The Yule Season is upon us, and, as with most holiday seasons, the courts have begun to slow down opinions to a trickle. No Capital Cases from any of the Federal Courts of Appeals are reported in this edition.

Two non-capital habeas cases predominate in this issue. In Barker v. Yukins the Sixth Circuit, highlighting the battle on that court between those who would strongly enforce the liberty guaranteed by the federal constitution and those who favor gutting habeas corpus. In Henry v. Moore the Eleventh Circuit holds exhaustion is met even where the sole issue in state court on appeal was merely the failure to hold an evidentiary hearing.

In the Errata this week information for joining the new discussion list for capital defense professionals is listed. Information regarding the Supreme Court term's criminal and capital docket is provided for (via links) as well in the Errata section.

Finally, as a preview to next week, the National Law Journal has named a runners-up to the Lawyer of the Year the entire capital defense bar in its edition to be published next week.

Supreme Court

No reported decisions or developments.

Capital Cases

No reported decisions.

Habeas Cases

Owens v. Dormire (8th Cir) Claim that trial counsel was ineffective for failing to locate and present a potentially exculpatory witness rejected; record failed to establish Owens made counsel aware of the witness; even if the attorney could be faulted for not discovering the witness through reasonable investigation, Owens could not establish prejudice in light of the other evidence of guilt.

Henry v. Moore (11th Cir) The fair presentation requirements of Picard v. Connor, 404 U.S. 270 (1971) are examined in light of the AEDPA. Panel holds exhaustion is met even where thesole issue in state court on appeal was merely the failure to hold an evidentiary hearing.

As stated above, Henry presented the same basic claims-in both law and fact-to the state and federal courts, and he now argues that this is enough to meet Picard's "fair present[ation]" test. The State, on the other hand, contends that Henry's state-court request for an evidentiary hearing rather than a new trial defeats exhaustion. We agree with Henry. Where, as here, state procedure makes it appropriate for a petitioner to request an evidentiary hearing before requesting a new trial, we hold that the difference between a request for an evidentiary hearing in state court and a request for a federal writ under § 2254 (in practical effect here, a request for a new trial) is not enough to render a petitioner's constitutional claims unexhausted.

Courts have phrased the basic outlines of the Picard test in various ways. Vasquez v. Hillery, 474 U.S. 254, 258, 106 S. Ct. 617, 620 (1984), broadly restated the rule to require a petitioner to "present[] the substance of his claim to the state courts." The exact presentation of the claims in the state and federal courts may vary some. See Picard v. Connor, 404 U.S. 270, 277, 92 S. Ct. 509, 513 (1971) ("Obviously there are instances in which `the ultimate question for disposition' will be the same despite variations in the legal theory or factual allegations urged in its support. A ready example is a challenge to a confession predicated upon psychological as well as physical coercion." (citation omitted)). The difference between the two presentations may, however, become significant where legal theories underlying the state and federal claims

(1) . . . arise under different federal constitutional provisions (including different clauses in the same constitutional amendment, e.g., the due process and equal protection clauses of the 14th Amendment),

(2) . . . arise under the same constitutional provision but are logically distinct or are based on different and unrelated lines of precedent, or

(3) [differ in that] one claim relies on state law while the other relies on possibly distinct federal law, even if the state and federal provisions relied upon are facially identical. . . . [T]he exhaustion requirement [does not] forbid a prisoner in her federal petition to strengthen or add additional legal support to the legal claim as presented in the state courts.

2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 23.3c, at 891-92 (3d ed. 1998) (numerous footnotes to federal cases omitted). Looking to these indicia, it is clear that Henry's federal and state petitions do not vary significantly. Indeed, the finding of the magistrate judge was that the claims are the same.

Thus, we could find Henry's claims unexhausted only if we agreed with the State about the relevance of his requesting an evidentiary hearing rather than a new trial from the state court. For two reasons, we cannot agree with the State. First, it has cited no authority for its position. Nor could we find any. See generally Liebman & Hertz, supra, § 23.3c; 17A Charles A. Wright, et al., Federal Practice and Procedure § 4264.3 (1988 & Supp. 1999). Second, the "policy of federal-state comity," Picard, 404 U.S. at 275, 92 S. Ct. at 512, underlying the exhaustion doctrine does not compel the triumph of form over substance that the State's interpretation would entail. As a general matter, we think that a request for an evidentiary hearing on ineffective-assistance-of-counsel claims is plainly enough an argument that the petitioner has evidence to show his entitlement to a new trial. Indeed, the only reported case we could find confronting the question held implicitly that the difference between a request for an evidentiary hearing and a request for more substantial relief, both premised on the same constitutional claim, is not material to the exhaustion inquiry. See Watkins v. Callahan, 724 F.2d 1038, 1041 (1st Cir. 1984) (holding, without even explicitly addressing the change in the procedural relief sought, that Watkins fairly presented his Miranda claims to the state court where his state-court allegation was a per se Miranda violation entitling him to exclude his confession while his federal court allegation was an Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981), violation requiring an evidentiary hearing in the district court).

Nevertheless, we recognize that if state procedure explicitly demanded more of a petitioner, a request for a hearing might not be enough. Florida's rule, however, makes no such demand. Under Rule 3.850, it is the trial judge who determines how much procedural attention a petition warrants. See Fla. R. Crim. P. 3.850(d). Henry's state-court appeal, which requested only the evidentiary hearing denied by the trial judge, was therefore appropriately modest. It asked for the most he could reasonably have expected from the appeals court-an order vacating and remanding for an evidentiary hearing. Exhaustion should not be construed to mandate more.

Barker v. Yukins (6th Cir) Examining at length the AEDPA, the fierce internal debate in that Circuit over the nature of habeas once again bubbles to the surface. Relief granted. At length:

Over defense counsel's objection, the trial court delivered a general instruction on the issue of self defense which informed the jury that a defendant is entitled to use force, even deadly force, if the defendant believed she was in danger of death or serious bodily harm. Petitioner's counsel had requested, but was denied, that the instruction specifically inform the jury, as required by Michigan law, that the use of deadly force is lawful where one is in danger of death or grave bodily harm, including a sexual assault. See People v. Heflin, 456 N.W.2d 10, 22-23 (1990) (finding that where there is an evidentiary basis, a court must instruct the jury that force, including deadly force, may be used to repel an imminent sexual assault). The Michigan Supreme Court, citing to its decision in Heflin, found that the trial court erred when it failed to instruct the jury that a defendant may lawfully use force, including deadly force, to repel an imminent sexual assault. Barker, 468 N.W.2d at 493. However, the Michigan Supreme Court proceeded to conclude that such an error was harmless. Id. Thus, the issue raised by Petitioner Barker's habeas petition is whether, under § 2254(d), the Michigan Supreme Court's finding of harmless error was contrary to, or involved an unreasonable application of, federal law. We find that it was unreasonable, and reverse the district court's ruling to the contrary.

There has been serious confusion among the circuits as to what constitutes an unreasonable application of federal law, and, consequently, several of our sister circuits have adopted varying standards of interpretation. See, e.g., O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998) (finding that for the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes); Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997) (holding that an unreasonable application of law occurs only when a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists). The Sixth Circuit has recently clarified what constitutes an "unreasonable application" under 2254(d) within its jurisdiction. Adopting a standard which blends both the First Circuit's and the Fifth Circuit's approaches, this Court determined that, as a general rule, the "unreasonableness of a state court's application of clearly established Supreme Court precedent will not be 'debatable among reasonable jurists,' if it is 'so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.'" Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir.) (internal citations omitted), cert. denied, -- U.S. --, 119 S.Ct. 2340, -- L.Ed.2d - (1999). Thus, in the Sixth Circuit, a state court's application of federal law is unreasonable and a writ may issue only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes. Id. at 371.

With the general habeas principles in mind, the question now becomes how to apply the basic habeas test announced in Nevers to the specific issue before us, namely whether the Michigan Supreme Court's finding of harmless error involved an unreasonable application of federal law. Fortunately, Nevers is also instructive on this question, as the Nevers court framed § 2254(d)'s general "unreasonable application" standard within the harmless error context.

[W]hen the issue before the federal habeas court is the state court's finding of harmless error . . . [the] test is whether the error 'had substantial and injurious effect or influence in determining the jury's verdict,' [and] it is the habeas petitioner's burden to demonstrate that the trial error resulted in 'actual prejudice.' If the petitioner is able to make that showing, he will surely have demonstrated that the state court's finding that the error was harmless beyond a reasonable doubt . . . was outside the realm of plausible credible outcomes, and therefore resulted from an unreasonable application of Chapman [v. California].( 4)

Id. at 371-372 (internal citations omitted). Hence, Petitioner Barker must demonstrate that the district court's failure to specifically instruct the jury that she was justified in using deadly force to resist a rape had a substantial and injurious effect or influence in determining the jury's verdict and resulted in actual prejudice. If Barker can make this showing, Nevers dictates that she will have satisfied the "unreasonable application" standard required by § 2254(d) of AEDPA and would be entitled to habeas relief.( 5)

We find that the state trial court's error in failing to specifically instruct the jury that Barker would have been justified in using deadly force to stop an imminent rape had a substantial and injurious influence effect in determining the jury's verdict and resulted in actual prejudice to Petitioner Barker. As best explained by Justice Marilyn Kelly (then of the Michigan Court of Appeals and currently on the Michigan Supreme Court), the standard instruction on self defense simply states that one is entitled to use deadly force when one is in danger of death or great bodily harm. Barker, 446 N.W.2d at 553. This

leaves the door open for a juror to decide that forcible rape in a given case would have caused neither death nor great bodily harm. The juror could then reasonably conclude that the accused was not entitled to kill the rapist to prevent the rape. The instructions must inform the jury explicitly that, if it reasonably appeared necessary to the person assailed, she was entitled to use deadly force to repel a rapist.

Id.

Of course, we have no way of knowing what effect the general self defense instruction actually had upon the jurors evaluating Barker's guilt or innocence. We have no way of definitively knowing whether, on the basis of the general self defense instruction, any of the jurors did in fact reject Barker's claim of self defense because that juror believed Madsen's attack would not have lead to death or great bodily injury. But we are certain that the general self defense instruction gave the jurors the latitude to believe, on the one hand, that Barker was resisting a rape, yet on the other hand question whether the rape led to death or serious bodily injury. This is sufficient to raise grave doubt as to whether the general self defense instruction created a substantial and injurious influence on the verdict. See O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995).

Only if a federal habeas court can say with certainty that a trial error had little to no impact on the judgment, should the judgment stand. See id. at 435-38, 115 S.Ct. at 994-995. In this matter, the only thing of which this court is certain is that the erroneous jury instruction left the door wide open. A reasonable juror could have very well walked through the door and rejected Barker's claim for self defense because that juror believed that Madsen's assault would not have led to death or serious bodily injury, thereby resulting in a substantial and injurious influence on the verdict. Since there is grave doubt as to whether the erroneous jury instruction created a substantial and injurious influence on the verdict, the error was not harmless. Accordingly, then, the Michigan Supreme Court engaged in an unreasonable application of Chapman's harmless error test, and under § 2254(d), a writ of habeas corpus should issue.

We further believe that the Michigan Supreme Court improperly invaded the province of the jury in determining that, although the general self defense instruction was erroneous in Barker's case, the error was harmless because no reasonable juror could have believed that the force used by Barker was necessary to prevent rape by an 81-year old "enfeebled" man. The Sixth Amendment and the Due Process clause guarantee a defendant's constitutional right to a trial by jury. As the Supreme Court has recognized, the Sixth Amendment protects the defendant's right to trial by an impartial jury, which includes "as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of 'guilty.'" Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182 (1993). This right is further interpreted as prohibiting judges from weighing evidence and making credibility determinations, leaving these functions for the jury. See, e.g., United States v. United States Gypsum Co., 438 U.S. 422, 446, 98 S.Ct. 2864, 2878, 57 L.Ed.2d 854 (1978) (holding that a jury instruction which effectively took from the jury the issue of intent improperly invaded the jury's factfinding function); Herrington v. Edwards, No. 97-3542, 1999 WL 98587, at *3 (6th Cir. Jan. 26, 1999) (unpublished disposition) ("The court must not dictate the outcome [of the proceedings]. If it does so, it has invaded the province of the jury protected by the Sixth Amendment and the Due Process Clause."). However, that is precisely what the Michigan Supreme Court did by finding that the erroneous jury instruction was harmless because no reasonable juror would have believed Barker's claim of self defense. See Barker, 468 N.W.2d at 494. First, the Michigan Supreme Court asserted that because the victim received ten blows to the head and was stabbed thirty two times, no reasonable juror would have believed that such force was necessary to resist a sexual assault by an "enfeebled" victim. See id. However, there was sufficient evidence in the record which might have supported rational conclusions to the contrary. In particular, Barker's testimony might support an inference that she stabbed the victim in such a frenzy because he persisted in his attack despite her struggle and numerous protests. (J.A. at 188-95). Yet, the Michigan Supreme Court must have wholly discredited this testimony in arriving at its conclusion that the amount of force used was unjustified. Similarly, the court's conclusion that the victim was "enfeebled" rejects testimony to the contrary which established that although the victim walked with a cane, he was "a strong man, a big man." (J.A. at 480).

Hence, it is apparent to this panel that the Michigan Supreme Court's determination that the erroneous jury instruction was harmless necessarily means that the court believed some evidence but discredited other evidence. This, however, it cannot do and remain in compliance with our constitutional guarantees. It is neither the proper role for a state supreme court, nor for this Court, to stand in the place of the jury, weighing competing evidence and deciding that some evidence is more believable than others. Rather, it is for the jury, with the proper self defense instruction, to decide whether the amount of force was justifiable or unjustifiable. Similarly, it is for the jurors to determine whether they believed the victim was enfeebled, or was instead capable of such an assault. Only the jury has the responsibility of arriving at a final determination of Barker's guilt or innocence, and a state supreme court cannot usurp this role.

During oral arguments, counsel for Respondents argued that Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), binds this panel to hold that the Michigan Supreme Court's finding of harmless error did not constitute improper fact finding. In Rose, the Supreme Court acknowledged that, although the determination of guilt or innocence is for the jury rather than the court, harmless error analysis addresses a different question - what is to be done about trial error that, in theory, may have altered the basis on which the jury decided the case, but in practice clearly had no effect on the outcome? See id. at 582 n.11, 106 S.Ct. at 3108 n.11. We do not find Rose, however, entirely dispositive of the instant matter. As we noted earlier, it cannot be said with any confidence that the error in this case had no effect on the outcome. To the contrary, it is quite possible that the general self defense instruction did affect the outcome by allowing a juror to reject Barker's claim for self defense, even if Barker was about to be raped, because the juror did not believe the rape would have resulted in death or great bodily harm. Moreover, although the Rose court cautions that, theoretically, nearly all trial errors can be considered to have invaded the province of the jury and altered the terms under which the jury considered a defendant's guilt or innocence, see id., the court in Rose certainly could not have meant that a trial error could never constitute a usurping of the jury's factfinding role by the court. Since, in the instant matter, the Michigan Supreme Court's finding of harmless error rests squarely on credibility judgments and the court's evaluation of conflicting evidence, this panel does not consider its ruling a derogation of Rose's cautionary advice.

This panel also finds that the Michigan Supreme Court's finding of harmless error in this matter substantially impaired Petitioner's due process right to present a full defense. The Supreme Court has stated that "[w]e have long interpreted this standard of [fundamental] fairness [guaranteed by the Sixth Amendment and the Due Process Clause] to require that criminal defendants be afforded a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984) (finding that the due process right to present a complete defense has been interpreted to guarantee a defendant's right of access to evidence). See also Zemina v. Solem, 438 F.Supp. 455, 466-70 (D.S.D. 1977), aff'd, 573 F.2d 1027 (8th Cir. 1978) (erroneous jury instruction which went to defendant's theory of defense supported a finding of constitutional error); Miller v. South Dakota, 338 N.W.2d 673, 676 (S.D. 1983) (although errors in instructing the jury do not always rise to a constitutional level, "if the error goes to the heart of a defendant's theory of defense it can infringe upon defendant's rights to due process and jury trial.").

Barker's sole defense is that she killed the victim in order to prevent an imminent rape. The trial court's refusal to instruct the jury that a defendant has the right to use force, even deadly force, to resist a rape clearly goes to the very essence of Barker's claim of self defense. In this case, a juror may have reasonably interpreted the general self defense instruction to require Petitioner to demonstrate that: (1) a rape was imminent; and (2) that rape would have led to death or serious bodily injury. Michigan law, however, requires only that a defendant who used self defense to resist an imminent rape to demonstrate the former. By adding what is effectively another element to Petitioner's burden, the general self defense instruction undermined Barker's defense. Petitioner simply cannot be considered to have had a meaningful opportunity to present a complete defense when the jury was so plainly misinstructed on a matter critical to her defense. That the self defense instruction at issue is vitally important to a full and vigorous defense is underscored by the fact that Michigan law itself requires the instruction be given when there is a sufficient evidentiary basis to show that the defendant used self defense to prevent a rape. See Barker, 468 N.W.2d at 493. Instead of having a meaningful opportunity to present a full and vigorous defense, then, Petitioner's claim of self defense was significantly impeded and her due process rights to present a defense severely prejudiced.

This court is mindful that a habeas petitioner faces an uphill battle in establishing that an erroneous jury instruction is so prejudicial that he or she is entitled to habeas relief. The petitioner may not simply show that the instruction was undesirable, erroneous, or even universally condemned. See Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Instead, the petitioner must show that the improper instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400. Although the burden is undeniably heavy, of course, this does not mean that a jury instruction may never rise to such proportions, see id., and we find that the failure to provide a specific self defense instruction on the issue of rape was so prejudicial to Barker's defense that in this case that burden has been satisfied.

Section 1983 & Related Filings

Glover v. Johnson (6th Cir) Sixth Circuit examines when the termination of prison oversight orders are appropriate under the PLRA.

In Depth

This week's installment of "in depth" returns to the study of the constitutional protections in a capital case. This week's installment features Heightened Reliability in Capital Cases. (From http://capdefnet.org/3_intro_to_8th.htm, at the Habeas Assistance Training gang from AOC).

V. HEIGHTENED RELIABILITY

Due to the uniqueness of the death penalty, the Supreme Court requires heightened reliability in the decisions made by the jury and judge during the course of a capital trial. See, e.g., Zant v. Stephens, 462 U.S. at 884. In Woodson v. North Carolina, 428 U.S. 280 (1976), the Court explained why the Constitution requires an individualized sentencing determination in a capital case even though there is no parallel requirement in non-capital cases.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. 28 U.S. at 305

In short, death is different. Thompson v. Oklahoma, 487 U.S. 815, 856 (1988) ("Under the Eighth Amendment, the death penalty has been treated differently from all other punishments").

The heightened need for reliability in capital cases has been relied upon by the Court in a variety of contexts as an important rationale for its decisions:

Woodson v. North Carolina

428 U.S. at 304-05

invalidating mandatory capital sentencing statute

Gardner v. Florida

430 U.S. 349 (1977)

requiring disclosure to defendant of all information contained in confidential pre-sentence investigation report in sufficient time to allow defendant a meaningful opportunity for response

Lockett v. Ohio

438 U.S. at 603-05

requiring consideration of all relevant mitigating evidence to avoid "the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty"

Green v. Georgia

442 U.S. 95 (1979)

forbidding the exclusion of relevant mitigating evidence due to the state's hearsay rule

Beck v. Alabama

447 U.S. 625 (1980)

requiring instruction on lesser included offenses supported by the evidence in the guilt phase of a capital trial

Bullington v. Missouri

451 U.S. 430 (1981)

holding that double jeopardy bars death sentence on retrial after defendant sentenced to life at first trial

Estelle v. Smith

451 U.S. 454 (1981)

recognizing that Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel are applicable to penalty phase of capital trial

Caldwell v. Mississippi

472 U.S. 320 (1985)

forbidding prosecutorial argument which, by assuring the jury that any error it made could be corrected on appeal, had the effect of diminishing the jury's sense of responsibility for its sentencing decision

Turner v. Murray

476 U.S. 28 (1986)

requiring the states to permit voir dire about racial prejudice in interracial crimes

Lankford v. Idaho

500 U.S. 110 (1991)

recognizing that capital defendant is entitled to fair notice of issue to be resolved at trial

Riggins v. Nevada

504 U.S. 127 (1992)

finding error in involuntarily administering anti-psychotic medication to capital defendant

Errata

New at capitaldefenseweekly.com is a listing of all briefs currently available for the Supreme Court's October 1999 docket, as well as supporting documents (http://capitaldefenseweekly.com/sctdocket99.html). Please note, however, the available documents are few and far between with more amicus briefs then briefs from the actual parties.

New also at capitaldefenseweekly.com is a discussion list for legal professional doing capital litigation, as opposed to the information list run by John Blume & this weekly. The hope of the list is to get some cross-pollination of ideas, as well as to give those practitioner's who may not be at a public defender's office or similar non-profit a forum to seek advice and bounce ideas around. The list is private, however, confidentiality online is readily breached.

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