boydev. California, 494 U.S. 370, 377, 380 (1990). In such cases, constitutional error exists only if “there is a reasonable likelihood” that the jury so interpreted the instruction.

Although the Boydetest for constitutional error, like the Brechtharmless-error test, furthers the “strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation,” 494 U.S., at 380, it is not a substitute for the Brechtharmless-error test. The Boydeanalysis does not inquire into the actual effect of the error on the jury’s verdict; it merely asks whether constitutional error has occurred. If the Court of Appeals had viewed the jury instruction as ambiguous on the issue whether the Governor had the power alone to commute defendant’s sentence, it might have inquired–as in Boyde–whetherthere was a reasonable likelihood that the jury understood the instruction as stating the Governor had that power. If the court found that possibility to be a reasonable one, it would determine then whether the instruction, so understood, was unconstitutional as applied to the defendant. Even if the court found a constitutional violation, however, it could not grant the writ without further inquiry. As the Court has recognized on numerous occasions, some constitutional errors do not entitle the defendant to relief, particularly habeas relief. See, e.g., Brecht, supra, at 637—638; O’Nealv. McAninch, 513 U.S. 432, 435—436 (1995) (applying harmless-error review to an instruction that “violated the Federal Constitution by misleading the jury”). The court must find that the error, in the whole context of the particular case, had a substantial and injurious effect or influence on the jury’s verdict.

Capital Cases

Calderon v. USDCThe Ninth Circuit en banc holds AEDPA does not bar a habeas petition where a request for counsel was filed prior to the AEDPA but a habeas petition was not fired within one year of the AEDPA, nor does a wide variety of procedural bars proffered by the state:

In the wake of Hohn, we must overrule Beeler and Kelly III's holding that a habeas corpus "case" is not pending until the habeas petition itself has been filed. Hohn's holding, as well as its reliance on Ex Parte Quirin that a threshold request for leave to file a petition for habeas corpus commences the habeas "case," is simply irreconciliable with Beeler and Kelly III. Like a request for leave to file a habeas petition, a petition for the appointment of counsel to prepare and file a petition for a writ of habeas corpus, accompanied by a motion for a stay of execution under McFarland, is a threshold action that presents a "case" to the district court. By analogy to Hohn, it follows that a petition for appointment of counsel under McFarland creates a pending habeas case.7 Accordingly, we overrule those portions of Beeler and Kelly III that held that a habeas corpus case is pending only when the habeas petition itself has been filed. A petition for the appointment of counsel to prepare and file a habeas petition, coupled with a motion for a stay of execution, also suffices.

[20] Given this reading of Hohn and our partial overruling of Beeler and our overruling of Kelly III, it is clear that the AEDPA, including its statute of limitations, does not apply to the district court proceedings that Kelly filed in 1992 and 1993, i.e., cases No. CV 92-5420 TJH and No. CV 93-2951 TJH. Those cases were dismissed by the district court under the compulsion of the writ of mandamus issued in Kelly III, which we have now overruled. Thus, in retrospect, the district court's decision to consider Kelly's habeas petitions on the merits is not clear error.8

[21] Under the circumstances of this case, one remedy available to Kelly is to move in the district court to set aside those dismissals under Fed. R. Civ. P. 60(b)(6), 9 and to permit or deem the habeas petitions filed in district court cases No. CV 98-2722 TJH and No. CV 98-2723 TJH to be filed in the earlier-filed cases nunc pro tunc as of the date they were filed in the 1998 cases. See United States v. Alpine Land & Reservoir, Co., 984 F.2d 1047, 1049 (9th Cir. 1993) (Rule 60(b)(6) applies "where extraordinary circumstances prevented a party from taking timely action"). Although such a motion is addressed to the discretion of the district court, id., because the original proceedings were dismissed under the compulsion of Kelly III and our mistaken holding in footnote 3 of Beeler, which we have now overruled, good and just cause would exist to set those dismissals aside.

[22] In the alternative, we hold that it was not clear error as a matter of law for the district court to hold that Kelly's habeas petitions, filed in 1998, were not barred by the AEDPA's one-year statute of limitations. Indeed, the district court's finding that the statute of limitations should be equitably tolled under Beeler was clearly correct.

In Beeler, we held that the time bar of 28 U.S.C. S 2244(d) (1) can be tolled "if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time." 128 F.3d at 1288-89 (citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1997)).

Johnston v. SingletaryEleventh Circuit denies relief on claims of competency, failure of counsel to advise a non-cooperative client and ineffective assistance of counsel in the penalty phase. On the issue of a non-cooperative client:

It is well-established in our circuit that counsel has a continuing responsibility to represent and advise a non- cooperative client, particularly when counsel knows or has reason to know that his client is mentally unstable.Blanco v. Singletary, 943 F.2d 1477, 1502 (11thCir. 1991) ("[T]his court has held that a defendant's desires not to present mitigating evidence do not terminate counsels' responsibilities during the sentencing phase of a death penalty trial.");Thompson v. Wainwright, 787 F.2d 1447, 1451 (11thCir. 1986) ("[Attorney's] explanation that he did not investigate potential mitigating evidence because of Thompson's request is especially disturbing in this case where [attorney] himself believed that [defendant] had mental difficulties. An attorney has expanded duties when representing a client whose condition prevents him from exercising proper judgment.").

Notwithstanding an attorney's continuing duty to render competent professional assistance even in the absence of client cooperation, it is equally evident that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."Bertolotti v. Dugger, 883 F.2d 1503, 1514 (11thCir. 1989). In practical terms, counsel's ability to present certain types of evidence may be informed, if not sharply curtailed, by a client's refusal to cooperate. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable."Id.at 1512 (quotingStrickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066, 80 L. Ed. 674 (1984)). Similarly, when the strategy an attorney might otherwise pursue is virtually foreclosed by his client's unwillingness to facilitate that strategic option, it is difficult for our court, in a collateral proceeding, to characterize as "unreasonable" counsel's decision to abandon that otherwise preferable strategy. . . .

We do not see counsels' performance as deficient for failing to force Johnston to undergo an evaluation to which he was entirely opposed As we previously have observed, where "the defendant himself gives counsel reason to believe that further investigation of the defendant's mental condition would be useless or even harmful to the defense, then the decision not to further investigate is reasonable."Daugherty v. Dugger, 839 F.2d 1426, 1431 (11thCir. 1988).

Turpin Lipham In a 5-2 decision, the Georgia Supreme Court has affirmed a lower court decision finding that William Anthony Lipham's death sentence must be reversed because he received ineffective assistance of counsel during the penalty phase of his trial. (Abstract of the opinion that follows is from the Georgia Supreme Court web site -- full text will be web posted when available athttp://members.aol.com/Capdefense)

Lipham was convicted of murder, rape, armed robbery and burglary and received a death sentence in CowetaCounty on Feb. 12, 1987.

According to evidence presented at trial, Lipham broke into the home of the 79-year-old victim, Kate Furlow, on Dec. 4, 1985. He raped her, killed her, and took jewelry from the house.

The habeas court found that Lipham's trial lawyers, Steve Fanning and Ike Hudson, were ineffective in their presentation of mitigating evidence during the penalty phase of trial.

The lawyers had about 2500 pages of medical, psychological and social records from Lipham's nine years in foster homes, mental hospitals, and the Anneewakee juvenile institution, but they never obtained an expert to distill or explain the records. They simply introduced them into evidence at the sentencing phase, made passing remarks about them and then asked to jury to "look at it." The jury returned a death sentence after only two hours of deliberation.

The Supreme Court majority, in a decision written by Justice P. Harris Hines, found that the trial lawyers' presentation of the mitigation case was not reasonable under the circumstances and constituted deficient performance. The Supreme Court also agreed with the habeas court that there was a reasonable probability that Lipham would have received a sentence less than death but for trial counsel's errors.

"Although Lipham's crimes are horrific, his mental disorders and the abuse, neglect and isolation he experienced as a child were not adequately presented to the jurors, and thus not reasonably available for their consideration. The habeas court ruled that Lipham met his burden of showing actual prejudice, and we cannot conclude that this ruling was error. Therefore, we affirm the habeas court's vacation of Lipham's death sentence," Hines wrote.

The Supreme Court agreed with the habeas court that Lipham failed to prove he was prejudiced by counsel's performance in the guilt/innocence phase of trial.

The Supreme Court remanded the case to the habeas court for consideration of five claims raised in Lipham's last amended habeas petition that were not addressed in its December 1997 order. "Because the habeas court never ruled on the timeliness of the last amended petition or on the merits of these claims, we remand these issues to the habeas court for a ruling. Until there is a decision in the habeas court, they are not ripe for appeal," Hines wrote.

Justice George H. Carley, in a dissent that Justice Carol W. Hunstein joined, argued that the habeas court's determination that Lipham received ineffective assistance of counsel during the penalty phase was erroneous and should be reversed. "The availability of unbridled post-trial inquiry, as sanctioned by the Court today, has transformed Georgia's state habeas proceedings into nothing more than a second trial wherein the habeas petitioner's trial attorney becomes, in effect, the defendant and, if he did not obtain a life sentence for his client, he is presumed to be constitutionally ineffective. Because I cannot subscribe to this consequence, I dissent," Carley wrote.

Justice Leah J. Sears wrote a separate concurring opinion taking issue with Carley's assertion. "This Court's own records show that since 1995, twenty-eight habeas petitions have been filed in this Court by petitioners who have been sentenced to death for their crimes. Most, if not all, of these habeas petitioners claim that either their trial counsel or their appellate counsel, or both, were ineffective. Of the twenty-eight death penalty habeas petitions filed since 1995, this Court has reversed and remanded onehabeas appeal on grounds relative to a petitioner's claim of ineffective counsel. Accordingly, the statement in the dissent is untrue," Sears wrote.

Quesinberry v. TaylorFourth Circuit denies relief on claims addressing the issues of procedural default and incompetence of post conviction counsel, failure to investigate, right to remain silent &federal habeas discovery.

At the beginning of the trial the state judge told the jury that Que- sinberry might not testify and that if he did not testify "the Fifth Amendment of the Constitution prevented the jury from considering that."See Quesinberry, 241 Va. at 375, 402 S.E.2d at 225. During the course of the proceedings defense counsel presented an instruction that states "[t]he defendant does not have to testify. The exercise of that right cannot be considered by you."See Quesinberry, 241 Va. at 375 n.4, 402 S.E.2d at 225 n.4. Quesinberry chose not to testify.

When the trial judge read the jury instructions, he inadvertently omitted the instruction that Quesinberry's failure to testify could not be held against him. Apparently neither the prosecution nor the defense called the omission to the judge's attention. After the jury returned its verdict of guilt in the first phase of the trial, the judge told the jury to go to lunch in the custody of the sheriff and reminded them:

[B]ecause the case is still going on and there are other mat- ters of such severity that you must consider, do not talk among yourselves; do not let anybody talk to you; do not let anybody approach you; do not respond to any comments; try to avoid what would be inadvertent communication from anyone of any source.

See Quesinberry, 241 Va. at 374, 402 S.E.2d at 225. While at his own lunch, the trial judge realized that he had omitted to give the instruc- tion pertaining to the defendant's right not to testify. The trial judge notified counsel of the omitted instruction. Quesinberry moved for a mistrial, and the judge denied the motion. The judge then told the jury: "You are instructed that the defendant does not have to testify. The exercise of that right cannot be considered by you."Quesinberry, 241 Va. at 376, 402 S.E.2d at 226. The judge also told the jury to con- sider this instruction along with the other instructions and the evi- dence. He asked them to retire to their room and to state their verdict in written form. In about 15 minutes, the jury returned with their ver- dict, finding Quesinberry guilty.Quesinberry, 241 Va. at 377, 402 S.E.2d at 226. . . .

In his assignments of error and in his brief on direct appeal, Que- sinberry did not refer to any federal constitutional provision. Instead he cited Virginia Code Ann. § 19.2-264.3 (bifurcated trials) and Vir- ginia case law dealing with discharge of juries in trials which were not bifurcated. The Virginia Supreme Court's disposition was based on an independent state law ground. Discussing whether the jury was discharged as a matter of Virginia law, it held that in a bifurcated trial while the jury was in the custody of the sheriff and within the control of the court, it had not been discharged.

Quesinberry again raised the same issue in his federal petition for habeas corpus. In these proceedings he adverted to his federal consti- tutional right not to testify. But he premised his argument on the assertion that the jury was discharged at the conclusion of the guilt phase of the bifurcated trial and, consequently, he argues, the district court erred in belatedly instructing them. These arguments fail because the Virginia Supreme Court held that as a matter of Virginia law the jury was not discharged.

Because Quesinberry did not contend on direct appeal that the rein- struction violated a federal constitutional right, he has failed to exhaust the claim he now seeks to raise.See Duncan v. Henry, 513 U.S. 364, 365-66(1995) (per curiam) (holding that argument to state court that an evidentiary ruling by trial court violated state law was insufficient to exhaust claim that the ruling constituted a violation of a federal constitutional right, and rejecting the argument that similar- ity of claims is adequate to exhaust). Because presentation of this claim to the state court at this juncture would be fruitless,seeVa. Code Ann. § 8.01-654(B)(2) (Michie Supp. 1998) (providing that "[n]o writ shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition"), it is properly considered to be procedurally barred.See

George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ("A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture."). We therefore hold this claim to be procedurally defaulted.

Little v. Johnson Fifth Circuit holds no error in the exclusion of testimony that a person other then the condemned confessed to the underlying crime.

Little maintains that the trial court's exclusion of Thomas's confession violated the due process clause of the Fourteenth Amendment. Little's due process claim rests on two separate, but related, theories. First, Little contends that the trial court's failure to conduct an evidentiary hearing regarding the reliability of Thomas's confession violated due process, citingChambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973), andGreen v. Georgia, 442 U.S. 95, 99 S. Ct. 2150 (1979). Next, Little argues that the exclusion of the Thomas confession violated due process. Both arguments prove unavailing.

Little has procedurally defaulted on his first due process theory. When the ground upon which the petitioner relies for habeas relief was not exhausted in state court and state procedural rules would bar subsequent presentation of the argument, this court may not consider the claim absent "cause" and "prejudice", neither of which exceptions is argued here.SeeMuniz v. Johnson, 132 F.3d 214, 221 (5th Cir. 1998);Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997). The issue of reliability of Thomas's confession was not raised at trial. Further, in state habeas proceedings, Little did not argue that the trial court's failure to conduct an evidentiary hearing violated due process. He asserted instead only that the exclusion of the confession amounted to an unconstitutional deprivation of due process. Therefore, under Tex. Code Crim. P. Ann. art. 11.071 § 5(a), Little would not be permitted to pursue habeas relief on this theory in a successive state petition. Absent proof of cause and prejudice or a miscarriage of justice -- showings the petitioner does not make -- Little is barred procedurally from pursuing his argument that the trial court should have conducted a hearing regarding the reliability of Thomas's confession.

Even if Little's claim regarding the alleged lack of an evidentiary hearing were not procedurally barred,ChambersandGreenneither embody the constitutionally mandated hearing proposed by Little nor demand the admission of Thomas's confession. InMontana v. Egelhoff, the Supreme Court explained,

[T]he holding ofChambers-- if one can be discerned from such a fact-intensive case -- is certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.

518 U.S. 37, 53, 116 S. Ct. 2013, 2022 (1996). Indeed, even theChambersCourt placed limits on the consequences of its holding:

In reaching this judgment,we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in theestablishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.

410 U.S. at 302-03, 93 S. Ct. at 1049 (emphasis added). Thus, as this court has twice recognized,ChambersandGreenstand for the limited proposition that "certain egregious evidentiary errors may be redressed by the due process clause."Barefoot v. Estelle, 697 F.2d 593, 597 (5th Cir. 1983) ("We think thatGreenis limited to its facts . . . .");seealsoManess v. Wainwright, 512 F.2d 88, 91 (5th Cir. 1975) (recognizing factual limits onChambersholding).

Even ifChambersandGreenprovide a rule of decision relevant to this case, that rule turns on the existence of a confession that bears "persuasive assurances of trustworthiness."Chambers, 93 S.Ct. at 1047, 1049. Thomas's confession provided no such assurance. First, contrary to the petitioner's assertions, the state trial court did conduct a limited evidentiary hearing on the admissibility of Thomas's confession. During the course of this testimony, the court was made aware of Thomas's confinement in a mental institution following his confession, his subsequent confession to the assassination of President John F. Kennedy, his denial of responsibility for the Peter murder under hypnosis, and the finding, by a jury, that Thomas was not competent to stand trial. The court also knew that the indictment of Thomas for capital murder had been dismissed on the state's motion. Moreover, aspects of Thomas's confession were inconsistent with the forensic evidence. The trial court was able to observe Thomas's halting invocation of his Fifth Amendment privilege and consequent refusal to testify at Little's trial. All of these factors support the trial court's hearsay exclusion of the Thomas confession and critically distinguish the nature of Thomas's "confession" from the reliable confessions that are the linchpin ofChambersandGreen.

Keel v. French Fourth Circuit denies relief on claims arising out of issues including "ineffective assistance of counsel claims relating to trial counsel's failure to raise a Batson challenge and failure to introduce certain evidence during the guilt/innocence phase of the trial." Of particular note was its treatment of the issues underTeague:

Keel's first claim is that the State violated his right to due process under the Fifth and Fourteenth Amendments by permitting evidence of his involuntary manslaughter conviction in 1987 to be submitted to the jury as an aggravating factor during the sentencing phase of the trial. The thrust of his argument is two-fold. First, he argues that N.C. GEN. STAT. § 15A- 2000(e)(3) (1994), which permits as an aggravating factor the use of a previous felony "involving the use or threat of violence to the person," must as a matter of constitutional law be read to restrict such felonies to those that are intentional crimes. The state supreme court considered and rejected that argument.SeeKeel v. State, 447 S.E.2d 748, 760 (N.C. 1994). Keel cites no authority in support of such an extraordinary position, nor are we able to find any.

As a result, any rule we announce requiring that violent felonies used as aggravating factors at sentencing must be felonies requiring specific intent would be a new rule unavailable to the defendant under the "new rule" doctrine established inTeague v. Lane, 489 U.S. 288, 295-96, 109 S. Ct. 1060, 1067-68, 103 L. Ed. 2d 334 (1989) (holding that new constitutional rules are not applicable to defendants whose convictions have become final before the announcement of the rule). Thus, that argument provides no basis upon which we can reverse the district court's decision.

Keel's second argument is that the State violated his Eighth Amendment right to be free of cruel and unusual punishment by essentially relitigating the second degree murder charge for which he was acquitted in 1987. However, the facts of the case in which he was acquitted of second degree murder are the same facts that underlay his conviction of involuntary manslaughter. The state did not characterize his acts as acts of murder during the sentencing phase of the instant case. It merely introduced them to show that Keel committed a felony (involuntary manslaughter) that "involved the use or threat of violence to" the victim.SeeN.C. GEN. STAT. § 15A-2000(e)(3) (1994). Keel cites no authority for the proposition that introduction of historical facts such as these to show that the crime committed was one involving "violence to the person" is improper.SeeTuilaepa v. California, 512 U.S. 967, 976-77, 114 S. Ct. 2630, 2637, 129 L.Ed.2d 750 (1994) (noting that sentencing factors that permit the jury to "consider matters of historical fact" are not constitutionally infirm). Therefore, any contrary rule announced here would likewise be unavailable to him underTeague.See 489 U.S. at 295-96, 109 S. Ct. at 1067-68.

Keel's second claim, arguing that his Eighth Amendment right to be free of cruel and unusual punishment was violated when the trial court refused to instruct the jury as to his parole status pursuant toSimmons v. South Carolina, 512 U.S. 154, 177-78, 114 S. Ct. 2187, 2200-01, 129 L. Ed.2d 133 (1994), is similarly unfounded. InSimmons, the Supreme Court concluded that during the penalty phase, a defendant who is not eligible for parole is entitled to apprise the jury of that fact when the State argues future dangerousness as a basis for imposing the death penalty.See 512 U.S. at 171, 114 S. Ct. at 2198 (plurality opinion). We have recognized that Justice O'Connor's concurrence actually represents the holding inSimmons.SeeMu'Min v. Pruett, 125 F.3d 192, 199 (4th Cir. 1997),cert. denied, ___ U.S. ___, 118 S. Ct. 438, 139 L. Ed. 2d 337 (1997);Townes v. Murray, 68 F.3d 840, 848-49 (4th Cir. 1995),cert. denied, 516 U.S. 1100, 116 S. Ct. 831, 133 L. Ed. 2d 830 (1996).

Justice O'Connor's opinion limits the right to receive such an instruction to those instances where the alternative sentence is life without parole,see 512 U.S. at 176-78, 114 S. Ct. at 2200-01. We have repeatedly rejected attempts to expand theSimmonsrule to apply to prisoners who are eligible for parole.See, e.g.,Wilson v. Greene, 155 F.3d 396, 407-08 (4th Cir. 1998),cert.denied, ___ U.S. ___, 1998 WL 789443;Arnold v. Evatt, 113 F.3d 1352, 1363 (4th Cir. 1997). Since Keel would have been eligible for parole had he not been sentenced to death,seeN.C. GEN. STAT. § 15A- 1371(a)(1) (1994), he is not entitled to any relief under our current interpretation ofSimmons, and any rule announced here would be barred underTeague.

Fisher v. AngeleoneFourth Circuit denies relief on claims relating to the constitutionally validity of evidence heard by petit jury and ineffective assistance of counsel. The panel finds all issues procedurally defaulted in a very truncated opinion.

Habeas

Cole v. USA Seventh Circuit holds that an attorney not being admitted in jurisdiction in which case is tried, either through regular admission or pro hac vice, is not per se grounds for reversal.

Delgado v. USAEighth Circuit on claims of ineffective assistance of counsel rejected; Delgado was not entitled to retroactive application of Sentencing Guidelines.

McGurk v. SternbergEighth Circuit holds trial counsel's failure to inform McGurk of his right to a jury trial on third - offense DWI violated his right to effective assistance of counsel.

Prisoner's Rights and Prosecutorial Misconduct

Harris v. MackEighth Circuit on plaintiff's stated claim for excessive force and district court erred in dismissing claim.

Nelson v. WrightEighth Circuit on use of force after plaintiff resisted arrest was objectively reasonable.

Recent Supreme Court alerts

In addition to the above Supreme Court decision on the standards for certain jury instructions under Brecht, the Supreme Court this past week granted a stay of execution on the right to consul under the Vienna Convention in Faulder v. Johnson.

In Depth

This week brings us once again to the issue of the right's of the accused and condemn under the Vienna Convention. In light of the import of the issue, this week's edition -- as the outstanding work of Sandra Babcock in obtaining a stay in Faulder v. Johnson is not yet widely available -- is a repeat of an earlier stay pleading on the issue of the Vienna Convention. Earlier this year the Court addressed the same in issue inIn re Breard.

On April 3, 1998, pursuant to Article 1 the Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 590 U.N.T.S., 261, the Republic of Paraguay filed in the International Court of Justice (the ?ICJ?) an Application and a Request for Interim Measures of Protection in a case concerning Angel Francisco Breard: Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America). Ex. B. The interim measures of protection sought included: (1) that the Government of the United States take the measures necessary to ensure that Breard not be executed pending the disposition of the case in the ICJ, and (2) that the Government of the United States ensure that no action is taken that might prejudice the rights of the Republic of Paraguay with respect to any decision the ICJ may render on the merits of the case. After hearing oral argument on April 7, 1998, the ICJ entered a unanimous Order on April 9, 1998, attached as Ex. C, indicating that:

The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order.

In a concurring declaration, attached as Ex. D, the ICJ's President Stephen M. Schwebel, of the United States, stated:

It is of obvious importance to the maintenance and development of a rule of law among states that the obligations imposed by treaties be complied with and that, where they are not, reparation be required. The mutuality of interest of States in the effective observance of the obligations of the Vienna Convention on Consular Relations is the greater in the intermixed global community of today and tomorrow (and the citizens of no State have a higher interest in the observance of those obligations than the peripatetic citizens of the United States). In my view, these considerations outweigh the serious difficulties which this Order imposes on the authorities of the United States and Virginia.

Breard asks the Court to stay his scheduled execution to afford the ICJ the opportunity to consider Paraguay's application in a thoughtful manner and without the pressure of an imminent execution date, or the risk that any decision it may reach will have been rendered nugatory by the actions of Virginia state officials. According to a spokesman for the Governor of Virginia, the Governor is not expected to heed the indication of the ICJ in the absence of a similar order from an American court. In an article in the April 7, 1998 edition of the Virginian-Pilot, attached as Ex. E, Laura LaFay reports as follows:

Gov. Jim Gilmore is unlikely to heed the order of any foreign court, his spokesman, Mark Miner, said Monday. ?This was a heinous murder that occurred in Virginia, and the Governor will abide by the rulings of the courts in the United States,? said Miner.

The ICJ is one of the principal organs of the United Nations. See U.N. Charter, art. 92. The International Court is equal, within the United Nations structure, to the Security Counsel and the General Assembly. Id. All member states of the United Nations are subject to the provisions of the Statute of the International Court of Justice. See Statute of the International Court of Justice, 59 Stat. 1055 (entered into force Oct. 24, 1945). Article 41 of the Statute of the ICJ authorizes the Court to ?indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.? See id.

There is a dispute among commentators as to whether, given the wording of Article 41, provisional measures decided upon by the ICJ are binding upon the parties. Compare Jerome B. Elkind, Interim Protection, A Functional Approach 155, 156 (1981) with Hambro, The Binding Character of the Provisional Measures of Protection Indicated by the ICJ, ?Rechtsfragen Der Internationales Organization. Festschrift Für Hans Wehberg, 152-171 (1956). The ICJ has not ruled as to whether an indication of provisional measures is binding on the parties. Restatement (Third) of Foreign Relations Law of the United States § 902 cmt. (1987). However, the preferred view among commentators is that the member states of the United Nations have ?undertake[n] to comply with the decision[s] of the International Court of Justice,? including provisional measures, pursuant to Article 94(1) of the United Nations Charter. See, e.g., Shabtai Rosenne, The International Court of Justice; An Essay in Political and Legal Theory 82 (1957); Shabtai Rosenne, The Law and Practice of the International Court, 125 (1965); Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny, 285 (1982). Accordingly, the ICJ's April 9, 1998 decision is binding upon the United States and should be enforced by this court. Marbury v. Madison, 5 U.S. 137 (1803) (It is ?emphatically the province and duty of the judicial department to say what the law is.?).

Once it became aware of Breard's plight, Paraguay moved quickly to assert its rights in the courts of the United States, and then in the ICJ. Paraguay wished to permit the courts of the United States to have the first opportunity to determine the merits of its case. Paraguay's Cert. Pet. at 28. Breard's execution date was required by Virginia statute to be set within a period of sixty days after a hearing that was required to be held within ten days after the Virginia Attorney General or Commonwealth's Attorney reported to the sentencing court that the Fourth Circuit Court of Appeals had affirmed the dismissal of Breard's habeas corpus petition. Va. Code Ann. § 53.1-232.1. The Court of Appeals' decisions affirming dismissal of Breard's habeas petition and Paraguay's lawsuit were issued simultaneously, on January 22, 1998, and Breard's Petition for Rehearing in the Fourth Circuit was denied on February 18, 1998. After engaging in unsuccessful negotiations with the United States in an effort to resolve the matter Paraguay filed its Application in the ICJ. See introductory remarks by Ambassador Cáceres during the public sitting held on April 7, 1998 before the ICJ. Ex. F at 6.

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