Three capital decisions are reported this week. In the first of the trio is the Eighth Circuit opinion in Copeland v. Washington in which relief was granted on the issue of improper closing comments. Conflicting expert testimony relating to a defendant's mental stability is insufficient evidence to support a habeas claim that defendant was prejudiced by his counsel's alleged ineffective assistance by failing to present mental health evidence in the trial's penalty phase holds the Eleventh Cicuit in Bottoson v. Moore . In another Eleventh Circuit case, Gilreath v. Turpin, an ineffective assistance of counsel claim for counsel's failure to present mitigating evidence at the sentencing phase of his trial where he instructed his counsel on numerous occasions not to present such evidence was likewise denied.

On case related issues on final note , the Supreme Court in City of Indianapolis v. Edmond, held the Indianapolis narcotics checkpoint program violates the Fourth Amendment because the primary purpose of the program is to uncover evidence of ordinary criminal wrongdoing rather than policing the border or ensuring roadway safety.

Finally, rhe latest version of the NAACP Legal Defense Fund's "Death Row USA" (October 1, 2000) is now available on DPIC's Web site

Supreme Court

City of Indianapolis v. Edmond (11/28/00 - No. 99-1030) Indianapolis narcotics checkpoint program violates the Fourth Amendment because the primary purpose of the program is to uncover evidence of ordinary criminal wrongdoing rather than policing the border or ensuring roadway safety.

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U. S. 305, 308 (1997). While such suspicion is not an "irreducible" component of reasonableness, Martinez-Fuerte, 428 U. S., at 561, we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve "special needs, beyond the normal need for law enforcement." See, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995) (random drug testing of student-athletes); Treasury Employees v. Von Raab, 489 U. S. 656 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations). We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. See, e.g.,New York v. Burger, 482 U. S. 691, 702-704 (1987) (warrantless administrative inspection of premises of "closely regulated" business); Michigan v. Tyler, 436 U. S. 499, 507-509, 511-512 (1978) (administrative inspection of fire-damaged premises to determine cause of blaze); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534-539 (1967) (administrative inspection to ensure compliance with city housing code).

We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990). In addition, in Delaware v. Prouse, 440 U. S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.

In Martinez-Fuerte, we entertained Fourth Amendment challenges to stops at two permanent immigration checkpoints located on major United States highways less than 100 miles from the Mexican border. We noted at the outset the particular context in which the constitutional question arose, describing in some detail the "formidable law enforcement problems" posed by the northbound tide of illegal entrants into the United States. Martinez-Fuerte, supra, at 551-554. These problems had also been the focus of several earlier cases addressing the constitutionality of other Border Patrol traffic-checking operations. See United States v. Ortiz, 422 U. S. 891 (1975); United States v. Brignoni-Ponce, 422 U. S. 873 (1975); Almeida-Sanchez v. United States, 413 U. S. 266 (1973). In Martinez-Fuerte, we found that the balance tipped in favor of the Government's interests in policing the Nation's borders. 428 U. S., at 561-564. In so finding, we emphasized the difficulty of effectively containing illegal immigration at the border itself. Id., at 556. We also stressed the impracticality of the particularized study of a given car to discern whether it was transporting illegal aliens, as well as the relatively modest degree of intrusion entailed by the stops. Id., at 556-564.

Our subsequent cases have confirmed that considerations specifically related to the need to police the border were a significant factor in our Martinez-Fuerte decision. For example, in United States v. Montoya de Hernandez, 473 U. S. 531, 538 (1985), we counted Martinez-Fuerte as one of a number of Fourth Amendment cases that "reflect longstanding concern for the protection of the integrity of the border." Although the stops in Martinez-Fuerte did not occur at the border itself, the checkpoints were located near the border and served a border control function made necessary by the difficulty of guarding the border's entire length. See Martinez-Fuerte, supra, at 556.

In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. 496 U. S., at 447-448. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. Id., at 447. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. See id., at 451.

In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist's driver's license and vehicle registration. The officer's conduct in that case was unconstitutional primarily on account of his exercise of "standardless and unconstrained discretion." 440 U. S., at 661. We nonetheless acknowledged the States' "vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." Id., at 658. Accordingly, we suggested that "[q]uestioning of all oncoming traffic at roadblock-type stops" would be a lawful means of serving this interest in highway safety. Id., at 663.

We further indicated in Prouse that we considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime. The State proffered the additional interests of "the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics" in its effort to justify the discretionary spot check. Id., at 659, n. 18. We attributed the entirety of the latter interest to the State's interest in roadway safety. Ibid. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. Ibid. We observed, however, that "[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control." Ibid. Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control.

It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. See, e.g.,Sitz, supra, at 450. The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. See United States v. Place,4 62 U. S. 696, 707 (1983). Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. See ibid. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is "much less intrusive than a typical search." Ibid. Cf. United States v. Turpin, 920 F. 2d 1377, 1385 (CA8 1990). Rather, what principally distinguishes these checkpoints from those we have previously approved is their primary purpose.

As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary purpose of interdicting illegal narcotics. In their stipulation of facts, the parties repeatedly refer to the checkpoints as "drug checkpoints" and describe them as "being operated by the City of Indianapolis in an effort to interdict unlawful drugs in Indianapolis." App. to Pet. for Cert. 51a-52a. In addition, the first document attached to the parties' stipulation is entitled "DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF POLICE." Id., at 53a. These directives instruct officers to "[a]dvise the citizen that they are being stopped briefly at a drug checkpoint." Ibid. The second document attached to the stipulation is entitled "1998 Drug Road Blocks" and contains a statistical breakdown of information relating to the checkpoints conducted. Id., at 55a. Further, according to Sergeant DePew, the checkpoints are identified with lighted signs reading, "NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP." Id., at 57a. Finally, both the District Court and the Court of Appeals recognized that the primary purpose of the roadblocks is the interdiction of narcotics. 38 F. Supp. 2d, at 1026 (noting that both parties "stress the primary purpose of the roadblocks as the interdiction of narcotics" and that "[t]he IPD has made it clear that the purpose for its checkpoints is to interdict narcotics traffic"); 183 F. 3d, at 665 (observing that "the City concedes that its proximate goal is to catch drug offenders").

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. 440 U. S., at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

Petitioners propose several ways in which the narcotics-detection purpose of the instant checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose of arresting those suspected of committing crimes. Brief for Petitioners 22. Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. See Sitz, 496 U. S., at 447, 450; Martinez-Fuerte, 428 U. S., at 545-550. If we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.

Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. Brief for Petitioners 14-17, 31. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. Cf. Von Raab, 489 U. S., at 668. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns. Cf. Montoya de Hernandez, 473 U. S., at 538. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.

Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate.

Petitioners also liken the anticontraband agenda of the Indianapolis checkpoints to the antismuggling purpose of the checkpoints in Martinez-Fuerte. Brief for Petitioners 15-16. Petitioners cite this Court's conclusion in Martinez-Fuerte that the flow of traffic was too heavy to permit "particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens," Martinez-Fuerte, supra, at 557, and claim that this logic has even more force here. The problem with this argument is that the same logic prevails any time a vehicle is employed to conceal contraband or other evidence of a crime. This type of connection to the roadway is very different from the close connection to roadway safety that was present in Sitz and Prouse. Further, the Indianapolis checkpoints are far removed from the border context that was crucial in Martinez-Fuerte. While the difficulty of examining each passing car was an important factor in validating the law enforcement technique employed in Martinez-Fuerte, this factor alone cannot justify a regime of suspicionless searches or seizures. Rather, we must look more closely at the nature of the public interests that such a regime is designed principally to serve.

The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance "the general interest in crime control," Prouse, 440 U. S., at 659, n. 18. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. See 183 F. 3d, at 662-663. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control. 1

Petitioners argue that our prior cases preclude an inquiry into the purposes of the checkpoint program. For example, they cite Whren v. United States, 517 U. S. 806 (1996), and Bond v. United States, 529 U. S. 334 (2000), to support the proposition that "where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the government's `primary purpose' is valid." Brief for Petitioners 34; see also id., at 9. These cases, however, do not control the instant situation.

In Whren, we held that an individual officer's subjective intentions are irrelevant to the Fourth Amendment validity of a traffic stop that is justified objectively by probable cause to believe that a traffic violation has occurred. 517 U. S., at 810-813. We observed that our prior cases "foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Id., at 813. In so holding, we expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause. See id., at 811-812 (distinguishing Florida v. Wells, 495 U. S. 1, 4 (1990) (stating that "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence"), Colorado v. Bertine, 479 U. S. 367, 372 (1987) (suggesting that the absence of bad faith and the lack of a purely investigative purpose were relevant to the validity of an inventory search), and Burger, 482 U. S., at 716-717, n. 27 (observing that a valid administrative inspection conducted with neither a warrant nor probable cause did not appear to be a pretext for gathering evidence of violations of the penal laws)).

Whren therefore reinforces the principle that, while "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis," 517 U. S., at 813, programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts. Cf. Chandler v. Miller, 520 U. S. 305 (1997); Treasury Employees v. Von Raab, 489 U. S. 656 (1989); Burger, supra; Michigan v. Tyler, 436 U. S. 499 (1978); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523 (1967). It likewise does not preclude an inquiry into programmatic purpose here.

Last Term in Bond, we addressed the question whether a law enforcement officer violated a reasonable expectation of privacy in conducting a tactile examination of carry-on luggage in the overhead compartment of a bus. In doing so, we simply noted that the principle of Whren rendered the subjective intent of an officer irrelevant to this analysis. 529 U. S., at 338, n. 2. While, as petitioners correctly observe, the analytical rubric of Bond was not "ordinary, probable-cause Fourth Amendment analysis," Whren, supra, at 813, nothing in Bond suggests that we would extend the principle of Whren to all situations where individualized suspicion was lacking. Rather, subjective intent was irrelevant in Bond because the inquiry that our precedents required focused on the objective effects of the actions of an individual officer. By contrast, our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level.

Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations. Brief for Petitioners 31-34. If this were the case, however, law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. Cf. 183 F. 3d, at 665. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue. 2

It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte, or of the type of traffic checkpoint that we suggested would be lawful in Prouse. The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program. See Sitz, 496 U. S., at 450-455; Martinez-Fuerte, 428 U. S., at 556-564. When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion.

Our holding also does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose. Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Cf. Whren, supra.

Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is accordingly affirmed.

Capital Cases

Bottoson v. Moore (11th Cir 11/29/00 - No. 98-2886) Conflicting expert testimony on defendant's mental stability is insufficient evidence to support a habeas claim that defendant was prejudiced by his counsel's alleged ineffective assistance by failing to present mental health evidence in the trial's penalty phase.

The appropriate analysis of the prejudice prong of Strickland requires an evaluation of "the totality of the available mitigation evidence - both that adduced at trial, and the evidence adduced in the habeas proceeding - in reweighing it against the evidence in aggravation." Williams v. Taylor, __ U.S. at ___, 120 S.Ct. at 1515. In Williams, the Court held that the state court adjudication involved an unreasonable application of Strickland's prejudice prong in part because the state court failed to evaluate the totality of the evidence. Williams, 120 S.Ct. at 1515, 1525. The Florida Supreme Court in the instant case determined that the 3.850 court discounted Dr. Phillips's opinion, and that it was appropriate to do so under the circumstances. When there is conflicting testimony by expert witnesses, as here, discounting the testimony of one expert constitutes a credibility determination, a finding of fact. A finding of fact made by a state court is presumed to be correct, and a habeas petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. §2254(e)(1). As a preliminary matter, we examine the state court's discount of Dr. Phillips's opinion pursuant to 28 U.S.C. §2254(e)(1).

First, we note that the Florida Supreme Court found that the 3.850 judge had discounted Dr. Phillips's opinion, notwithstanding the fact that the 3.850 judge did not do so explicitly. We conclude that the Florida Supreme Court reasonably inferred that the 3.850 judge had discounted Dr. Phillips's opinion. The 3.850 judge personally presided over the 10-day hearing, the bulk of which focused on this claim and counsel's effort to demonstrate mental health mitigating circumstances. Dr. Phillips's testimony was clearly the most significant evidence presented by Bottoson. Dr. Phillips opined that Bottoson suffered most of his life from a mental disease known as an schizoaffective disorder, that Bottoson was experiencing an acute or active phase thereof at the time of the offense, and that Bottoson was at the time of the offense under the influence of extreme mental or emotional disturbance, and that at the time of the offense Bottoson's capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law was substantially impaired. In other words, Dr. Phillips testified that two statutory mitigating factors were present. Notwithstanding the obvious significance of Dr. Phillips's opinion, the 3.850 judge, in weighing the mitigating evidence presented during the 1991 proceedings, mentioned only defendant's background, his childhood experiences, and his religious eccentricities. In light of the fact that Dr. Phillips's testimony was in conflict with the testimony of Dr. Kirkland, and in light of the fact that the 3.850 judge explicitly stated that he had considered "the entire record," the only reasonable inference is that the 3.850 judge did in fact discount the testimony of Dr. Phillips, as the Florida Supreme Court found that he did. We conclude that the finding of the Florida Supreme Court to this effect is amply supported by reasonable inferences from the opinion of the 3.850 court.

Second, we inquire whether the finding of fact discounting Dr. Phillips' opinion is entitled to the statutory presumption of correctness. As noted, Dr. Phillips's opinion was in conflict with that of Dr. Kirkland. Dr. Kirkland had evaluated Bottoson before trial, and had opined that Bottoson was competent to stand trial. Dr. Kirkland also testified at the 1991 evidentiary hearing. He expressly disagreed with the findings of Dr. Phillips. In his testimony, Dr. Kirkland agreed with Dr. Phillips only insofar as Dr. Kirkland also thought that it was likely that Bottoson suffered from the mental illness of schizophrenia. However, it is clear from Dr. Kirkland' testimony that he believes that Bottoson's schizophrenia is of the latent type, that is, in remission most of the time. It is also implicit in Dr. Kirkland's testimony that the mental illness of schizophrenia would play a motivating role in a person's commission of a crime only if the schizophrenia were in an acute or active phase. Dr. Kirkland explains in some detail the appropriate way one would go about retroactively determining whether or not a person's schizophrenia was in an acute or active phase at the time of a crime. Dr. Kirkland's road map for such determinations would include the following: examination of the details of the crime and the actions of the accused with a view to whether they evidenced logical thought processes, on the one hand, or fragmented, psychotic thought processes, on the other hand; examination of the statements of witnesses who would have observed the accused during the time frame of the crime to determine whether the person was experiencing hallucinations or other indications of psychotic behavior; and examination of the evidence to assess whether actions were motivated by normal motivations or psychotic motivations. In our discussion below, we have followed Dr. Kirkland's road map, and concluded that the evidence in the instant record strongly suggests that Bottoson was not in fact experiencing an acute or active phase of his schizophrenia during the time frame of the crime and thus that Bottoson's latent mental illness would likely play a much less significant role in Bottoson's actions. Because the appropriate analysis laid out by Dr. Kirkland points strongly to a conclusion contrary to the opinion of Dr. Phillips, and because Dr. Kirkland expressly disagreed with Dr. Phillips's findings, we conclude that there is support in the instant record for the finding of fact of the state court discounting Dr. Phillips's opinions. Accordingly, we conclude that Bottoson has failed to rebut the presumption of correctness by clear and convincing evidence. Therefore, the failure of the state court to consider Dr. Phillips's opinions as part of the totality of the evidence does not constitute an unreasonable application of Strickland's prejudice prong. Furthermore, in our own consideration of the totality of the evidence, we also will discount Dr. Phillips's opinions.

We turn now to an examination of the totality of the evidence to determine whether the adjudication of this claim in the state court resulted in a decision that involved an unreasonable application of Strickland's prejudice prong. As noted, in considering the totality of the evidence, we discount the opinions of Dr. Phillips.

We turn first to the evidence of aggravation in this case. The sentencing judge found that Bottoson had previously been convicted of a crime involving a threat of violence (the 1971 California bank robbery), that the instant crime was committed during the commission of a felony (both the robbery of the post office and the kidnaping), that the crime was committed for the purpose of avoiding arrest, and that the crime was especially heinous, atrocious or cruel. The facts of the instant crime are egregious, and fall comfortably within the meaning of the Florida aggravating circumstance "especially heinous, atrocious or cruel." The evidence reveals a murder committed to eliminate the only witness who could surely identify Bottoson. The murder was accomplished by repeatedly stabbing the victim with a knife, more than 14 times. Then, with the victim still alive, the murder was completed by running over the victim with an automobile, resulting in crushing injuries to the chest and abdomen, from which the victim finally died. The victim had been kidnapped and kept captive for three days. In closing argument, the prosecutor asked the jury to infer that the victim was kept during this time in the trunk of Bottoson's car. It is certain that the victim spent some time in the trunk of that car. Clothing fibers and the right little fingernail, both linked to the victim, were found in the trunk. There was testimony that the trunk reeked of the smell of urine.

We now summarize the mitigating evidence which is to be weighed against the foregoing aggravating circumstances. At the penalty phase of the 1981 trial, counsel for Bottoson presented four witnesses, a minister and the minister's wife, a correctional officer, and Bottoson's mother. The minister and his wife explained Bottoson's dedication to the church and its members, as well as his nonviolent nature. The minister testified that Bottoson was the assistant pastor of his church, that the minister handled the service on the second and fourth Sundays of the month, and that Bottoson carried the service on the first and third Sundays. The congregation apreciated Bottoson and approved of his handling of the services. He testified that Bottoson devoted himself unselfishly to the church. He also testified that Bottoson had never exhibited any violent tendencies; rather, he was kind at all times. Finally, the minister expressed his serious doubts that Bottoson committed this crime. Bottoson's mother testified that Bottoson had never hurt anybody, and had never threatened anybody. She testified that he went into the ministry at 13 to 14 years old, and was ordained at 14 or 15. She testified that he had six children, and begged for mercy. Counsel for Bottoson also called a correctional officer from the jail that housed both Bottoson and Pertrell Kuniara (a fellow inmate who had testified that Bottoson had confessed to him, which Bottoson disputed in his own trial testimony). The officer testified that he had overheard that very morning Kuniara telling a minister that the prosecutor came to see him yesterday and that he, Kuniara, was going to be released from jail. This of course tended to impeach Kuniara's testimony that Bottoson had confessed, and tended to support counsel's effort at sentencing to persuade the jury that there was a lingering doubt about Bottoson's guilt.

At the penalty phase of the 1981 trial, counsel for Bottoson brought out, on cross-examination of the FBI officer who had investigated the 1971 California bank robbery, the fact that the California judge at sentencing had recommended psychiatric evaluations for Bottoson. All of the other mental health mitigating evidence was adduced at the 1991 evidentiary hearing in the 3.850 court, and can be summarized as follows. In 1962, Bottoson attempted to commit suicide, and was hospitalized for approximately two weeks, was diagnosed as having had an acute episode of schizophrenia, and was discharged as improved. The hospital records with respect to this incident were destroyed by fire, and the only evidence in the record is a card revealing the foregoing, which was uncovered from another Cleveland institution by the diligent efforts of Collateral Counsel. Bottoson's brother testified at the 1991 hearing that Bottoson's attempted suicide was triggered by Bottoson's concern about, and inability to deal with, the situation he was then facing with respect to his very severely retarded young son. In 1971, Bottoson was evaluated by a psychiatrist in California, Dr. Verin, after having been arrested for bank robbery in Fresno, California. Dr. Verin's report indicated that Bottoson heard a voice telling him to rob the bank. Dr. Verin's conclusion was "paranoid schizophrenia, latent type," and he recommended further psychological attention.

The foregoing is the only evidence in the instant record of Bottoson's having experienced an acute or active psychotic episode. Indeed, the 1962 Cleveland, Ohio, incident may be the only one. The diagnosis in the 1971 California incident was schizophrenia, latent type, although there was evidence at that time that Bottoson was hearing voices telling him to rob the bank. There is no clear evidence in the record on appeal that Bottoson experienced any other acute or active psychotic episode.

However, there is considerable evidence that several laymen (i.e., not medical experts) over the years have labeled Bottoson's behavior as strange or bizarre. The gist of this evidence is that Bottoson was, from a very young age, unusually preoccupied with religion. Even as a pre-teen, he would accompany his mother as they preached on street corners, Bottoson carrying along his little soap box as he preached. Bottoson was ordained as a minister in the Church of God in Christ at the age of perhaps 15. In his later teens, he continually worked (though apparently without compensation) as an assistant to several ministers, and preached sermons from time to time. One member of a congregation, who testified at the 1991 hearing, remembered two occasions when Bottoson preached; she thought his preaching was incoherent. Several others related bizarre incidents which led them to believe that Bottoson needed psychiatric care. For example, Reverend Robinson testified at the 1991 hearing that Bottoson assisted in his church after he was ordained, and would preach whenever Reverend Robinson would let him. He related that one day when no one was in the church, Reverend Robinson found him lying down on the altar, praying and stomping and beating the floor and telling the Lord of his need and asking the Lord to come bless him. Reverend Robinson indicated that he called Bottoson by name, whereupon Bottoson stopped, got up, and was calm. Reverend Robinson thought that the incident was strange, but did not question Bottoson's mental health. From an early age, Bottoson apparently believed that God had given him the gift of healing, although such beliefs were not uncommon in the Church of God in Christ. This kind of belief was known at the time of trial to the trial judge,3 Bottoson's attorney, and Dr. Kirkland who examined Bottoson with respect to competency to stand trial.

Dr. Kirkland referred to these beliefs and to Bottoson's religious hallucinations both in a 1981 report to the trial judge and in his testimony at the 1991 evidentiary hearing. In his 1981 evaluation of Bottoson, Dr. Kirkland learned that Bottoson felt he had special powers of healing and that he might be able to raise people from the dead. Dr. Kirkland testified in 1991 that his evaluation of Bottoson in 1981 revealed that Bottoson was dressed appropriately, his actions were appropriate (neither too busy nor lethargic), he was oriented to his surroundings, his emotional tone or affect was appropriate (not depressed or euphoric), his thought processes were appropriate and logical. Dr. Kirkland testified that the issue of hallucinations that have a connection to religion are somewhat difficult for the psychiatrist. He testified that psychiatrists are loathe to say that such religious practices, if supported by others, are psychotic, even if they have that appearance.

With the evidence of Bottoson's 1962 hospitalization and Dr. Verin's 1971 diagnosis of latent schizophrenia in hand, Dr. Kirkland testified that he would likely consider Bottoson to be a person suffering from the mental disease of schizophrenia, though in remission.4 It is clear from Dr. Kirkland's testimony that such a person would sometimes suffer from symptoms of the disease, and sometimes not. That is, such a person would have acute or active stages of the disease, and times of remission.

We note, but discount pursuant to the state court finding, that Dr. Phillips drew a causal and temporal connection between Bottoson's mental disease and his actions in committing the instant crimes, assuming that Bottoson was suffering from an acute or active phase of schizophrenia at the time. Other than Dr. Phillips's bald conclusion to this effect, there is only very weak evidence in the record on appeal that Bottoson was in fact experiencing an acute or active episode of schizophrenia at the time. We summarize the evidence which might tend to point in the direction of acute schizophrenia as follows. There is the fact that the instant egregious crime of violence is inconsistent with Bottoson's usually nonviolent demeanor. There is also the fact that Bottoson was at the time overdrawn at the bank in the amount of about $6,000, and the inference therefrom of some stress.5 There is also Bottoson's written "confession" delivered to the prosecutor through the ministers, in which he asserted "demon spirits" had "got on me" at the time. However, that "confession" was made approximately a year after the crime, and was an obvious attempt to seek leniency (i.e., a 14-year term to run concurrently with his federal sentence). Finally, there are the letters written by Bottoson around the time of the trial indicating his belief that the Lord had given him special powers (e.g., healing and even raising the dead). The significance of this evidence has to be weighed, keeping in mind that Bottoson had apparently held such beliefs at least since his late teens (and thus are probably consistent with latent stages of his mental illness), and that Dr. Kirkland testified that psychiatrists are loathe to label such religious practices as psychotic, if they are supported by others (and there is evidence here that such beliefs are held by others in Bottoson's church).

On the other hand, there is considerable evidence that Bottoson was not suffering from an acute episode of schizophrenia at the time. There is evidence that Bottoson planned to rob the Eatonville Post Office several days in advance. On Friday, October 26, 1979, Bottoson left his office at about 10:30 a.m., drove the 25 miles to Eatonville, robbed the Post Office which he had "cased" several days before, and kidnaped the Postmistress victim in the instant case. From the time of the kidnapping on Friday, until Bottoson's arrest at 10:50 p.m. Monday evening, October 29, the state's witnesses trace Bottoson's actions, accounting for the greatest portion of the intervening time, but leaving several gaps unaccounted for, including the period of time during which the medical examiner testified that death probably occurred, namely between 7:00 p.m. and 11:00 p.m. on that Monday, October 29, 1979. The jury obviously inferred from the state's evidence that Bottoson's actions were careful and premeditated, that he successfully hid the live kidnapping victim for three days, while Bottoson himself made appearances before numerous witnesses (his wife, her friend, Ms. Sheard, the church congregation, persons he saw on the twenty-four hour plus visit and wedding in Macon, and an employee at his office), all the while acting as if nothing had happened. None of the numerous people who saw Bottoson during the crucial four days testified that he was having hallucinations or gave any other indication that he was experiencing an acute episode of schizophrenia. There was no such testimony at trial or at the 1991 evidentiary hearing. To the contrary, Bottoson's former wife, who was with him for most of the time during the crucial three to four days, testified repeatedly that there was nothing about his behavior that was out of the ordinary, nothing to suggest that he was carrying around some great weight. Moreover, the accounts given by defendant of the events of the those crucial days, including the account given in his trial testimony, were delivered in a logical, articulate manner. The version of the events given by Bottoson in his trial testimony very carefully account for the evidence which Bottoson knew the state had (e.g., that the murder weapon, the brown Chevelle, belonged to him and he was found in possession of the money orders, that the victim's shoes and the knife which was probably used to stab the victim were found on the porch of his house). In other words, Bottoson's trial testimony was reasonably viewed as a careful and calculated attempt to create an alibi.

To assist in our assessment of the extent to which the evidence suggests that Bottoson was experiencing an acute or active episode of schizophrenia during the time frame of the offense, we follow the road map laid out in Dr. Kirkland's testimony. First, we examine the details of the crime and the actions of the accused with a view to whether they evidenced logical thought processes or fragmented, psychotic thought processes. As indicated above, the details of the crimes and the evidence of Bottoson's actions suggest, not fragmented or psychotic thought processes, but rather careful and logical planning. Bottoson planned several days in advance to rob this particular post office, apparently planning to steal money orders. He implemented the plan calmly. Bottoson successfully hid the kidnapping victim for three days, while he himself appeared without the kidnapping victim before numerous witnesses and for extended periods of time, all the while behaving normally and without raising any suspicions. On Saturday afternoon, he exchanged the red LTD rental car he had used in the robbery and kidnapping for a blue LTD, claiming mechanical difficulties. Bottoson's actions seem to have been carefully planned and logically directed toward the aim of hiding the victim and concealing his crimes. Although it was obviously not smart to cash the money orders (or indeed to commit the crimes themselves), his actions do not appear to be loose or fragmented, as Dr. Kirkland described psychotic thought processes, but rather appear logical and goal directed.

Second, we examine the statements of witnesses who would have observed the accused during the time frame of the crime to determine whether they observed hallucinations or other indications of psychotic behavior on the part of Bottoson. The eyewitnesses to the robbery and kidnapping testified at trial and pointed to no strange or bizarre behavior on the part of Bottoson as the robbery and kidnapping unfolded. Nor was there any such testimony at the 1991 evidentiary hearing. Bottoson and his wife cashed some of the money orders on Friday afternoon, ate dinner together and watched TV that evening. Bottoson and his wife spent the next morning, Saturday, October 27, picking up his wife's friend, Mrs. Sheard at the airport. Bottoson and his wife spent about three hours that Saturday evening at church, and then left with his wife and Mrs. Sheard around midnight and traveled to Macon, Georgia, for a wedding, returning only early in the morning hours of Monday, October 29. None of the numerous people who saw Bottoson during this crucial period of time testified that he was having hallucinations or that he gave any other indication that he was experiencing an acute episode of schizophrenia. There was no such testimony either at trial or at the 1991 hearing. To the contrary, the evidence is that Bottoson's behavior was normal. Bottoson has failed to adduce any testimony from persons in position to observe him that he was experiencing an acute or active episode of schizophrenia during the crucial three to four day period.

Finally, following Dr. Kirkland's road map, we examine the evidence to assess whether Bottoson's actions were motivated by normal motivations or psychotic motivations. There is clear evidence of "normal" motivations, i.e., nonpsychotic motivations. There is evidence that the robbery was motivated by a desire to obtain money orders to alleviate Bottoson's overdrawn status. There is direct evidence that Bottoson's murder of the kidnapping victim was motivated by a desire to eliminate the witness who could surely identify him.

While there is some evidence suggesting the possibility that Bottoson was experiencing an acute or active episode of schizophrenia,6 stronger evidence suggests that he was not. Under these circumstances, we cannot conclude that the decision of the state court in this respect was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d)(2). Thus, accepting the fact that Bottoson was not experiencing an acute or active episode of schizophrenia during the time frame of the offense, we cannot conclude that the state court was unreasonable in determining that Bottoson's latent mental illness played an insignificant role with respect to the motivation of Bottoson's actions in committing the instant crimes.

Upon consideration of the entire record, the state court concluded that Bottoson had failed to satisfy Strickland's prejudice prong, i.e., that Bottoson had failed to show that there is a reasonable probability that, but for counsel's deficient performance, the result of the sentencing phase would have been different. For the foregoing reasons, we cannot conclude that the adjudication of this claim in the state court resulted in the decision that involved an unreasonable application of Strickland's "reasonable probability" standard.

Gilreath v. Turpin (11th Cir 12/01/00 - No. 97-8500) Defendant cannot sustain ineffective assistance of counsel claim for counsel's failure to present mitigating evidence at the sentencing phase of his trial where he instructed his counsel on numerous occasions not to present such evidence.

Petitioner contends that his trial counsel was ineffective at sentencing for failing to present certain mitigating evidence. 9 To succeed on his ineffective assistance claim, Petitioner must show: (1) that trial counsel's performance was objectively unreasonable; and (2) that trial counsel's unreasonable performance actually prejudiced Petitioner. SeeChandler v. United States, 218 F.3d 1305, ___ (11th Cir. 2000) (en banc); see also Williams v. Taylor, 120 S. Ct. 1495, 1511 (2000); Darden v. Wainwright, 106 S. Ct. 2464, 2473 (1986); Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984). We can pretty easily conclude that Petitioner has failed to demonstrate prejudice. We accordingly affirm the district court's rejection of Petitioner's ineffective assistance at sentencing claim without deciding the question of reasonable performance.

Petitioner argues that trial counsel was ineffective for failing to present mitigating good character evidence at sentencing. 10 Petitioner admits that Petitioner instructed trial counsel to present no mitigating evidence. But, Petitioner asserts that trial counsel should not have followed Petitioner's instructions because Petitioner's waiver of his right to present mitigating evidence was not a knowing and intelligent one. Petitioner argues that trial counsel should have done more to facilitate a knowing and intelligent decision by Petitioner. In particular, Petitioner says that trial counsel should have: (1) advised Petitioner more fully about good character evidence for mitigation; and (2) requested that the sentencing hearing be continued overnight so that Petitioner could think about his decision some more. We conclude that the lack of these things did not prejudice Petitioner. 11

Petitioner has the burden of proving that Petitioner was prejudiced by trial counsel's performance. See Smith v. Robbins, 120 S. Ct. 746, 764 (2000); see also Thompson v. Nagle, 118 F.3d 1442, 1452 (11th Cir. 1997). The Supreme Court has explained that habeas petitioners must affirmatively prove prejudice because "[a]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial." Strickland, 104 S. Ct. at 2067.

"[T]hat the error had some conceivable effect on the outcome of the proceeding" is insufficient to show prejudice. Id.; see alsoTompkins v. Moore, 193 F.3d 1327, 1336 (11th Cir. 1999). Instead, Petitioner must show: "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 104 S. Ct. at 2068; see alsoGlock v. Moore, 195 F.3d 625, 635-36 (11th Cir. 1999).

In the circumstances of this case, we think that -- to establish prejudice -- Petitioner actually must make two showings. First, Petitioner must show a reasonable probability that -- if Petitioner had been advised more fully about character evidence or if trial counsel had requested a continuance -- Petitioner would have authorized trial counsel to permit such evidence at sentencing. 12 Second, Petitioner must establish that, if such evidence had been presented at sentencing, a reasonable probability exists that the jury "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 104 S. Ct. at 2069; see alsoMills v. Singletary, 63 F.3d 999, 1026 (11th Cir. 1995); Bolender v. Singletary, 16 F.3d 1547, 1560-61 (11th Cir. 1994); Bush v. Singletary, 988 F.2d 1082, 1090 (11th Cir. 1993).

The district court found that no evidence showed that "Petitioner would have changed his directions to his counsel had he been more fully informed about mitigating evidence." We cannot say that, on this record, the district court's finding of fact is clearly erroneous. 13SeeUnited States v. Teague, 953 F.2d 1525, 1534-35 (11th Cir. 1992) (en banc) (noting that "[w]e defer to the district court's findings of fact absent a clearly erroneous determination"). Therefore, Petitioner cannot show that trial counsel's failure to advise Petitioner fully about character evidence prejudiced Petitioner at sentencing.

The record also indicates that trial counsel's failure to seek a continuance prejudiced Petitioner in no way at sentencing. Petitioner himself testified, at the state habeas evidentiary hearing, that a continuance would have left unchanged his decision not to call his mother and his children as character witnesses. But, Petitioner did testify that, if the sentencing hearing had been continued overnight, he probably would have permitted trial counsel to call other character witnesses in mitigation, particularly Petitioner's two former employers. Although the district court made no fact finding that Petitioner would have ever allowed trial counsel to call the other mitigating witnesses, we will accept -- for the sake of our discussion -- Petitioner's testimony as true. We, therefore, will consider whether the other character witnesses probably would have changed the outcome of the sentencing hearing.

We are unconvinced that a reasonable probability exists that the testimony of the other character witnesses would have changed the balance of aggravating and mitigating circumstances. The State's evidence of aggravating circumstances was strong. During the guilt phase, the State's evidence showed these circumstances: that Linda Gilreath was shot once in the face at close range with a .12 gauge shotgun; that Linda was shot five times with a .30-30 caliber rifle; that Gerritt Van Leeuwen was shot four times with three different firearms; that both victims were killed in their own home; and that both victims' bodies were covered in gasoline after the killings. The jury found that three aggravating circumstances did exist: (1) that the murder of Linda Gilreath was outrageously and wantonly vile, horrible, and inhuman; (2) that the murder of Gerritt Van Leeuwen was outrageously and wantonly vile, horrible, and inhuman; and (3) that the murder of Gerritt Van Leeuwen was committed while Petitioner was engaged in the commission of another capital felony.

And, the jury -- despite Petitioner's failure to present mitigating evidence at sentencing -- did have several mitigating factors to consider. During the guilt phase and in argument at sentencing, trial counsel brought out that the evidence was not doubtless on guilt, that Petitioner had no criminal record, that Petitioner was the father of two small children, and that Petitioner had problems with alcohol. The testimony of the character witnesses now offered by Petitioner -- witnesses who would have testified that Petitioner was generally a good man when sober, was a good worker, and was a good father -- seems too weak to have likely changed the outcome of the sentencing. Petitioner has failed to show the necessary prejudice.

Copeland v. Washington (8th Cir11/30/00 - No. 99-3693) Prosecutor's closing argument during penalty phase of trial comparing defendant's crime to gang shootings clearly violated federal law warranting a reversal of the death sentence.

II. IMPROPER CLOSING ARGUMENT

A. Penalty Phase

The petitioner claims that the prosecutor's closing argument at the penalty phase of her trial, along with the failure of defense counsel to object to the argument, deprived her of a fair sentencing hearing. We agree. The prosecutor began his closing at the penalty phase by referring to a "television news report . . . about gangs in Los Angeles" and stating that "members of the street gangs were murdering each other" in a violent fight for turf. The prosecutor then went on to state that the gang shootings made his "blood boil," and that this case made him want to "weep and cry" because it was "the same thing, right here in our backyards." After a biblical reference to the killings as the "modern equivalent of thirty pieces of silver," the prosecutor summed up his closing by giving his opinion that "there has never, ever been a more complete and utter disregard for the sanctity of human life as this case . . . [t]he state of Missouri claims from you the ultimate sentence of this case of death. Stand firm." In his rebuttal argument, the prosecutor emphasized the impact on the victims' families with a reference to his own young son, as well as the defense attorney's son. Because the prosecutor's closing argument in the penalty case was brief, the improper remarks constituted the core of the prosecutor's closing.

The Missouri Supreme Court held that the comments comparing petitioner's crimes to the gang shootings in Los Angeles as well as every other crime in Missouri's history were improper, and that the comments "may arguably have constituted reversible error had a timely objection been raised." State v. Copeland, 928 S.W.2d at 843. The court did not perform a separate analysis for the arguments in the guilt and penalty phases of the trial. Ultimately, the Missouri Supreme Court declined to find that the improper comments in the penalty case reached the level of a "manifest injustice" given the evidence presented against the petitioner at the guilt phase. See id. at 844.

On habeas review, the district court concluded that the prosecutor's argument had seriously prejudiced the defendant:

Although the evidence of petitioner's guilt was strong, the case for the death penalty was rather weak. There was no evidence that petitioner personally shot any of the victims. . . . There was substantial evidence that the primary actor in the entire scheme was Ray and that petitioner held a very minor role. In fact, most of the evidence at trial involved Ray's actions and not petitioner's. There appears to be no doubt that Ray not only was the scheme's primary actor, but was also its creator. Finally there was substantial evidence that Ray dominated and controlled his wife.

Although these factors would not obviate guilt, they demonstrate that this is far from the typical situation in which a criminal defendant is sentenced to death. Nonetheless, the prosecutor tried to turn this case into such a case and did so by employing improper means. By raising the specter of hapless citizens gunned down by roving criminal gangs, the prosecutor inappropriately drew an analogy to completely different -- significantly more heinous -- criminals. Then, the prosecutor improperly elevated the severity of the crime by (1) assuring the jury that, despite any misgivings it might have about setting the penalty at death, it could be assured that this was the worst crime to ever occur in the state of Missouri, and (2) suggesting that if the worst case ever did not deserve the death penalty, then no case did. Still another effect was to imply that "lesser murders" had resulted in the death penalty. Copeland v. Washington, No. 97-1123-CV-W-3, slip op. at 31-32.

It is important to note at the outset that the state does not attempt to defend the content of the prosecutor's closing argument. At oral argument, the state conceded that the remarks in the prosecutor's closing argument were improper. Rather, the state argues that a lack of Supreme Court precedent on a prosecutor's closing argument during the penalty phase of a capital trial bars the petitioner's claim under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253-2254 (AEDPA).

As a threshold matter, the parties disagree about the correct standard of review to be applied under AEDPA. That question has been answered in the recent Supreme Court decision Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). There, Justice O'Connor set out the following standard of review:

Section 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

The Court also stated that, under the "unreasonable application" clause, a "federal habeas court . . . should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1521. See also Evans v. Rogerson, 2000 WL 1182805, at *2 -*3 (8th Cir. D. Iowa Aug. 22, 2000) (reciting Williams standard).

The question still remains whether our previous discussions of the standard of review survive Williams. While articulating the new standard, the Supreme Court also rejected the standard previously used by the Fourth Circuit in Green v. French, 143 F.3d 865, 870 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999), which stated that an unreasonable application only occurred if the state court applied federal law "in a manner that reasonable jurists would all agree is unreasonable." In Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999), a case decided before Williams, we declined to follow the approach of the Fourth Circuit. We decided two cases after Long, but before Williams, that seemed to add an additional element to the AEDPA inquiry by stating that "[f]ederal habeas relief should only be granted if the prosecutor's closing argument was so inflammatory and so outrageous that any reasonable trial judge would have sua sponte declared a mistrial." James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). See Sublett v. Dormire, 217 F.3d 598 (8th Cir. 1999) (same). Regardless of the status of this standard after Williams, the language from these two cases does indicate that the standard under AEDPA is a heightened one. As the Supreme Court held, a "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 120 S. Ct. at 1522. Thus we apply the newly-announced standard in Williams here.

The state next argues that because the Supreme Court has not discussed the impact of a prosecutor's improper closing argument during the penalty phase of a capital case, AEDPA bars the petitioner's claim. Contrary to the state's assertion, it is apparent to us that there are Supreme Court decisions on penalty phase closing arguments. See Caldwell v. Mississippi, 472 U.S. 320, 340 n.7 (1985) (death sentence vacated because prosecutor's improper closing argument during penalty phase made it appear to jury that responsibility for the death penalty would be borne by appellate court rather than by jury itself); Romano v. Oklahoma, 512 U.S. 1, 3 (1994) (considering petitioner's assertion that closing argument in capital sentencing hearing violated petitioner's due process rights, although concluding on the facts that no rights were violated). There are also Supreme Court decisions on guilt phase closing arguments that are relevant. See Donnelly v. DeCristoforo, 416 U.S. 637, 643 (1974) (concluding that improper closing argument in guilt phase reaches level of constitutional error if prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process"); Darden v. Wainwright, 477 U.S. 168, 181 (1986) (same). *fn2 Further, in Paxton v. Ward, 199 F.3d 1197, 1217-18 (10th Cir. 1999), the Tenth Circuit considered a claim regarding an improper closing argument in the penalty phase of a capital case. While discussing the highly deferential standard of review under AEDPA at some length, the Tenth Circuit concluded that the closing argument constituted prosecutorial misconduct and warranted relief. Therefore, despite the state's claim that there is no precedent on penalty phase closing arguments, the Supreme Court cases demonstrate otherwise.

Turning to the merits of the issue, then, we must determine whether the applicable Supreme Court precedents on closing argument were unreasonably applied, depriving the petitioner of due process during her sentencing hearing. We believe that relief is warranted. Aside from the Supreme Court cases previously cited, three recent Eighth Circuit cases have vacated a death sentence based on improper closing argument during the penalty phase. See Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999), cert. denied 120 S.Ct. 510 (1999); Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995); Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989). As we have stated, "[t]o the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness . . . of the state court's treatment of the contested issue." Long v. Humphrey, 184 F.3d 758, 761 (8th Cir. 1999).

The arguments in the Newlon, Antwine, and Shurn cases bear many similarities to the argument here, and provide a framework for analysis of the closing argument in this case. In Newlon, the prosecutor expressed his personal belief in the propriety of the death sentence and implied that he had special knowledge outside the record; emphasized his position of authority as prosecuting attorney of St. Louis; attempted to link the defendant with several well-known mass murderers; appealed to the jurors' personal fears and emotions; and asked the jurors to "Kill him now. Kill him now." Newlon, 885 F.2d at 1335. An almost identical argument, made by the same prosecutor, was involved in Shurn. See Shurn, 177 F.3d at 667. In Antwine, the prosecutor stated that death in the gas chamber would be "instantaneous" and argued that the taxpayers should not have to continue to pay for the defendant's room and board while he continued to live in prison. See Antwine, 54 F.3d at 1362-1363.

Here, as in Newlon, the prosecutor referred to facts not in evidence (the other murders in all of Missouri's history); drew a comparison to violent drug gangs, evoking the jury's fear of crime; and made references to his son and the defense attorney's son. This was the sort of argument that would result in "mob justice" rather than result in a reasoned deliberation. Shurn, 177 F.3d at 668 (Wollman, J., concurring). Far from being an isolated comment, the improper statements formed the crux of the prosecutor's argument for imposing the death penalty. The improper argument would have had a significant prejudicial effect on the jurors, and it was unreasonable, in light of Supreme Court precedent, to conclude that the argument did not result in a deprivation of due process. The district court correctly determined that the argument was improper and the failure to object to the argument constituted ineffective assistance of counsel. Accordingly, the petitioner's death sentence is vacated.

B. Guilt Phase

The petitioner further argues that she is entitled to a new trial because improper portions of the prosecutor's closing argument during the guilt phase of the trial deprived her of due process. We do not agree. The improper portions of the argument occurred when the prosecutor stated that this was the strongest case for deliberation in Missouri; asserted that these were the worst crimes ever to happen in Missouri; and, at one point, compared his own "traditional" marriage to the petitioner's marriage.

The district court stated that "[t]o describe the statements as improper is charitable," but held that the result would not have been any different, given the strong evidence of guilt against the defendant. Copeland v. Washington, No. 97-1123-CV-W- 3, slip op. at 26. Under the framework articulated in the previous section, this is a close question, as the argument approaches the line between prejudicial and non- prejudicial argument. However, unlike the argument in the penalty phase, the improper remarks were isolated, only a portion of a much longer argument, and were countered by defense counsel in closing. In summary, the district court properly performed a careful analysis of each challenged remark and concluded that the prejudice to the petitioner was not significant.

HabeasCases

Phoenix v. Matesanz (1st Cir. 12/01/00 - No. 00-1140) Criminal defense counsel did not render ineffective assistance by refusing to call defense expert witnesses when he pressed same issues when cross-examining the prosecution's expert witnesses.

Helton v. Secretary, Dept. Of Corrections (11th Cir 11/21/00 - No. 00-10097) Equitable tolling for habeas petition is proper where defendant was misinformed about the statute of limitations, and and inadequate prison library made it impossible for him to discover actual statute of limitations.

Gallo-Chamorro v. US (1111/21/00 - No. 98-4507) A jury instruction that defendant may be guilty for underlying offense by participating in a conspiracy is proper, despite foreign country's extradition terms preventing conviction for conspriracy to commit the crime.

Vick v. Williams (4th Cir 11/20/00 - No. 99-7406) Montana Dept. of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) did not conclude that all taxes are subject to the Double Jeopardy analsys, but only that some are. Even if the Drug Tax is a civil proceeding designed to inflict punishment, the Supreme Court has asserted no bar against a subsequent criminal proceeding.

Gonzales v. Elo (6th th Cir 11/20/00 - No. 98-1987) Petitioner was not denied his Sixth amendment right to effective assistance of trial counsel where he fails to show that his counsel's performance fell below a reasonable standard, resulting in prejudice depriving him of Sixth Amendment right.

Oken v. Warden (1st Cir. 12/01/00 - No. 99-1829) Defendant is not entitled to confront his attorneys, who he alleges provided ineffective assistance at trial, in state post-conviction review proceedings.

Raineri v. US (1st Cir. 12/01/00 - No. 99-2359) When a district court, acting sua sponte, converts a post-conviction motion filed under some other statute or rule into a Section 2255 petition, without notice and an opportunity to be heard, the motion ordinarily will not count as a "first" habeas petition sufficient to trigger AEDPA's gatekeeping requirements.

Buhl v. Cooksey (3rd Cir.12/01/00 - No. 98-5342) Once defendant makes a clear and unequivocal request under of his Sixth Amendment to conduct his own defense, and proceed pro se at his criminal trial, a court must conduct a hearing to determine if defendant knowingly waives right to counsel.

Gutirrez v. Schomig (7th Cir. 11/30/00 - No. 00-1384) The one-year limitations period under 28 USC 2244(d)(2) is not tolled during the time a state post-conviction petitioner could have filed, but did not file, a petition for certiorari review in the United States Supreme Court.

Pruitt v. US (8th Cir 11/27/00 - No. 99-2709, 99-2715) Petitioner's entitlement to Bailey relief does not compel conclusion that firearm possession evidence was improperly admitted, and failure to challenge drug amounts is not ineffective assistance of counsel where drug amounts were attributable to petitioner.

Whelchel v. Washington (11/29/00 - No. 98-35052) Introduction of co-defendants' tape-recorded confessions that also implicated defendant substantially violated defendant's 6th Amendment right to confront witnesses where physical evidence was weak and other eye-witness testimony was potentially biased.

Nguyen v. Lindsey (11/30/00 - No. 98-56880) Prosecutor's use of inconsistent evidence of whether defendant or rival gang member fired first shot in shoot-out in separate trials does not violate defendant's due process rights when prosecutor's theory was that both shooters were guilty under the "provocative act doctrine".

Section1983 & Related Filings

No cases noted this week.

In Depth Feature

Feature to return next week due to length of this issue.

Errata

From the DeathPenalty Information Center reports:

On Friday, Dec. 8, the Nebraska Supreme Court will hear arguments from the family members of murder victims who were not allowed to speak at a commutation hearing for death row inmate Randy Reeves. The family members, including the husband and daughter of one of the victims, were not given "victim status" at the original hearing, allegedly because they wished to express their opposition to the death penalty and the negative effect such a punishment would have on them as victims. A more distant relative, who did support the death penalty for Reeves, was allowed to participate. (See Amicus Curiae Brief of Murder Victims Families for Reconciliation, Lamm v. Nebraska Board of Pardons, No. 99-0251)

ACLU Campaign Urges President Clinton to Declare a Moratorium on the Federal Death Penalty

The American Civil Liberties Union has launched a National Death Penalty Campaign to bring attention to the way the death penalty is administered in this country and to seek support for a national moratorium on executions. With the first federal execution since 1963 scheduled for December 12, the Campaign is calling on supporters to contact President Clinton and urge him to declare a moratorium on the federal death penalty before the end of his term. For more information, visit the ACLU's National Death Penalty Campaign Web site.

New Resources

The latest version of the NAACP Legal Defense Fund's " Death Row USA" (October 1, 2000) is now available on DPIC's Web site. The report shows that although there was a relatively small increase in the number of death row inmates since July 1, 2000, the increase of blacks on death row was more than double the increase of whites.

Former Pro-Death Penalty Legislator Plans to Introduce Aboliton Bill in Virginia

Republican Del. Frank D. Hargrove Sr., (R-Hanover) recently stated his intent to introduce a death penalty abolition bill in the upcoming General Assembly.

"One of the responsibilities of government is to protect the public. I have voted for the death penalty over the years numerous times." "But now that we have life without parole I believe that addresses the situation without a sentence that is irreversible." He said if you make a mistake in the death penalty, "you can't go back and reverse it." He said the death penalty cannot be shown to be a deterrent, that it probably costs no more to imprison an inmate for life than it does to pursue a death case through trial and appeals and that it's still an imperfect process even with DNA. "I know, politically, some folks will say they think I'm crazy, but I'm not interested in the politics of it," said Hargrove. "This eliminates the possibility of the awful mistake. It's not a political issue, it's not an economics issue." (Richmond Times-Dispatch, 11/14/00)

Judge Speaks Out Against the Death Penalty After Handing Down Death Sentence

After a jury returned a death sentence verdict, Cleveland Judge Daniel Gaul sentenced a man to death and shortly thereafter took the opportunity to speak to the press about his opposition to the death penalty. In a recent interview Judge Gaul stated:

"The issue of crime and punishment is easily exploited. I can't remember the last person in public office who said what I've said. They don't want to get labeled soft on crime. But I'm not going to be manipulated by anyone calling me soft on crime. The fact is, no one wants to stand up for the rights of defendants until they're in a jam themselves. No one wants to speak on behalf of the poor and disadvantaged unless they know someone who's poor and disadvantaged. I think that's an indictment of our society.

"I mean, how tough is tough enough? We have 2 million people incarcerated in this country. That is more than any other country, including China. In the case of capital punishment, I'm not talking about releasing these people. What we're talking about is not having the state engage in institutionalized violence. It sends the wrong message. It's not restorative justice, it's vengeance. It's not a deterrent. So what is it? It's retribution."

(Cleveland Free Times, November 22-28, 2000) See also, New Voices

New Resources

Published by the International Commission of Jurists, "The Death Penalty: Condemned" (September, 2000) contains a collection of papers presented at the International Commission of Jurists's April 12, 1999 roundtable, "The Death Penalty: Some Key Questions." Papers address such issues as the needs of victims, and the use of the death penalty in the United States, the Russian Federation, and Trinidad and Tobago. Visit International Commission of Jurists's Web site to read the introduction. See also, additional resources

U.S Supreme Court to Hear Penry Case Again

On November 27, the U.S. Supreme Court agreed to hear an appeal by Texas death row inmate Johnny Paul Penry, whose execution was stayed by the Court on November 16. Penry's case is synonymous with the debate about executing defendants with mental retardation, and the Court said it will use the case to clarify how much opportunity jurors in death penalty cases have to consider the defendant's mental capacity. Penry v. Johnson, 00-6677. (Associated Press, 11/27/00) Apparently, the Court is still concerned about whether the Texas sentencing jury adequately considered the mitigating evidence in Penry's case, even after the high court instructed them to do so. Penry's I.Q. has been tested between 50 and 63, and he has the mental abilities of a six-year old. A ruling in the case is expected by July 2001.

Penry's execution is opposed by the leading national associations on mental retardation and by the American Bar Association. The U.S. Supreme Court overturned Penry's conviction once before, ruling that his rights were violated because the sentencing jury was not properly allowed to take his mental capacity into account. At retrial, Penry was again sentenced to death. For more information about Penry's case and about executing those with mental retardation, see Human Rights Watch's Web site. See also, Supreme Court

Innocent Defendant's Case May Lead to Improved Indigent Defense System

Former Pennsylvania death row inmate William Nieves urged support for a bill that would improve indigent defense in Pennsylvania. The measure, to be introduced in the 2001-2002 legislative session, would create a centralized legal defense center to oversee and aid capital defense attorneys in the state. Lawmakers cite Nieves as an example of an innocent man sentenced to death because he could not afford competent counsel. Nieves sat on death row for 5 years for a crime he did not commit after being represented by a divorce lawyer, who was paid $2,500 in public funds and who did not hire an investigator to find witnesses. "Can you image what that's like?" said Sen. Edward Helfrick (R-Northumberland). "Any one of us can be at the wrong place at the wrong time" and sit on death row if unable to afford quality representation, he said. (Associated Press, 11/22/00) See also, innocence.

A discussion list for legal professionals doing capitallitigation isin the beginning stages. The hope of the new list is toget somecross-pollination of ideas, as well as to give those practitioner's,whomay not be at a public defender's office or similar non-profit, a forumto seek advice and bounce ideas around. The list is private, and moderatedonly to try to weed out prosecutors and law enforcement.

Post message: capitaldefense@onelist.com

Subscribe: capitaldefense-subscribe@onelist.com

Unsubscribe: capitaldefense-unsubscribe@onelist.com

List owner: capitaldefense-owner@onelist.com

As always, this newsletter was put together,flying by the seat of my pants,and only reviewed while under the influenceof a caffeine induced stupor,or put another way, please excuse any creativeuse of the mother tongue,typos and/or errors.

DISCLAIMER & CREDITS -- Anti-copyrite 1997-2000. ISSN: 1523-6684. Written with the legal professionalinmind. Use does not constitute creationof an attorney-client relationship. If you have a legal questioncontact a lawyer authorized to practice in yourstate. This weekly has been prepared for educational and informationpurposesonly. Sincethe content contains general information only, it maynot reflectcurrentlegal developments, verdicts or settlements. The contentdoes not providelegaladvice or legal opinions on any specific matters. The law changesquickly,and information provided may be outdate by the timeit is read. Completedisclaimer located at http://capitaldefenseweekly.com/disclaimer.html.This letter may be freely redistributed with attribution. Please note thatthe current set up of the weekly is a one way list. Subscription information, including all names and addresses are private and unavailableto third parties. Please note all rights to terminate a subscription areretained by the editorial staff. Publisher information: All comments, inquiries or complaints may be sent to: CapitalDefenseWeekly/Karl R. Keys/167 Milk Street/Suite 127/Boston, MA 02109/kkeys@capitaldefenseweekly.com/617.249.0219Volume III, issue 42.