Some edition's are themed by the various Court of Appeals' decisions that take an unexpected turn, this edition is how to count time under the AEDPA. The Sixth Circuit in Williams v. Coyle last Friday held that for purposes of the AEDPA, despite a Ninth Circuit en banc decision to the contrary, a habeas action is not commenced until the actual habeas pleading is filed. The Third and the Tenth Circuit in non-capital cases flesh out when the one-year clock under the AEDPA commences and when the clock is stopped while in state court. In Siripongs v. Calderon the Ninth Circuit examines when a successive capital habeas petition claiming prosecutorial misconduct will be entertained. The Fifth Circuit inBoyd v. Johnson denies claims relating to failure to investigate and present a client's mental retardation. A Seventh Circuit panel denies relief in Ashford v. Gilmore relating to claims of intoxication and an ex parte contact between the judge and courthouse security officers. Finally, in the "In Depth" portion of this edition I examine some web sites that I have found particularly useful in preparing a capital habeas filed earlier this week.

In Focus

Williams v. Coyle Sixth Circuit, in a split panel decision which highlights a growing split amongst the Circuits, holds that for purposes of the AEDPA, that the filing of the actual habeas petition and not just a "McFarland Petition" seeking appointment of counsel determines whether the pre-AEDPA or post-AEDPA standards apply.

Several courts have relied on the Supreme Court's opinion in McFarland v. Scott, 512 U.S. 849 (1994), in concluding that a habeas corpus case may be pending under Lindh before the application is filed. We believe that this reliance is misplaced. In McFarland the Court held that a motion for the appointment of counsel constitutes a post conviction proceeding for the purposes of 21 U.S.C. § 848(q)(4)(B). See McFarland, 512 U.S. at 856-57. Section 848(q)(4)(B)provides for the appointment of counsel and the provision of necessary expert services for indigent defendants seeking to set aside a death sentence "[i]n any post conviction proceeding under section 2254 or 2255." The reading adopted was required, the Court concluded, to give effect to the clear intent of Congress to "establish[] a right to preapplication legal assistance for capital defendants in federal habeas corpus proceedings." McFarland, 512 U.S. at 855.

The McFarland Court also held that a motion for the appointment of counsel was sufficient to enable a district court to stay an execution pursuant to 28 U.S.C. § 2251, which literally grants this power to a judge "before whom a habeas corpus proceeding is pending." See McFarland, 512 U.S. at 857-59. The Court concluded that the district court must have the power "to enter a stay of execution where necessary to give effect to [the] statutory right" to appointed counsel. See id. at 859. Thus, both holdings of McFarland appear to rest on the necessity of expanding the ordinary meaning of a "pending case" in order to give effect to clear congressional intent. By contrast, we perceive no compelling reason to depart from plain meaning in the present case. The problem the Court addressed in McFarland was of an ongoing nature and had nothing to do with the effective date of any statutory provision. In the present case, on the other hand, the defendant faces additional procedural

hurdles post-AEDPA, but there is no ongoing rationale for stretching the "pending" period to reach prior to the actual filing of the application as there was in McFarland. Once all cases in which a petitioner initiated some habeas corpus-related legal action prior to the effective date of the AEDPA have been resolved, the point at which a § 2254 case is "filed" will become irrelevant.

There is, admittedly, certain language in McFarland that supports the extension of Lindh advanced by Williams. In determining the reach of § 2251, the Court reasoned:

The language of these two statutes indicates that the sections refer to the same proceeding. Section 848(q)(4)(B) expressly applies to "any post convictionproceeding under section 2254 or 2255" - the precise "habeas corpus proceeding[s]" that § 2251 involves. The terms "post conviction" and "habeas corpus" also are used interchangeably in legal parlance to refer to proceedings under §§ 2254 and 2255. We thus conclude that the two statutes must be read in pari materia to provide that once a capital defendant invokes his right to appointed counsel, a federal court also has jurisdiction under § 2251 to enter a stay of execution.

Id. at 858. Although one could read this passage as supporting the proposition that a proceeding pursuant to § 2254 also is initiated and pending when a petitioner files a motion for the appointment of counsel, we conclude that this reading is warranted only to the extent necessary to give effect to § 848(q)(4)(B). Our precedent supports this conclusion.

In In re Parker, 49 F.3d 204 (6th Cir. 1995), a condemned prisoner, who was represented by counsel but who had not filed a federal habeas corpus petition, filed motions in the district court for the appointment of counsel and for a stay of execution pursuant to § 2251. The prisoner argued that under McFarland the district court had the power to grant the stay. We disagreed, holding that neither § 2251 "nor McFarland stand for the proposition that an already well-represented prisoner may invoke the `stay' jurisdiction of a federal court by seeking pre-petition appointment of counsel who already represents him." Id. at 211. In other words, our holding in In re Parker was that the filing by a represented prisoner of a motion for the appointment of counsel does not constitute a pending habeas corpus proceeding for the purposes of § 2251. This holding indicates that the McFarland interpretation of "pending," in this circuit, at least, extends no further than is necessary to give effect to 21 U.S.C. § 848(q)(4)(B).

Recently, the Ninth Circuit, sitting en banc, overruled its earlier precedent and held that a petition for the appointment of counsel does initiate a habeas case for the purposes of Lindh. See Calderon v. United States Dist. Ct. for the Cent. Dist. of Cal., --- F.3d ---, No. 98-70569, 1998 WL 848032, at *9-11 (9th Cir. Dec. 8, 1998). The Calderon court concludedthat this determination was compelled by the Supreme Court's recent decision in Hohn v. United States, 524 U.S. 236, 118 S. Ct. 1969 (1998). We disagree that Hohn requires this result.

In Hohn, a panel of the Eighth Circuit had declined to issue the petitioner a certificate of appealability ("COA") after the district court had denied the petitioner's motion pursuant to § 2255 to vacate his sentence. See id. at 1972. The question faced by the Supreme Court was whether the denial of the COA constituted a case in the court of appeals such that the Court had certiorari jurisdiction pursuant to 28 U.S.C. § 1254 to review the denial. The Court examined the process utilized by the court of appeals in addressing Hohn's application for the COA as well as the adversary nature of the proceeding, and the Court determined that "[t]he dispute over Hohn's entitlement to a certificate falls within [the] definition" of a case for the purposes of § 1254. Id.

In reaching this determination in Hohn, the Court also relied on its earlier decision in Ex parte Quirin, 317 U.S. 1 (1942), that had "confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then- extant statute governing court of appeals review of district court decisions." Hohn, 118 S. Ct. at 1975. In Ex parte Quirin the Court had held that such a request was a reviewable case: "Presentation of the petition for judicial action is the institution of a suit. Hence denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal . . . ." Ex parte Quirin, 317 U.S. at 24.

In our opinion Hohn and Ex parte Quirin stand only for the proposition that the denial by the district court of a motion for the issuance of a COA, a motion for leave to file a petition for the writ, or, as in our case, a motion for the appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(B) would constitute an appealable case. This does not imply, however, that the petitioner's habeas corpus case has been initiated by the filing of such a preliminary motion. Although the Courtin Hohn rejected the contention that the filing of a preliminary motion "should be regarded as a threshold inquiry separate from the merits," Hohn, 118 S. Ct. at 1974- 75, the holding and logic of the case were limited to the determination that the rejection by the district court of the preliminary motion constitutes an appealable case. Thus, we do not believe that Hohn dictates the result sought by Williams.

In determining that the filing of a motion for the appointment of counsel does not initiate a habeas case for the purposes of Lindh, the Seventh Circuit followed an approach that anticipated the majority's approach in Hohn. That court held that

[a]lthough it is linguistically possible for this "preapplication legal assistance" to open a "case" having some affinity to a petition under § 2254 . . . the motion for counsel is not itself a petition, because it does not call for (or even permit) a decision on the merits. . . . This implies that the sort of case opened by a motion under § 848(q)(4) is not the kind of pending litigation mentioned in Chapter 154's effectiveness clause, and therefore is outside the rationale of Lindh.

Holman v. Gilmore, 126 F.3d 876, 880 (7th Cir. 1997), cert. denied, --- U.S.---, 118 S. Ct. 1169 (1998). We agree, and we conclude that a federal habeas corpus case is filed or pending for the purposes of Lindh and the AEDPA only when the petition for the writ is filed.

Capital Cases

Siripongs v. Calderon Ninth Circuit, in this stay of execution on a successive habeas petition splits on issues of prosecutorial suppression of evidence; both issues relate to the presence of an accomplice and whether that accomplice committed the murders. On the first claim the panel's majority holds:

Siripongs asserts in Claim 1 that in the Fall of 1998, shortly before his scheduled execution, the prosecution admitted that it knew that there was an accomplice, that it was Noon, and that she committed the murders.

The only supporting documentation for these assertions are two newspaper articles that quote the trial prosecutor and a current deputy D.A., who did not try the case. The trial prosecutor said that he believed the evidence showed a second person was involved. The current deputy D.A. said that Siripongs had a female companion nicknamed "Noon" and that she may have been present. He also said that an investigator believed that she was more of a "wheel person" (apparently meaning that she was only assisting as a driver or in some similar capacity), but the prosecution could never prove it.

The newspaper articles do not state that the prosecutors knew that there was an accomplice, or that they knew it was Noon. Neither the articles nor any evidence in the record suggests that the prosecution suspected that Noon committed the stabbing and strangulation murders alone and fended off Siripongs' efforts to stop the stabbing murder; yet, that is the implausible theory advanced in these applications. The articles do not suggest that there was any exculpatory evidence hidden from the defense.

In fact, there is nothing in the prosecutors' statements that reveals anything not already known at trial by both sides. Our first opinion summarizes evidence linking Noon to the scene, including the presence of a letter addressed to her found under one of the bodies and her jacket found in a dumpster along with Siripongs' blood-stained clothing. See Siripongs I, 35 F.3d at 1311. In addition, we noted that there were inconsistencies between Noon's statements and the statements of other witnesses. See id. at 1313.

The overwhelming evidence of Siripongs' involvement included the fact that blood consistent with his was found all over the crime scene and on much of the evidence in the dumpster. The dumpster evidence also included items from the market. Siripongs tried to sell jewelry stolen from one of the victims and used the credit card of that victim's husband.

The only information asserted in Claim 1 that arguably was not previously known to the defense is the existence of prosecutorial theories and suspicions, rather than knowledge of facts or evidence. Prosecutors are under no obligation to disclose their theories, thought processes, or even all investigatory work. See United States v. Agurs, 427 U.S. 97, 109 (1976).

Claim 1 advances no new material facts or colorable claims of constitutional error.

Boyd v. Johnson Fifth Circuit denies on a grab bag of claims, most notably failure to investigate their client's mental retardation:

In order to prove ineffective assistance of counsel, Boyd must show (1) deficient performance, meaning that the attorney's representation "fell below an objective standard of reasonableness," and (2) that the deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 688, 692, 104 S. Ct. 2052, 2064, 2067, 80 L. Ed. 2d 674 (1984). As the Court stated in Strickland, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S. Ct. at 2065.

According to Boyd, his trial counsel performed deficiently in failing to discover mitigating evidence of his mental retardation. At trial, his attorneys introduced two prison packets that were created during Boyd's prior incarceration. One prison packet indicated Boyd has an I.Q. of 67, and the other stated his I.Q. is 80. At the evidentiary hearing, Boyd presented testimony from Dr. James Shadduck that an I.Q. below 70 indicates retardation, and that Boyd received an I.Q. score of 64 on a test administered by him. Shadduck testified he had reviewed school records showing an I.Q. of 71. Shadduck concluded that Boyd was retarded and that his retardation should have been apparent to any observer. Dr. Alan Hopewell also testified that he had examined Boyd and found him to be retarded. Other witnesses testified to Boyd's mental state, including family members and attorneys who had worked with Boyd. Citing the I.Q. tests introduced at trial, along with the post-trial I.Q. tests, Boyd alleges that his counsel's failure to investigate his mental capacity constituted ineffective assistance.

The district court found that the evidence of Boyd's retardation is conflicting. The district court stated that the credibility of Drs. Shadduck and Hopewell suffered on cross-examination. The credibility of Boyd's mother and sister, who testified to Boyd's retardation, was undermined by their earlier contradictory testimony at the sentencing phase of the trial. The district court did not credit the testimony of two of Boyd's other witnesses who were either employees or associates of Boyd's present counsel.

Other evidence cast doubt on the obviousness of Boyd's retardation. Boyd's attorney Paul Brauchle testified that he did not believe that Boyd was retarded, based on his observations of Boyd and from information from Boyd's family. He stated that Boyd assisted him in the jury selection process and that he was unable to remember having had information that Boyd scored low on an I.Q. test. The district court found Brauchle's testimony credible. The district court additionally found the testimony of Michael Byck, who also served as trial counsel, to be highly credible. Byck testified he saw no "red flags" that would indicate Boyd's retardation. Conversations with Boyd's family, and the school records, did not suggest to Byck that Boyd was retarded The district court concluded that the isolated I.Q. score of 67 in the prison packet was not enough to compel the attorneys to investigate, when the other evidence available at trial contradicted a suggestion of retardation.

Under Strickland, we consider whether the failure of Boyd's counsel to develop and to present the evidence of retardation constituted deficient performance. Boyd's lowest I.Q. score of 64 is on the upper borderline of mental retardation. See Penry, 492 U.S. at 308 n.1, 109 S. Ct. at 2941 n.1. In other cases, we have found that counsel did not perform deficiently in failing to develop similar evidence of retardation. In Andrews v. Collins, 21 F.3d 612, 624 (5th Cir. 1994), the defendant presented an I.Q. score of 68, which conflicted with testimony presented by the state that Andrews's I.Q. was between 70 and 80. We found that Andrews's counsel did not perform deficiently in failing to present the evidence of his low intelligence. See also Smith v. Black, 904 F.2d 950, 977 (5th Cir. 1990)(finding that counsel was not deficient for failing to present mitigating evidence of I.Q. of 70), vacated on other grounds, 503 U.S. 930, 112 S. Ct. 1463, 117 L. Ed. 2d 609, aff'd in relevant part, 970 F.2d 1383 (5th Cir. 1992); cf. Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir. 1986)(finding counsel ineffective for failing to present evidence of I.Q. score below 41).

The evidence of Boyd's retardation must be considered in tandem with the impressions that he gave the attorneys. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. . . . In particular, what investigation decisions are reasonable depends critically on such information." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Boyd's attorneys testified that they did not believe Boyd was retarded, based on their observations and interactions with him, and the district court found this testimony to be credible. The attorneys decided not to investigate Boyd's mental state because they did not believe retardation was an issue. In light of both Boyd's own actions and the conflicting evidence of retardation, the failure of Boyd's counsel to present evidence of Boyd's borderline retardation cannot be considered to have fallen "below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.

Even had counsel been aware of Boyd's retardation, it was not ineffective assistance to abstain from further investigation. The Court determined in Penry that mitigating evidence of mental retardation has relevance to moral culpability beyond the special issues. See Penry, 492 U.S. at 322, 109 S. Ct. at 2948. Prior to Penry, however, evidence of mental retardation had a greater potential for negatively impacting the defense, because the jury might use such evidence to support a "yes" answer to the second special issue, the defendant's future dangerousness. See Lackey v. Scott, 28 F.3d 486, 499 (5th Cir. 1994), vacated on other grounds, 52 F.3d 98, 99 (5th Cir. 1995). In cases tried before Penry, it was not ineffective assistance to fail to seek or to develop evidence regarding a defendant's mental retardation. See Washington v. Johnson, 90 F.3d 945, 953 (5th Cir. 1996)("This case was tried before the Supreme Court's Penry decision, and we have not previously held counsel incompetent for failing to anticipate Penry."), cert. denied, U.S. , 117 S. Ct. 1259, 137 L. Ed. 2d 338 (1997). Because the evidence of retardation may have influenced the jury negatively, Boyd's counsel did not perform deficiently in failing to investigate the issue further. The potential negative impact of the retardation evidence, in addition to the cold-blooded nature of the murder and Boyd's other violent conduct, persuades us that the outcome of the sentencing would not have been different if counsel would have investigated further. See Andrews, 21 F.3d at 624 (concluding that the failure to introduce mitigating evidence, which included evidence of mental retardation, did not prejudice defendant because of the cold-blooded nature of the crime); King v. Puckett, 1 F.3d 280, 285 (5th Cir. 1993) (concluding "that the failure to offer mitigating evidence in the form of King's diminished mental capacity" did not affect "the outcome of his sentencing."); Glass v. Blackburn, 791 F.2d 1165, 1170-71 (5th Cir. 1986)(finding no prejudice from counsel's failure to introduce mitigating evidence because the murder was calculated and cold-blooded). Boyd's claim of ineffective assistance is meritless because the failure to develop the evidence of Boyd's retardation was not deficient performance, nor was it prejudicial to the defense.

Additionally, Boyd contends that counsel rendered ineffective assistance because, apart from the sentencing phase, evidence of mental retardation could have been used to challenge the voluntariness of his confession. The trial judge admitted Boyd's confession after a hearing to determine the voluntariness of his confession. Boyd has not shown that the conflicting evidence of borderline retardation would have had any impact on the resolution of this issue. We conclude therefore that Boyd's counsel did not prejudice him by failing to develop retardation evidence to challenge his confession. Boyd has not substantially shown the denial of his right to effective assistance of counsel.

Ashford v. Gilmore Seventh Circuit denies relief in this capital case on claims relating to failure to present evidence of intoxication and ex parte communications with the judge by security officials on the safety of the court room:

Ashford argues if his counsel had presented evidence that Ashford was addicted to and under the influence of cocaine and Valium at the time of the murders, there is a reasonable possibility that the judge would not have sentenced Ashford to death. The Illinois Supreme Court held that assuming the failure to offer this evidence constituted deficient performance, Ashford still failed to show prejudice. The court noted that cocaine use could be aggravating, instead of mitigating. Ashford II, 660 N.E.2d at 949 (citing Illinois v. Jones, 579 N.E.2d 829 (Ill. 1991)). It also commented that the evidence showed that Ashford acted with a cool and calculating demeanor, and knew exactly what he was doing when he committed the four murders in this case. Id. The Illinois Supreme Court also considered the aggravating factors present in this case: the multiple murders, the deliberateness of Ashford's plan as he executed each potential witness, and his lack of remorse in retelling his account of the murders three days later. Id. at 949-50. The Illinois Supreme Court concluded that there was no reasonable probability that evidence of drug use would have changed Ashford's sentence. Id. at 949.

Reviewing this same analysis, we conclude that the Illinois Supreme Court did not clearly err in holding that Ashford had failed to establish prejudice. The trial record establishes that the robbery and murders were premeditated, and that Ashford attempted to conceal his crime. Moreover, while it appears that Ashford used cocaine and other drugs shortly before the murders, we see no evidence supporting the view that Ashford's judgment or memory was impaired by the drugs. The manner in which the executions were carried out inside Davis' house also favors aggravation, and cuts against an argument of mitigation. All of the victims were shot multiple times, and three of the four victims were killed with close-range shots to the head. Under these circumstances, the Illinois Supreme Court did not unreasonably apply Strickland when it concluded that Ashford would have been sentenced to death even if this evidence were presented.1

The second issue advanced by Ashford involves the security memo which the sentencing judge received shortly before sentencing. Ashford contended before the Illinois Supreme Court that the ex parte nature of the letter, and the concomitant denial of an opportunity to rebut the facts therein, denied him due process of law. Ashford reiterates this argument to us, adding that the decision of the Illinois Supreme Court is contrary to Gardner v. Florida, 430 U.S. 349 (1977). This claim presents a pure question of law, which we review de novo. See Lindh, 96 F.3d at 869 (AEDPA does not "purport to limit the federal courts' independent interpretive authority with respect to federal questions.").

As a judge is responsible for the safety precautions taken in his courtroom, the assistant jail administrator properly addressed the letter to him. See, e.g., Illinois v. Staley, 364 N.E.2d 72, 73 (Ill. 1977).2 However, the Illinois Supreme Court found that the failure to share this letter with Ashford's counsel was error. Ashford II, 660 N.E.2d at 950. But the Illinois Supreme Court also found that the error was harmless. We agree.

The letter itself does not relate any specific instances of bad conduct by Ashford. Instead, it relates hearsay and "grapevine" information-- information which any judge would know is not sufficiently credible to support a judicial finding. Moreover, considering this same judge had recently concluded that Ashford had executed four persons, we doubt that a letter suggesting that Ashford might be a problem would be surprising or prejudicial.

But we need not speculate whether or not the trial judge was improperly influenced by this letter: the trial judge stated his reasons for imposing the death penalty, and the security memo was not one of them. And even in the absence of such a statement, the law presumes that judges are not influenced by improper evidence brought before them. See, e.g., United States ex rel. Placek v. Illinois, 546 F.2d 1298, 1305 (7th Cir. 1976) ("[W]hen we have held that evidence was improperly admitted in a bench trial, we have refused to presume that the trial judge considered it in reaching his verdict.") (citing United States v. Stanley, 411 F.2d 514, 516 (7th Cir. 1969); United States v. Menk, 406 F.2d 124, 127 (7th Cir. 1969)); see also Illinois v. D'Arezzo, 593 N.E.2d 1076, 1080 (Ill. App. Ct. 1992). Ashford has failed to establish that if the security memo had been provided to him or his counsel, he would not have been sentenced to death.

This conclusion is not contrary to Gardner v. Florida, 430 U.S. 349 (1977). In Gardner, the Supreme Court ruled that the Due Process Clause was violated when a judge relied, in part, on confidential portions of a presentence report. The Gardner trial court specifically stated that his death penalty decision was based in part on the information contained in the presentencing report. In contrast, the security memo in this case was not relied on by the district court, and did not pertain to sentencing issues at all. Moreover, the letter contains nothing more than a suspicion that a security problem might be present. This differs greatly from the type of information contained in Gardner's presentence report. Finally, Gardner specifically states that the trial court may disregard disputed information. Id. at 359-60. The implication of this statement is that merely being aware of the contents of the ex parte information is not sufficient to raise a constitutional error. Gardner is distinguishable from Ashford's case, and the Illinois Supreme Court's denial of Ashford's due process claim was not contrary to Gardner.

As a final matter, we reject Ashford's argument that the ex parte nature of the security memo constitutes a structural error not susceptible to harmless error analysis. In Chapman v. California, the Supreme Court held that except in limited circumstances, constitutional errors were subject to harmless error analysis. 386 U.S. 18, 23 & n.8 (1967). These limited circumstances, involving what the Supreme Court calls "structural errors," include the right to counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963); the right to a unanimous jury verdict beyond a reasonable doubt, see Sullivan v. Louisiana, 508 U.S. 275 (1993); the unlawful exclusion of jurors based on race, see Vasquez v. Hillery, 474 U.S. 254 (1986); and the right to represent one's self, see McKasle v. Wiggins, 465 U.S. 168 (1984). But ex parte communications do not make this list. In Rushen v. Spain, the Court held that ex parte communication between a judge and juror is subject to harmless error review. 464 U.S. 114, 118 (1983) (per curiam). The Court also rejected any notion of an "inherent bias" caused by such ex parte communication. Id. at 119, n.3. Further, we note that even some structural errors, such as violations of the right to counsel, have been held to be subject to harmless error analysis, depending on the nature of the violation. See, e.g., Moore v. Illinois, 434 U.S. 220, 232 (1977) ("In view of the violation of petitioner's Sixth and Fourteenth Amendment right to counsel at the pretrial corporeal identification . . ., [we] remand for a determination of whether the failure to exclude that evidence was harmless constitutional error . . . ."). Therefore, the Illinois Supreme Court was correct in applying a harmless error analysis to Ashford's claim of a denial of due process.

Habeas Cases

Brown v. US Second Circuit reverses the denial of a writ and remands on the question of appellate ineffectiveness as to the government's burden of proof

Gonzales v. Lytle Tenth Circuit grants the writ on the grounds that the state court erred in not admitting a crucial witnesses prior inconsistent statement holding

Pedro argues the trial court's refusal to admit Ms. Carillo's recantation rendered his trial fundamentally unfair. See Matthews v. Price, 83 F.3d 328, 331 (10th Cir. 1996) ("We review due process challenges to state evidentiary rulings only for fundamental unfairness . . . ."). This inquiry "hinges on the materiality of the excluded evidence to the defense." Id. at 332; see also Maes v. Thomas, 46 F.3d 979, 987 (10th Cir. 1995). On habeas review, "our inquiry is limited to whether the court's hearsay determinations deprived the defendant of his constitutional rights to due process and to compel favorable testimony." Matthews, 83 F.3d at 332.

Barnett v. LeMaster Tenth Circuit holds that even a procedurally defaulted state habeas petition tolls the AEDPA's statute of limitations

McKee v. US Second Circuit reverses the denial of a writ and remands on the question of appellate ineffectiveness on jury instructions in light of Bloomer v. United States, 162 F.3d 187 (2d Cir. 1998).

Jones v. USA Seventh Circuit holds that failure to adequately explain the substance of an ineffectiveness claim bars remand even where the Government concedes the legal (but not factual) basis of the appeal.

Kapral v. USA Third Circuit holds that for purposes of the AEDPA, the clock does not run while on certiorari to the Supreme Court off of direct review or the 90 days for which is given by rule to file certiorari:

As noted, a collateral attack is generally inappropriate if the possibility of further direct review remains open:

A district court should not entertain a habeas corpus petition while there is an appeal pending in [the court of appeals] or in the Supreme Court. The reason for the rule is that disposition of the appeal may render the [habeas corpus writ] unnecessary. This is true if the appeal is still pending [in the court of appeals] . . . . It is even more appropriate . . . when review of the conviction is pending before the Supreme Court.

Feldman v Henman, 815 F.2d 1318, 1320-21 (9th Cir. 1987) (internal quotation marks and citations omitted). This is a procedural reality regardless of the probability that the Supreme Court will actually grant certiorari. Thus, if a defendant files for certiorari review, direct review is ongoing, and the commencement of a simultaneous § 2255 proceeding would be inappropriate. Accordingly, we hold that a judgment of conviction does not become "final" within the meaning of § 2255 until the Supreme Court affirms the conviction and sentence on the merits or denies a timely filed petition for certiorari. Accord United States v. Summons, 111 F.3d 737, 744 (10th Cir. 1997) ("Mr. Simmonds' conviction became `final' after the Supreme Court denied certiorari[.]").

In addition, if a defendant does not file a certiorari petition, the judgment of conviction does not become"final" until the time for seeking certiorari review expires. A defendant has 90 days from the date on which the court of appeals affirms the judgment of conviction tofile a petition for a writ of certiorari.3 During that 90-day period, the defendant retains the right to seek to overturn the judgment of the court of appeals in the Supreme Court. Only when the time for seeking certiorari review has expired is it appropriate for a defendant to commence a collateral attack on the conviction and sentence. See United States v. Dorsey, 988 F. Supp. 917, 919 n.3 (D. Md. 1998). As the district court explained in Dorsey:

It makes [little] sense to suggest that a judgment of conviction is "final" for purposes of § 2255 upon completion of direct appeal of right, rather than the conclusion of any petition to the Supreme Court, simply because it is unlikely that the Supreme Court will grant certiorari. If a petitioner should awaitfinal disposition of direct appeal before petitioning for collateral relief, that final disposition should logically be when no further avenues for direct appeal exist, not when it becomes increasingly unlikely that such direct appeal will continue.

Id. at 919 (comparing the reasoning in Feldman with the district court's analysis here.).

As noted above, the district court's analysis in the present case was greatly influenced by the low probability of the Supreme Court actually granting discretionary review of the decision of a court of appeals. In addition, the district court reasoned that its analysis was fortified by, and consistent with, Congress's intent in enacting AEDPA. The court stated:

The Court's holding comports with the policy underlying the Act. In amending 28 U.S.C. § 2255, Congress intended to reduce the abuse of habeas corpus that results from delayed and repetitivefilings . . . while preserving the availability of diligently sought review. . . . Defining the date of final judgment of conviction as the date of the appeals court's decision facilitates the congressional intent underlying the AEDPA. Specifically, it counters habeas corpus abuse by definitively limiting the time in which a prisoner may seek § 2255 review, while simultaneously providing ample opportunity for the prisoner to exercise the right to seek relief under § 2255.

Kapral, 973 F. Supp at 498 (internal quotation marks and citations omitted). We find, however, that AEDPA's purpose is best furthered by an interpretation of § 2255 that recognizes the legal reality that the decision of a court of appeals is subject to further review, and therefore not "final" within the meaning of § 2255 until direct review has been completed. Recognizing that one is allowed 90 days to file a petition for certiorari does not mitigate the congressional objective of imposing time limits where none previously existed.4

In short, although a defendant has no review as of right in the Supreme Court after a conviction is affirmed on direct review, a defendant does have a right to petition for that review. Thus, we think the district court drew too fine a line in distinguishing between review as of right and discretionary review for purposes of defining"final" under § 2255. . . . .

To summarize, we hold that a "judgment of conviction becomes final" within the meaning of § 2255 on the later of (1) the date on which the Supreme Court affirms the conviction and sentence on the merits or denies the defendant's timely filed petition for certiorari, or (2) the date on which the defendant's time for filing a timely petition for certiorari review expires. If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentence become final, and the statute of limitation begins to run, on the date on which the time for filing such an appeal expired.

Prisoner's Rights and Governmental Misconduct Cases

Diaz v. USA Eleventh Circuit reverses summary judgment on wrongful death claims as not being barred under the statute of limitations

Bass v. Robinson Sixth Circuit reverses summary judgment grant relating to claims of police brutality.

Dietrich v. Burrows Sixth Circuit holds that no qualified immunity protection where police knew plaintiff was legally carrying firearms and still arrested him and had previously exposed arguable police misconduct.

Ralston v. McGovern Seventh Circuit holds that guards confiscation of chemotherapy drugs was not entitled to protection under the doctrine of sovereign immunity

Talley-Bey v. Knebl Sixth Circuit holds that under the PLRA when costs are assessed amongst multiple prisoners the costs are to be prorated.

Carr v. O'Leary Seventh Circuit finds the state waived defenses relating to Heck v. Humphrey, 512 U.S. 477 (1994), by failing to raise them in a timely manner, and orders the state attorney general's office to show cause as why they should not be disciplined for gross misrepresentations to the district and circuit court as to the factual record in the case.

Cases of note

United States v. Dickerson Fourth Circuit strikes down Miranda in its circuit for federal cases

It is worth recalling that Congress not only acted in response to the Court's invitation, see Miranda, 384 U.S. at 490 (inviting Congress and the States "to develop their own safeguards for [protecting] the privilege"), but that the Court in Miranda had acted in the absence of a relevant Act of Congress. It is well established that the Court's power to prescribe nonconstitutional "rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress." Palermo, 360 U.S. at 353 n.11. Thus, just as the Court was free to create an irrebuttable presumption that statements obtained without certain procedural safeguards are involuntary, Congress was free to overrule that judicially created rule.

To be sure, the Miranda warnings were meant to safeguard the Fifth Amendment privilege against self-incrimination. Indeed, under § 3501 any statement obtained in violation of the privilege must be suppressed. Thus, we cannot say that Congress's decision to eliminate the irrebuttable presumption created by Miranda lessens the protec- tions afforded by the privilege. Indeed, the Court has recognized that Miranda's irrebuttable presumption goes beyond what is required to protect the privilege. As a result, even "patently voluntary statements . . . must be excluded." Elstad, 470 U.S. at 307. In enacting § 3501, Congress simply recognized the need to offset the harmful effects cre- ated by Miranda's irrebuttable presumption. 22 Cf. Sandstrom v. Montana, 442 U.S. 510, 523 (1979) (recognizing the harmful effects created by the use of mandatory conclusive presumptions in criminal cases). No longer will criminals who have voluntarily confessed their crimes be released on mere technicalities.

Finally, lest there be any confusion on the matter, nothing in today's opinion provides those in law enforcement with an incentive to stop giving the now familiar Miranda warnings. As noted above, those warnings are among the factors a district court should consider when determining whether a confession was voluntarily given. See 18 U.S.C.A. § 3501(b). Indeed, federal courts rarely find confessions obtained in technical compliance with Miranda to be involuntary under the Fifth Amendment. Cf. Elie, 111 F.3d at 1143 (noting "that very few incriminating statements, custodial or otherwise, are held to be involuntary" (internal quotation marks omitted)). Thus, providing the four Miranda warnings is still the best way to guarantee a finding of voluntariness.

In the end, and after an exhaustive review of the relevant authority, we are convinced that § 3501 -- enacted at the invitation of the Supreme Court and pursuant to Congress's unquestioned power to establish the rules of procedure and evidence in the federal courts -- is constitutional. We are reassured in our conclusion by the fact that our dissenting colleague, after examining all of the relevant authority at his disposal, has been unable to conclude differently. At best, the dissent can but pose a rhetorical question concerning the constitution- ality of § 3501. See ante note 21. Apparently, all of the relevant authority of which the dissent is aware supports the conclusion we reach today. As a consequence, we have no difficulty holding that the admissibility of confessions in federal court is governed by § 3501, rather than the judicially created rule of Miranda.

In Depth

The web is an mutating series of links, many helpful, most not. I thought I would share a few links that this week I found especially helpful in looking for help on legal arguments, a few are nothing short of superb for the resources they provide.

The Cornell Law School's Death Penalty Project offers the following links on case law which are nothing short of superb.

The resources offered included at Cornell( http://www.lawschool.cornell.edu/lawlibrary/death/index.html), include Summaries of All Published Successful Ineffective Assistance of Counsel Claims Since Strickland V. Washington, Summaries of Successful Cases Under Brady v. Maryland,, Summaries of Successful Cases Under Johnson v. Mississippi, Summaries of Successful Cases Under Massiah v. United States or United States v. Henry, State Death Penalty Statutes, Relevant State Information Sources. Many of the documents are in a PDF format, Download the latest free Adobe Reader (version 3.0)

The Southern Center for Human Rights also offers several excellent links that can aid in short cutting research.

The Southern Center offers a collection of Steve Bright's writings on a variety of topics such as race and the death penalty and ineffective assistance of counsel. ( http://schr.org/reports/index.html).

Equally as compelling, is the Southern Center's digest of capital case law from U.S. Supreme Court

11th U.S. Circuit Court of Appeals, and Georgia. ( http://schr.org/death-penalty-info/index.html)

Several other links include:

The Kenutcky Department of Public Advocacy has uploaded many articles from their magazine the Advocate ( http://dpa.state.ky.us/~rwheeler/archives/archive.htm), articles include race, mental health evaluations and competence of counsel in capital cases

Favorable and Noteworthy Criminal Decisions in the Federal Courts ( http://www.federalcases.com/) from the firm of Garland, Samuel & Loeb in Atlanta, Ga, offers a great run down of federal criminal law cases that offer a great place to start research on a given topic.

FindLaw, ( http://www.findlaw.com/) a multi-tiered site offering a variety of resources, whose opinion archives is used to write this e-zine, is a must visit at least once site for the variety of interesting materials on that site.

Finally, the Death Penalty Information Center, ( http://essential.org/dpic) offers a great grab bag of resources for the last second need to insert a last second fact on the death penalty.

Karl R. Keys, Esq.

Editor, Capital Defense Weekly

DISCLAIMER & CREDITS

Written and edited by Karl R. Keys, Esq., a Massachusetts practitioner, who focuses his practice on the defense of condemned. (c) 1998. THIS NEWSLETTER AND ALL INFORMATION ON THE SITE IS RELEASED INTO THE PUBLIC DOMAIN as long as attribution and my email address are included -- this excludes, however, federal materials (which are already in the public domain) and any copylrighted information owned by others. This newsletter is no substitute for legal research as it doesn't cover unpublished cases, and frequently misses cases. Similarly nothing posted is warranted as to accuracy, typos, or for that much of anything else. For educational use only. USE DOES NOT CONSTITUTE THE ESTABLISHMENT OF THE ATTORNEY CLIENT RELATIONSHIP & MAY BE CONSIDERED ADVERTISING UNDER THE RULES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS. LJX materials are reproduced pursuant to the subscriber agreement ¶ 3(b). Requests for assistance are gladly forwarded to the appropriate parties, but solicitation for counsel can not, unfortunately be forwarded at this time. In memory of Harold McQueen & Rebecca O'Hearn -- both murdered, one by a man the other by a state.