The news of the week continues to be the odd stay war that has developed over the issue of lethal injection. Question remain as to why some executions are being stayed and others are not. Unfortunately, the stay litigation has resulted in few published, unpublished or memorandum opinions. Few, if any, of the resulting orders and opinons are available Lexis, Westlaw, or other source. Stay tuned here and to the habeas-l (as well as the other various litigation lists) for more information.

In addition to the shadow war over stays there are other developments to report. The Fifth Circuit has been taking some unusual moves of late. In Roberts v. Dretke a panel has granted a Certificate of Appealability in a published opinion on the issue of counsel's penalty phase performance; a different panel did the same in an unpublished opinion inSmith v. Dretke. Roberts and SmithSmith are part of a sudden increase in the amount of favorable decisions from the Fifth Circuit regarding COAs and grants of relief. Whether the increase in favorable actions by that Court is anything more than a passing fad remains to be seen.

In other favorable decisions, the Oklahoma Court of Criminal Appeals in

In focus this week are two training seminars and the few requests for resumes including the hunt for a new head for the Multi-County Public Defender in Georgia.

As always thanks for reading. - k

EXECUTION INFORMATION

SUPREME COURT

No cases noted

HOT LIST

Roberts v. Dretke 2004 U.S. App. LEXIS 311 (5th Cir 1/9/2004) COA granted on claims that trial counsel rendered ineffective assistance of counsel by failing to properly develop evidence of Roberts's mental illness, and by failing to make adequate use of his court-appointed psychiatrist.

Roberts argues that the state court's decision holding that Pickell's assistance was not ineffective was an unreasonable application of clearly established federal law, and that the district court's conclusion to the contrary is at least debatable among jurists of reason. To demonstrate ineffective assistance of counsel, Roberts must show (1) that Pickell's performance was deficient, falling below an "objective standard of reasonableness," and (2) that Pickell's deficient performance prejudiced his defense (i.e., "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'"). Williams v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); [*13] Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

A

In his request for a COA, Roberts's argues that Pickell's performance was deficient because of his inadequate trial preparation, including his failure to hire an investigator and interview witnesses for trial including Roberts's family members about testifying as mitigating witnesses in the punishment phase of his trial; because of his failure to properly develop evidence of Roberts's mental illness; and, finally, because of his failure to make adequate use of his court-appointed psychiatrist. Roberts complains that even though Pickell "had reason to suspect that Roberts was suffering from serious mental health problems" he failed to request Roberts's previous mental health records, to conduct any in-depth investigation into Roberts's social and psychological background, and to request anything but a cursory mental health evaluation of Roberts.

Roberts first argues that Pickell failed to hire an investigator or contact and interview witnesses for trial including Roberts's family members about testifying at the punishment phases of the trial concerning his rough childhood, [*14] battles with depression, and possible brain damage. See Wiggins v. Smith, 123 S. Ct. 2527, 2535-37, 156 L. Ed. 2d 471 (2003) (holding that "investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence . . . [including evidence of] family and social history.") (internal quotations and emphasis omitted); Strickland, 466 U.S. at 691 ("Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). We have held that when a defendant blocks his attorney's efforts to defend him, including forbidding his attorney from interviewing his family members for purposes of soliciting their testimony as mitigating evidence during the punishment phase of the trial, he cannot later claim ineffective assistance of counsel. See Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir. 1984) ("By no measure can [defendant] block his attorney's efforts and later claim the resulting performance was constitutionally deficient."); Felde v. Blackburn, 795 F.2d 400, 401-02 (5th Cir. 1990). However, if the defendant [*15] was not competent to make those instructions then he may pursue his Strickland claim. See Autry, 727 F.3d at 362.

Largely based on the affidavit submitted by Pickell, the state habeas court determined that Roberts was competent to instruct his counsel on trial strategy. Subsequent to the state habeas hearing, Roberts's discovered that Pickell's affidavit was a virtual carbon copy of an affidavit that the attorney had submitted in a different case. In the federal district court, Roberts submitted the affidavit from the other case as new evidence challenging the presumption that the state habeas court's factual conclusion that Roberts was competent to direct his trial strategy was correct. The district court did not review the evidence, deferring to the state habeas court's factual determination that Roberts was competent.

"[A] determination of a factual issue made by a State court shall be presumed correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). "If the applicant has failed to develop the factual basis of a claim in State court proceedings, [*16] the court shall not hold an evidentiary hearing on the claim . . . ." 28 U.S.C. § 2254(e)(2). This is unless the claim relies on "a factual predicate that could not have been previously discovered through the exercise of due diligence," 28 U.S.C. § 2254(e)(2)(A)(ii), and the claim provides sufficient grounds for habeas relief, see 28 U.S.C. § 2254(e)(2)(B). No court has considered whether due diligence requires that a party investigate the existence of affidavits from unrelated cases to determine whether ones submitted in its case are carbon-copies of those in others. However, engaging in the time and labor intensive task of investigating the records of unrelated cases for evidence that, in almost all instances, will bear no relevant, much less useful, evidence is beyond the requirements of due diligence. Therefore, the district court should have considered this new evidence in determining whether to accept the state habeas court's factual determinations.

A side-by-side comparison of the two affidavits demonstrates that Pickell used boiler-plate language both in his description of Roberts and in explaining [*17] his determination that Roberts was competent to direct trial strategy. However, this use of boiler-plate language, by itself, does not put into question the veracity of either Pickell's observations or his conclusions; nor does it put into question the state habeas court's factual determinations. Although Pickell used much of the same language to describe Roberts as he did the defendant in the other case, if those descriptions were accurate, the recycling of the language is not problematic. The relevant concern is whether Pickell accurately described his impressions of Roberts and whether his conclusions as to Roberts's competence were based in fact and were genuine. Roberts presents no evidence challenging either the veracity or the ultimate accuracy of Pickell's descriptions or conclusions. He only challenges Pickell's choice of language. This is not enough to rebut the presumption of correctness of the state habeas court's determination as to Roberts's competence as there is no new evidence suggesting its determination is inaccurate. As the state habeas court found that Roberts was competent to direct trial strategy, Roberts cannot sustain a Strickland claim as he instructed [*18] his attorney to do the very thing he now claims demonstrates counsel was ineffective. Thus Roberts's claim that Pickell was ineffective for failing to hire an investigator and contact and interview witnesses for trial including Roberts's family members about testifying at the punishment phase of Roberts's trial fails as a matter of law, and jurists of reason would not find this determination debatable.

Roberts also argues that Pickell was deficient for failing to properly develop evidence of Roberts's mental illness. Pickell's affidavit, provided to the state habeas court, indicates that, prior to trial, he was aware of Roberts's "previous hospitalization for psychiatric problems" following a "suicide attempt." Yet, even though he was aware that Roberts had previously been admitted for treatment at a psychiatric institution, he did not request or obtain the record of that hospitalization. Where, as here, counsel is aware of the client's history of mental problems, the reasonableness of a decision made by counsel not to investigate that history is suspect. See Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) ("Tactical decisions must be made in the context [*19] of a reasonable amount of investigation, not in a vacuum . . . It must be a very rare circumstance indeed where a decision not to investigate would be 'reasonable' after counsel has notice of the client's history of mental problems."). Thus, it is at least debatable that Pickell violated his duty to make a reasonable investigation by failing to obtain -- -- and investigate the content of -- -- the record of Roberts's treatment for "suicide ideation." See id; see also Brown v. Sternes, 304 F.3d 677, 694 (7th Cir. 2002) ("Where a defense attorney has received information from a reliable source that his client has had a history of psychiatric problems, but failed to adequately investigate the history, counsel failed to provide effective assistance.").

As a part of his claim that Pickell was deficient for failing to properly develop evidence of Roberts's mental illness, Roberts argues that Pickell was deficient for failing to obtain a full neurophysical examination (including an EEG) of Roberts. The district court decided that this aspect of Roberts's ineffective assistance claim was procedurally barred because it was not "fairly presented" to the state courts such [*20] that it was not exhausted and could not be considered in federal court. See 28 U.S.C. § 2254(b)(1)(A). Roberts contends that the district court erred in applying the procedural bar because Roberts presented substantial evidence that, in failing to grant the full amounts requested in his motions for investigative assistance, the Texas Court of Criminal Appeals deprived his state habeas attorney of the funding needed to develop and present these claims. n5 See 28 U.S.C. § 2254(b)(1)(B)(ii) (providing an exception to the exhaustion requirement when "circumstances exists that render such [state] process ineffective to protect the rights of the applicant."). This argument fails as there is no right to counsel in habeas proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) ("there is no constitutional right to an attorney in state post-conviction proceedings . . . consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings."); Martinez v. Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001). By implication, there [*21] is no right to funding of state habeas counsel. The claims were not exhausted and were properly dismissed.

Roberts also contends that jurists of reason could debate whether Pickell's failure to make adequate use of his court-appointed psychiatrist constituted deficient performance. Jurists of reason could debate whether Pickell's failure to furnish Dr. Arambula with the record of Roberts's treatment at a psychiatric hospital or failure to inform Dr. Arambula of Pickell's childhood head injury constituted deficient performance. See Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997) (holding trial counsel ineffective for failing to present expert with readily available mitigating evidence); Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995) (holding trial counsel ineffective for failing to adequately prepare testifying trial expert with recent mental health records which would have changed the defense expert's diagnosis, as well as state expert's diagnoses).

B

A "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, 466 U.S. at 694.

In the district court, Roberts presented evidence of his mental health records and affidavits [*23] from family members documenting his mental difficulties. This evidence was first introduced in federal habeas proceedings, and we may not consider this evidence as it was not properly presented to the state habeas court. See 28 U.S.C. § 2254(e)(2). We may consider it if it evidences a "factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2)(A)(ii). Seeking and presenting medical records and affidavits from family members available at the time of the state habeas hearing is within the exercise of due diligence. Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000). This new evidence may not be considered by this Court.

However, Roberts did present evidence to the state habeas court that he suffered a head injury as a child, and Pickell's affidavit concedes that he knew of Roberts's attempted suicide and bouts with depression. The Supreme Court has emphasized that defendant's troubled history is relevant to declaring his moral culpability, and that a defendant's "life history is a part of the process of inflicting the penalty of death." Wiggins, 123 S. Ct. at 2543 [*24] (quoting Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)); see Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) ("Evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse."). Considering Pickell presented no evidence of Roberts's life history, and there is evidence that he suffered from head injuries and mental disease, the reliability of the jury's determination as to Roberts's culpability is, at best, questionable, and thus a reasonable jurist could debate whether Roberts has demonstrated prejudice.

CAPITAL CASES (Favorable Disposition).

Smith v. Dretke , 2004 U.S. App. LEXIS 162 (5th Cir 1/7/2004)(unpublished) COA granted and further briefing ordered on Petitioner's claims relating to the failure of trial counsel to adequately investigate and present mitigation evidence.

Harris v. Oklahoma , 2004 Okla. Crim. App. LEXIS 2;2004 OK CR 1 (Okla. Crim. App. 1/7/2004) Trial court's instruction in response to the penalty phase jury's question on where the defendant would serve his time if a life sentence was imposed was erroroneous.

Idaho v. Yager , 2004 Ida. LEXIS 1 (Id 1/4/2004) In pertinent part, cop-killer aggravator can only aggravate a murder to death eligibility when the police officer is killed in the line of duty.

Miller v. Alabama,2004 Ala. Crim. App. LEXIS 9 (Ala. Crim. App. 1/6/2004) Remand ordered "for the court to correct its sentencing order and make specific findings of fact regarding the existence of the aggravating circumstance that this offense was especially heinous, atrocious, or cruel when compared to other capital offenses."

CAPITAL CASES (Unfavorable Disposition)

Morris v. Dretke , 2004 U.S. App. LEXIS 183 (5th Cir 1/6/2004) (unpublished) COA denied as Petitioner procedurally defaulted all claims.

Melson v. Alabama, 2004 Ala. Crim. App. LEXIS 2 (Ala. Crim. App. 1/6/2004) Trial court 's summary rejection of post-conviction petition upheld. Post-conviction appeal apparently filed out of time (procedural history not readily understandable however it appears local counsel imperfectly filed his notice of appeal).

Wood v. Alabama, 2004 Ala. Crim. App. LEXIS 1 (Ala. Crim. App. 1/6/2004) Petitioner held not to be mentally retarded. Counsel found not to be ineffective in failing to investigate and prepare for the penalty phase. No error in trial court's verbatim adoption of the state's proposed order in denying relief.

Tennessee v. Holton 2004 Tenn. LEXIS 1 (Tenn 1/5/2004) Relief denied most notably on claims relating to: sufficiency of the convicting evidence, the constitutionality of the statutory insanity defense, the constitutionality of Tennessee's capital sentencing scheme in light of Apprendi v. New Jersey and Ring v. Arizona and proportionality.

Nebraska v. Covery , 2004 Neb. LEXIS 5;267 Neb. 210 (Neb 1/9/2004) Statutory period for speedy trial act tolled during pendency of a change of venue motion.

California v. Valdez , 2004 Cal. LEXIS 4 (CA 1/6/2004) (dissent) Relief denied most notably on claim that the trial court had a sua sponte duty to instruct on the lesser included offense of second degree murder because there was no substantial evidence to support such an instruction. Dissent notes this error is especially harmful in light of the "(1) another instruction given--which failed to distinguish the first degree felony-murder charge from the robbery-murder special-circumstance allegation--and (2) an evidentiary error--which denied the defense evidence that the police found and arrested another person at the crime scene with blood on his clothing."

OTHER NOTABLE CASES

Young v. Dretke , 2004 U.S. App. LEXIS 271 (5th Cir 1/9/2004) (noncapital) Trial counsel's failure to move to dismiss, with prejudice, the indictment was ineffective.

Davis v. del Papa, 2004 U.S. App. LEXIS 206 (9th Cir 1/7/2004) (noncapital) Counsel failed to conduct a reasonable investigation on Davis's behalf before advising him to enter a guilty plea.

FOCUS

The Focus this edition is the information from a few emails I have received regarding either job openings or upcoming training seminars:

OCDLA & OCU School of Law announce

Criminal Defense in the Death Belt

March 18 & 19, 2004

http://ocdlaonline.com/deathbelt%20seminar%2004.pdf

This is your opportunity to experience a blend of prominent speakers and local experts on one of the major issues of our justice system. The Oklahoma Criminal Defense Lawyers Association, in association with Oklahoma City University School of Law, presents this comprehensive, two-day program. This is a chance to hear and discuss the issue of criminal defense and capital punishment with some of the strongest leaders in the legal community and government today. Space is limited, so register today!

Featured Speakers

Governor George Ryan, Illinois

Mark Fuhrman of "Death & Justice"

James T. Rowan, OKC

Gary James, OKC

Clark Brewster, Tulsa

Mark Cunningham, Ph.D.

Kathy Wayland, Ph.D.

Monica Foster, Indianapolis

David Doefler, M.Div

Steve Presson, Norman

Kim Marks, OIDS

Kristy Christopher, Asst. Fed. P. D., OKC

Mark Henricksen, El Reno

Cynthia Hartung, Ph.D.

Vicki Werneke, OIDS, and others

Susan Otto, Federal Public Defender, Oklahoma City

Pat Ehlers, Assistant Federal Public Defender, Portland, OR

Reception & Book Signing March 18, 2004 Sponsored by OCDLA, Law Office of John Hunsucker & Law Office of Ron Wallace.

For More Information, please contact:

Cathy Hammarsten, 405-713-1567

John Hunsucker, 405-231-5600

Jean Giles, 405-521-5882

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March 13-16, 2003

Life In The Balance 2004

Memphis, Tennessee

Contact: Aimee Gabel

Phone: 202.452.0620

Email: a.gabel@nlada.org

NLADA's Life in the Balance conference brings together mitigation specialists, defense investigators, and capital defense attorneys from around the nation to improve their skills and techniques in all aspects of death penalty defense. Seminars are offered on the latest scientific, medical and psychiatric developments in capital cases; on the most recent developments in the law; and on a wide range of creative trial strategies and tactics. The conference also offers several "discuss your own case" seminars, in which participants will be able to brainstorm the problems and issues of their own real cases, with some of the leading death penalty specialists in the country. Beyond an excellent learning environment, the conference gives participants an opportunity to meet and exchange ideas with other attorneys and mitigation specialists from around the nation.

Click Here for a Brochure and Registration form (in pdf format) (http://www.capdefnet.org/pdf_library/NLADA_2004.pdf),

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Position Announcement: THE MULTI-COUNTY PUBLIC DEFENDER (Atlanta, GA)

THE GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL SEEKS APPLICANTS FOR DIRECTOR OF THE OFFICE OF THE MULTI-COUNTY PUBLIC DEFENDER

The Office of the Multi-County Public Defender was created to undertake the defense of indigent persons charged with a capital felony for which the

death penalty is being sought in any court in Georgia. (O.C.G.A. 17-12-101)

Effective January 1, 2005, the Office of the Multi-County Public Defender shall become The Office of the Georgia Capital Defender, which will be responsible by statute for the defense of all indigent persons who are charged with a capital felony for which the death penalty is being sought in any court in Georgia. (O.C.G.A. 17-12-121)

The Director of the Office of the Multi-County Public Defender (and The Office of the Georgia Capital Defender beginning January 1, 2005) shall be appointed by and shall serve at the pleasure of the Georgia Public Defender Standards Council. The Director must have been licensed to practice law

in Georgia for at least five years and must be competent to counsel and defend a person charged with a capital felony. The salary of the Director

shall be established by the Georgia Public Defender Standards Council. (O.C.G.A. 17-12-105)

The Director must meet the qualifications to sit as lead counsel as outlined in the Georgia Court Rules and Procedures, Unified Appeal (effective January 27, 2000) which include criteria for lead counsel at a death penalty trial or direct appeal.

The Director should have experience in law firm or law office administration and in the supervision of criminal trial attorneys. The Director must also have significant expertise in writing and teaching about state and federal law regarding the death penalty as well as significant experience in training lawyers to defend death penalty cases.

The Director cannot engage in the private practice of law.

To apply, submit a cover letter and current resume to:

Matthew Rubenstein, Interim Director

Multicounty Public Defender

104 Marietta Street, Suite 200

Atlanta, GA 30303

Closing Date: Friday, February 6, 2004. Applications received after 5:00 PM on that date will not be considered.

THE GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL IS AN EQUAL OPPORTUNITY EMPLOYER.

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CENTER FOR CAPITAL LITIGATION

1247 Sumter St. Suite 303

Columbia, SC 29201

(803) 765-0650 (voice)

(803) 765-0705 (fax)

The Center for Capital Litigation (formerly the Post-Conviction Defender Organization of South Carolina (1995-96) and the South Carolina Death Penalty Resource Center (1988-1995)) is seeking an experienced Staff Attorney. Three-plus years of capital trial, appeal, or post-conviction experience preferred, but others will be considered.

The Center for Capital Litigation (CCL) is a private 501(c)(3) non-profit corporation providing direct representation and consultation to indigent capital defendants and death-sentenced inmates primarily in South Carolina. The CCL serves as counsel of record for numerous death-sentenced inmates in state capital post-conviction proceedings and in federal habeas corpus proceedings in South Carolina and elsewhere. On occasion, the CCL represents capital defendants at trial. In addition to providing direct representation for indigent death-sentenced inmates, the CCL serves as a resource center for appointed counsel in capital cases. In its capacity as a resource center, the CCL has assisted appointed counsel by drafting pleadings, assisting with the identification and retention of necessary experts, and providing various resource materials.

The Staff Attorney position entails legal research, drafting pleadings, interviewing clients and witnesses, conducting discovery and investigations, and providing direct courtroom representation in state post-conviction and federal habeas corpus proceedings. The position also involves supervision and training of junior counsel and interns and consulting with outside counsel.

Applications should include a statement of interest, resume, writing sample, and reference list, and should be submitted to:

Teresa L. Norris, Director

Center for Capital Litigation

Post Office Box 11311

Columbia, SC 29211

(803) 765-0650

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

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY),TalkLeft.com (general criminal defense news) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).

SUBSCRIBING & ARCHIVES

Capital Defense Weekly is published forty (40) times (or so) a year with the archives accessible from the pull down bar located at http://capitaldefenseweekly.com/index.html.