Items being covered this week include several non-capital Supreme Court decisions and capital appellate decisions out of the Tenth, Sixth and Fifth Circuits. Elsewhere in the edition the latest general news on capital punishment is furnished in the "errata" section and the "in depth" section takes a peek at the question of when does the Eighth Amendment limit the state's ability to execute an individual or class of individuals.

The Tenth Circuit has affirmed the death sentence in Jones v. Gibson (10th Cir) on a panopoly of grounds, most notably prosecutorial comment on the right to remain silent. In contrast the Sixth Circuit Combs v. Coyle (6th Cir), noting a Circuit split, lists prosecutorial comment on silent and trial counsel's failure to object to that comment as of one of the grounds for which it grants relief. The Fifth Circuit in Beets v. Texas Board of Pardons and Parole broadly suggests that a court sitting in a civil § 1983 capacity may not stay an execution.

The Supreme Court has likewise been busy. In Ex Parte Tarver the Court has rejected an original habeas action, after initially granting a stay, in a challenge to Alabama's electric chair. In Roe v. Flores-Ortega the Court tinkers with the Ninth Circuit standard for appellate ineffectiveness holding that a totality of the circumstances test is more appropriate then a bright line rule when dealing with whether the failure to perfect an appeal resulted in providing ineffective assistance of appellate counsel. Finally, in a Kafkaesque holding, the Court in United States v. Johnson that even though one is incarcerated unjustly, that period of unlawful incarceration does not count against any supervised release time that a petitioner was sentenced to serve.

Please note that reporting on all decisions from the Seventh and Eleventh Circuit was not possible this week due to those court's failing to timely release to the net their decisions.

Lastlly, Calvin Burdine, whose capital conviction was recently invalidated due to "sleeping lawyer syndrome," received an order granting unconditional release as he had not been retried in a timely manner on his underlying indictment.

Supreme Court

Ex Parte Tarver (Rule of Five?) United States Supreme Court rejects, after granting a stay several weeks ago, this original habeas corpus action challenging electrocution. The National Law Journal notes:

On page 22 of its 30-page list of routine orders issued Monday, the Court noted that a habeas corpus petition filed by Alabama death row inmate Robert Lee Tarver had been denied. But then it noted that four justices -- ordinarily enough to accept or grant certiorari in a new case -- had voted in favor of setting the case for oral argument. The four justices were John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. In a separate order, the Court by an unspecified vote also denied his petition for certiorari.

The bottom line: Even though four justices felt Tarver's habeas petition challenging the use of the electric chair in Alabama had enough merit to hear at oral argument, plans for his execution will proceed. Tarver had eaten what he thought was his last meal on Feb. 3 when the Supreme Court granted a stay that was dissolved by the justices' unusual action Tuesday. "There is clearly interest on the Court in this issue," said Tarver's lawyer, Bryan Stevenson, on Tuesday. "But not enough interest to review his claim." Stevenson, a lawyer with the Equal Justice Initiative in Alabama and a student of Court procedure, said he believed Tuesday marked the first time that the Court had voted against a so-called original habeas petition by a 5-4 vote.

Roe v. Flores-Ortega Supreme Court readjusts the rules for appellate ineffectiveness examining this time what happens when no appeal is filed and counsel has not consulted her client.

Held:

1. Strickland v. Washington, 466 U.S. 668, provides the proper framework for evaluating a claim that counsel was constitutionally ineffective for failing to file a notice of appeal. Under Strickland, a defendant must show (1) that counsel’s representation “fell below an objective standard of reasonableness,” id., at 688, and (2) that counsel’s deficient performance prejudiced the defendant, id., at 694. Pp. 4—15.

(a) Courts must “judge the reasonableness of counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,” 466 U.S., at 690, and “[j]udicial scrutiny of counsel’s performance must be highly deferential,” id., at 689. A lawyer who disregards a defendant’s specific instructions to file a notice of appeal acts in a professionally unreasonable manner, see Rodriquez v. United States, 395 U.S. 327, while a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following those instructions, his counsel performed deficiently, see Jones v. Barnes, 463 U.S. 745, 751. The Ninth Circuit adopted a bright-line rule for cases where the defendant has not clearly conveyed his wishes one way or the other; in its view, failing to file a notice of appeal without the defendant’s consent is per se deficient. The Court rejects that per se rule as inconsistent with Strickland’s circumstance-specific reasonableness requirement. The question whether counsel has performed deficiently in such cases is best answered by first asking whether counsel in fact consulted with the defendant about an appeal. By “consult,” the Court means advising the defendant about the advantages and disadvantages of taking an appeal and making a reasonable effort to discover the defendant’s wishes. Counsel who consults with the defendant performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions about an appeal. If counsel has not consulted, the court must ask whether that failure itself constitutes deficient performance. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights. Pp. 5—9.

(b) The second part of the Strickland test requires the defendant to show prejudice from counsel’s deficient performance. Where an ineffective assistance of counsel claim involves counsel’s performance during the course of a legal proceeding, the Court normally applies a strong presumption of reliability to the proceeding, requiring a defendant to overcome that presumption by demonstrating that attorney errors actually had an adverse effect on the defense. The complete denial of counsel during a critical stage of a judicial proceeding, however, mandates a presumption of prejudice because “the adversary process itself” has been rendered “presumptively unreliable.” United States v. Cronic, 466 U.S. 648, 659. The even more serious denial of the entire judicial proceeding also demands a presumption of prejudice because no presumption of reliability can be accorded to judicial proceedings that never took place. Respondent claims that his counsel’s deficient performance led to the forfeiture of his appeal. If that is so, prejudice must be presumed. Because the defendant in such cases must show that counsel’s deficient performance actually deprived him of an appeal, however, he must demonstrate that there is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed. This standard follows the pattern established in Strickland and Cronic, and mirrors the prejudice inquiry applied in Hill v. Lockhart, 474 U.S. 52, and Rodriquez v. United States, 395 U.S. 327. The question whether a defendant has made the requisite showing will turn on the facts of the particular case. Nonetheless, evidence that there were nonfrivolous grounds for appeal or that the defendant promptly expressed a desire to appeal will often be highly relevant in making this determination. The performance and prejudice inquiries may overlap because both may be satisfied if the defendant shows nonfrivolous grounds for appeal. However, they are not in all cases coextensive. Evidence that a defendant sufficiently demonstrated to counsel his interest in an appeal may prove deficient performance, but it alone is insufficient to establish that he would have filed the appeal had he received counsel’s advice. And, although showing nonfrivolous grounds for appeal may give weight to the defendant’s contention that he would have appealed, a defendant’s inability to demonstrate the merit of his hypothetical appeal will not foreclose the possibility that he can meet the prejudice requirement where there are other substantial reasons to believe that he would have appealed. Pp. 10—15.

2. The court below undertook neither part of the Strickland inquiry and the record does not provide the Court with sufficient information to determine whether Ms. Kops rendered constitutionally inadequate assistance. The case is accordingly remanded for a determination whether Ms. Kops had a duty to consult with respondent (either because there were potential grounds for appeal or because respondent expressed interest in appealing), whether she satisfied her obligations, and, if she did not, whether respondent was prejudiced thereby. Pp. 15—16.

160 F.3d 534, vacated and remanded.

O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Thomas, and Breyer, JJ., joined, and in which Stevens, Souter, and Ginsburg, JJ., joined as to Part II—B. Breyer, J., filed a concurring opinion. Souter, J., filed an opinion concurring in part and dissenting in part, in which Stevens and Ginsburg, JJ., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part.

More on the Supreme Court at the National Law Journal's Law News Network's Supreme Court Perspectives

United States v. Johnson Supreme Court holds that even though one is incarcerated unjustly, that period of unlawful incarceration does not count against any supervised release time that a petitioner was sentenced to serve.

Held: This Court is bound by the controlling statute, 18 U.S.C. § 3624(e), which, by its necessary operation, does not reduce the length of a supervised release term by reason of excess time served in prison. Under §3624(e), a supervised release term does not commence until an individual “is released from imprisonment.” The ordinary, commonsense meaning of “release” is to be freed from confinement. To say respondent was released while still imprisoned diminishes the concept the word intends to convey. Section 3624(e) also provides that a supervised release term comes “after imprisonment,” once the prisoner is “released by the Bureau of Prisons to the supervision of a probation officer.” Thus, supervised release does not run while an individual remains in the Bureau of Prisons’ custody. The phrase “on the day the person is released” in §3624(e) suggests a strict temporal interpretation, not some fictitious or constructive earlier time. Indeed, the section admonishes that “supervised release does not run during any period in which the person is imprisoned.” The statute does provide for concurrent running of supervised release in specific, identified cases, but the Court infers that Congress limited §3624(e) to the exceptions set forth. Finally, §3583(e)(3) does not have a substantial bearing on the interpretive issue, for this directive addresses instances where conditions of supervised release have been violated, and the court orders a revocation. While the text of §3624(e) resolves the case, the Court’s conclusion accords with the objectives of supervised release, which include assisting individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration. The Court also observes that the statutory structure provides a means to address the equitable concerns that exist when an individual is incarcerated beyond the proper expiration of his prison term. The trial court, as it sees fit, may modify the individual’s supervised release conditions, §3583(e)(2), or it may terminate his supervised release obligations after one year of completed service, §3583(e)(1). Pp. 3—7. 154 F.3d 569, reversed and remanded. Kennedy, J., delivered the opinion for a unanimous Court.No. 98-1696

Capital Cases

Jones v. Gibson (10th Cir) "[P]etitioner asserts the following grounds for relief: (1) there is insufficient evidence in the record to support the unconstitutionally applied heinous, atrocious, or cruel aggravating circumstance; (2) his right to remain silent and his right to confrontation were violated; (3) the prosecutor improperly questioned him, leading the jury to believe he would be released if found not guilty by reason of insanity; and (4) his appellate counsel provided ineffective assistance."

II. VIOLATION OF CONSTITUTIONAL RIGHTS

A. Fifth Amendment Violations

Petitioner argues the prosecutor violated his Fifth Amendment right to silence by (1) cross-examining petitioner about his refusal to discuss the shooting incident during his sanity evaluation and (2) presenting the psychiatrist who examined petitioner to testify regarding his refusal to discuss the incident. Respondents argue, as they did in the district court, that this claim is procedurally barred. We agree.

Petitioner raised this claim in his first post-conviction application, and the Oklahoma Court of Criminal Appeals found it to be procedurally defaulted. SeeJones, 704 P.2d at 1140. Petitioner again raised this claim in his first federal habeas petition and also intertwined it with an ineffective assistance of appellate counsel claim. The federal district court directed petitioner to exhaust the ineffective assistance claim. Petitioner, however, failed to raise this claim in the second state post-conviction application either alone or specifically as part of his ineffective assistance of appellate counsel claim. In his revised federal habeas petition, petitioner again argued the claim should be heard on its merits because appellate counsel was ineffective. The federal district court considered the claim on the merits for that reason. Respondents, however, urge that this court not consider the merits of the claim because petitioner has failed to assert in state court his ineffective assistance of appellate counsel claim. See Murray v. Carrier, 477 U.S. 478, 489 (1986) (deciding claim of ineffective assistance of counsel should be presented to state courts as independent claim before it may be asserted as cause for procedural default).

We conclude the merits of the ineffective assistance of appellate counsel claim are unexhausted because petitioner did not argue ineffective assistance of appellate counsel with respect to this claim in his second post-conviction application. See O'Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 1731, 1732 (1999); see also Smallwood, 191 F.3d at 1267 ("Although petitioner raised an ineffective assistance of counsel claim . . ., he based it on different reasons than those expressed in his habeas petition[, and therefore] failed to exhaust his ineffective assistance of counsel claim[]."); Demarest v. Price, 130 F.3d 922, 938-39 (10th Cir. 1997) (finding ineffective assistance claim unexhausted when petitioner made general allegations in state court and specific allegations in federal habeas petition). The state courts, however, would now find this unexhausted claim procedurally barred on independent and adequate state grounds. See Smallwood, 191 F.3d at 1267 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991)). This court, therefore, will consider this procedurally defaulted claim only if petitioner can show cause for his default and resulting prejudice or a fundamental miscarriage of justice if the federal courts fail to consider the claim. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman, 501 U.S. at 749-50).

Petitioner cannot show cause. He presents no reason for failing to raise this ineffective assistance of appellate counsel claim in his second post-conviction application, despite being directed to do so by the district court, and despite the Oklahoma Court of Criminal Appeals' consideration of other claims of ineffective assistance of appellate counsel raised for the first time in that application.

Also, this court's failure to review this claim will not result in a fundamental miscarriage of justice, because petitioner cannot show actual innocence in light of his admitting the shootings. See Smallwood, 191 F.3d at 1269. Accordingly, we conclude this claim is procedurally barred.

B. Right to Confront State's Witness

Petitioner argues he should have been allowed to cross-examine Ms. Linker about criminal charges pending against her, her mental health history, and her relationship with the decedent in order to show her bias. On the morning of the first day of trial, the trial court granted the State's motion in limine preventing petitioner from questioning Ms. Linker about (1) charges pending against her for DUI, feloniously carrying a firearm after former conviction of a felony, and burglary; (2) her mental health history, other than her mental capacity at the time of the shootings; and (3) a previous sexual relationship with Mr. Buck, Sr. See Tr. vol. 1 at 1-9. At that time, counsel objected. He indicated that the pending charges were relevant because they suggested the district attorney had made a promise of leniency to Ms. Linker. See id. At trial, during cross-examination of Ms. Linker, petitioner's counsel asked her if she had ever carried a firearm and if she had carried one on the night of the murder. She asserted her Fifth Amendment right against self-incrimination to the first question and answered "no" to the second. See id. vol. 2 at 468-69. Counsel did not ask Ms. Linker about any pending criminal charges or contest the ruling on the motion in limine regarding these charges. Counsel attempted to ask Ms. Linker about her previous mental history. The State objected, and the trial court reminded counsel about the motion in limine. See id. at 470. Although Ms. Linker testified she had dated Mr. Buck, Sr., counsel did not ask her about the nature of her relationship with him. See id. at 490.

1. Procedural Bar/Waiver

Respondents argue this claim is procedurally barred. Petitioner first raised this claim in his first state post-conviction application. The Oklahoma Court of Criminal Appeals found it to be barred. See Jones, 704 P.2d at 1140. Petitioner also raised the claim in his second post-conviction application. The Oklahoma appellate court discussed the merits of the claim under the ineffective assistance of appellate counsel argument, determining (1) the trial court erred in not allowing defense counsel to cross-examine Ms. Linker on the pending charges in order to show her possible bias; (2) counsel failed to preserve the issue during cross-examination of Ms. Linker; and (3) any error in not allowing petitioner to impeach Ms. Linker was harmless because her testimony was cumulative to Mr. Buck, Jr.'s testimony. See Jones, No. PC-91-0756, slip op. at 6-7.

On federal habeas corpus review, the district court concluded that (1) any error concerning pending charges or Ms. Linker's relationship with Mr. Buck, Sr. was waived, because counsel should have contested the ruling on the motion in limine during cross-examination of Ms. Linker; and (2) any error regarding any of the three areas was harmless because trial counsel effectively and thoroughly cross-examined Ms. Linker and because the excluded material was not relevant to petitioner's defense.

Petitioner did waive any claims with respect to Ms. Linker's pending charges and her relationship with the decedent. Under Oklahoma law, a motion in limine is advisory. See Cheatham v. State, 900 P.2d 414, 427 (Okla. Crim. App. 1995). To preserve an issue, a defendant must make an offer of proof during trial or attempt to introduce evidence at trial. See Mitchell v. State, 884 P.2d 1186, 1197-98 (Okla. Crim. App. 1994). Petitioner did not make an offer of proof during trial, and his attempt to introduce evidence was limited to only the mental health issue.

Despite the waiver, the Oklahoma Court of Criminal Appeals decided this claim on its merits when it addressed the claim of ineffective assistance of appellate counsel raised in the second post-conviction application. Thus, state procedural bar does not preclude federal habeas review. Cf. Crease v. McKune, 189 F.3d 1188, 1192 (10th Cir. 1999); Hooks, 184 F.3d at 1215 (citing Ylst v. Nunnemaker, 501 U.S. 797, 801-03 (1991)).

2. Merits

The Sixth Amendment right to confrontation includes the right to cross-examination. See Davis v. Alaska, 415 U.S. 308, 315 (1974). "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id. at 316-17; see also Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Whether the jury would have been influenced by any possible bias of Ms. Linker is pure speculation. Nonetheless, the jury was entitled to have the benefit of a full cross-examination as to her possible bias in order to determine what weight to give her testimony. See Davis, 415 U.S. at 317; Alford v. United States, 282 U.S. 687, 693 (1931) (holding that where witness was in prosecutor's custody due to pending charges, petitioner was "entitled to show by cross-examination that his testimony was affected by fear or favor"); see also Davis, 415 U.S. at 318 n.6 (recognizing Alford involved federal criminal trial, but noting constitutional dimension of holding applies to state criminal conviction); Bui v. DiPaolo, 170 F.3d 232, 241-42 (1st Cir. 1999) (stating petitioner's entitlement to cross-examine witnesses "increases in sensitivity in direct proportion to witness's importance" to state's case), petition for cert. filed (U.S. June 14, 1999) (No. 98-9840). Thus, reviewing de novo, see Hatch, 58 F.3d at 1467, we conclude the trial court improperly curtailed cross-examination in violation of petitioner's right to confrontation.

Our analysis does not end here. Harmless error analysis applies to Confrontation Clause cases. See Van Arsdall, 475 U.S. at 680, 684. When a federal court considers a Confrontation Clause violation in a habeas proceeding, the relevant harmless error analysis is "whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error," id. at 684, "had substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38 (1993) (quotation omitted). This court's harmless error review is de novo. See Tuttle v. Utah, 57 F.3d 879, 884 (10th Cir. 1995).

In reviewing for harmless error, this court examines "the entire record to determine the error's possible effect on the jury." Crespin v. New Mexico, 144 F.3d 641, 649 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998). Whether an error is harmless depends on (1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of the actual cross-examination; and (5) the overall strength of the State's case. See Van Arsdall, 475 U.S. at 684.

Ms. Linker was an important witness, see Tr. vol. 1 at 6 (both parties agreed that Ms. Linker was one of two main witnesses), whose testimony was not merely cumulative. Her testimony and the testimony of the other main witness, Mr. Buck, Jr., were inconsistent at times. Thus, the first two areas of inquiry suggest the error was not harmless.

The remaining areas of inquiry, however, suggest the error was harmless. Defense counsel carefully cross-examined Ms. Linker regarding the events occurring at the shooting. The jury was able to observe her demeanor and assess her credibility with respect to her description of these events. As the federal district court noted, defense counsel pointed out inconsistencies between petitioner's testimony at the preliminary hearing and her testimony at trial, and inconsistencies between her testimony and the testimony of other witnesses in an attempt to impeach her. Cf. Tapia v. Tansy, 926 F.2d 1554, 1557 (10th Cir. 1991) (determining defense counsel thoroughly examined witness and impeached him with prior inconsistent statements). Certainly her credibility could have been scrutinized more closely if the jury had heard testimony that she hoped for a favorable disposition of her pending charges. See Wright v. Dallman, 999 F.2d 174, 180 (6th Cir. 1993). Nothing in the record indicates, beyond mere speculation, however, that a promise for favorable disposition of pending charges actually had been made. See Tr. vol. 1 at 2 (defense counsel's suggestion jury had right to draw conclusions regarding promises State made or intended to make where carrying a firearm after former conviction of a felony had not gone to preliminary hearing in nine months and State had requested two continuances of that preliminary hearing after petitioner's preliminary hearing).

Also, the jury had some impeachment evidence before it. The State presented evidence that Ms. Linker had a previous first degree manslaughter conviction. See Tr. vol. 2 at 420; see also Davis, 415 U.S. at 316 (determining evidence of prior criminal conviction is general way to discredit witness). Ms. Linker testified that she had dated Mr. Buck, Sr. See Tr. vol. 2 at 490.

Finally, the evidence of petitioner's guilt was strong. By contrast, the evidence of his insanity was not. Petitioner's expert witnesses merely testified that it was reasonable to infer petitioner was temporarily insane and not aware of what he was doing at the time of the shootings. Other witnesses testified petitioner was calm and rational. The evidence excluded by the limitation on cross-examination was not material to the presentation of petitioner's defense.

Considering the evidence as a whole, we conclude the error in limiting cross-examination was harmless. It is unlikely the restriction on cross-examination had a substantial effect or influence on the jury's verdicts.

C. Cumulative Error

Petitioner argues the federal district court erred in failing to consider the combined effect of the right to confrontation and Fifth Amendment errors after it found the errors to be harmless individually. Petitioner did not make this argument in his revised habeas petition. Thus, this court need not consider it. See Oyler v. Allenbrand, 23 F.3d 292, 299 n.8 (10th Cir. 1994). In any event, this argument is without merit because petitioner procedurally defaulted his Fifth Amendment claim and the right to confrontation violation was harmless.

Combs v. Coyle (6th Cir) "Combs's appeal sets forth twenty-nine claims for relief; these claims fall under the headings of ineffective assistance of trial counsel at both the culpability and sentencing phases, ineffective assistance of appellate counsel, prosecutorial misconduct, trial court error, and imposition of an unconstitutional sentence of death. Because our resolution of Combs's ineffective assistance of trial counsel claim renders unnecessary a decision on the others, we will confine our opinion to an analysis of the ineffectiveness claim. Additionally, we will briefly discuss trial errors that have been identified by the Ohio state courts so as to ensure that these errors are avoided on Combs's retrial."

2.Defense Counsel's Failure to Object to the Unconstitutional Use of Combs's "Talk to My Lawyer" Statement

Combs first claims that his trial counsel provided ineffective representation by failing to object both to the prosecution's use of a statement made by Combs to a police officer and to the trial court's sua sponte jury instruction concerning the purposes for which the jury could consider that statement. As the Ohio Supreme Court found, after Combs had been shot Cincinnati police officer Douglas Ventre arrived on the scene and found Combs sitting on the ground and holding a shotgun. See Combs, 581 N.E.2d at 1074. Ventre then pulled the shotgun away from Combs and asked Combs what had happened, to which Combs replied "the guy shot me." Id. (internal quotation marks omitted). Ventre later repeated the same question as Combs was being placed into an ambulance, and Combs "told [Ventre] to talk to his lawyer." Id. (internal quotation marks omitted). After Officer Ventre testified about this "talk to my lawyer" statement, the trial court instructed:

Members of the jury, I am going to give you a special instruction at this time based upon the testimony that you heard the defendant Ronald Dean Combs has a constitutional right not to speak to members of law enforcement without counsel and not to speak to them. You cannot draw any inferences for or against the defendant because he may have requested an attorney or made no further statements to Officer Ventre when he was on the stretcher as Officer Ventre testified to.

You may consider this evidence, however, as it relates to the elements of purpose and prior calculation and design but what weight you give to this testimony depends upon your findings and the weight that you attribute to this testimony in this regard so please remember that.

R. at 1052-53; J.A. at 2673-74. Defense counsel did not object to this jury instruction, nor did they object to the prosecution's use of this statement at trial. In closing argument, the prosecution stated:

Talk to my lawyer. Talk to my lawyer. Does that sound like someone who's so intoxicated he doesn't know what is going on? Isn't that evidence that he realizes the gravity of the situation and at this time gave that particular comment or response to Officer Ventre?

R. at 1255; J.A. at 2761. Combs argues that "the trial court's instruction permitted, and the prosecution exploited, Mr. Combs' exercise of his right to consult with counsel as substantive evidence on the ultimate culpability phase issue -- Mr. Combs' intent." Pet'r Br. at 18.

In order to decide whether counsel's failure to object to the use of the "talk to my lawyer" statement was deficient, we must first determine whether the use of this statement was constitutionally defective such that any reasonable counsel would have objected under the circumstances. Although Combs's statement referred not to silence but to his right to an attorney, the admissibility of the statement is properly analyzed as a comment on prearrest silence. See Wainwright v. Greenfield, 474 U.S. 284, 295 n.13 (1986) ("With respect to post-Miranda warnings 'silence,' we point out that silence does not mean only muteness; it includes the statement of a desire to remain silent as well as of a desire to remain silent until an attorney has been consulted."). Combs's statement is best understood as communicating a desire to remain silent outside the presence of an attorney.

Combs grounds his argument about the admissibility of the statement in the Supreme Court's decision in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the petitioner took the stand at his trial for selling marijuana and explained, for the first time, that he had been framed. See id. at 612-13. For impeachment purposes, the prosecutor asked the petitioner why he had not told this story immediately after his arrest. See id. at 613. The petitioner was convicted, and he appealed on the ground that cross-examination regarding his post-arrest silence was error. See id. at 615. The Supreme Court held "that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Id. at 619. The theory underlying Doyle is that while Miranda warnings contain no express assurance that silence will carry no penalty, "such assurance is implicit to any person who receives the warnings." Id. at 618. On this reasoning, the Court concluded that it would be fundamentally unfair first to induce a defendant to remain silent through Miranda warnings and then to penalize the defendant who relies on those warnings by allowing the defendant's silence to be used to impeach an exculpatory explanation offered at trial. See id.

Later cases have restricted Doyle and have reaffirmed that the "fundamental unfairness" identified by the Court derives from the implicit assurances of the Miranda warnings. In Jenkins v. Anderson, 447 U.S. 231 (1980), the Court held that due process is not violated by the impeachment use of prearrest, pre-Miranda warnings silence, see id. at 238-39. In Fletcher v. Weir, 455 U.S. 603 (1982), the Court held that impeachment use of post-arrest, pre-Miranda warnings silence does not offend due process, see id. at 607. The Weir Court explained that Doyle was a case in which the government had actually induced silence with Miranda warnings, and it noted that any broadening of Doyle to a situation in which a defendant had not yet received Miranda warnings -- even if the defendant was in custody -- was unsupported by the reasoning of Doyle. See id. at 605-06.

In the instant case, Combs had not received Miranda warnings prior to his "talk to my lawyer" statement. The Ohio Supreme Court concluded that this was of no significance based on the following reasoning:

[A]t the point when Combs was placed in the ambulance, we find that Combs was in custody and had a right to remain silent, consult a lawyer, and receive a Miranda warning. When he arrived at the scene, Officer Ventre personally took the shotgun from Combs; there were two women dead from shotgun blasts in the adjacent car; and Ventre had been at the scene for some ten to fifteen minutes. Ventre's questioning, without a Miranda warning, violated those rights.

Combs, 581 N.E.2d at 1075-76. However, even if Combs should have received Miranda warnings prior to his "talk to my lawyer" statement, the Doyle rationale is still inapplicable. As we have explained, the Doyle line of cases clearly rests on the theory that Miranda warnings themselves carry an implicit assurance that silence will not be penalized; actual receipt of the warnings is key. Therefore, the comment on Combs's pre-Miranda silence did not violate due process.

This does not, however, rule out the possibility that such comment is a violation of Combs's Fifth Amendment privilege against self-incrimination. In Jenkins, in addition to ruling that impeachment use of a defendant's prearrest silence is not violative of due process, the Court also held that such use does not offend the Fifth Amendment's privilege against self-incrimination. See Jenkins, 447 U.S. at 238. The petitioner in that case took the stand at his murder trial and testified that he had killed in self-defense. See id. at 232. During cross-examination and again during closing arguments, the prosecutor, referring to the fact that the petitioner had waited two weeks to report the stabbing, attempted to impeach the petitioner's credibility by implying that he would have come forward earlier if he had truly killed in self-defense. See id. at 233-34. The Supreme Court easily disposed of the petitioner's Fifth Amendment objection to this use of his prearrest silence, relying on its 1926 decision in Raffel v. United States, 271 U.S. 494 (1926). Raffel held that the government may impeach a defendant who takes the stand in his own defense with his prior silence without violating the Fifth Amendment. See id. at 499. The Court in Raffel relied on a waiver theory, reasoning that a defendant waives his Fifth Amendment immunity from giving testimony by offering himself as a witness. See id. at 496-97. The Raffel Court concluded by explaining:

The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial or to any tribunal other than that in which the defendant preserves it by refusing to testify.

Id. at 499. The Jenkins Court therefore reasoned that the rule of Raffel permits impeachment use of prearrest silence.

The Jenkins Court went on to explain that permitting the impeachment use of a defendant's prior silence does not unconstitutionally burden the exercise of Fifth Amendment rights. See Jenkins, 447 U.S. at 236-38. The Court noted that the "'threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.'" Id. at 236 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973)). Relying on prior decisions, the Jenkins Court reasoned that the possibility of impeachment by prior silence does not impermissibly burden the privilege against self-incrimination. See id. at 236-38. These prior decisions suggested that a defendant's real dilemma lies in determining whether to testify or not; once a defendant has voluntarily taken the stand, the rule that he must testify fully does not significantly add to this dilemma and is indeed a defendant's obligation, as the privilege against self-incrimination "cannot be construed to include the right to commit perjury." Id. at 238 (quoting Harris v. New York, 401 U.S. 222, 225 (1971)). The Court then explained that "[i]n determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice." Id. at 238. The Court reasoned that the impeachment use of prearrest silence "enhance[s] the reliability of the criminal process" by giving prosecutors the chance to test a defendant's credibility by asking him to explain prior inconsistencies. Id. "Once a defendant decides to testify, '[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.'" Id. (quoting Brown v. United States, 356 U.S. 148, 156 (1958)) (alteration in original).

Jenkins did not, however, address the question at issue in this case, namely, whether the use of prearrest silence as substantive evidence of guilt violates the Fifth Amendment. See id. at 236 n.2 (leaving this question unresolved). That use of a defendant's prearrest silence as substantive evidence of guilt is significantly different than the use of prearrest silence to impeach a defendant's credibility on the stand is clear. In Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme Court held that the Fifth Amendment "forbids either comment by the prosecution on the accused's [refusal to testify at trial] or instructions by the court that such silence is evidence of guilt." The Court reasoned that a contrary rule would allow the state to submit as substantive proof of the defendant's guilt his silence by not testifying. See id. at 613 ("No formal offer of proof is made as in other situations; but the prosecutor's comment and the court's acquiescence are the equivalent of an offer of evidence and its acceptance."). Such proffer of the defendant's refusal to testify as evidence of guilt would impermissibly penalize the exercise of the privilege against self-incrimination and would "cut[] down on the privilege by making its assertion costly." Id. at 614.

The circuits that have considered whether the government may comment on a defendant's prearrest silence in its case in chief are equally divided. Three circuits have held that such use violates the privilege against self-incrimination found in the Fifth Amendment, relying principally upon Griffin. See United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.), cert. denied, 493 U.S. 969 (1989); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992); cf. United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981) ("Whatever the future impact of Jenkins may be, we have found no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government's direct case."; "[W]e are not confident that Jenkins permits even evidence that a suspect remained silent before he was arrested or taken into custody to be used in the Government's case in chief."). In Savory, the Seventh Circuit explained that because the defendant did not take the stand and because the prosecution referred to the defendant's silence as substantive evidence of guilt, the case did not involve the application of Doyle but rather the application of Griffin. See Savory, 832 F.2d at 1017. The Seventh Circuit reasoned that while Griffin involved governmental use of the defendant's silence at trial, "[t]he right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings." Id. at 1017. The court therefore concluded that Griffin's prohibition on the use of a defendant's silence as substantive evidence of guilt "applies equally to a defendant's silence before trial, and indeed, even before arrest." Id. In Coppola, the First Circuit cited Raffel and Griffin and reasoned that the "broad rule of law" set forth in those cases "is that where a defendant does not testify at trial it is impermissible to refer to any fifth amendment rights that defendant has exercised." Coppola, 878 F.2d at 1567. It therefore held that the prosecution's use of the defendant's prearrest silence in its case in chief violated the Fifth Amendment. See id. at 1568. The Tenth Circuit reached the same result in Burson: "The general rule of law is that once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised. To be sure, exceptions exist to this rule, such as the use of silence for impeachment in certain circumstances, but such exceptions have no applicability to the case before us." 952 F.2d at 1201 (citation omitted).

Three circuits, on the other hand, have reached the opposite conclusion. See United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996); United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir. 1998). In Rivera, the Eleventh Circuit, citing Jenkins, held that "[t]he government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings." Rivera, 944 F.2d at 1568. Although the defendant raised only a due process challenge to the use of her prearrest silence, the Eleventh Circuit found no constitutional infirmity with the use of that silence in the government's case in chief. See id. The Fifth Circuit in Zanabria held, without citing any cases, that the Fifth Amendment did not protect the defendant's prearrest silence because the silence at issue was not induced by the government. See Zanabria, 74 F.3d at 593. The court explained: "The fifth amendment protects against compelled self-incrimination but does not, as Zanabria suggests, preclude the proper evidentiary use and prosecutorial comment about every communication or lack thereof by the defendant which may give rise to an incriminating inference." Id. Most recently, the Ninth Circuit joined the Fifth and Eleventh Circuits in holding that the use of a defendant's prearrest silence as substantive evidence of guilt does not violate the Fifth Amendment. See Oplinger, 150 F.3d at 1067. The Ninth Circuit, following the reasoning of Justice Stevens's concurring opinion in Jenkins, explained that "the privilege against compulsory self-incrimination is irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak." Id. at 1066.

We agree with the reasoning expressed in the opinions of the Seventh, First, and Tenth Circuits, and today we join those circuits in holding that the use of a defendant's prearrest silence as substantive evidence of guilt violates the Fifth Amendment's privilege against self-incrimination. Like those circuits, we believe "that application of the privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime." Coppola, 878 F.2d at 1565. The Supreme Court has given the privilege against self-incrimination a broad scope, explaining that "[i]t can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (footnote omitted); see also Hoffman v. United States, 341 U.S. 479, 486 (1951) ("[The privilege] must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer."); Hoffman, 341 U.S. at 486-87 ("To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."). In a prearrest setting as well as in a post-arrest setting, it is clear that a potential defendant's comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply.

Furthermore, we note that even under the reasoning of Justice Stevens in his Jenkins concurrence, the Fifth Amendment would apply to Combs's situation. In Jenkins, Justice Stevens agreed with the majority that the Fifth Amendment was inapplicable to the petitioner's claim, but Justice Stevens objected to the majority's reliance on the waiver theory of Raffel. See Jenkins, 447 U.S. at 241 (Stevens, J., concurring in the judgment). Instead, Justice Stevens would have ruled that the Fifth Amendment does not apply to a precustody context: "When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent." Id. at 243-44 (footnote omitted).

Even assuming that the Fifth Amendment is inapplicable to precustody contexts, the privilege would still be applicable to Combs, for we agree with the Ohio Supreme Court's finding that Combs was in custody at the time he made the "talk to my lawyer" statement. In Stansbury v. California, 511 U.S. 318 (1994), the Supreme Court explained that "[i]n determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.'" Id. at 322 (citing California v. Beheler, 463 U.S. 1121, 1125 (1983)) (alteration in original). Moreover, in the custody determination, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Id. at 324 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)); see also United States v. Ozuna, 170 F.3d 654, 658 (6th Cir. 1999) ("Determination of whether an individual is in custody for purposes of applying the Miranda doctrine considers 'how a reasonable man in the [individual's] position would have understood the situation.'" (quoting Berkemer, 468 U.S. at 442) (alteration in original)). Applying that standard to the facts of this case leads to a conclusion that Combs was in custody when Officer Ventre asked him for the second time what had happened. Although Miranda warnings are not required prior to routine questioning when officers have no details concerning what happened when they arrive on the scene, see United States v. Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert. denied, 501 U.S. 1217 (1991), the instant case presents a different situation. Ventre personally took the shotgun away from Combs; he testified that he "pointed [his] weapon at the subject on the ground and ordered him to drop the shotgun" and that he "ordered him several times to drop the shotgun and [Combs] started raising the shotgun toward me." R. at 1042; J.A. at 2670 (Ventre Test.). In addition, ten or fifteen minutes passed from the time Ventre arrived on the scene until the second question. In that time, other officers had arrived and Ventre would surely have had some details about the incident. A reasonable person in Combs's situation could have believed that he was under arrest, and we therefore conclude that Combs was in custody.

Having decided that the privilege against self-incrimination applies to a prearrest situation, an analysis such as the one employed by the Court in Jenkins leads us to the conclusion that the use of prearrest silence as substantive evidence of guilt is an impermissible burden upon the exercise of that privilege. First, permitting the use of silence in the government's case in chief would substantially impair the policies behind the privilege. The Supreme Court in Murphy v. Waterfront Commission, 378 U.S. 52 (1964), explained:

[The privilege against self-incrimination] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load"; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life"; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent."

Id. at 55 (citations omitted). As the Jenkins Court recognized, when the government uses a defendant's prearrest silence for purposes of impeachment, these policies are largely not implicated; every defendant is already under some pressure to testify fully so that the jury does not draw an unfavorable inference from his silence (or partial silence), and a rule permitting a defendant to be impeached on the stand with prior silence does not add substantially to this pressure. If, on the other hand, prearrest silence may be used as substantive evidence of guilt regardless of whether or not the defendant testifies at trial, then the defendant is cast into the very trilemma outlined by the Murphy Court. Because in the case of substantive use a defendant cannot avoid the introduction of his past silence by refusing to testify, the defendant is under substantial pressure to waive the privilege against self-incrimination either upon first contact with police or later at trial in order to explain the prior silence. Perhaps most importantly, use of a defendant's prearrest silence as substantive evidence of guilt substantially impairs the "sense of fair play" underlying the privilege. Unlike in the case of impeachment use, the use of a defendant's prior silence as substantive evidence of guilt actually lessens the prosecution's burden of proving each element of the crime.

We also conclude that the government's use of a defendant's prearrest silence in its case in chief is not a legitimate governmental practice. Unlike the use of silence for impeachment purposes, the use of silence as substantive evidence of guilt does not enhance the reliability of the criminal process. Just as "every post-arrest silence is insolubly ambiguous," Doyle, 426 U.S. at 617, there are many reasons why a defendant may remain silent before arrest, such as a knowledge of his Miranda rights or a fear that his story may not be believed. The probative value of such silence is therefore minimal. Furthermore, the use of prearrest silence may even subvert the truthfinding process; because it pressures the defendant to explain himself or to suffer a court-sanctioned inference of guilt, the likelihood of perjury is increased. In sum, permitting the use of a defendant's prearrest silence as substantive evidence of guilt would greatly undermine the policies behind the privilege against self-incrimination while adding virtually nothing to the reliability of the criminal process.

In the instant case, Combs clearly invoked the privilege against self-incrimination by telling the officer to talk to his lawyer, thus conveying his desire to remain silent without a lawyer present. Combs never waived this privilege and did not testify at his trial. Therefore, the prosecutor's comment on Combs's prearrest silence in its case in chief and the trial court's instruction permitting the jury to use Combs's silence as substantive evidence of guilt violated Combs's Fifth Amendment rights.

Defense counsel's failure to object to the unconstitutional use of Combs's "talk to my lawyer statement" clearly fell below an objective standard of reasonableness. Although the contours of the privilege against self-incrimination may sometimes be unclear, that a defendant's silence cannot be used as substantive evidence against him at trial is a fundamental aspect of the privilege. Combs's counsel should have realized that the use of Combs's prearrest silence against him was at least constitutionally suspect and should have lodged an objection on that basis. Counsel's failure to have objected at any point is inexplicable, and we can perceive no possible strategic reason for such failure. Not only did the failure to object ensure that the jury could use Combs's protected silence against him, but it also guaranteed that both the admission of the statement and the trial court's instruction would be analyzed on review only for plain error. Counsel's performance with respect to this issue was constitutionally deficient under the Strickland standard.

Even if Combs's counsel failed to realize that use of the "talk to my lawyer" statement as substantive evidence of guilt might be unconstitutional, counsel still should have objected to the statement on evidentiary grounds. Ohio Rule of Evidence 401 provides the definition of "relevant evidence": "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ohio R. Evid. 401. Rule 403 provides:

(A) Exclusion mandatory.

Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

(B) Exclusion discretionary.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence.

Ohio R. Evid. 403. The Ohio Supreme Court concluded that the comments regarding the "talk to my lawyer" statement were improper under these rules, stating:

Additionally, the "talk to my lawyer" evidence does not relate to or tend to prove prior calculation and design or purposefulness. Combs' comment simply meant that he was exercising his right to counsel and nothing more. Even if this remark was initially admissible, Evid.R. 401 and 403 would otherwise invite exclusion from evidence. No justification is apparent for the instruction that the evidence related to either purposefulness or prior calculation and design. Thus, we conclude the trial court erred in allowing this remark into evidence and in instructing the jury to consider the remark in relation to purposefulness and prior calculation and design.

Combs, 581 N.E.2d at 1076.

A reasonable defense attorney would have known that the admission of the "talk to my lawyer" statement was prejudicial to the client and would have objected on the basis of Rule 403. Such an objection would have had at least a likelihood of success, given the Ohio Supreme Court's pronouncement on this issue. A Rule 403 objection to Officer Ventre's testimony could have prevented the erroneous instruction as well as the damaging use of the statement by the prosecution. . . . .

4.Defense Counsel's Overall Performance at the Culpability Phase

We next proceed to assess defense counsel's overall performance throughout the culpability phase of Combs's trial. We acknowledge that defense counsel presented significant evidence that Combs was intoxicated on the day of the shootings. However, the errors that we have identified are fundamental errors that were severely damaging to Combs's defense. In fact, we believe that each of the errors that we have identified is independently sufficient to warrant a conclusion that Combs's counsel's performance was constitutionally deficient. However, these errors were compounded by other failures on the part of defense counsel.

For example, Combs's counsel failed to investigate and to present available physical evidence of Combs's intoxication on the day of the shootings. Combs argues that, had defense counsel investigated this matter, they would have found out from his mother that "when [she] got the car back [from the police after their investigation] there were wine cooler bottles, and beer cans in the car" and that "[a] cooler in the back still contained two beers." J.A. at 1304 (Aff. of Geraldine Combs). At trial, Officer Zompero, who is a police criminalist, testified that he had conducted a search of Combs's car, but had not found any kind of container that would be used to hold alcohol such as a beer can, wine cooler can, or whiskey bottle. R. at 1081; J.A. at 2700 (Zompero Test.). Investigating the presence of alcohol containers in the car would have enabled defense counsel to present some corroborating physical evidence of Combs's intoxication, and would also have enabled counsel to respond to Zompero's allegedly inaccurate testimony.

Additionally, Combs's counsel made no attempt to redact portions of a videotaped testimony that may have been prejudicial to Combs. At trial, the videotaped testimony of Tony Liming, who was then fifteen years old, was presented by the prosecution Liming was with Combs when he obtained a gun on the day of the shootings; he also testified as to Combs's use of drugs and alcohol on a regular basis and on the day in question. At one point, Stidham asked Liming what his feelings toward Combs were. Liming answered: "He is, I guess I liked him, I mean I liked him. He like did stuff, stole stuff from my mom and I didn't like that." R. at 944; J.A. at 2631 (Tony Liming Test.). Combs argues that counsel should have sought to have this "highly prejudicial 'other acts'" evidence redacted prior to trial pursuant to Ohio Rule of Evidence 404(B), and we agree. The statement is likely excludable under Rule 404(B); it does not go to any permissible purpose, and it might tend to leave the jury with an overall bad impression of Combs's character. Considering the potential prejudice from the statement, counsel clearly erred by failing to seek redaction.

Counsel's overall performance is particularly shocking given the fact that this case involves the death penalty. Strickland instructed that "[p]revailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides." Strickland, 466 U.S. at 688. ABA Standard 4-1.2(c) states that "[s]ince the death penalty differs from other criminal penalties in its finality, defense counsel in a capital case should respond to this difference by making extraordinary efforts on behalf of the accused." ABA Standards for Criminal Justice Prosecution Function and Defense Function 120 (3d ed. 1993).

5. Prejudice

In order to establish prejudice, Combs "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland, 466 U.S. at 693. He must instead show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt about his guilt. See id. at 695. The defense theory was that Combs's intoxication rendered him unable to act with purpose or prior calculation and design, and yet defense counsel made two crucial errors that substantially undercut this theory. We conclude that each of these errors is sufficiently prejudicial to satisfy the Strickland standard.

Presentation of Dr. Fisher's testimony is perhaps the most devastating error. The testimony of the sole defense expert that Combs, although intoxicated, nevertheless acted with purpose and intent was obviously damaging to the defense. Furthermore, Dr. Fisher's testimony provided the State with its most powerful evidence of purpose. R. at 1226-27; J.A. at 2744-45 (State's Closing Argument at Culpability Phase) (naming Dr. Fisher's testimony first in connection with the purpose element).

Defense counsel's failure to object to the use of Combs's "talk to my lawyer" statement was similarly damaging. Just as Dr. Fisher's testimony partly relieved the State of its burden of proof on an element of the offense, the State strategically used Combs's protected silence as evidence that Combs was acting rationally, and thus with purpose and prior calculation, after the shootings; the trial court's instruction encouraged the jury to make that inference.

Of course, the State presented other evidence of Combs's purpose and prior calculation and design. As the Ohio Supreme Court pointed out:

Combs spent a considerable part of the afternoon of the murders searching for a shotgun. He asked two people for a shotgun, and eventually drove over eighty miles before returning to Cincinnati with a shotgun. The evidence indicates he stole the shotgun he used. After he drove back to Cincinnati, he confronted Joan and Peggy and initiated a car chase over several blocks, eventually cornering them at the Holiday Park Tower office building. He deliberately knocked out a window in their car and fired a shotgun into each woman's head at close range. Those facts alone establish both purposefulness and prior calculation and design.

Combs, 581 N.E.2d at 1076. However, Combs offered an alternative reason for his search for a gun; rather than spending the afternoon searching for the means to commit two murders, Combs suggested that he was searching for a means to kill himself. There was evidence that Combs was contemplating suicide at the time. One witness testified that Combs sounded suicidal just days before the incident, and another witness testified that just before the shootings, Combs said that he was going to be with his father, who was dead. R. at 1192; J.A. at 2612 (Charles Hogue Test.); R. at 942 (Tony Liming Test.). Combs also argued that the car chase just prior to the shootings was not an effort to hunt the two women down, but rather an effort to talk with Peggy Schoonover after other channels of communication had been cut off.

The two critical errors by defense counsel bolstered the State's case and made Combs's explanation of the events seem less likely. Without Fisher's testimony and without the use of Combs's "talk to my lawyer" statement, the State's evidence of purpose and prior calculation and design would have been much weaker. We therefore conclude that absent defense counsel's errors, there is a reasonable probability that the jury would have concluded that the State did not meet its burden of proving the two contested elements, and thus that the jury would have had a reasonable doubt about Combs's guilt.

Federal habeas relief is available to petitioners in state confinement as a result of a proceeding that was rendered fundamentally unfair by a violation of the Constitution, laws, or treaties of the United States. See Norris, 146 F.3d at 323 (citing Estelle v. McGuire, 502 U.S. 62, 68 (1991)). The Supreme Court has explained that "[a]n ineffectiveness claim, . . . as our articulation of the standards that govern decision of such claims makes clear, is an attack on the fundamental fairness of the proceeding whose result is challenged." Strickland, 466 U.S. at 697. Combs has satisfied both prongs of the Strickland test, and in so doing he has demonstrated that his "counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. He is therefore entitled to a conditional grant of habeas relief.

Beets v. Texas Board of Pardons and Parole (5th Cir) Holding no power exists to stay an execution in a § 1983 case, Panel affirms the denial of clemency.

Before us are a notice of appeal and brief on appeal by death-sentenced petitioner Betty Lou Beets, who seeks review of the district court's refusal to stay her execution presently scheduled for 6:00 p.m. on February 24, 2000. We agree with the district court's determination that it had no authority to stay an execution in a § 1983 case, and we therefore affirm.

Some anomalies in the filings before this court should be noted. First, petitioner has not formally moved for a stay of execution and attempted to support her motion with citation to applicable authority. Because the final clause of the conclusion of her appeal brief requests a stay, we assume that the technical lacunae are filled. Second, Petitioner has failed to move for IFP status. We grant her the benefit of the doubt on that. Inasmuch as the outcome of petitioner's appeal has been foreshadowed by guiding law in this circuit for the last year, it is not obvious why we should make these concessions. They are appropriate only because of the lateness of the hour.

This court has twice held that federal courts lack jurisdiction under § 1983 to stay executions. Faulder v. Johnson, 178 F.3d 741 (1999); Moody v. Rodriguez, 164 F.3d 893 (5th Cir. 1999). As in the previous two cases, petitioner asserts that the Texas Board of Pardons & Paroles did not properly handle her actual or potential clemency proceedings. She also alleges she is entitled to clemency review under standards applicable to petitioners who were battered spouses. The essence of Beets's petition is a last-minute effort to defeat and delay her execution. Beets concedes, however, that Faulder and Moody are indistinguishable, and this panel is bound by them, absent en banc review of the full court.

For the sake of completeness, we note that her claim of denial of due process is without merit. Inasmuch as the legislative battered-spouse clemency review resolution -- S.C.R. 26 -- excludes perpetrators of capital crimes, she is ineligible. Beets was found guilty of murder with the specific intent of pecuniary gain. The record established that the shooting of her husband was carefully premeditated, as was its concealment, and her actions after his death were consistent with a profitmaking intent. There is no record evidence that she was abused by this victim. On the contrary, at trial, she blamed his death on her son, denied mistreatment by Mr. Beets, and professed her love for him.

That this claim of spousal abuse surfaced six days before her scheduled execution date detracts from Beets's petition. When S.C.R. 26 was passed, nine years ago, Beets was engaged in her first federal habeas proceeding, represented by counsel who are experienced and tenacious. This issue could have been raised before the Pardons & Parole Division of the Texas Department of Criminal Justice, the Texas Board of Pardons & Paroles, and state or federal courts at any time. We question how counsel can aver that they were "unaware" of their alternatives under this resolution until February 4, 2000.

Confronting a similar situation, the Supreme Court held that relief should be denied:

Equity must take into account the state's strong interest in proceeding with its judgment and [the petitioner's] obvious attempt at manipulation. . . . There is no good reason for this abusive delay, which has been compounded by last-minute attempts to manipulate the judicial process. A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.

Gomez v. United States District Court of the Northern District of California, 503 U.S. 653, 653-54, 112 S.Ct. 1652, 1653 (1993).

The judgment of the district court, which granted the state's motion for summary judgment and denied a stay of execution, declaratory judgment, temporary restraining order and preliminary injunction, is AFFIRMED.

Habeas Cases

Triana v. United States (2nd Cir) Petitioner appeals the denial of his "motion to vacate his conviction on the ground that both of Triana's attorneys at trial labored under conflicts of interest. Affirmed."

Harris v. United States (6th Cir) "The § 2255 motion rested on the proposition that Mr. Harris was denied effective assistance of counsel as a result of his first lawyer's failure to object to the manner in which a presentence investigation report calculated Harris' criminal history score and his base offense level under the United States Sentencing Guidelines. (The key issue is whether Ohio misdemeanor convictions should be assigned criminal history points where the convictions resulted in "PNC" sentences of one year or more.) The district court denied the motion, and Mr. Harris appeals. We see no merit in the objections Harris says his lawyer ought to have raised, and we shall affirm the district court's order."

Matthew v. Johnson (5th Cir) "Matthew appeals the district court's denial of his petition for a writ of habeas corpus, arguing that the court erred in ruling that in pleading nolo contendere, he waived his claim that the State violated his constitutional rights when it failed to disclose allegedly material exculpatory information. We affirm."

Hughes v. Booker (5th Cir) "[A]s the district court correctly noted, the Mississippi Court of Appeals did not examine the record to determine if any nonfrivolous appellate issues existed. Nor did the district court make such a determination. It is not the role of this court to scour the record --unassisted by an Anders brief or a state court ruling--in an effort to identify nonfrivolous appellate issues. The essence of Hughes' constitutional deprivation was that he was denied the effective assistance of an appellate advocate; our independent review of the record cannot remedy this denial. Cf. Lofton, 905 F.2d at 888 ("[W]hen a court had to consider the record without the advice of counsel, reversal was mandated.")."

Hunt v. Early (9th Cir) Petitioner "appeals from the district court's dismissal of his habeas corpus petition as untimely under the one-year statute of limitation established by 28 U.S.C. S 2244(d)(1), the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Whalem/Hunt contends that the failure until June 1998 of the North Kern State Prison to provide legal materials containing the AEDPA constituted an impediment to filing the petition created by state action such that the limitation period began to run on a later date under S 2244(d)(1)(B). We have jurisdiction under 28 U.S.C. SS 1291 and 2253, and we affirm."

Swartz v. Meyers (3rd Cir) "This appeal requires us to interpret the language "properly filed" and "pending." More specifically, we must decide whether a petition brought under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. SS 9541-9546, is "properly filed" and "pending" during the time between the Pennsylvania Superior Court's ruling and the expiration of time for seeking an allowance of appeal from the Pennsylvania Supreme Court when the petitioner did not file a timely request for allowance of appeal. We conclude that a PCRA petition is "properly filed" and "pending" during that time."

Wilson v. Walker (2nd Cir) " On appeal, petitioner-appellant argues that the District Court erred in holding that he had waived his Sixth Amendment right to self-representation through abandonment before his trial in state court for robbery. Affirmed."

Section 1983 & Related Filings

Searcy v. Donelson (8th Cir) Civil rights and Bivens action against federal and county officials relating to the seizure of property to pay delinquent taxes. Dismissal of claims against officials properly dismissed on immunity, statute of limitations grounds. Grant of summary judgment to federal defendants on counterclaim to nullify liens filed on personal assets affirmed. No merit to judicial misconduct claim. Motion for sanctions granted.

Herron v. Harrison (6th Cir) Sixth Circuit remands for a hearing on whether prison officials, under Circuit precedent, impermissibly retaliated for the giving of legal aide advice.

Brooks v. Kyler (3rd Cir) "[W]e look to Hudson v. McMillian, 503 U.S. 1 (1992), in which the Supreme Court concluded that proof of significant injury was not an independent requirement for an Eighth Amendment claim of excessive and wanton force. Following Hudson's focus on the force used, as opposed to the injury inflicted, we conclude that although the degree of injury is relevant for any Eighth Amendment analysis, there is no fixed minimum quantum of injury that a prisoner must prove that he suffered through objective or independent evidence in order to state a claim for wanton and excessive force."

Sarlund v. Anderson (7th Cir) "This is a suit under 42 U.S.C. sec. 1983 against 28 federal, state, and local law enforcement officers, who are alleged to have conspired to deprive the plaintiff of his civil rights in retaliation for his reporting the defendants' misconduct to their superiors and insisting that the defendants investigate drug offenses which he claims to have discovered while working as a confidential informant." Suit dismissed under the fugitive disentitlement theory.

LaLonde v. County of Riverside (9th Cir) Appellant "brought a civil rights action alleging that Officers Robert Moquin and Jason Horton (i) illegally entered his home without a warrant and (ii) used excessive force during and after his arrest. LaLonde claimed that the officers were both liable for these acts and that the County of Riverside was also liable on the excessive force claim. With regard to the illegal entry claim, the district court issued a pretrial order granting the officers qualified immunity. With regard to the excessive force claim, after the plaintiff presented his final witness at a jury trial, the district court issued a judgment as a matter of law granting the officers qualified immunity and dismissing the plaintiff's claim against the County of Riverside. In all instances, the district court erred by failing to evaluate the facts in the light most favorable to the plaintiff and by resolving disputed issues of material fact. LaLonde's claims should have been heard and decided by a jury."

Huskey v. San Jose (9th Cir) "We conclude that the facts Huskey alleged were insufficient as a matter of law to support his S 1983 claims. We therefore reverse the denial of the individual defendants' motion for a summary judgment on Huskey's S 1983 claims on the basis of qualified immunity. Because the denial of the City's motion for a summary judgment on the S 1983 claims is inextricably intertwined with the constitutional issues presented in the appeal of the individual defendants, we conclude that we have jurisdiction over the City's interlocutory appeal and reverse."

McCoy v. Hernandez (5th Cir) Appellant "challenges the district court's refusal to apply the doctrine of collateral estoppel in his § 1983 action against several officers in the Dallas Police Department. For the following reasons we affirm."

Jones v. City of Jackson (5th Cir) Defendants "appeal the district court's denial of their motion for summary judgment, in which they claimed qualified, absolute and sovereign immunity from Joseph Jones's causes of action brought pursuant to 42 U.S.C. § 1983 and Mississippi state law. . . . We AFFIRM the denial of qualified immunity as to Jones's Sixth and Fourteenth Amendment claims, and REMAND this case to the district court for further proceedings. We REVERSE the district court and grant Tannehill and McMillin qualified immunity on Jones's Fourth, Fifth and Eighth Amendment claims. Finally, we REVERSE the denial of summary judgment for defendants on Jones's state law claim. "

Resendiz v. Miller (5th Cir) Plaintiffs "filed suit pursuant to 42 U.S.C. § 1983 (1994) alleging that the defendants violated their Fourth Amendment rights by arresting them without probable cause and without a warrant. The district court granted the defendants' motion for summary judgment on the basis of qualified immunity after determining that the arrest was based on probable cause.

In Depth

This week's installment of "in depth" examines Eighth Amendment jurisprudence(From at the Habeas Assistance Training gang from AOC). This will be the last installation of Eighth Amendment analysis from HAT until the next update of that site.

IX. CATEGORICAL BANS: CAN A PERSON BE EXECUTED AT ALL?

The Eighth Amendment places substantive limitations on the state's use of the death penalty. There are some persons, or classes of persons, whom the state cannot execute, and there are some crimes for which the death penalty is not a possible punishment.

In determining whether a particular punishment falls within the Eighth Amendment's prohibition against "cruel and unusual punishments," the Supreme Court has employed two methods of analysis. The first is to determine whether the Framers of the Constitution intended to prohibit a particular form of punishment when they adopted the cruel and unusual punishments clause. Under this analysis, the purpose of the clause is to protect American citizens from punishments which were considered unnecessarily cruel, torturous, or barbarous by English law at the time the Eighth Amendment was adopted. Solem v. Helm, 463 U.S. 277, 285-86 (1983); id. at 312-13 (Burger C.J., joined by White, Rehnquist, and O'Connor, J.J., dissenting ). Accordingly, whether the Framers intended the Eighth Amendment to preclude a particular punishment depends in turn upon the view taken by the common law toward the punishment. See generally Ford v. Wainwright, 477 U.S. 399 (1986).

The second method of analysis rests on the premise that the Framers "intended the Eighth Amendment to go beyond the scope of its English counterpart... ," Solem v. Helm, 463 U.S. at 286, and "'draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" Gregg v. Georgia, 428 U.S. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). The analysis of a particular punishment, in light of "the evolving standards of decency," involves two inquiries. First, the Court assesses contemporary standards of decency by focusing upon "objective indicia that reflect the public attitude toward a given sanction," Gregg v. Georgia, 428 U.S. at 173, including "the historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made." Enmund v. Florida, 458 U.S. 782, 788 (1982). Second, "informed by [these] objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592 (1977), the Court "bring[s] its own judgment to bear on the matter," Enmund v. Florida, 458 U.S. at 788-89, in order to determine whether the sanction "comports with the basic concept of human dignity at the core of the Amendment." Gregg v. Georgia, 428 U.S. at 182.

While the "basic concept of human dignity" is an expansive and somewhat subjective concept,26 the Court has consistently identified two principles for its application. While these principles are certainly not the only tools that can be used to show that a punishment violates human dignity, they are instructive. The first is that to "accord with 'the dignity of man,'" a punishment "[can]not be 'excessive.'" Gregg v. Georgia, 428 U.S. at 173. This means that the state must have "penological justification" for inflicting a punishment. Id. at 183. With respect to the death penalty, the execution of an individual offender must, therefore, serve at least one of "two principal social purposes: retribution and deterrence of capital crimes by prospective offenders." Id.

Unless the death penalty when applied to one in [petitioner's] position measurably contributes to one or both of these goals, it is 'nothing more than the purposeless and needless infliction of suffering'....Enmund v. Florida, 458 U.S. at 798 (quoting Coker v. Georgia, 433 U.S. at 592) (emphasis supplied).

The second principle grows out of the first. The concept of human dignity cannot allow "the infliction of unnecessary pain in the execution of the death sentence." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) (emphasis supplied). While infliction of "the necessary suffering involved in any method employed to extinguish life humanely" is permissible, id., the infliction of "unnecessary" suffering is intolerable.

The Court has applied these principles, with increasing reluctance, to several categories of offenders/offenses:

Coker v. Georgia 433 U.S. 584 (1977) Court held that the death penalty cannot be imposed for the crime of rape.

Enmund v. Florida 458 U.S. 782 (1982) Court held that Earl Enmund's death sentence -- Enmund was the "wheel man" in a robbery felony/murder -- was disproportionate because he did not kill, intend to kill, or know that a killing would take place. 458 U.S. at 801. In Tison v. Arizona, 481 U.S. 137 (1987), Enmund was modified to say that the death penalty is permissible if the defendant was a major participant in a felony resulting in death and demonstrated a reckless disregard for human life.

Ford v. Wainwright 477 U.S. 399 (1986) Court held that a person who is incompetent or insane at the time of his execution cannot be put to death.

Thompson v. Oklahoma 487 U.S. 815 (1988) Court held that the death penalty cannot be imposed on a fifteen year old. However, in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court ruled that there was no per se ban against the execution of sixteen and seventeen year olds convicted of murder.

Penry v. Lynaugh 492 U.S. 302 (1989) Court held that there was no per se bar to the execution of mildly mentally retarded defendants.

Herrera v. Collins 506 U.S. 390 (1993) Although rejecting Herrera's claim, the Court recognized that a "truly persuasive demonstration" of actual innocence, based on newly discovered evidence raised for the first time in collateral proceedings, would preclude the state from carrying out an inmate's death sentence.

Errata

The Death Penalty Information Center offers the following news:

Georgia Supreme Court Will Hear Electric Chair Challenge

The Georgia Supreme Court agreed to hear the case of Troy Anthony Davis, regarding the constitutionality of Georgia's electric chair. At the same time, the Georgia legislature is considering changing the state's method of execution to lethal injection. (Associated Press, 2/25/00)

Eliminating Death Penalty Would Save California Millions

Costs. "Elimination of the death penalty would result in a net savings to the state of at least several tens of millions of dollars annually, and a net savings to local governments in the millions to tens of millions of dollars on a statewide basis." --Joint Legislative Budget Committee of the California Legislature, Sept. 9, 1999 (The Catalyst, 2/22/00)

Florida's First Execution by Lethal Injection

Recent Executions. On February 23, Terry Melvin Sims became the first inmate executed by lethal injection in Florida. During a special session in January, the Florida Legislature approved lethal injection as an alternate means of executions, giving death row inmates the option of choosing lethal injection or the electric chair. See also, Methods. (Associated Press, 2/23/00)

Supreme Court Rejects Electric Chair Challenge

The U.S. Supreme Court declined to hear the case of Alabama death row inmate Robert Tarver, Jr., who challenged the constitutionality of Alabama's electric chair. (In re Tarver, No. 99-8044) The Court granted Tarver a stay of execution on February 4, to decide whether to hear oral arguments in his case. The Court may use another case to review the constitutionality of the electric chair in the three remaining states that use electrocution as their sole method of execution. (Associated Press 2/22/00 and New York Times, 2/23/00)

Minorities Dominate Federal Death Penalty

Since the reinstatement of the federal death penalty, 76% of the defendants approved for capital punishment are members of minority groups. Of the 188 defendants against whom the Attorney General has authorized the government to seek the death penalty, 45 have been white, 35 Hispanic, 10 Asian/Indian, and 98 African American. Currently, 74% of the 19 inmates under active federal death sentences are non-white. (Federal Death Penalty Prosecutions, 1988-00, 2/4/00)

Kansas Governor Urges Re-examination of the Death Penalty

During a news conference on February 17, Kansas Governor Bill Graves noted the importance of making sure innocent people were not convicted and urged governors to take another look at their death penalty systems. "I think it's probably healthy for everyone in this country to re-examine what's happening in their stated," said Graves. "No one wants anyone to enter into our judicial system and be wrongly convicted of any crime and suffer any consequences, especially being put to death, if they're not guilty." (Associated Press 2/18/00)

Defenders Paid Below Average in County that Sends Most to Death Row Hamilton County, Ohio, which sends more people to death row than any other county in the state, pays public defenders less to represent capital clients than almost any other county. According to the Cincinnati Enquirer, state records show Hamilton County ranks 87th out of Ohio's 88 counties in hourly rate paid to its court-appointed public defenders. The rate of pay for capital defenders is the same rate paid to those defending minor felony cases. The pay rate, $30 an hour, is 57% below the state average. "I think it's an insult that those lawyers aren't paid more," said Prosecutor Mike Allen. "It's not appropriate to compensate at that level. It's one of the toughest jobs in the system." (Associated Press 2/3/00)

Missouri Prosecutors and Defense Attorneys Work Together to Stop Executions of the Mentally Retarded

Richard Callahan, Director of the Association of Prosecuting Attorneys, is working with Kansas City defense attorney Sean O'Brien to craft a new House bill to eliminate the execution of mentally retarded persons in Missouri. At the same time, Joseph P. Teasdale, the Missouri Governor who presided over the reinstatement of the state's death penalty in 1977, now believes the death penalty is wrong. "We have a moral duty to honor life," said Teasdale, now a Kansas City lawyer. (Kansas City Star 2/13/00)