This edition brings a major California win, Ashmus v. Woodford . The Ninth Circuit has held that California does not meet the requirements for "opt-in" and sets forth at some length their rationale. Unfortunately the Fifth Circuit in examining has not been so benevolent in Clark v. Johnson on the subject of discovery, evidentiary hearings, and a continuances in federal court.

Illinois has announced a moratorium on executions due to the high number of innocents released from its death row.

In depth examines state waiver of the AEDPA.

Supreme Court

Liberty is secure, the Supreme Court is in recess.

Capital Cases

Clark v. Johnson (5th Cir) Clark seeks a COA from this Court on each of the following issues: (1) whether summary judgment is an appropriate mechanism for the disposition of petitions for habeas corpus relief filed pursuant to 28 U.S.C. § 2254; (2) whether Clark was afforded an adequate opportunity to develop the factual basis underlying his claims for relief, i.e. whether he was entitled to discovery and an evidentiary hearing before summary judgment would have been appropriate; (3) whether the district court erred in deferring to state court findings regarding his claims A, B, C, E, and F, because he had not been afforded the opportunity to develop the underlying factual basis for those claims at an evidentiary hearing; (4) whether the district court erred in failing to grant a continuance so as to permit Clark to develop the underlying factual basis of his claims; (5) whether the district court erred in denying Clark the appointment of an expert in forensic pathology to help develop his claims; (6) whether the district court erred in deferring to as reasonable the state habeas court's findings regarding his claims that a juror failed to disclose the extent of her relationship with the prosecutor thus violating his due process rights; and (7) whether the trial court's failure to define "mitigating evidence" in the punishment charge to the jury unconstitutionally denied Clark an appropriate vehicle for consideration of such evidence."

Clark's second, third, and fourth issues are related, and revolve around the district court's alleged error in refusing to allow Clark discovery, an evidentiary hearing, and a continuance, all of which he requested in an effort to investigate and develop the underlying factual basis of his claims, specifically, his claims related to a juror's alleged failure to fully disclose the extent of a personal relationship with the prosecutor and the State's alleged use of testimony from a subsequently discredited pathologist. He contends that his claims required extensive investigation because the pertinent facts are "usually hidden," and that he would have needed a few more months to "continue to develop a claim." According to Clark, summary judgment was inappropriate in the face of his undeveloped claims.

With regard to discovery, an evidentiary hearing, and a continuance for more time to conduct an investigation of his claims, Clark exhausted all of the funds provided by the state court for investigation, and his request for additional funds was denied. He again requested discovery, an evidentiary hearing, a continuance, and the appointment of a pathologist expert in his federal habeas case in order to develop his juror bias and discredited pathologist claims. His requests were denied by the district court.

Under AEDPA, a habeas petitioner's entitlement to an evidentiary hearing when he has failed to develop the factual basis of a claim is restricted to the narrow exceptions of 28 U.S.C. § 2254(e)(2), which provides:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). These exceptions apply only where the failure to develop the factual basis is directly attributable to a decision or omission of the petitioner. See McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998).

Relying on McDonald, Clark argues that § 2254(e)(2) does not apply to preclude an evidentiary hearing here because the failure to fully develop the record below is not attributable to any fault of his own, but rather to the state court's failure to permit him additional discovery. While we agree that § 2254(e)(2) does not apply to Clark's situation, as we stated in McDonald, overcoming the preclusive effect of § 2254(e)(2) does not guarantee an evidentiary hearing, it only opens the door for one. See McDonald, 139 F.3d at 1059-60. Pursuant to Rule 8 of the Rules Governing § 2254 Cases, the district court retains discretion over the decision to grant an evidentiary hearing once a petitioner overcomes the barriers presented by § 2254(e)(2). See id. at 1060. The district court's decision to deny Clark's request for an evidentiary hearing will thus be reviewed by us on appeal for an abuse of discretion. See id. Likewise, the district court's decision regarding the availability of discovery is also committed to the sound discretion of the district court, and is reviewed under the abuse of discretion standard. See Rule 6(a) of the Rules Governing § 2254 Cases; Campbell v. Blodgett, 982 F.2d 1356 (9th Cir. 1993). Our pre-AEDPA jurisprudence is instructive in evaluating whether the district court's denial of discovery and an evidentiary hearing was an abuse of discretion.

Prior to the enactment of AEDPA, we consistently held that when there is a factual dispute which "'if resolved in the petitioner's favor, would entitle [the petitioner] to relief and the state has not afforded the petitioner a full and fair hearing,' a federal habeas corpus petitioner is entitled to discovery and an evidentiary hearing." Perillo v. Johnson, 79 F.3d 441, 444 (5th Cir. 1996) (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994); see also Moawad v. Anderson, 143 F.3d 942, 947-48 (5th Cir.), cert. denied, 119 S. Ct. 383 (1998). To find an abuse of discretion which would entitle Clark to discovery and an evidentiary hearing to prove his contentions, we would necessarily have to find that the state did not provide him with a full and fair hearing and we must be convinced that if proven true, his allegations would entitle him to relief. See Moawad, 143 F.3d at 948.

With respect to whether Clark was afforded a full and fair hearing by the state court, Clark contends that he requested additional funds (once he exhausted those provided by the state court) and an evidentiary hearing to develop the record, but that the state court denied his requests. The state court then denied his request for state habeas relief based upon the pleadings and affidavits which had been submitted and without holding a live evidentiary hearing, i.e. Clark was given only a "paper hearing." See Perillo, 79 F.3d at 446 n.7.

A full and fair hearing does not necessarily require live testimony. Indeed, we have repeatedly found that a paper hearing is sufficient to afford a petitioner a full and fair hearing on the factual issues underlying the petitioner's claims, especially where, as here, the trial court and the state habeas court were one in the same. See id. at 446-47 (listing cases where the presumption of correctness, which attached to factual determinations made after a full and fair hearing under the pre-AEDPA version of § 2254(d), was established with only a paper hearing before the same state judge who presided over the criminal trial). We conclude that the state habeas court, after first presiding over Clark's criminal trial, after providing Clark with state-funded exploration of his claims, though not to the extent Clark may have liked, and after considering the pleadings and affidavits before it, provided Clark with a full and fair hearing.

In evaluating whether the district court abused its discretion in denying Clark discovery and an evidentiary hearing, we next consider whether there is a factual dispute which, if resolved in Clark's favor, would entitle him to relief. Based upon our review of the record, including all of the affidavits submitted by Clark in support of his petition, we find that Clark has alleged no fact which if proved, would entitle him to relief on his habeas claims.

Clark's allegations with respect to the State's testifying pathologist, Dr. Erdmann, do not involve specifics. Rather, Clark contends that "many problems [were] discovered in autopsies conducted by Dr. Erdmann." Clark presented no specific evidence of misconduct in the performance of the victim's autopsy in this case. In his request for the appointment of an expert forensic pathologist, Clark did advise the district court that a Dr. Glen Groben, after reviewing Dr. Erdmann's testimony, initially opined that Dr. Erdmann's procedures and conclusions may be false or misleading. However, the cited passages of Dr. Groben's initial opinion reference only differences of opinion and allegations of the lack of other physical evidence to support Dr. Erdmann's conclusions as to the sequence of the victim's injuries. No specific errors are cited. We previously examined a nearly identical allegation involving the same Dr. Erdmann in Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996), cert. denied, 117 S. Ct. 968 (1997). In Boyle, the petitioner presented evidence by other experts who disagreed with Dr. Erdmann's conclusions, but since Erdmann's testimony was consistent with the overwhelming physical evidence, we found that the presumption of correctness owed to the state habeas court's findings, which findings rejected the claim that Erdmann testified falsely or mislead the jury, had not been overcome. See Boyle, 93 F.3d at 186-87.

Here as well, the overwhelming evidence, including Clark's unassailed confession, comports with Dr. Erdmann's conclusions as to the sequence and extent of the victim's injuries, the sexual assault, and the cause of death. Indeed, the record clearly reveals that even without Dr. Erdmann's testimony, each of his conclusions had been independently established by other evidence and testimony. Furthermore, while Clark refers to evidence that Dr. Erdmann was accused of misconduct in other cases, he has presented no evidence that Dr. Erdmann did so in this case. Simply put, Clark has failed to present clear and convincing evidence sufficient to rebut the presumption of correctness to which the state habeas court's factual findings are entitled, and he has failed to establish that even if resolved in his favor, the factual dispute as to Dr. Erdmann's credibility would entitle him to relief.

With respect to Clark's claims that a juror failed to disclose the extent of her relationship with the prosecutor, Clark claims the facts underlying this claim are hidden and that he needed both time and more resources to complete his investigation and to develop a claim. His request is tantamount to a request for an impermissible fishing expedition. See Perillo, 79 F.3d at 444 (noting that Rule 6 of the Rules Governing § 2254 Cases "'does not authorize fishing expeditions.'") (quoting Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)). Discovery must relate solely to a specifically alleged factual dispute, not to a general allegation. See Ward, 21 F.3d at 1367.

In its order granting summary judgment and dismissing Clark's petition, the district court noted that Clark has failed to demonstrate by "clear and convincing" evidence that the state court's dispositive factual findings regarding his juror disclosure claims are incorrect, and based upon our own review of the record, we agree. Clark is not entitled to relief as these claims were adequately developed below, and as the district court noted, he has failed to demonstrate anything more than was disclosed at voir dire. He seeks merely to cast a line in the hopes of hooking additional evidence which might support his claims, and has not sought discovery or an evidentiary hearing with respect to a specific factual allegation which would entitle him to relief. The discovery provisions of Rule 6 do not contemplate the type of fishing trip on which Clark seeks to embark.

Related to his alleged need to more fully develop his claims prior to the entry of summary judgment, Clark lastly contends that the district court erred in denying his request for a continuance of the habeas proceedings in order to afford him more time to develop the factual basis of his juror and pathologist claims. A district court's denial of a motion to continue in habeas cases is governed by the abuse of discretion standard. See Spinkellink v. Wainwright, 578 F.2d 582, 590-91 n.11 (5th Cir. 1978) (citing United States v. Mendoza, 574 F.2d 1373 (5th Cir. 1978)). For the reasons discussed above, we find that Clark was not entitled to any additional discovery or an evidentiary hearing, and thus he was likewise not entitled to additional time to develop those claims which the district court determined had already been adequately developed.

In sum, because Clark was provided a full and fair hearing by the state court on his claims, and because there is no factual dispute which if proven true, would entitle Clark to relief, we find that he was not entitled to, and the district court did not abuse its discretion in denying him additional discovery, a continuance, or an evidentiary hearing. The issues had been sufficiently developed below such that the district court was able to decide as a matter of law whether, when construing all of the facts, both developed and allegedly undeveloped, in a light most favorable to Clark, he was not entitled to habeas relief. Accordingly, the district court did not err in deferring to factual determinations of the state court and summary judgment was appropriately entered. We thus find that Clark has failed to demonstrate that his petition involves issues which are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further, and accordingly we deny a COA on Clark's second, third, and fourth issues.

Ashmus v. Woodford (9th Cir) "The State of California seeks to opt-in to the procedural advantages of Chapter 154 of the AEDPA with respect to Troy A. Ashmus' petition for federal habeas corpus. The State has not demonstrated, however, that it has complied with the unambiguous requirements of that statute. During all times relevant to this appeal, and at least until 1998, California failed to establish "by rule of its court of last resort or by statute" a mechanism for appointment and compensation of collateral counsel for its death-sentenced prisoners. California also failed to provide mandatory and binding standards of competency for collateral counsel in a "rule of court or statute."

Chapter 154 requires that qualifying states must provide standards of competency in a rule of court. The statute and legislative history also require that such standards be mandatory and binding. California's unitary review scheme satisfies neither requirement.

The statute expressly states the first requirement: "The rule of court or statute must provide standards of competency for the appointment of such counsel." S 2265(a). The statute implicitly includes the second requirement: The competency standards must be binding and mandatory. See id. ("must provide standards"). As the district court correctly concluded, the legislative history demonstrates that Congress deemed the provision of competent counsel at all stages of collateral proceedings to be essential to the quid pro quo of Chapter 154. See Powell Committee Report, 135 Cong. Rec. at S13483 ("But to avail itself of [now Chapter 154's ] more structured habeas corpus review procedures, a State would have to establish a system for the appointment and compensation of competent counsel throughout all stages of state post conviction review."); see also Ashmus I, 935 F. Supp. at 1073. The requirement of competent counsel at all stages of the proceedings would be eviscerated if the decision to follow the standards were left to the discretion of a court or guideline administrator. Moreover, in the absence of mandatory standards, federal courts would be unable to evaluate the adequacy of a state's appointment mechanism without examining the competency of individual counsel. This approach would necessitate a case-by-case analysis to determine whether a state is entitled to the benefits of Chapter 154, a piecemeal consequence that Congress sought to avoid. See Powell Committee Report, 135 Cong. Rec. at S13483; see also Ashmus I, 935 F. Supp. at 1073-74.13 We conclude, as have other courts that have examined the issue,14 that a state's competency standards must be mandatory and binding if the State is to avail itself of Chapter 154.

California's competency standards for collateral counsel are set out in section 20 of the Standards of Judicial Administration Recommended by the Judicial Council. See Cal. Court Rules, Vol. 23, pt. 2, at 636, 679-80, S 20 (West 1996).15 Section 20 is not a rule of court or statute, however. It is neither mandatory nor binding. Section 20 uses hortatory language -- "should." See S 20(a) ("Each appellate court . . . should follow the guidelines in this section . . . .");S 20(c) ("The Supreme Court should maintain a list of attorneys for appointment in death penalty cases . . . ."). Section 20 is thus a "`recommendation[ ] to the courts' " made under the Judicial Council's authority to make recommendations under the state constitution; it is not a rule of court. Introductory Statement, Cal. Court Rules, Vol. 23, pt. 1, at 4 (West 1996). 16 Also, as a recommendation to the Court, section 20 cannot be considered mandatory or binding. See id. ("The nonmandatory nature of the standards is indicated by the use of`should' instead of the mandatory `shall.' "). Section 20 is not, therefore, a qualifying competency standard within the meaning of 28 U.S.C. S 2265(a), and California is not eligible to opt-in to Chapter 154 with respect to Ashmus' petition. The State raises several objections, all of which are unavailing.17 The State contends that section 20 is a rule of court because it is promulgated under California Government Code S 68070, which authorizes promulgation of local rules. But California has presented no evidence that section 20 was actually promulgated under that code section. Moreover, the State's argument is directly contradicted by the Introductory Statement to the California Court Rules, which explains that section 20 is not a rule of court at all.

The State also urges that Rule 76.5 makes section 20 a rule of court and therefore mandatory. To be sure, Rule 76.5 is a rule of court, but it says only that the court shall "consider" the section 20 guidelines, and the guidelines themselves require nothing. See Cal. R. Ct. 76.5(b); see also Wright, 944 F. Supp. at 466 (concluding that "guidelines for establishing [competency] standards [that provide] . . . no indication how many of the delineated criteria MUST be met" do not satisfy 28 U.S.C. S 2261(b)). Also, under California's unitary review scheme the section 20 guidelines need not be applied in any form if the court contracts with an "administrator" to supervise the appointed counsel, see section 20(d), and the State points to no standards of competency for such an administrator. Rule 76.5 does not aid the State.

The State also claims that section 20 has become binding (and a rule of court) because it has been adopted by the California Supreme Court. The State presents some evidence that the section 20 considerations have been used by the California Supreme Court as an "initial measure of the experience and qualifications of private attorneys applying for appointment to a capital appeal." Ashmus II, 31 F. Supp. 2d at 1192 (internal quotation marks omitted). We agree, however, with the district court; the California Supreme Court's compliance in practice with a hortatory guideline does not meet the federal statutory command. See id.18

Finally, the State argues that a qualifying state's competency standards need not be contained in a rule of court or statute as long as they are provided for in one, and that California Government Code S 68511.5 and California Rule of Court 76.5 so provide. We decline to read the statute ("The rule of court or statute must provide standards of competency") to encompass a rule of court or statute that merely authorizes the promulgation of competency standards in some other instrument. Such an interpretation is contrary to the unambiguous meaning of the statute.19 But even if we were to adopt the construction urged by the State, it would not affect our analysis. Rule 76.5 and section 68511.5 do not require the promulgation of competency standards; at best, they merely permit them. See Cal. Gov't CodeS 68511.5 (requiring only the adoption of "procedures for the appointment of counsel in all appellate districts"); Cal. R. Ct. 76.5(a) (requiring only the adoption of "procedures for the appointment of counsel in criminal cases"). Moreover, section 68511.5 contemplates the appointment of counsel on direct, not collateral, appeal. See supra note 12. Finally, the substantive competency guidelines actually promulgated by the State (and contained in section 20) are recommendations to the courts only, and cannot satisfy the statutory requirement that such standards be mandatory and binding.

We therefore reject the State's argument that the unitary review scheme that it adopted in June 1989 meets the Chapter 154 requirement that "[t]he rule of court or statute must provide standards of competency for the appointment of[collateral] counsel."

Burgess v. Lowery (7th Cir) Immunity to suit denied in this case where "[t]he plaintiffs, respectively the father and wife of inmates on death row in an Illinois prison, brought suit in federal district court against prison officials who forced each of the plaintiffs to submit to a strip search as a condition of being permitted to visit the inmate."

Habeas Cases

Coombs v. Maine (1st Cir) "If the suppression court upheld the confession because it credited Carter's testimony that he had made no promise to flush the marijuana in return for Coombs's confession to theft, Coombs's case for federal habeas relief largely evaporates. Such a state court finding of "basic, primary, or historical facts" based on a credibility determination is "presumed to be correct," subject only to rebuttal by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). We find no rebuttal of that nature here."

Thomas v. McCaughtry (7th Cir) "The state court determination that Mr. Thomas procedurally defaulted his claim by not exhausting his administrative remedies was an adequate state law ground that precludes federal review of the merits of Mr. Thomas' habeas petition. Before this court, he makes no assertion that he can demonstrate cause and prejudice or a fundamental miscarriage of justice."

Menzer v. United States (7th Cir.) Arson/murder conviction affirmed on IAC grounds.

Grey-Bay v. United States (7th Cir) Briefing order and counsel appointed on successive petition including briefing on the availability and nature of relief under 28 U.S.C. § 2241.

Conde v. Henry (9th Cir) ] "[T]he trial court improperly precluded Conde's attorney from making closing argument explaining the defen- dant's theory of the case, it refused to instruct the jury on the defendant's theory, and, over the defendant's objection, it gave jury instructions that did not require that the jury find every element of the offense. Together, these errors deprived the petitioner of effective assistance of counsel, due process and trial by jury on every element of the charged crime.

Barnes v. Scott (10th Cir) In sum, it is our conclusion that at the time Mr. Barnes committed the crime, he was on notice that the presumptive sentencing range for first degree murder in Oklahoma was life imprisonment to death. At the time of his trial, his presumptive sentencing range remained life imprisonment to death. Adding an intermediate punishment did not prescribe more onerous punishment than that available under the old law. We therefore conclude that the Oklahoma state court's determination that the amendment to § 701.9 is not an ex post facto law is not "contrary to" or "an unreasonable application of" established Supreme Court law. 28 U.S.C. § 2254(d)(1). Accordingly, the district court was correct in denying Mr. Barnes' petition for habeas corpus relief.

Dupuy v. McCain (5th Cir) Cage claim does not meet the standard required for abuse of the writ.

Goodson v. Corpus Christi (5th Cir) District Court improperly concluded that plaintiff looked like a cowboy mentioned in a BOLO ("be on the look out") where whether plaintiff did or did not match the BOLO was in contention.

White v. Schotten (6th Cir) Ohio criminal defendants have a federal constitutional right to effective assistance of counsel during an application for reopening and that the petitioner's counsel in this case was constitutionally ineffective in failing to file such an application in a timely fashion, thus constituting cause to excuse any failure to comply with the procedural requirements contained in Ohio Rule of Appellate Procedure 26(B).

Peterson v. Gammon (8th Cir) For purposes of Antiterrorism and Effective Death Penalty Act's limitations period, state court post-conviction relief proceedings are pending during the interval between a trial court's denial of post-conviction relief and the filing of a timely appeal; district court erred in counting the period against the one-year time limit.

Zacher v. Tippy(8th Cir) Bureau of Prisons could apply regulation excepting Zacher from early release program based on a prior state court conviction, as application of the regulation did not implicate ex post facto or equal protection considerations.

Section 1983 & Related Filings

Williams v. Kelso (8th Cir) Plaintiff's claim that jailers failed to check his decedent's vital signs within the time period required by doctor's directions did not establish deliberate indifference to medical needs, and defendants were entitled to summary judgment; defendants were entitled to summary judgment on plaintiff's claim that they were liable for failure to segregate plaintiff's decedent and to require medical examination at the time he was admitted to the jail.

Andrews v. Daw (4th Cir) "[W]e hold that a government employee in his official capacity is not in privity with himself in his individual capacity for pur- poses of res judicata, and, therefore, the district court erred in dismissing Andrews's suit on that ground.

In Depth

This week's installment of "in depth" examines state waiver of the AEDPA. (From at the Habeas Assistance Training gang from AOC).

Watkins v. Meloy 95 F.3d 4, 7 (7th Cir. 1996) State expressly waived reliance on the AEDPA and the court accepted the waiver noting that "the provisions of the new Act governing the scope of federal judicial review do not affect the subject-matter jurisdiction of the federal courts, and are therefore waivable."

Mason v. Hanks 97 F.3d 887, n.1 (7th Cir. 1996) The court, in fn 1, held that it did not have to consider the effect of the new Act on this case because the Act is not jurisdictional and the state waived its application by failing to ask the court to consider it.

Keomany v. United States 1996 WL 530997 at n.1 (7th Cir. Sept. 17, 1996) (unpublished) Government waived any argument that the new Act applied in this section 2255 proceeding because "it has not asked us to consider its possible bearing on this appeal."

Davis v. Zavaras 100 F.3d 750, n.1 (10th Cir. 1996), cert. denied, 117 S.Ct. 1703 (1997) The court noted that at oral argument both parties asserted the AEDPA did not apply and that the state affirmatively waived its application.

Bennett v. Collins 852 F. Supp. 570, 573, n.4 (E.D. Tex. 1994) State waived its procedural default defense to petitioner's Batson claim by its repeated delay in filing briefs and its failure to follow procedural requirements in the district court.

U.S. ex rel. Johnson v. Gilmore 860 F. Supp. 1291, 1294 (N.D. Ill. 1994), aff’d, 103 F.3d 133 (7th Cir. 1996) State waived non-exhaustion defense by failing to properly raise it in its answer to the petition.

Rickman v. Dutton 864 F.Supp. 686, 706 (M.D. Tenn. 1994) Giglio claim not defaulted because state has no legitimate interest in creating procedural barriers to review of issues involving the state's presentation of false testimony.

United States ex rel. Williams v. Washington 913 F.Supp. 1156, 1160 (N.D. Ill. 1995), aff’d, 108 F.3d 1380 (7th Cir. 1997) State waived procedural default defense by failing to assert it and "thus 'waived waiver.'"

U.S. ex rel. Gonzalez v. DeTella 918 F.Supp. 1214, 1219 (N.D.Ill. 1996) The district court addressed the merits of claims found by the state court to have been procedurally defaulted, and therefore addressed by the state court only in the alternative, where state failed to raise procedural default in its answer to petitioner's federal habeas petition. The court noted that it "'is not permitted to override the state's decision implicit or explicit . . . to forego that defense.'" (quoting Henderson v. Thieret, 852 F.2d 492, 498 (7th Cir. 1988).

Errata

In errata this week is an excerpt of legal humor and commentary from Slate magazine.