Then there were 36. The Kansas Supreme Court, as noted in the last edition, has struck down that state's death penalty statute in Kansas v. Marsh. The Kansas statute permits a jury to return a death verdict even it found the aggravators and mitigators in equipoise. Holding that death should not win by default, the Marsh Court holds that the prosecution should prove that the aggravators outweigh mitigators by at least a simple preponderance overruling State v. Kleypas. The Court also vacated Marsh's conviction on claims relating to exclusion of evidence that someone else committed the crimes for which the appellant was convicted.

In the Sixth Circuit the long awaited en banc decision In re Abdur’Rahman v. Bell is noted. Overruling McQueen v. Scroggy, Abdur'Rahman holds that a Rule 60(b) motion may be entertained in a habeas proceeding and thensets forth when a district court may entertain such a motion. The practical effect means all but two circuits (Tenth & Eleventh Circuits) now permit such motions. A panel of the Sixth Circuit, applying Abdur'Rahman in Alley v. Bell has found, in that death penalty case, however, that at least in Alley's case his motion was to be treated as a successive petition.

A key decision with substantial overtones of actual innocence is noted out of the Sunshine state. In Mordenti v. Florida the Florida Supreme Court reverses the appellant's conviction holding that the state withheld key evidence of innocence that cast serious doubt on the state's only witness linking Mordenti to the crime. "There was no money trail, no eyewitnesses, no confession, no murder weapon, no blood, no footprints and no DNA evidence linking Mordenti to the murder."

Elsewhere, the Alabama Supreme Court has ordered a new trial in Ex parte McGriff, as the trial court improperly instructed the jury on the need of the state to disprove heat of passion beyond a reasonable doubt. In Johnson v. Dretke the Fifth Circuit has granted -- in a successive habeas case -- a COA on the issue of prosecutorial misconduct and due diligence to overcome the requirement of 28 U.S.C. § 2244(b)(2)(B)(i). The Fifth Circuit has also granted a COA in Mines v. Dretke on Tennard and Penry IIissues.

The web roundup this week notes posts from the CrimProf Blog & TalkLeft.

This edition is archived on the web at: http://capitaldefenseweekly.com/archives/041220.htm

As always thanks for reading. - k

EXECUTION INFORMATION

Since the last edition there have been no executions in the United States.

Potentially serious executions noted are:

SUPREME COURT

Kunkle v. Texas, 2004 WL 2653992 (12/13/2004) Commenting on denial of cert, Justice Stevens, notes that although Kunkle’s death sentence appeared to be incongruous with Tennard v. Dretke & Smith v. Texas the case had procedural problems and that was the basis for denial of cert.

CAPITAL CASES (Favorable)

Kansas v. Marsh, 2004 WL 2921994 (Kan 12/17/2004) (dissent) New trial ordered as the trial court should have let in evidence that the victim's husband actually committed the murders and capital sentencing statute which required imposition of death penalty if aggravating and mitigating circumstances were equally balanced violated prohibition against cruel and unusual punishment. State v. Kleypas overruled.

In re Abdur’Rahman v. Bell, 2004 Wl 2847749 (6th Cir 12/13/2004) (en banc) (dissent) Overruling a very noxious precedent, McQueen v. Scroggy, the Sixth Circuit, en banc, joins the majority of other Courts of Appeal holding that Rule 60(b) motions should be entertained by a district court if the motion conforms to the purpose and language of that rule.

Mordenti v. Florida, 2004 WL 2922134 (FL 12/16/2004) At trial onviction or acquittal turned on just one witness. The prosecution violated their discovery obligations under Brady & Gigilio by failing to turn over evidence supporting the conclusion that its sole witness was not credible. Good dicta about the scope of Brady.

Weaver v. Florida, 2004 WL 2922143 (FL 12/16/2004) "[T]he trial court conducted an improper override analysis and that there was a reasonable basis in the record to support the jury's life recommendation." Two mattes of first impression are noted: (1) discharging defense counsel, over defendant's objection, based on threat to State's right to a fair trial, was not an abuse of discretion & (2) accidental discharge of stun belt was not prejudicial.

Ex parte Dennis McGriff, (In re: McGriff v. Alabama) 2004 WL 2914951 (Ala 12/17/2004) (dissent) Trial court improperly failed to instruct jury that provoked heat of passion, if not disproved beyond a reasonable doubt, would mitigate capital murder as well as non-capital murder to manslaughter

Johnson v. Dretke, 2004 WL 2898045 (5th Cir 12/15/2004) On this successive petition, COA granted on "(1) whether his alleged prosecutorial misconduct claims meet the due diligence requirement of 28 U.S.C. § 2244(b)(2)(B)(i); and (2) if so, whether Johnson's prosecutorial misconduct claims merit relief. More specifically, the second issue entails two questions: whether the government had an obligation to disclose Vest's stipulation and failed to do so, harming Johnson; and whether the government knowingly solicited material, false testimony at trial."

Mines v. Dretke, 2004 WL 2913069 (5th Cir. 12/16/2004) (unpublished) COA granted as penalty phase instructions held to be substantially similar to the instructions given in both Tennard and Penry . Relief denied on competency to proceed.

Harris v. Beard, 2004 WL 2935856 (E.D.Pa 12/15/2004) Stay and abeyance granted for purposes of exhaustion.

CAPITAL CASES (Other Than Favorable)

Alley v. Bell, 2004 WL 2852689 (6th Cir 12/14/2004) Stay vacated, district court improperly treated a Rule 60(b) raising new claims as a properly filed Rule 60(b) motion instead of a second habeas petition. See Abdur'Rahman above.

Perry v Texas, 2004 WL 2896595 (Tex Crim App 12/15/2004) Relief denied on claims including (1) voluntariness of confession; and (2) that following Blakely v. Washington (as well as Apprendi/Ring) the state is required to prove beyond a reasonable doubt that the capital sentencing jury should answer "no" to the mitigation special issue.

Watts v. Texas, No. AP-74,593 (Tex Crim App 12/15/2004) Relief denied on claims including: (1) admission of evidence that suggested possible future prison gang membership of the defendant in support of future dangerousness; (2) proportionality; and (3) constitutionality of the state statute.

Woods v. Texas, 2004 WL 2896253 (Tex Crim App 12/15/2004) (dissent) Relief denied on several issues, including: (1) not permitting the defense to impeach on cross key state's witness that the witness was serving a sentence for aggravated assault; and (2) admission of confession to another murder, which was held to be harmless.

California v. Combs, 2004 WL 2902506 (Cal 12/16/2004) Relief denied on claims including: (1) shackling; (2) admission of statements of defendant's coperpetrator, made during videotaping of reenactment of crime, did not implicate defendant's right to confront witnesses; (3) Miranda’ (4) sufficiency of evidence for premeditation and deliberation was sufficient to support conviction for first degree murder; (5) sufficiency of the lying in wait special circumstance; (6) admission of jail activity in penalty trial; and (7) prosecutor's calling defense psychiatrist as rebuttal witness.

California v. Horning, 2004 WL 2902521 (Cal 12/16/2004) Relief denied on claims including: (1) speedy trial claim based on a two-and-a-half-year delay between filing of first murder complaint and arraignment; (2) qualification as to ability to impose life after a juror that stated "a waste of money" was not removed for cause; (3) admission of statement implicating himself in earlier robbery of murder victim was admissible; (4) expert testimony about inconclusive ballistics was admissible; (5) sufficiency; and (6) failure to give instruction on second degree murder as lesser included offense.

California v. Monterroso, 2004 WL 2848024 (Cal. 12/13/2004) Relief denied on claims on claims including: (1) voluntariness of consent to search; (2) admission of “dying declaration;” (3) guilt phase trial instructions; (4) use of multiple felony murder special circumstances for each murder; (5) use of prior vandalizing of a van as an aggravator in penalty trial; (6) refusing to admit mitigating evidence of video depicting life of street children in Guatemala similar to Monterreso’s childhood; and (7) failure to instruct jury not to double-count certain underlying felonies.

Engram v. Arkansas, 2004 WL 2904678 (Ark 12/16/2004) (dissent) Relief denied on Atkins claims where IQ test showed an IQ of 76 but state statute defines mental retardation threshold as an IQ score of 65.

Davis v. Oklahoma, 2004 WL 2861097 (Ok Crim App 12/14/2004) Relief denied on claims including: (1) trial court permitting rebuttal testimony of certain witnesses; (2) sufficiency; (3) trial courts limitations on cross of victims husband; (4) voluntariness of confession; and (5) sufficiency of the HAC aggravator.

OTHER NOTABLE CASES

Oklahoma State Board of Examiners of Certified Shorthand Reporters v. Thompson, 2004 WL 2924307 (Okla. 12/14/2004) (dissent) Revocation of Court Reporters license upheld as transcripts in a death penalty case she had worked on were incomplete, inaccurate and not in conformity with professional standards, and could not be repaired, replaced or completed to be certified as accurate. The errors and omissions resulted in a reversal of a death sentence in Conover v. State of Oklahoma,, 990 P.2d 291 (Ok Crim App 2004)

HOT LIST

Kansas v. Marsh, 2004 WL 2921994 (Kan 12/17/2004) (dissent) New trial ordered as the trial court should have let in evidence that the victim's husband actually committed the murders and capital sentencing statute which required imposition of death penalty if aggravating and mitigating circumstances were equally balanced violated prohibition against cruel and unusual punishment, overruling State v. Kleypas. As to the capital sentencing statute:

At the penalty phase of Marsh's trial, the district court's jury instructions and verdict forms followed the language of K.S.A. 21-4624(e) by requiring a death sentence if the jury found aggravating circumstances were not outweighed by mitigating circumstances. The governing statute reads:

"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law." K.S.A. 21-4624(e).

Under the authority of this provision, Marsh's jury was directed that a tie must go to the State. In the event of equipoise, i.e., the jury's determination that the balance of any aggravating circumstances and any mitigating circumstances weighed equal, the death penalty would be required.

***

Here, Marsh correctly notes, and the State concedes, that Kleypas requires us to vacate Marsh's death sentence and remand for reconsideration of the death penalty under proper instructions on the weighing equation. Marsh makes the further argument, however, that K.S.A. 21-4624(e) is unconstitutional on its face and that the portion of our Kleypas decision that saved the statute through judicial construction must be overruled.

We agree.

After a discussion of applicable case law, the Kleypas majority succinctly summarized why K.S.A. 21-4624(e) as written did not comport with the Eighth and Fourteenth Amendments:

"The legislature cannot mandate a death sentence for any category of murder. The legislature is limited to defining who is eligible, within constitutional limits, to receive the death penalty. It is for the jury, within permissible guidelines, to determine who will live and who will die. The issue is not whether the penalty of death is per se cruel and unusual punishment. Furman [ v. Georgia, 408 U.S. 238] did not hold that the death penalty was cruel and unusual punishment per se under the Eighth Amendment. Here the issue, as that before the Furman court, is whether the process used to select which defendant will receive the irrevocable penalty of death 'comports with the basic concept of human dignity at the core of the [Eighth] Amendment.' Gregg [ v. Georgia,]428 U.S. at 183.

"Is the weighing equation in K.S.A. 21-4624(e) a unique standard to ensure that the penalty of death is justified? Does it provide a higher hurdle for the prosecution to clear than any other area of criminal law? Does it allow the jury to express its 'reasoned moral response' to the mitigating circumstances? We conclude it does not. Nor does it comport with the fundamental respect for humanity underlying the Eighth Amendment. Last, fundamental fairness requires that a 'tie goes to the defendant' when life or death is at issue.

We see no way that the weighing equation in K.S.A. 21-4624(e), which provides that in doubtful cases the jury must return a sentence

***

In their dissents today, Justices Davis and Nuss nevertheless revisit the constitutionality of K.S.A. 21-4624(e) as written. They, joined by Chief Justice McFarland, argue first that equipoise will be rare. We cannot know this.

Second, they focus on cases that predate Walton and analyze distinct statutory language, asserting these decisions mean the Constitution guarantees capital defendants only an opportunity to have mitigating evidence considered by the jury. These cases, obviously, do not control.

Finally, our dissenting colleagues protest that we should rely on language in Justice Blackmun's Walton dissent to conclude that a majority of the United States Supreme Court has already implicitly decided that the equipoise provision before us is constitutional. Simply stated, that position failed to draw a majority in Kleypas; Justices Lockett, Allegrucci, Six, and Larson voted against it. It still fails to draw a majority for good reason. Although we do not believe any useful purpose is served by further extensive restatement of the opposing rationales of the Kleypas majority and dissent, we feel compelled to re-emphasize that a majority of the United States Supreme Court has never squarely addressed or decided the facial constitutionality of the equipoise provision before us. This remains true, no matter how lower federal courts or other state courts have interpreted the ruling in Walton. The Arizona statute at issue in that case was worded differently; and, as Justice Nuss acknowledges, Justice White's plurality decision neither used the word "equipoise" nor specifically referred to situations in which aggravators and mitigators are in balance. After full reconsideration, we reject reliance on Justice Blackmun's Walton dissent and continue to adhere to the Kleypas majority's reasoning and holding that K.S.A. 21-4624(e) as written is unconstitutional under the Eighth and Fourteenth Amendments.

***

It is apparent to us that Kleypas failed to apply the fundamental rule of statutory construction as stated in State ex rel. Graeber before moving to application of the canons that support the avoidance doctrine. Indeed, the fundamental rule of statutory construction was not even noted in the majority's discussion and resolution of the equipoise issue.

Moreover, the Kleypas court's rationale for the rewriting of K.S.A. 21-4624(e) rested entirely upon the premise that the legislature intended to pass a death penalty statute that was constitutional. 272 Kan. at 1018. This begged the question of whether the legislature actually succeeded in doing so. It also constituted an insufficient justification for application of the avoidance doctrine to an unambiguous statute. Such construction by any other name is a usurpation of the legislative prerogative. See Beard, 197 Kan. at 278; see also People v. LaValle, 3 N.Y. 3d 88, 817 N.E. 2d 341 (2004) (state's highest court cannot rewrite unconstitutional death penalty provision; it lacks legislative power to fill void left by elimination of invalid provision).

***

We agree with Justice Davis' reasoning and conclusion that the Kleypas majority erred in substituting a weighing equation with exactly the opposite effect of the equation provided by the legislature. The holding eviscerated the legislature's clear and unambiguous intent regarding equipoise and thus overstepped the judiciary's authority to interpret legislation rather than make it. Chief Justice McFarland's dissent, which argues that the legislature apparently did not mind the interference misses the point. (It also reads too much into its inaction when the court had removed its incentive to act.) Justice Davis had it exactly right: The appropriate, limited judicial response to the problem identified for the first time in Kleypas was to hold K.S.A. 21-4624(e) unconstitutional on its face and let the legislature take such further action as it deemed proper.

This was especially true given the legislative history. As the Kleypas majority observed:

"It is important to note that on March 14, 1995, the attorney general analyzed the statute and recommended in the House Judiciary Committee of the Kansas Legislature that the statute be amended to require that aggravating circumstances outweigh mitigating circumstances, stating: "Now if they are equal, 'tie' goes to state. We're proposing 'tie' goes to defense . . . ." Unfortunately, the legislature did not follow the attorney general's recommendation." Kleypas, 272 Kan. at 1014-15.

In Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002), the bedrock principle of separation of powers in our tripartite form of government was at issue and eloquently explained. Padilla, an American citizen, was being held by the United States as an "enemy combatant" associated with Al Qaeda at a naval brig in South Carolina. He filed a habeas petition, relying primarily upon 18 U.S.C. § 4001(a) (2000), which provides: "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." In support of its motion to dismiss, the Government argued a literal reading of 18 U.S.C. § 4001(a) would conflict with Article II, section 2, clause 1 of the Constitution, which makes the President of the United States "Commander in Chief of the Army and Navy of the United States."

In rejecting the government's argument, the court stated:

"The government suggests that because reading the statute to impinge on the President's Article II powers, including detention of enemy combatants, creates a danger that the statute might be found unconstitutional as applied to the present case, a court should read the statute so as not to cover detention of enemy combatants, applying the canon that a statute should be read so as to avoid constitutional difficulty. See, e.g., Jones v. United States, 529 U.S. 848, 857, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000) (citing 'the guiding principle that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."') (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S. Ct. 527, 53 L. Ed. 836 (1909)).

"However, this doctrine of constitutional avoidance '"has no application in the absence of statutory ambiguity."' HUD v. Rucker, 535 U.S. 125, 122 S. Ct. 1230, 1235, 152 L. Ed. 2d 258 (2002) (quoting United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 494, 121 S. Ct. 1711, 149 L. Ed. 2d 722 (2001)). Any other approach, as pointed out in Rucker, '"while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution."' Id. at 1235-36 (quoting United States v. Albertini, 472 U.S. 675, 680, 105 S. Ct. 2897, 86 L. Ed. 2d 536 (1985)). That is, if a court read an ambiguity into an unambiguous statute simply for the purpose of avoiding an adverse decision as to the constitutionality of that statute, the court would be exercising legislative powers and thereby usurping those powers. There is no ambiguity here. The plain language of the statute encompasses all detentions of United States citizens. Therefore, the constitutional avoidance canon cannot affect how the statute is read." 233 F. Supp. 2d at 597.

Our holding that K.S.A. 21-4624(e) is unconstitutional on its face presumptively requires that we overrule that portion of Kleypas upholding the statute through application of the avoidance doctrine. The only contrary argument left for our consideration is that the doctrine of stare decisis should prevent us from doing so.

***

We conclude that the second holding of Kleypas--that the equipoise provision could be rescued by application of the avoidance doctrine--is not salvageable under the doctrine of stare decisis. That holding of Kleypas is overruled. Stare decisis is designed to protect well settled and sound case law from precipitous or impulsive changes. It is not designed to insulate a questionable constitutional rule from thoughtful critique and, when called for, abandonment. This is especially true in a situation like the one facing us here. Kleypas' application of the avoidance doctrine was not fully vetted. It is young and previously untested. Its rewriting of K.S.A. 21-4624(e) was not only clearly erroneous; as a constitutional adjudication, it encroached upon the power of the legislature.

Our decision today to confine the application of the avoidance doctrine to appropriate circumstances recognizes the separation of powers and the constitutional limitations of judicial review and rightfully looks to the legislature to resolve the issue of whether the statute should be rewritten to pass constitutional muster. This is the legislature's job, not ours. This decision does more in the long run to preserve separation of powers, enhance respect for judicial review, and further predictability in the law than all the indiscriminate adherence to stare decisis can ever hope to do.

In re Abdur’Rahman v. Bell, 2004 Wl 2847749 (6th Cir 12/13/2004) (en banc) (dissent) Overruling a very noxious precedent, McQueen v. Scroggy, the Sixth Circuit, en banc, joins the majority of other Courts of Appeal holding that Rule 60(b) motions should be entertained by a district court if the motion conforms to the purpose and language of that rule.

[1] We turn to the question before us: Is a motion for relief pursuant to Rule 60(b) equivalent to a second or successive habeas petition pursuant to AEDPA? After addressing that question we will apply the answer to Abdur' Rahman's case.

The courts of appeals that have heretofore grappled with this question have provided divergent answers. The Second Circuit seems to be the only court of appeals to have ruled categorically that a motion pursuant to Rule 60(b), brought after a district court's ruling on an initial habeas petition, is not a second or successive habeas petition, and that such motions should always be treated as any other motion pursuant to Rule 60(b). Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir.2001).

*4 At the other end of the spectrum, several courts of appeals, as well as the dissent in our case, have concluded that a Rule 60(b) motion in a habeas case must always--or almost always--be treated as a second or successive habeas petition pursuant to AEDPA. See, e.g., Gonzalez v. Sec'y for Dep't of Corrs., 366 F.3d 1253 (11th Cir.2004) (en banc) (holding that Rule 60(b) motions must always be treated as second or successive habeas petitions except where the final judgment is recalled or reopened to correct clerical errors in the judgment itself or where there was fraud upon the federal court which led to the denial of the habeas petition); Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.1998) (holding that the successive petition restrictions contained in 28 U.S.C. § 2244(b) apply to Rule 60(b) motions). A panel of this Circuit has trumpeted that view as well. McQueen, 99 F.3d at 1335 ("We agree with those circuits that have held that a Rule 60(b) motion is the practical equivalent of a successive habeas corpus petition ...."). According to the Eleventh Circuit, which is the leading proponent of this view, permitting Rule 60(b) to operate as it customarily does would allow prisoners to circumvent AEDPA's restrictions on second and successive habeas petitions in federal courts. Gonzalez, 366 F.3d at 1256 ("One of the most popular vehicles used in the attempted end-runs [around AEDPA] is a Fed.R.Civ.P. 60(b) motion requesting that the prior judgment denying relief be set aside.").

But neither of the categorical approaches just described is satisfactory. The wholly unrestricted approach taken by the Rodriguez court fails to appreciate the potential for some Rule 60(b) motions to subvert AEDPA's objectives. But the rigid approach, adopted by the Eleventh Circuit and the dissent here, prohibits too much. It fails to appreciate both the significant functional differences between Rule 60(b) motions and habeas petitions and that those differences mean that many Rule 60(b) motions will not run afoul of AEDPA.

Rule 60(b) motions and habeas petitions serve different purposes. Contrary to the dissent's assertion, Rule 60(b) does not permit parties to relitigate the merits of claims, or to raise new claims that could have been raised during the litigation of the case or in the initial habeas petition. Rather, the purpose of a Rule 60(b) motion is to allow a district court to reconsider its judgment when that judgment rests on a defective foundation. The "factual predicate [of a Rule 60(b) motion] deals with some irregularity or procedural defect in the procurement of the judgment denying habeas relief." Rodwell, 324 F.3d at 70.

A second or successive habeas petition "is a different species." Gonzalez, 366 F.3d at 1292 (Tjoflat, J., concurring in part and dissenting in part). Like an initial habeas petition, a second or successive habeas petition seeks to invalidate the state court's judgment of conviction based on a constitutional error. Pursuant to AEDPA, a "second or successive" habeas petition is meant to address two specific types of constitutional claims by prisoners: (1) claims based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court" and that was "previously unavailable;" and (2) claims that rely on a rule of constitutional law and that are based on evidence that "could not have been discovered previously through the exercise of due diligence" and that would establish the petitioner's factual innocence. 28 U.S.C. § 2244(b)(2). In this way, second or successive habeas petitions are based entirely on "the alleged violations of federal rights" that occur during the criminal trial. Rodriguez, 252 F.3d at 199; see also Abdur' Rahman, 537 U.S. at 95-96 ("[L]ike all habeas corpus petitions, [a second or successive habeas petition] is meant to remedy constitutional violations ... while a Rule 60(b) motion is designed to cure procedural violations in an earlier proceeding--here, a habeas corpus proceeding--that raise questions about the proceeding's integrity.") (Stevens, J., dissenting from the dismissal of certiorari as improvidently granted).

*5 The dissent would hold that, with the exception of the ground of fraud provided in Rule 60(b)(3), AEDPA precludes the district courts of this Circuit from entertaining Rule 60(b) motions filed by prisoners seeking to vacate a district court's judgment denying them habeas corpus relief. To obtain relief on any of the remaining grounds--Rule 60(b)(1), (2), (4), (5), or (6)--the petitioner would have to fashion his claim as a second or successive habeas petition pursuant to 28 U.S.C. § 2244(b)(2), and must apply to this Court pursuant to 28 U.S.C. § 2244(b)(3) for leave to file it. In other words, the dissent would treat any motion based on one or more of the grounds enumerated in Rule 60(b) as a habeas petition, even if the motion contained no constitutional claim at all. But that approach plainly ignores the significant functional difference between Rule 60(b) motions and habeas petitions, discussed above.

Moreover, the dissent offers no reason for permitting Rule 60(b)(3) motions based on fraud while prohibiting motions brought pursuant to the other provisions enumerated in Rule 60(b). This is puzzling, because fraud is not the only reason to doubt the integrity of a habeas judgment. Rule 60(b)(1), for instance, states that a federal judgment may be reconsidered and vacated if it was based on "mistake, inadvertence, surprise, or excusable neglect." As the Second Circuit noted, the integrity of a habeas judgment might be called into doubt pursuant to Rule 60(b)(1) where the respondent engaged in unfair surprise by failing to notify the petitioner of the witnesses it planned to call in the habeas hearing. Rodriguez, 252 F.3d at 199. The dissent in our case offers no reason why fraud on the court would be a valid basis for a Rule 60(b)(3) motion, while such a claim of unfair surprise, filed as a Rule 60(b)(1) motion, would have to be characterized as a second or successive habeas petition. "In each situation, the motion challenges only the etiology of the habeas judgment itself," not the constitutionality of the underlying conviction. Rodwell, 324 F.3d at 70. Accordingly, it makes sense to treat both motions pursuant to Rule 60(b).

There is another crucial distinction between Rule 60(b) motions and habeas petitions. Granting a second or successive habeas petition invalidates a prisoner's conviction and/or sentence. Granting a Rule 60(b) motion has no such effect. It merely reinstates the previously-dismissed habeas petition, opening the way for further proceedings. Abdur' Rahman, 537 U.S. at 94 ("[T]he difference [between a second or successive habeas petition and a Rule 60(b) motion] is defined by the relief that the applicant seeks .") (Stevens, J., dissenting from the dismissal of certiorari as improvidently granted). Although a Rule 60(b) motion is "undoubtedly a step on the road to the ultimate objective of invalidating the judgment of conviction," the motion itself does not seek that relief. Rodriguez, 252 F.3d at 198. As the Second Circuit logically pointed out, "[t]he fact that the Rule 60(b) motion contemplates ultimately the vacating of the conviction is shared with every motion the petitioner might make in the course of pursuing his habeas--motions to compel disclosure or quash the respondent's discovery demands, motions for extension of time to answer the adversary's motion, motions to be provided with legal assistance, motions for summary rejection of respondent's contentions," and even motions for relief from judgment grounded in fraud, which the dissent here would recognize. Id. at 198-99. But this fact does nothing to convert the motion into a second or successive habeas petition.

*6 Having distinguished between motions pursuant to Rule 60(b) and second or successive habeas petitions, we are mindful that prisoners might attempt to subvert AEDPA by dressing second or successive habeas petitions in Rule 60(b) garb. The solution to this problem, however, is to adopt a conceptual framework that curtails the potential for abuse while permitting Rule 60(b) motions in appropriate circumstances. To that end, we adopt the First Circuit's approach to this issue:

The inquiry must proceed case by case. The [district] court must examine the factual predicate set forth in support of a particular motion. When the motion's factual predicate deals primarily with the constitutionality of the underlying state [or federal] conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the motion's factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying habeas relief. That is the classic function of a Rule 60(b) motion, and such a motion should be treated within the usual confines of Rule 60(b).

Rodwell, 324 F.3d at 70 (internal citation omitted).

This approach is functional in nature. Whether a motion will be treated as one pursuant to Rule 60(b) or as a second or successive habeas petition will depend not on the label affixed to the motion, but on its substance. Id. at 71. It is only when a petitioner presents a direct challenge to the constitutionality of the underlying conviction that the petition should be treated as a second or successive habeas petition. But if there is no such direct challenge and the petitioner instead challenges the integrity of the district court opinion for one of the reasons provided in Rule 60(b), then the district court must treat the motion as one pursuant to Rule 60(b). Compare Hamilton v. Newland, 374 F.3d 822, 824 (9th Cir.2004) (holding that habeas petitioner's motion for reconsideration of denial of habeas relief must be treated as motion pursuant to Rule 60(b) where petitioner sought to have district court reconsider its prior ruling that his habeas claims were barred by the one-year limitations period under AEDPA), with Rodwell, 324 F.3d at 71-72 (holding that petitioner's motion for relief from judgment denying federal habeas relief, brought pursuant to Rule 60(b), was a second or successive habeas petition, and thus was required to be dismissed, because it asked the district court for an opportunity to offer facts--namely, that one of the key witnesses against petitioner was an undercover government agent--that would prove that his state-court conviction for murder was constitutionally infirm), and Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.1998) (en bane) (treating a Rule 60(b) motion that raised a new claim that the state failed to disclose exculpatory evidence as a successive habeas petition). This ruling applies with equal force to motions brought in the 28 U.S.C. § 2255 context since AEDPA incorporates by reference in § 2255 the same "second or successive" rules imparted in § 2254.

*7 Although, as the First Circuit noted, "this test [would not] operate with mathematical precision," it would preserve the independent goals of both Rule 60(b) and AEDPA, and we should be "confident that ... the district [court would] be able to sift wheat from chaff without undue difficulty." Rodwell, 324 F.3d at 71.

The holding in McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996), that endorsed the rigid approach we have just rejected is hereby overruled.

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TalkLeft (talkleft.com) notes:

Did Justice Dept. Base Death Decision on Race?

by TChris

The federal government has charged 14 people with playing a role in a smuggling operation that resulted in the deaths of 19 illegal immigrants after they succumbed to heat in the back of a tractor-trailer. But prosecutors are only seeking the death penalty against one defendant, Tyrone Williams, who happens to be an African American. His lawyer is asking why.

"In this case, the discriminatory effect and discriminatory intent cry for justice," [Craig] Washington wrote in a motion submitted Thursday. "Moreover, every other similarly situated individual in the history of the death penalty as it relates to (immigrant) smuggling has been treated differently. Justice demands justice."

Washington told the court that, since 1994, 68 people have been charged with immigrant smuggling that resulted in death, but the government has pursued a death sentence only against his client. To her credit, the judge would also like an explanation for the government's insistence on death. She may not be ready to accept the claim that Williams was the only defendant who had the ability to prevent the deaths from occurring.

During a hearing Friday, U.S. District Judge Vanessa Gilmore asked Assistant U.S. Attorney Tony Roberts to provide her a letter from U.S. Attorney General John Ashcroft explaining his office's refusal to "disclose why you sought the death penalty on this guy, the only black guy, and not on the others." Gilmore said she would hold Roberts in contempt if she didn't get the letter Friday.

CrimProf Blog (http://lawprofessors.typepad.com/crimprof_blog/) notes:

Breaking Case News: Guilty Plea Stands Despite Fact That Defendant Incorrectly Advised He Could Get Death Penalty

Third_circuitIn Johnson v. Pinchak, also available here, a man who pleaded guilty to murder after his lawyer and prosecutors mistakenly told him that he risked being executed if he didn't confess is not entitled to relief, the Third Circuit holds. The court summarized the case and its holding as follows: "When petitioner, George Johnson, pled guilty to felony murder under the misapprehension that he was eligible for the death penalty for that crime, felony murder in New Jersey was not in fact a capital offense. However, after receiving a sentence of life imprisonment with thirty years parole ineligibility and after exhausting his state remedies, Johnson sought federal habeas corpus relief alleging ineffective assistance of counsel and involuntariness of his guilty plea. The District Court ultimately granted relief on grounds that the state court's mistake about Johnson's death eligibility for felony murder was structural error, and thus, per se reversible.

The threshold question on this appeal is whether Johnson's claim is procedurally defaulted. Johnson did not raise the death penalty eligibility claim in his direct appeal to the New Jersey Superior Court, Appellate Division, nor did he address it in his first Post Conviction Relief (PCR) petition to the New Jersey courts. He first raised the claim in his petition for certification to the New Jersey Supreme Court; however, this petition was summarily denied. Over a year later, Johnson raised the death penalty eligibility claim in a second PCR petition, but that petition was filed more than five years after his sentence was handed down, and thus was time-barred under New Jersey Rule of Court 3:22-12. Rather than barring Johnson's claim on procedural grounds, however, the District Court invoked the "actual innocence" exception to the procedural default rules, which allows consideration of the merits of a claim, notwithstanding procedural default, to avoid a miscarriage of justice.

We conclude that, in so doing, the District Court misconstrued the scope of the actual innocence exception by applying it where the petitioner wrongly was led to believe he was death eligible, but where the death penalty was not actually imposed. Rather, we hold that the touchstone of the actual innocence inquiry is innocence of the sentence actually imposed, not innocence of a sentence for which the petitioner was merely eligible. We also conclude that Johnson's death-eligibility claim was procedurally defaulted because of his failure to bring the claim before the New Jersey state courts in accordance with their procedural rules. Supporting the procedural default conclusion are the facts that: (1) the New Jersey courts considering Johnson's application clearly relied on such procedural default as a separate and independent basis for their denial of relief, and (2) the five-year time bar under N.J.R. 3:22-12 is an adequate state ground, as it is strictly and consistently enforced in all but the most exceptional cases.

Accordingly, we will reverse the order of the District Court and remand with directions to dismiss Johnson's habeas petition as procedurally defaulted." More . . . [Mark Godsey][will be covered in the next edition]

VA Attorney General Seeks to Increase the Availability of the Death Penalty

Va Besides Texas, Virginia has executed more people in the modern era of the death penalty than any other state. But VA Attorney General Jerry Kilgore hopes to increase its availability by dissolving the "triggerman" requirement, which limits the sentence's availabilty to the actual killer in a homicide case as opposed to offenders who are involved on some other level. Kilgore says his legislative proposal for the upcoming General Assembly in VA is a response to the sniper trial, in which the brains of the operation, John Allen Muhammad, appears not to have actually fired the shots. As a result, the prosecutors in the trial had to rely in part on an anti-terrorism law to ensure the death penalty's availability for Mr. Muhammad, because VA's triggerman requirement precluded its applicability. A spokesman for Kilgore, Timothy Murtaugh, noted that "23 of 38 states with the death penalty lack comparable restrictions"...and Kilgore hopes to "bring [Virginia] into the majority of death penalty states" by allowing prosecutors and juries to decide on a case-by-case basis if convictees are culpable enough for death, based on their level of involvement in each case. More... [Mark Godsey]

New Article Spotlight: Some Common Confusions About Consent in Rape Cases

Peter_westenCrimProf Peter K. Westen of Michigan has posted the above-titled paper on SSRN, recently published in the Ohio State Journal of Criminal Law. The abstract states:

Consent to sex matters, because it can transform coitus from being among the most heinous of criminal offenses into sex that is of no concern at all to the criminal law. Unfortunately, the normative task of making the law of rape more just is commonly impaired by conceptual confusion about what consent means. Consent is both a single concept in law and a multitude of opposing and cross-cutting conceptions of which courts and commentators tend to be only dimly aware. Thus, consent can be a mental state on a woman's part, an expression by her, or both; it can consist of facts about a woman's mental state or expressive conduct that do not necessarily constitute a defense to rape or consist only such facts as do constitute a defense to rape; and it can consist of facts about a woman's mental state or expressive conduct or a legal fiction of such facts. In so far as we are unaware of the ways in which this conceptual framework structures the way we think about consent, we risk confusing ourselves and others in undertaking to make the law of rape more just. Some examples are (1) confusion as to whether the defense of consent ought to be deemed to consist of a mental state on a woman's part or an expression; (2) confusion about the relationship between consent to sexual intercourse and resistance to it; and (3) confusion about the relationship between force and non-consent. To obtain a copy of the paper, click here. [Mark Godsey]

Breaking Case News: Idaho Search Incident to Arrest Decision

ArrestThe Idaho Supreme Court held this month in State v. Lamay that the area within an arrestee's "immediate control" is determined at the time he is arrested, not at the time he is first approached by the police. In Lamay, the police encountered the defendant next to his backpack, but arrested him in another room 15 feet from the backpack. Despite the fact that the arrestee's hand was inches from the backpack when the police first found him, the backpack was considered outside of the area of his immediate control by the time the officers placed him under arrest. The court ruled that the flexible "recent occupant" rule of Belton v. New York does not apply outside the automobile context. [Mark Godsey]

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

NEW VOICES -- Palm Beach Post Editorial: Plea Bargain Underscores the Arbitrariness of the Death Penalty

While applauding a life-sentence plea bargain arranged by Palm Beach County's State Attorney in an especially heinous murder, the Palm Beach Post said the state had "forfeit[ed] the moral standing to execute anyone else."

The State Attorney said that he agreed to let the defendant plead guilty to killing 5 people because the life-without-parole sentnece will bring finality. The Post noted: "The state saves not only the cost of a trial; the victims' relatives - who supported the deal - do not have to relive the horror. The state will save more by avoiding years of appeals; all credible research shows that incarceration is far cheaper than litigation. Most important, [the defendant] never again will threaten the public."

. . .

"But," the paper further stated, "[i]t is impossible to craft a law that reserves capital punishment for only a certain class of criminal. Because Florida and the 37 other states where the death penalty is legal won't accept that fact, governments waste untold millions each year on post-conviction appeals over whether the facts of the case support the ultimate punishment."

(Palm Beach Post Editorial, December 16, 2004). See Editorials and New Voices. See also Victims, and Costs.

Massachusetts' "Foolproof Death Penalty" Idea Achieves Questionable Status

In its annual eclectic collection of ideas from the past year, The New York Times Magazine included the "Foolproof Death Penalty" propsed by Massachusetts Governor Mitt Romney. The Times attempts "to salute the absurdly wide range of human originality" and culls its entries not only from mainstream sources but also from the "tattoo culture and fast food management, horticulture and shoe design." In response to Romney's notion of "error-free capital punishment," Berkeley law professor Franklin Zimring said that the proposed legislation could be "the first effort to write a solely symbolic criminal statute." The magazine notes that the idea has little chance of being adopted, and the governor hasn't even introduced a bill based on the proposal. (The New York Times Magazine, December 12, 2004). See Innocence.

Poll Finds Waning Support for Death Penalty

According to a recent poll conducted by the Quinnipiac University Polling Institute, only 62% of respondents support capital punishment for persons convicted of murder, and Americans prefer the sentencing option of life without parole when given the choice. Overall support for capital punishment has fallen since Quinnipiac's poll in June 2004, when support registered 65%. Similar shifts in public opinion found growing support for life-without-parole sentences. In the December poll when respondents were given a choice, only 42% supported capital punishment while 46% supported life without parole. (Quinnipiac University Polling Institute, December 18, 2004). Other national polls have also noted a decrease in public support for the death penalty. The 62% support reported here is one of the lowest levels in recent years. See Public Opinion and Life Without Parole.

California Plans $220 Million Death Row While Inmates Wait 4 Years to Start Appeal

California already has the largest death row in the country and is now planning to build a new $220 million facility designed to house more than 1,400 death row inmates. State Supreme Court Chief Justice Ronald M. George said that the large death row reflects the consequences of a careful appeals process that is designed to ensure due process for those facing execution. "The virtues of the system also represent its vices because it does end up causing a lot of delay," stated the Chief Justice, a former prosecutor who notes that the leading cause of death on California's death row is old age. Currently, there is a four-year wait for inmates to be assigned a lawyer to begin their first appeal and 118 people on death row have not yet been assigned a lawyer. "We take great care to try and appoint competent counsel....I could take care of that backlog in two days if I were not following the very rigorous standards that California has established."

Since the state reinstated capital punishment in 1977, it has carried out 10 executions. There are 641 people currently on the state's death row. (New York Times, December 18, 2004). See Representation and Costs.

Kansas Death Penalty Statute Ruled Unconstitutional

The Kansas Supreme Court has ruled that the state's 1994 death penalty law is unconstitutional because it contains a provision giving the state an advantage when jurors find the aggravating and mitigating factors presented at sentencing to be equal. In that circumstance, the current law states that the defendant must be sentenced to death. The Court ruled that such a provision does not allow the jury to express a reasoned moral response to the evidence, and the process does not comport with the human dignity required by the Eighth Amendment.

This jury instruction flaw was first identified by the Kansas Supreme Court in 2001, when it ruled that each of the four men on death row must be resentenced with revised jury instructions that corrected the problem. In this most recent ruling, the justices ruled that it was not proper for the court to fix the statute, but rather it was the role of the legislature. (No. 81,135, KANSAS v. MICHAEL LEE MARSH II, 2004) (See Associated Press, December 17, 2004). The Kansas ruling marks the second time in 2004 that a state's highest court has declared a death penalty statute unconstitutional. Earlier this year, New York's highest court delivered a similar ruling and declared that state's law unconstitutional due to a sentencing flaw. Lawmakers in NY are currently holding hearings on capital punishment to determine whether the death penalty should even be reinstated. See Syllabus of the Kansas Opinion; see also Sentencing.

NEW VOICES: Manhattan's DA Says Death Penalty "Exacts a terrible price"

As New York lawmakers conducted the first in a series of hearings on the state's death penalty, Robert M. Morgenthau, Manhattan's long-serving District Attorney, recommended that New York abandon the practice: "It's the deed that teaches, not the name we give it," Morgenthau said, quoting George Bernard Shaw. He went on to note, "The penalty exacts a terrible price in dollars, lives, and human decency. Rather than tamping down the flames of violence, it fuels them....I urge all of our lawmakers, in the strongest possible terms, not to reinstate the death penalty in New York." Morgenthau presented information to support his position, including F.B.I. statistics showing that states with the death penalty have homicide rates that are 44% higher than those without it. Morgenthau joined legal scholars, victims family members, and other experts in urging New York lawmakers to end capital punishment. The hearing took place in New York City before an Assembly committee and hundreds of spectators. (New York Times, December 16, 2004).

Some lawmakers who had helped to pass the state's death penalty law nearly a decade ago, such as Assemblywoman Sandra Galef, now oppose capital punishment. "I think circumstances do change. I think that views do change. We do have life without parole now (as a sentencing option). The use of DNA has advanced. So I don't believe I would be supportive this time," Galef said. A serious debate on the issue is sure to occur during the coming legislative term. A shift in public opinion could shape the course of the discussion. A recent Quinnipiac University poll of New Yorkers found that 53% of respondents preferred to impose the sentence of life without parole and only 38% supported the death penalty when given the option. (Rochester Democrat and Chronicle, December 15, 2004).

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