This week's edition offers five capital cases with mixed results. The Florida Supreme Court this past week effectively barred the execution of minors under the age of seventeen inBrennan v. Florida. InFoster v Ward(10th Cir) relief is denied on numerous issues on arguments relating, chiefly, to trial counsel's performance.Ford v. Haley(11th Cir) andHeidnik v. Horn (3rd Cir) deal with cases where a petitioner has "dropped" his "appeals," the former resulted in a temporary stay, the latter an execution. The final capital case,In re Provenzno(11th Cir), is a successive petition filing challenging, chiefly, the constitutionality of electrocution.

Capital Cases

Brennan v. Florida(FL Sup Ct) Holding that juveniles under seventeen may not be executed.

For the reasons that follow, we conclude that the imposition of the death sentence on Brennan, for a crime committed when he was sixteen years of age, constitutes cruel or unusual punishment in violation of article I, section 17 of the Florida Constitution. In reaching this conclusion, we are guided by our decision inAllen v. State, 636 So. 2d 494 (Fla. 1994).

InAllen, this Court found the death penalty to be unconstitutional under article I, section 17 of the Florida Constitution if imposed upon one who was under the age of sixteen at the time of the crime. Our reasoning in that case was straightforward:

[M]ore than half a century has elapsed since Florida last executed one who was less than sixteen years of age at the time of committing an offense. In the intervening years, only two death penalties have been imposed on such persons, and both of these later were overturned.

There may be a variety of reasons for this scarcity of death penalties imposed on persons less than sixteen years of age. There may be public sentiment against death penalties in these cases, or prosecutors may simply be convinced that juries would not recommend death or the judge would not impose it.We need not conduct a straw poll on this question, in any event. Whatever the reasons, the relevant fact we must confront is that death almost never is imposed on defendants of Allen's age.

In sum, the death penalty is either cruel or unusual if imposed upon one who was under the age of sixteen when committing the crime; and death thus is prohibited by article I, section 17 of the Florida Constitution.Tillman v. State, 591 So.2d 167, 169 n. 2 (Fla.1991).We cannot countenance a rule that would result in some young juveniles being executed while the vast majority of others are not, even where the crimes are similar. Art. I, Sec. 17, Fla. Const.

636 So. 2d at 497 (emphasis supplied) (footnotes omitted).

We further rejected the State's argument that the execution of young juveniles was no different than the execution of women because both seldom happen:

Nothing in the Constitution prohibits any court from taking notice of the peculiar condition and historical treatment of the very young. The law itself for centuries has recognized that children are not as responsible for their acts as are adults--a conclusion also supported by the scarcity of death penalties imposed on the very young in this country.

Id.at 497 n.6.

In reaching our decision inAllen, we relied on article I, section 17 of the Florida Constitution, and not on either the Eighth Amendment of the United States Constitution or the United States Supreme Court's decision inThompson v. Oklahoma, 487 U. S. 815, 838 (1988), which held that execution of a defendant who was fifteen at the time of the crime was prohibited by Eighth Amendment of the United States Constitution.(4)

Brennan asserts that our reasoning inAllencompels the same result here. We agree. In this case, the defendant presented the trial court with unrefuted data that at least since 1972, more than a quarter of a century ago, no individual under the age of seventeen at the time of the crime has been executed in Florida. In fact, our research reveals that the last reported case where the death penalty was imposed and carried out on a sixteen-year-old defendant wasClay v. State, 143 Fla. 204, 196 So. 462 (1940), over fifty-five years ago. Since 1972, only three defendants other than Brennan who were sixteen at the time of the crime, have been sentenced to death. For each of these three defendants, the death sentence was vacated.SeeFarina v. State, 680 So. 2d 392, 398-99 (Fla. 1996);(5)Morgan v. State, 639 So. 2d 6, 8 (Fla. 1994);(6)Brown v. State, 367 So. 2d 616, 625 (Fla. 1979). The infrequency of the imposition of the death penalty on juveniles who were sixteen at the time of the crime and the fact that since 1972 each time a death sentence has been imposed on a defendant who was sixteen at the time of the crime it has been overturned make this case virtually identical toAllen. Thus, we agree that our decision inAlleninterpreting the Florida Constitution compels the finding that the death penalty is cruel or unusual if imposed on a defendant under the age of seventeen.

Although not binding on our state constitutional analysis, we are mindful that in the plurality opinion ofStanford v. Kentucky, 492 U.S. 361, 380 (1989), five members of the United States Supreme Courtheld that it was not per se cruel 0and unusual punishment under the Eighth Amendment to impose the death penalty on an individual sixteen or seventeen years of age at the time of the crime.(7)Thus, the Court refused to categorically declare eighteen as the minimum age under the United States Constitution for execution to be a constitutional sentence.(8)Seeid.at 380.

However, there is an important aspect of theStanfordmajority opinion that further supports our determination that the imposition of the death penalty in this case would be unconstitutional under both the Florida and United States Constitutions. The plurality inStanfordconcluded that the constitutionality of capital punishment statutes depends not on the general state laws defining ages of legal disability, but on the "individualized consideration" given to the defendant's circumstances.Id.at 375.(9)In order for the death penalty to have been constitutionally imposed on a defendant, the Court concluded that one of the "individualized mitigating factors that sentencers must be permitted to consider is the defendant's age."Id.The majority then observed that "thedeterminations required by juvenile transfer statutesto certify a juvenile for trial as an adultensure individualized consideration of the maturity and moral responsibilityof 16- and 17-year-old offenders before they are even held to stand trial as adults."Id.(emphasis supplied). The Kentucky and Missouri statutes under consideration inStanfordspecifically required a court to give individualized consideration of sixteen- and seventeen-year-old juvenile defendants before determining whether they should be transferred from juvenile court to stand trial as adults. 492 U.S. at 375-76 n.6. The Kentucky statute additionally specified a minimum age for the death penalty at sixteen.Seeid.

Unlike the state statutes cited with approval inStanford, the Florida statute neither sets a minimum age for the death penalty nor sets forth criteria to "ensure individualized consideration of the maturity and moral responsibility,"id.at 376, of those under eighteen before the child can be tried as an adult and sentenced to death. Section 985.225(1)(a), Florida Statutes (1997), provides that a childof any agemay be indicted for a capital crime and, when indicted, "must be tried and handled in every respect as an adult . . . on the offense punishable by death or by life imprisonment." Section 985.225(3) further provides that "[i]f the child is found to have committed the offense punishable by death or by life imprisonment, the child shall be sentenced as an adult."

The Legislature's failure to impose a minimum age, the legislative mandate that a child of any age indicted for a capital crime shall be subject to the death penalty, and the failure to set up a system through our juvenile transfer statutes that "ensure[s] individualized consideration of the maturity and moral responsibility" render our statutory scheme suspect under the federal constitution and the reasoning ofStanfordas it applies to sixteen-year-old offenders. 492 U.S. at 375. This also distinguishes our statutory scheme from the Virginia statute recently upheld as constitutionalby the Virginia Supreme Court.SeeJackson v. Commonwealth, 499 S. E.2d 538 (Va. 1998),cert. denied, 119 S. Ct. 796 (1999). The Virginia statuteauthorized transfer of juveniles over fourteen, provided for transfer hearings and "address[ed] the prosecution and punishment of juveniles in as much detail as the Kentucky and Missouri statutes" inStanford.Jackson, 449 S.E. 2d at 552.

If given literal effect, our statutory scheme would unconstitutionally authorize the imposition of the death penalty on a child of any age. However, it is uncontroverted that imposing the death penalty on a defendant who was fifteen or younger at the time of the crime is unconstitutional.SeeAllen, 636 So. 2d at 497;Thompson, 487 U.S. at 838. While we have great respect for the legislative voice, it is the obligation of this Court to decide the question of whether a punishment proscribed by the legislature is unconstitutionally cruel or unusual by applyingconstitutional, not legislative, standards.

Justice Wells' dissent asserts that the Court has taken a "lone position" in our decision holding the death penalty unconstitutional under our Constitution as applied to sixteen-year-old defendants. Concurring in part, dissenting in part opinion, Wells, J., at 47.We are compelled to point out that, of the forty states whose statutes authorize the death penalty, fifteen states explicitly prohibit execution of sixteen-year-old defendants.SeeConcurring in part, dissenting in part opinion, Harding, C.J., at 40-41 n.23.Inthe remaining twenty-five states, only five state supreme courts have considered the constitutionality of executing defendants of that age. Ofthose, only four, Alabama, Arizona, South Carolina, and Virginia, have upheld the imposition of the death penalty as applied to a defendant who was sixteen at the time of the crime.(10)To the contrary, the Supreme Court of Washington inState v. Furman, 858 P.2d 1092, 1102-03 (Wash. 1993), held its death penalty statute unconstitutional as applied to juveniles under the age of eighteen, although the Washington state statute provided that a child of any age could be tried and sentenced as an adult.(11)

Finally, in Florida, we have repeatedly stated that the ultimate punishment of death is reserved for the most aggravated and indefensible of crimes committed by the most culpable of offenders.See, e.g.,Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998);State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973). In addition, this Court is constitutionally required to perform a proportionality analysis:

Our proportionality review requires us to "consider the totality of circumstances in a case, and to compare it with other capital cases. It is not a comparison between the number of aggravating and mitigating circumstances."Porter v. State, 564 So.2d 1060, 1064 (Fla.1990),cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991). In reaching this decision, we are also mindful that "[d]eath is a unique punishment in its finality and in its total rejection of the possibility of rehabilitation."State v. Dixon, 283 So.2d 1, 7 (Fla.1973),cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Consequently, its application is reserved only for those cases where the most aggravating and least mitigating circumstances exist.Id.;Kramer v. State, 619 So.2d 274, 278 (Fla.1993)

Terry v. State, 668 So. 2d 954, 965 (Fla. 1996). Thus, as the State acknowledges, this proportionality review requires us to compare similar defendants, facts and sentences.SeeTillman v. State, 591 So. 2d 167, 169 (Fla. 1991). The difficulty in conducting a proper proportionality analysis in this case, because the death penalty has not been upheld for any other defendant who was sixteen years old at the time of the crime, highlights the inherent problems in upholding the death penalty under these circumstances.

The State urges that we should find that the imposition of the death sentence constitutional and also proportional because we have upheld the death penalty in other cases involving similar circumstances, citing to cases such asSliney v. State, 699 So. 2d 662 (Fla. 1997),cert. denied, 118 S.Ct. 1079 (1998);Walls v. State, 641 So. 2d 381 (Fla. 1994), andHayes v. State, 581 So. 2d 121 (Fla. 1991). However, the very cases that the State points to as involving similar circumstances involve adults, not sixteen-year-old juveniles. The only common thread is the brutal and senseless nature of the murders.

These cases demonstrate the dilemma posed byAllen: that death is almost never imposed on defendants who are Brennan's age and when the death sentence has been imposed, the death sentence has been subsequently vacated. There is no doubt that the murder in this case is a deplorable crime and one for which the defendant should spend the rest of his life in prison. However, we cannot impose the death penalty on this defendant who was sixteen at the time of the crime, consistent with our case law and our Constitution.SeeAllen, 636 So. 2d at 497.

Accordingly, the death sentence is vacated and reduced to life imprisonment without a possibility of parole.

Foster v Ward(10th Cir) This denial of the writ presents: "(1) ineffective assistance of counsel during both the guilt and sentencing stages of trial; (2) denial of a post-examination competency hearing; (3) failure to disclose the true nature of lenient treatment provided Mrs. Foster in exchange for her testimony; (4) failure to instruct the jury regarding Mrs. Foster's status as an accomplice; and (5) unconstitutionality of sentencing stage jury instructions concerning aggravating and mitigating circumstances." Dissent focuses on failure to investigate and provides an excellent examination of the issue (due to size constraints that argument is not listed here but available athttp://www.kscourts.org/ca10/cases/1999/07/97-7086.htm)

I. Ineffective Assistance of Counsel

A. Guilt Stage

Mr. Foster complains he was prejudiced at the guilt stage of his trial by his counsel's failure to investigate and discover available witnesses to support his alibi defense, request a post-examination competency hearing, adequately advise him whether to testify on his own behalf, request an accomplice instruction, object to the alibi instruction, and object to the introduction of motel and pawn shop receipts. Mr. Foster further claims prejudice as a result of his counsel's "invitation" to the court to admit Mrs. Foster's written statement to police into evidence. We consider each alleged instance of ineffective assistance in turn.

1. Alibi Witnesses. Mr. Foster's ineffective assistance of counsel claim centers in large part on his allegation that trial counsel failed to investigate and discover witnesses who would have supported his alibi defense. Specifically, Mr. Foster proffers the affidavits of Ms. Cecille Fuller and Mr. Alvin Williams, two individuals who worked at Weddles grocery store ­ the grocery store Mr. Foster claims to have been at when Mr. Wiley was murdered. According to Mr. Foster, "[t]his impartial testimony unquestionably would have had an effect on [his] jury."

Both Ms. Fuller's and Mr. Williams' affidavits were prepared ten years after Mr. Foster's trial, thus raising questions as to their veracity. However, since the State has not rebutted either affidavit, we will treat the factual allegations contained therein as true. See Williamson, 110 F.2d at 513. Moreover, we assume without deciding that it is unreasonable for counsel not to attempt to identify and contact alibi witnesses to ascertain whether their testimony would aid the defense, and because the record offers no explanation as to why defense counsel did not identify or interview these alibi witnesses, we will assume for purposes of our analysis that defense counsel was constitutionally ineffective for failing to investigate and present available alibi testimony.

This does not end our inquiry, however. Under the holding in Strickland, Mr. Foster cannot prevail on his ineffective assistance of counsel claim unless he establishes prejudice in addition to constitutionally deficient performance. Strickland, 466 U.S. at 693 (defendant is required to "affirmatively prove prejudice"). We proceed, then, to determine whether Mr. Foster has demonstrated a reasonable probability that, but for his counsel's failure to interview and call alibi witnesses, he would have been acquitted. See Strickland, 466 U.S. at 694; Lawrence v. Armontrout, 31 F.3d 662, 667-68 (8th Cir. 1994); cert. denied, 513 U.S. 1161 (1995). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

Considering the totality of the evidence before the jury in this case, id. at 695, we conclude defense counsel's omission of alibi evidence does not undermine our confidence in the guilty verdict.(1) This is not a case in which counsel presented no alibi defense. Mr. Foster himself testified that at his wife's request he walked from his home to Weddles grocery store, soon after he and his wife got home from shopping together at that same store. He left home at about 6:20 p.m., arrived at the store at about 6:40 p.m., bought mushrooms, lettuce, and tomatoes, and then remained in the store for about thirty-five to forty minutes waiting for the rain to stop.(2)

According to Mr. Foster, Mrs. Foster picked him up in front of Weddles grocery store in Mr. Wiley's El Camino truck. There were suitcases in the front of the truck and "other stuff" covered by a blanket in the back end. Mrs. Foster told Mr. Foster they were going to Texas to visit her mother. Mr. Foster denied any knowledge of Mr. Wiley's murder in the Foster's home.

Ms. Fuller's affidavit largely parrots, and is therefore cumulative of, Mr. Foster's testimony.(3)

Accordingly, the real value of Ms. Fuller's testimony to the defense is that of corroboration by what appears to be a disinterested witness. While we do not discount that value, after weighing the materiality and probable effect of Ms. Fuller's testimony against the strength of the prosecution's case, id. at 694, we conclude the mere possibility that Ms. Fuller's testimony could reflect on Mr. Foster's credibility is insufficient to satisfy the "reasonable probability" standard. Ms. Fuller's affidavit adds nothing in terms of details sufficient to strengthen Mr. Foster's alibi or otherwise create a reasonable doubt as to Mr. Foster's guilt.(4)

The time frames Ms. Fuller recalls Mr. Foster being in the store on the evening of Mr. Wiley's murder are general and simply do not preclude the possibility of his involvement in the murder. Moreover, we cannot ignore the fact Ms. Fuller's recollection some ten years after Mr. Wiley's murder would be subject to intense cross-examination at trial. Finally, we give little if any weight to Mr. Williams' affidavit, which offers no alibi evidence but merely vouches for Ms. Fuller's good memory and tendency to talk to "everybody including Charles Foster." See United States v. Charley, ___ F.3d ___, ___, 1999 WL 285879 *12 (10th Cir. May 7, 1999).

We admit this is a closer case than some since the State's only eyewitness was an accomplice; nonetheless, the prosecution did present strong circumstantial evidence of Mr. Foster's guilt. Specifically, the prosecution placed Mr. Wiley in the Fosters' home at the time of his murder. The investigating officers, forensic dentist and medical examiner described in detail the nature of the crime scene and injury to Mr. Wiley. The jury certainly could conclude from the force with which Mr. Wiley was beaten, the fact the Fosters' blood-stained sofa had been moved across the room and stood on end, and the removal and concealment of Mr. Wiley's body, that Mrs. Foster could not have acted alone in this crime while Mr. Foster was picking up a few groceries. Importantly, Mrs. Foster's testimony concerning how Mr. Foster killed Mr. Wiley was consistent with the rest of the prosecution's evidence and remained consistent from the time she was arrested to Mr. Foster's trial. Finally, the jury could infer guilt from the fact that, despite his proclaimed innocence, Mr. Foster ran from police when they apprehended Mrs. Foster in Ft. Worth, Texas.

Because we conclude there is no reasonable probability additional evidence pertaining to Mr. Foster's alibi defense would have created a reasonable doubt respecting his guilt, see Strickland, 466 U.S. at 695, Mr. Foster has failed to satisfy the constitutional standard. We therefore deny his request for habeas relief on this claim.

2. Post-Examination Competency Hearing. As discussed in Part II below, Mr. Foster's claim he was entitled to a post-examination competency hearing is without merit. Thus, his claim that counsel was ineffective for failing to request such a hearing likewise fails. Cf. Cooks v. Ward, 165 F.3d 1283, 1296-97 (10th Cir. 1998) (counsel's failure to pursue nonmeritorious issues on appeal does not constitute ineffective assistance), petition for cert. filed (U.S. May 14, 1999) (No. 98-9420).

3. Mr. Foster's Decision to Testify. Mr. Foster asserts his trial counsel "failed to provide [him] with any advice on whether he should testify in his own defense." The record plainly refutes this frivolous claim. As the district court noted, the record demonstrates Mr. Foster's counsel advised him of his options and the possible effects of each option, and then gave him time by himself to think about whether he wanted to testify. When asked by the trial judge whether he understood he had the right to remain silent and hold the State to its burden of proving his guilt beyond a reasonable doubt, Mr. Foster said, "yes." Mr. Foster also stated he understood if he chose to testify, the State would have the opportunity to call rebuttal witnesses and could inquire as to his previous convictions. Mr. Foster assured the court no one was putting any pressure on him to testify or recommending that he not take the witness stand. Accordingly, we find no factual support for Mr. Foster's claim his counsel failed to advise him on whether to testify, and certainly no evidence of prejudice.

4. Accomplice Instruction. For the reasons discussed in Part IV below, Mr. Foster cannot obtain habeas relief by claiming he was entitled to a cautionary instruction regarding Mrs. Foster's testimony. For those same reasons he cannot prevail on his claim his counsel was ineffective for failing to request such an instruction. Cf. Cooks, 165 F.3d at 1296-97.

5. Alibi Instruction. Mr. Foster complains he "was deprived of a fair and impartial trial because the alibi instruction did not allocate the burden of proof properly." According to Mr. Foster, the instruction "did not place the burden of proof squarely on the shoulders of the prosecution," as required by Oklahoma law. He thus asserts his trial counsel was ineffective for failing to object to the instruction given.

The court instructed the jury, in relevant part:

The law is that [the alibi] defense is proper and legitimate and you should consider all of the evidence bearing thereon, whether introduced by the State or by the defendant, and if after a careful consideration of all of the evidence in the case you entertain a reasonable doubt as to whether the defendant was present at the time and place where the crime was committed, if it was committed, then and in that event the jury should give the defendant the benefit of the doubt and acquit him.

The court also instructed the jury:

The defendant is presumed innocent of the crimes charged, and the presumption continues unless, after consideration of all the evidence, you are convinced of his guilt, beyond a reasonable doubt. The State has the burden of presenting the evidence that established guilt beyond a reasonable doubt. The defendant must be found not guilty unless the State produces evidence which convinces you beyond a reasonable doubt of each element of the crimes.

The instructions pertaining to the specific crimes with which Mr. Foster was charged reemphasized the prosecution's burden of proof beyond a reasonable doubt.

In habeas proceedings, we will set aside a state court conviction based on an erroneous jury instruction only if the erroneous instruction rendered the trial so fundamentally unfair as to deny the petitioner a fair trial and due process of law. Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999). The jury instructions in this case, read together, quite obviously and appropriately placed the burden on the prosecution to prove Mr. Foster's guilt beyond a reasonable doubt. We fail to see how the instructions in any way undermined the jury's responsibility to find the ultimate facts beyond a reasonable doubt. Accordingly, the instructions did not render Mr. Foster's trial fundamentally unfair. Mr. Foster's ineffective assistance claim pertaining to the alibi defense instruction fails.

6. Admission of Motel and Pawn Shop Receipts. Mr. Foster asserts his trial counsel should have raised a hearsay objection to the State's admission of a receipt from the Jackson Motel in Denison, Texas, showing a registration to "Charles Jackson," as well as a receipt from the AAA Trading Post in Denison showing "Clifton Foster" pawned a television stand, two lamps, a radio, and a watch. He claims "[t]he admission of this evidence was highly prejudicial, because it was used by the prosecution in closing argument in an effort to show [he] was being untruthful."

It is precisely because the prosecution used this evidence to attack Mr. Foster's credibility, not to prove he checked into the Jackson Motel and pawned Mr. Wiley's belongings, that Mr. Foster's claim must fail. The prosecution clearly used the motel registration and pawn shop receipt to show the jury Mr. Foster lied about his name shortly after the murder, yet claimed he didn't know anything had happened to Mr. Wiley. Evidence presented to impeach the witness rather than establish the truth of the matter asserted is not hearsay. See Fed. R. Evid. 801(c); Foster v. General Motors Corp., 20 F.3d 838, 839 (8th Cir. 1994). Thus, Mr. Foster's counsel cannot be said to have been ineffective for failing to make a hearsay objection.

If defense counsel had a sustainable objection to such evidence, it probably would have been an objection for lack of foundation. The crux of Mr. Foster's challenge to the admission of the motel registration and pawn shop receipt is that the documents were admitted without a sponsoring witness. However, even assuming counsel should have objected to the admission of the receipts due to lack of foundation, we find no prejudice. Although Mr. Foster did not admit using aliases, he testified he and Mrs. Foster stopped at the Jackson Motel in Denison, and he was the one who went in and registered. He further admitted pawning Mr. Wiley's property in Denison. Mrs. Foster corroborated these facts and specifically identified the motel registration. Under these circumstances, we conclude there is no reasonable probability the jury would have reached a different result had Mr. Foster's counsel objected to the introduction of the motel and pawn shop receipts into evidence.

7. Admission of Mrs. Foster's written statement. Mr. Foster also challenges his counsel's suggestion that, rather than adopt the prosecution's conclusion that Mrs. Foster's written statement and trial testimony were consistent, the jury should read Mrs. Foster's written statement to determine whether it differed from her trial or preliminary hearing testimony. According to Mr. Foster, that suggestion invited the admission of Mrs. Foster's written statement, which contained prejudicial hearsay statements Mr. Foster's relatives made after Mr. Wiley's murder, and hearsay evidence of prior crimes.

Without ruling on whether trial counsel's conduct was ineffective or whether Mrs. Foster's written statement was admissible evidence, we conclude Mr. Foster suffered no prejudice as a result of that statement being introduced into evidence. Like the district court, we simply do not believe the arguably inadmissible portions of Mrs. Foster's statement had any impact on the jury's verdict. The written statement notwithstanding, the jury heard admissible testimony from Mrs. Foster concerning Mr. Foster's history of domestic violence, his role in Mr. Wiley's murder, and the circumstances surrounding the couple's flight from Oklahoma. Mr. Foster availed himself of the opportunity to rebut Mrs. Foster's claims when he took the stand. Under these circumstances, we find no basis for habeas relief on this claim.

B. Sentencing Stage

At the sentencing stage, Mr. Foster asserts he was prejudiced by his counsel's failure to investigate, discover, prepare, and present mitigation evidence. Specifically, he claims the jury would not have sentenced him to death if, during the sentencing stage, his counsel would have presented to the jury (1) evidence pertaining to Mr. Foster's tragic familial and societal background, including his mental retardation and brain damage; (2) the testimony of Cora Washington, his ex-wife; and (3) the testimony of Billy Dixon, a cell-mate of Mr. Foster's and State's witness, Mr. Lynch.

Without deciding whether Mr. Foster's trial counsel was ineffective for failing to investigate, prepare or present potential mitigation evidence at the sentencing stage, we conclude Mr. Foster has failed to demonstrate a reasonable probability that the above-referenced evidence would have changed the jurors' minds. We have on numerous occasions determined that evidence of a troubled childhood involving physical, emotional, sexual and/or substance abuse does not outweigh evidence supporting the conviction and evidence supporting multiple aggravating circumstances; nor does evidence of low I.Q. and/or organic brain damage. See, e.g., Cooks, 165 F.3d at 1293-96; Castro v. Ward, 138 F.3d 810, 831-32 (10th Cir.), cert. denied, 119 S. Ct. 422 (1998); Nguyen v. Reynolds, 131 F.3d 1340, 1347-49 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998). Mr. Foster has not shown his case is an exception. Indeed, while there may have been additional available mitigating evidence, Mr. Foster took the witness stand on his own behalf and told the jury he was the second oldest of approximately nineteen children and left school after the eighth grade to join the Job Corps in order to help take care of his parents. The jury nevertheless sentenced Mr. Foster to death.

We further conclude neither Ms. Washington's nor Mr. Dixon's testimony would have changed the result. Mr. Foster claims Ms. Washington was willing to testify that he had told her Mrs. Foster had killed a man and then "lied on him," and that during the seven years they were married he was always employed and never physically violent. Such testimony would have been largely cumulative to Mr. Foster's testimony. Mr. Foster told the jury in no uncertain terms that Mrs. Foster's testimony was not true. He also told the jury he was not violent with Mrs. Foster except on one occasion when she attempted to stab him. Mr. Foster further testified as to his work history. Under the circumstances, we believe Ms. Washington's testimony would have added little if anything to Mr. Foster's defense.

Mr. Dixon would have testified he never heard Mr. Foster discuss his case with anyone, especially Mr. Lynch, who was white. However, such testimony actually would have contradicted Mr. Foster's admission that he did, in fact, speak to Mr. Lynch "once or twice" while they were in the same jail "tank." Mr. Foster testified he told Mr. Lynch about the charges he faced. Consequently, we doubt the jury would have given Mr. Dixon's testimony any weight whatsoever.

In sum, the evidence against Mr. Foster, the number of aggravating factors found by the jury, and the nature of Mr. Wiley's murder leaves little doubt the mitigating evidence Mr. Foster relies on would not have changed the jury's decision to impose the death penalty. Because Mr. Foster fails to satisfy Strickland's prejudice requirement, we deny his request for habeas relief on this ground.

Ford v. Haley(11th Cir.) Noting that it does not have the time necessary to examine the issue of competency to waive appeals, a brief stay is entered to adjudge the merits of this next friend petition.

Thereafter, the Magistrate Judge issued a detailed Report recommending that Ford be found mentally competent to dismiss his attorney and to dismiss, with prejudice, his § 2254 habeas petition. The Magistrate Judge found, interalia, that Dr. Rollins's report was more persuasive than Dr. Pincus's. On March 31, 1999, the federal district court in Alabama issued a detailed order finding Ford mentally competent, granting Ford's request to dismiss his attorney, granting his motion to dismiss his habeas petition, and dismissing with prejudice Ford's § 2254 habeas petition.

On April 14, 1999, Davis, signing as Ford's attorney, filed, in Ford's name, a Motion to Alter and Amend the Judgment, a Notice of Appeal of the district court's order dated March 31 dismissing with prejudice Ford's § 2254 habeas petition, and a Motion for Stay of Execution in the district court. On July 1, 1999, the district court denied the Motion to Alter and Amend and the Motion for Stay of Execution.

On July 6, 1999, Davis, signing as Ford's attorney, filed a Notice of Appeal of the district court's July 1 order denying the Motion to Alter and Amend and the Motion for a Stay of Execution.2 On July 6, Davis also filed a Motion for Certificate of Probable Cause to Authorize Appeal, which the district court granted. In its July 6, 1999 order, the district court stated as follows:

[T]he court has considered the fact that this is a capital case involving issues that are "debatable among jurists of reason" and that "a court could resolve the issues in a different manner." While this court has resolved the issues against Petitioner, and is confident of the correctness of its decision, the foregoing findings by the court are sufficient to authorize the issuance of a certificate of probable cause under Barefoot v. Estelle, 463 U.S. 880, 893 (1983), thus allowing Petitioner's counsel to appeal this court's grant of Petitioner's request to waive his appeals, to dismiss counsel and the dismissal of a writ of habeas corpus in this death penalty case. Accordingly, it is ORDERED that the certificate of probable cause is hereby issued.

II. DAVIS'S STANDING

The Appellee contends that the Notices of Appeal and Motion for Stay of Execution, filed by Davis in Ford's name, should be dismissed because the district court found Ford was mentally competent, and thus Davis lacks standing to pursue this appeal as Ford's attorney. If we conclude that the district court's finding that Ford is mentally competent is not clearly erroneous, then the district court correctly honored Ford's wishes to dismiss his attorney and his § 2254 habeas petition. See Whitmore v. Arkansas, 495 U.S. 149 (1990); Gilmore v. Utah, 429 U.S. 1012 (1976); Lonchar v. Zant, 978 F.2d 637 (11th Cir. 1992). Accordingly, Davis, no longer Ford's attorney, would lack standing to pursue Ford's case further. However, if the district court's finding is clearly erroneous and Ford is mentally incompetent, then the dismissals of Davis and the petition were in error, and Davis may be entitled, as Ford's attorney, to pursue Ford's § 2254 habeas petition.

In other words, Davis's standing in this appeal ultimately may depend on the limited issue of whether the district court's factual finding that Ford is mentally competent is clearly erroneous. See Whitmore v. Arkansas, 495 U.S. 149 (1990); Gilmore v. Utah, 429 U.S. 989 (1976), stay vacated, 429 U.S. 1012 (1976). Thus, at this juncture, Davis appears to retain standing to the limited extent necessary to file this appeal and to challenge the district court's findings that Ford is mentally competent to dismiss Davis as his counsel and his § 2254 habeas petition with prejudice. Otherwise, a district court would be able to find a defendant mentally competent in a capital case to dismiss his counsel and dismiss with prejudice his first § 2254 habeas petition in a federal court and there never would be any appeal or review of that contested mental competency ruling.

Likewise, at this juncture Davis appears to retain standing to seek a stay of execution to the limited extent necessary to prosecute this appeal of the district court's mental competency rulings in Ford's first habeas petition. The district court issued a certificate of probable cause based on its finding that Ford's mental competency to dismiss his capital appeals involves "issues that are `debatable among jurists of reason' and that `a court could resolve the issues in a different manner.'" When non-frivolous issues are presented on appeal in a capital case, the Supreme Court has made it clear that a stay of execution should be issued, even if only temporarily, when a stay is needed for the court to address such issues before the appeal becomes moot. See Barefoot v. Estelle, 463 U.S. 880, 893-94 (1983). Thus, since Davis appears to have limited standing to pursue the district court's mental competency rulings, Davis necessarily also has limited standing to move for a stay of Ford's execution while this Court hears that appeal in order to prevent the appeal from becoming mooted by Ford's execution.3

III. STAY OF EXECUTION

This brings us to whether the Motion for a Stay of Execution should be granted under the circumstances of this first § 2254 habeas petition in a capital case. We attach Eleventh Circuit Rule 22-3 because it provides the answer to this question. Under this Circuit's Rule 22-3(a)(7), "[i]f a certificate of appealability is granted by the district court or by this Court, the panel shall grant a temporary stay pending consideration of the merits of the appeal if necessary to prevent mooting the appeal. . . ." 11th Cir. R. 22-3(a)(7) (emphasis added). Certificates of probable cause are the prior equivalent of certificates of appealability. Hardwick v. Singletary, 126 F.3d 1312, 1313 (11th Cir. 1997) ("Notwithstanding a marginal variance in the language identifying the necessary showing with respect to certificates of probable cause and appealability, we conclude that the standard governing certificates of probable cause and certificates of appealability is materially identical.").

The district court has granted a certificate of probable cause and a temporary stay of the July 9 execution is clearly necessary to prevent the mooting of this appeal filed July 6. Therefore, Eleventh Circuit Rule 22-3(a)(7) directs that we shall grant a temporary stay of the July 9 execution until further order of this Court. See Barefoot v. Estelle, 463 U.S. 880 (1983).

We recognize that subsections (i) and (ii) of our Circuit Rule 22-3(a)(7) permit exceptions to this grant of a stay after a certificate has been issued by the district court; however, neither exception applies under the particular factual circumstances revealed in the record in this case. First, we do not find that the district court abused its discretion in finding the appeal was non-frivolous and in issuing the certificate of probable cause. See Barefoot v. Estelle, 463 U.S. 880, 893-94 (1983). In fact, the Appellee has not cross-appealed the district court's grant of that certificate as of this juncture. Also, this appeal does not involve a successive habeas petition.

IV. APPEAL SCHEDULE

Finally, pursuant to the last paragraph in our Circuit Rule 22- 3(a), we conclude that at this late date the merits of this appeal, filed on July 6, 1999, cannot be appropriately addressed and decided concurrently with a decision on the motion to stay. However, we do find that good cause clearly exists for an advanced briefing schedule and oral argument.

This appeal involves only the limited issue of whether the district court was clearly erroneous in its factual finding that Ford is mentally competent to dismiss his counsel and dismiss his § 2254 petition. Ford has been requesting dismissal of his § 2254 habeas petition since May 1997. In fact, in a letter dated May 9, 1999, Ford again expressed his desire that his execution date be set and that his execution be carried out. Thus, for good cause shown, the Court advances the briefing schedule and oral argument in this appeal. Appellant's brief shall be due on July 22, 1999; Appellee's brief shall be due on August 5, 1999; Appellant's reply brief shall be due on August 12, 1999; and, oral argument is scheduled for August 18, 1999 at 2:00 p.m. in Atlanta, Georgia. The Clerk immediately shall issue oral argument and briefing notices to all parties.

Heidnik v. Horn (3rd Cir -- unpublished) Despite what has been described by court officials privately as a brilliant argument by next friend counsel, Billy H. Nolas, the panel denies a stay in for this "volunteer."

Before us are a motion for a certificate of appealability and for a stay of execution filed by petitioner/appellant, Maxine Davidson White, as "next friend" for Gary Heidnik. On July 3, 1999, the District Court issued an order that denied the petitioner/appellant's application for a stay of execution and a certificate of appealability and dismissed her petition for a writ of habeas corpus. The District Court's ruling was predicated on its conclusion that the petitioner/appellant lacked standing to bring an action as "next friend" to Gary Heidnik because she has not shown that he is "unable to litigate his own cause due to mental incapacity." Whitmore v. Arkansas, 495 U.S. 149, 165 (1990). The District Court issued a comprehensive opinion explaining in detail its analysis of the numerous arguments presented to it. Because Heidnik is scheduled to be executed on the evening of Tuesday, July 6, we required the petitioner/appellant to file her brief on Sunday, July 4, and we directed the Commonwealth to file its response on Monday, July 5. The petitioner/appellant filed a Reply on July 5, and the Commonwealth submitted a Supplemental Response. We heard oral argument on the morning of July 6. We have considered all the arguments raised before us, as well as relevant portions of the record, and we conclude that the motion for a certificate of appealability and a stay of execution should be denied. We are largely in agreement with the opinion of the District Court, but we add the following comments concerning the petitioner/appellant's argument that the "next friend" issue is controlled by Heidnik v. Horn, 112 F.3d 105 (3d Cir. 1997). This decision, among other things, directed the District Court to issue a stay of execution, but the Supreme Court of the United States vacated that stay. Horn v. White, 520 U.S. 1183 (1997). The petitioner/appellant contends that, despite this order and despite the subsequent proceedings in state court, which resulted in a competency hearing and state court findings on the competency question, the prior panel decision requires us, by virtue of the law- of-the-case doctrine, to hold that she is entitled to "next friend" status. We reject this argument. Although we obviously cannot be certain of the basis for the Supreme Court's order, it seems most likely that it was based on the conclusion that the prior panel's handling of the "next friend" question was incorrect. But we need not resolve this question. Even if the Supreme Court's order was not based on the conclusion that the petitioner/appellant lacked standing, we still do not believe that the prior panel decision would control our consideration of the "next friend" issue at this juncture. The prior panel decision was based on a review of the record and findings of the federal district court. Now, however, the Pennsylvania courts have conducted a new competency hearing and rendered new findings, and the issue comes before us now on a different record and in a different procedural posture. The law- of-the-case doctrine did not prevent the Pennsylvania courts from taking these actions and did not compel the Pennsylvania courts to follow the prior panel decision. Under 28 U.S.C.§ 2254(e)(2), the finding of the Court of Common Pleas regarding Heidnik's competency is presumptively correct and must be accepted unless the petitioner/appellant can overcome them by clear and convincing evidence. Under 28 U.S.C. § 2254 (d)(2), a federal writ may not be issued unless the state court made "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." This is a different standard of review than the standard applied by the prior panel when it ruled in 1997, and for this reason the prior panel's decision does not bind us here. We agree with the District Court that the state court factual findings regarding Heidnik's competency are adequately supported by the record, and we reject the petitioner/appellant's contention that they are not entitled to deference due to alleged procedural defects. We will therefore deny the application for a certificate of appealability and a stay of execution.

In re Provenzno(11th Cir.) Permission denied to file a successive on the constitutionality of electrocution and the adequacy of Florida's post-conviction counsel appointment, panel approves the first Florida execution of the year. A horribly botched execution in the electric chair of Allen Lee Davis, however leads to yet another temporary moratorium on executions in the Sunshine state. (Tampa Tribune, 7/10/99)

Provenzano's application seeks permission to raise in the district court two claims, neither of which was contained in his initial federal habeas petition. The first claim is that execution by electrocution, at least as practiced in Florida, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The other claim is that the failure of Florida to provide Provenzano in a more timely fashion with adequate counsel to pursue the latest round of collateral proceedings violates his Fourteenth Amendment right to due process.

Congress explicitly provided in 28 U.S.C. § 2244(b)(3)(C) that we may authorize the filing of a second habeas petition only if we determine the applicant has made a prima facie showing that the new claims he seeks to raise fit within one of the two exceptions against belated claims that are set out in § 2244(b)(2). Neither of Provenzano's two claims fits within either exception. The first exception requires that the claim be based upon a new rule of constitutional law, previously unavailable, which the Supreme Court has made retroactively applicable to cases on collateral review.See§ 2244(b)(2)(A). No new rule of constitutional law exists relating to execution by electrocution. Nor does one exist relating to collateral representation.

The second exception, which is set out in § 2244(b)(2)(B), concerns the factual predicate for the new claim. To fit within this exception the factual predicate of the claim must not have been discoverable previously through reasonable diligence. And the factual predicate must also be such that, if proven, it will establish that no reasonable factfinder would have convicted the applicant of the underlying offense but for the constitutional error. Neither of Provenzano's two claims meets the requirements of the second exception.

Because Provenzano has failed to make the necessary showing under either §2244(b)(2)(A) or (B), his application must be denied.

Habeas Cases

Sherrill v. Hargett (10th Cir) Petitioner's attempts to circumvent procedural default by arguing appellate counsel was ineffective for not anticipating and arguing a potential change in governing law does not meet the "cause and prejudice" requirements to excuse default.

Prisoner's Rights/Governmental Misconduct Cases

Apple v. Glenn(6th Cir.) Apple sued Senator John Glenn, Chief Justice William Rehnquist, and other top government officials, claiming that the defendants violated his First Amendment right to petition the government because they did not answer his many letters or take the action requested in those letters. Although the district court's order dismissing did not comply with Circuit precedent concerning dismissal where docketing fees have been paid and the court below cited the PLRA (even though the plaintiff is not a prisoner), case nonetheless dismissed as lacking any merit.

Mayo v. Macomb County(6th Cir) No cognizable injury lay where police did not confirm all the particulars of a domestic violence prior to arresting the plaintiff resulting in an erroneous arrest.

Saffell v. Crews (7h Cir) Where dogs alert during a permissible area sweep for custom purposes, qualified immunity lays to officers inspecting individuals (including strip searches) for contraband.

Edmond v. Goldsmith(7th Cir) Police roadblocks held violative of the Fourth Amendment where "[d]uring the stop, the police demand the driver's license and car registration, peer through the car's windows into its interior, and lead a drug-sniffing dog around the car."

The email address here has slightly changed, however, the service will remain the same. If you happen to see a case not listed here that should be, as well as to subscribe, unsubscribe or change subscription information, please drop me a line at capdefense@geocities.com.

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