The news this week stems from two late in the week decisions inThompson v. Calderon(9th Cir) andU.S. v. Singleton(10th Cir.). In a Saturday stay litigation decision, Ninth Circuit decides against granting the right to file a successive petition as although proffered claims suggest innocence, they do not meet the requirements of the AEDPA's "clear and convincing" standards for such petitions. In Singleton the Tenth Circuit places on hold its highly controversial decision noted here last week concerning so-called "squeal for deal" testimony. In Perspective highlights of some of the more interesting Supreme Court decisions of the past term and a link to a great Law Journal Extra listing of all major Supreme Court cases this term (great for printing out).

In Focus

Thompson v. Calderon Ninth Circuit holds that although all the prerequisites for filing a successive have been met, Thompson can not show by "clear and convincing evidence" his innocence of the aggravating circumstances in his death sentence.

We have concluded that Thompson's appeal from the district court's denial of his Rule 60(b) motion must meet the requirements of a successive petition under the AEDPA. We also have concluded that Thompson's request for authorization to file a second petition is properly before this en banc court. Accordingly, we must decide whether a successive petition under 28 U.S.C. 2244(b) as amended by the AEDPA may be used to challenge a death sentence, when the newly proffered evidence relates to guilt of the offense constituting the special circumstance and not to guilt of the homicide. We interpret the AEDPA's amendments to 2244(b) to permit a petitioner, in a successive petition, to establish that he is ineligible for the death penalty.

Prior to the enactment of the AEDPA, the Supreme Court articulated an "actual innocence exception" to the bar arising from the doctrine of "abuse of the writ" against bringing claims in a successive habeas petition. This exception requires that "one must show by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer v. Whitley,505 U.S. 333, 336 (1992). Because Thompson presents new evidence regarding the rape conviction, the lone special circumstance that made him eligible for the death penalty under California law, his request to file a successive petition is undoubtedly encompassed by the Sawyer standard.

We note the difference between the two standards--"eligiblefor the death penalty" under Sawyer, and "guilty of the underlying offense" under 2244(b)(2)(B)(ii) as amended by the AEDPA. We consider this difference in determining whether, because Thompson is not asserting actual innocence of the homicide, but rather his ineligibility for the death penalty, he is stating a claim upon which relief may be granted. In effect, we must decide whether the scope of the "actual innocence" standard articulated in Sawyer has been superseded by a narrower exception in the AEDPA. Under a narrower reading, an anomalous situation could be created where Thompson could challenge his rape conviction in a successive petition but, even if the conviction were overturned, he could not challenge his death sentence.

Under the canons of statutory construction, the similarity of the language between Sawyer and 2244(b)(2)(B)(ii) potentially cuts both ways. On the one hand, the fact that the standards are nearly identical suggests that Congress intended to codify the Sawyer standard. On the other hand, the slight difference between the two could be read as suggesting that Congress intended just the opposite: to enact a provision similar to but more stringent than the Sawyer standard.

However, unlike Sawyer, the standard in 2244(b) applies to all habeas petitions, not just capital habeas petitions. For that reason, it would not have made sense for Congress to adopt, without any changes, the Sawyer standard referring to eligibility "for the death penalty," since the statute would have to apply to cases where the petitioner did not receive the death penalty.

Thus, the need to cover non-capital habeas petitions best explains the slight difference in wording between the Sawyer "actual innocence" standard and 2244(b)(2)(B)(ii).

In light of the evidence viewed as a whole, Thompson fails to present a prima facie case establishing through "clear and convincing" evidence that no reasonable factfinder could have found him guilty of the death penalty. For these reasons, we deny his request for authorization to file a successive habeas corpus petition in the district court.

U.S. v. SingletonTenth Circuit places on hold its decision to strike down all "deals for squeals" testimony pending rehearing en banc by the full court. The court's brief order throws into even more disarray the already confused state of Tenth Circuit precedent on testimony in exchange for sentence reduction. National Law Journal's story click here

Capital Cases

Thompson v. Calderon Ninth Circuit holds that although all the prerequisites for filing a successive have been met, Thompson can not show by "clear and convincing evidence" his innocence of the aggravating circumstances in his death sentence.

Habeas

Murray v. United StatesEleventh Circuit examines whether "any issues other than the ones for which a COA was granted pursuant to 28 U.S.C. § 2253(c)" and "whether the district court erred by dismissing, without an evidentiary hearing, Murray's claim that he received ineffective assistance of counsel because of his counsel's performance in connection with the allegedly meritorious Fourth Amendment claim." The National Law Journal

Ineffective Assistance of Counsel

Genius v. PepeFirst circuit holds no showing of an incompetent defense as trial counsel's performance eve if substandard, not prejudicial noting the state trial court's holding that there wasn't much counsel could do competent or incompetent.

Prisoner Rights & Police Misconduct Cases

Hudson v. McHugh Seventh Circuit examines denial of access to medication claim holding that district court erred on many accounts and give high prize to the litigation of the case by the plaintiff's counsel.

Spruce v. Sargentu Eighth Circuit holds that prisoner produced evidence from which jury could determine warden knew prisoner was subject to an excessive risk of harm from sexual attack

Williams v.Cruiseturner Eighth Circuit holds that defendants violated prisoner's civil rights by requiring him to perform work made dangerous by his medical condition.

Martinez v. Hooper Seventh Circuit in denying a challenge to a grant of limited immunity that "We know the story about the surprised audience that went to see a fight and a hockey game broke out. We can only imagine that the audience gathered to see a kids' gymnastics show in Chicago's Rowan Park must have been similarly surprised when, before the somersaults started, one of the park's recreational leaders was hauled away in handcuffs by an off duty police officer who claimed she was guilty of child abuse. Such is life in the big city. "

Davis v. Zirkelbach Seventh Circuit denies relief in police misconduct case that "we agree with the district court that the defendants were entitled to judgment in their favor, and we therefore affirm.

Berryman v. Rieger, et al Sixth Circuit holds "In yet another in a long line of § 1983, interlocutory, qualified immunity appeals raising factual issues . . . . [w]e hold that in order for such an interlocutory appeal based on qualified immunity to lie, the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiff's case.

Rivera v. Allen Eleventh Circuit panel upholds "as constitutional the "three strikes" in forma pauperis provision of 28 U.S.C.A. § 1915(g."

Chairs v. Burgesss Eleventh Circuit in "jail-overcrowding case, we conclude that the district court erred in holding the State in contempt for violating an injunction."

Sheth v. WebsterEleventh Circuit once againn examines qualified immunity for cops purportedly gone bad.

Other Perspectives

As I do most weeks, find below the nation's premiere legal online provider, The National Law Journal (http://www.ljx.com) Courthouse section's analysis of cases covered here first last week, as well as those few cases that seem to slip through the net of coverage.

UNDER OKLAHOMA LAW, collateral review of ineffective assistance of counsel claims is not allowed if trial and appellate counsel differed on direct appeal and if the ineffectiveness claim could have been resolved on the trial record alone, the 10th U.S. Circuit Court of Appeals held June 30. English v. Cody, 97-5004. Remanding for a determination of whether the petitioners' ineffective assistance of counsel claims embraced matters in the trial record alone or whether they required enlargement of that record or additional fact-finding, Judge Michael Murphy stated, "[I]n order for a criminal defendant to adequately vindicate his ...right to the effective assistance of counsel at trial, he must be allowed to obtain an objective assessment of trial counsel's performance and must be allowed to adequately develop the factual basis for any claim of ineffectiveness." Examining its own and Supreme Court precedent, the appeals court declined to hold that the Oklahoma procedural bar on ineffective assistance of trial counsel claims not raised on direct appeal was inadequate.

THE TRIAL COURT wrongly prohibited a defendant, charged with involuntary manslaughter and claiming self-defense, from giving a complete account of the altercation that led to the victim's death, the Supreme Court of Indiana ruled June 30. Hirsch v. State, 48S02-9806-CR-374. Reversing, the court held that a victim's refusal to stop fighting is not hearsay because it is not offered for the proof of the statement, but rather as proof that the victim said it. Justice Theodore Boehm noted that the victim's statement could reasonably lead a defendant to conclude that the victim intended to continue fighting.

WHEN A PRIOR consistent statement is offered pursuant to Md. Rule 5-802.1(b) for the purpose of rebutting a charge of fabrication or improper influence or motive, the consistent statement is admissible only if it precedes the alleged fabrication, improper influence or motive, the Court of Appeals of Maryland ruled July 2. Holmes v. State, 95, Sept. Term, 1997. Affirming the judgment of the court of special appeals, the high court held that Rule 5-802.1(b) embodies the common-law pre-motive rule and that prior consistent statements that do not satisfy the requirements of the rule cannot be admitted as substantive evidence. Judge Howard S. Chasanow noted, however, that prior consistent statements offered to explain an inconsistent statement may be admissible for rehabilitative purposes under Rule 5-616(c)(2) and that that rule applied to the instant case. The court of special appeals affirmed, noting that consistent statements made prior to the alleged fabrication rebut allegations of fabrication, but that there is also some rebuttal value in a statement made after some motive to fabricate existed, but before it became strong. Ms. Holmes argued to the high court that post-motive-to-fabricate statements carry little probative weight. The state argued that the plain language of Rule 5-802.1(b) permits the admission of a witness' prior consistent statement to rebut a charge of fabrication because the rule does not impose a requirement as to the timing of the fabrication or the prior consistent statement.

TITLE 18 U.S.C. 201(c)(2), which prohibits giving anything of value in exchange for testimony, applies to federal prosecutors who promise leniency and intervention on a defendant's behalf in return for his or her testimony, the 10th U.S. Circuit Court of Appeals held July 1. U.S. v. Singleton, 97-3178. Reversing and remanding for a new trial, Judge Paul J. Kelly Jr. stated, "The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money. Because prosecutors bear a weighty responsibility to do justice and observe the law in the course of a prosecution, it is particularly appropriate to apply the strictures of sec. 201(c)(2) to their activities."

THE WARRANTLESS SEARCH of all carry-on luggage aboard a Greyhound bus violated the Fourth Amendment, despite the defendant's consent to look in his bag, the 11th U.S. Circuit Court of Appeals held June 29. U.S. v. Guapi, 97-6289. Walter Mosquera Guapi was convicted after being arrested on a bus for having cocaine in his bag. Reversing and remanding, Senior Judge Paul H. Roney noted, "Although we reject the notion of a per se rule requiring bus passengers to be informed of their constitutional rights, the facts and circumstances of this search required some indication to passengers that their cooperation was voluntary rather than mandatory. Because no such indication was provided, and because a reasonable person traveling in this bus would not have felt free to ignore the search request, we hold that this search was unconstitutional."

In Depth

The following excerpt from the Law Journal Extra relates a handful of the Supreme Court's criminal law cases this term. LJX at http://www.ljx.com/LJXfiles/sc98topical.htmlhas an excellent synopsis of this terms decisions hyperlinked for quick reading. Here is a sample of there excellent synopsis of the term -- I have chosen some of the more relevant cases in my opinion to repost here:

Monge v. California The Double Jeopardy Clause, which the court previously found applicable to capital sentencing proceedings, does not extend to noncapital sentencing under California's "three-strikes" law.

Caron v. U.S. Gerald Caron, already having an extensive criminal record, including felonies, was convicted by a federal jury of possessing rifles and shotguns after having been convicted of a serious offense. The District Court enhanced his sentence because he was at least a three-time violent felon. Caron argued that certain Massachusets convictions should not have been counted because his civil rights had been restored by operation of Massachusetts law. The Massachusetts law restoring Caron's civil rights would have allowed him to possess rifles -- but not handguns. The Supreme Court ruled that because state law considered Caron unfit to possess some firearms (handguns), it is reasonable to read the federal statute to forbid Caron from possessing all firearms.

Bryan v. U.S.The Court found that a conviction for dealing in firearms without a federal license does not require the jury to find that the offender knew of the federal licensing requirement because the term "willfully" in Firearms Owners' Protection Act requires proof only that the defendant knew his conduct was unlawful, not that he also knew of the federal licensing requirement.

Hohn v. U.S. Justices held that the Supreme Court has jurisdiction under 28 U.S.C. §1254(1) to review denials of applications for certificates of appealability by a circuit judge or a court of appeals panel. The Court agreed with the Government that petitioner's habeas corpus claim was, in fact, constitutional in nature and thus qualified as a case "in" the Court of Appeals. This decision overturns part of an earlier decision in House v. Mayo, 324 U.S. 42, 48 (per curiam), holding that the Supreme Court lacks statutory certiorari jurisdiction.

Pennsylvania Dep't of Corrections v. Yeskey Holding that state prisons fall squarely within Title II's statutory definition of "public entity," the Supreme Court unanimously affirmed the Third Circuit's determination (118 F. 3d 168) that the American with Disabilities Act applies to state prison inmates.

Muscarello v. U.S. In determining the 5-year mandatory prison term for carrying a firearm during a "drug trafficking" crime, the phrase "carries a firearm" is not limited to the person of the convict but also applies to firearms in a vehicle, including in the locked glove compartment or trunk of a car, the Supreme Court held in a narrow 5-4 decision.

New Mexico, ex rel. Ortiz v. Reed Holding that a state's right to extradite fugitives is absolute, the Supreme Court unanimously ruled that the Supreme Court of New Mexico must extradite an escaped parolee from Ohio, even though it found "credible" the fugitive's testimony regarding reprisals from prison officials.

Hopkins v. Reeves Justices ruled that giving jurors the option of convicting a defendant of a lesser offense in a death-penalty case is not required in states with a felony murder law that does not include a lesser offense for the charged crime.

Bousley v. U.S. In 1995, the Supreme Court held that a conviction for using a firearm under 18 U.S.C. sec. 924(c)(1) requires the Government to show "active employment of the firearm," not its mere possession. Now, the Justices have ruled, 7-2, that its 1995 decision narrowing the scope of sec. 924(c)(1) can be applied retroactively to defendants who pleaded guilty to violating the law.

Stewart v. Martinez-Villareal The Justices ruled 7-2 that a federal law intended to speed the pace of executions does not restrict some claims by death-row inmates that they are too insane to be put to death.

Calderon v. Thompson A federal appeals court abused its discretion in issuing a last-minute order blocking the execution of a California man, the Supreme Court ruled today In a 5 to 4 ruling, the high court reversed an August order of the Ninth Circuit Court of Appeals that stayed the execution of Thomas J. Thompson, convicted of rape and murder in the 1981 stabbing death of a California woman. The Ninth Circuit's action, Justice Anthony M. Kennedy wrote, had been "a grave abuse of discretion."

Edwards v. U.S.: Vincent Edwards was convicted of drug trafficking by a jury which had been instructed that it was the prosecution's burden to prove that Edwards' conspiracy involved measurable amounts of cocaine or crack. Afterwards, the judge imposed a sentence based upon Edwards' involvement with both cocaine and crack. Rejecting a challenge to the stiffer crack-based sentence, the Supreme Court ruled that the judge was authorized to determine for sentencing purposes whether crack, as well as cocaine, was involved in the offense-related activities.

Adult Parole Authority v. Woodard In a case brought by an inmate facing a death sentence for murder, the high court held that a voluntary interview with the inmate as part of the clemency process does not violate his Fifth Amendment right against self-incrimination. Justices also held that the procedure is not a violation of the Due Process Clause.

Almendarez-Torres v. United States Hugo Roman Almendarez-Torres illegally re-entered the U.S. after having been convicted of an aggravated felony. Under sentencing guidelines, he was thus was subject to a maximum possible sentence of 20 years imprisonment. Had he not been convicted of that felony, he would have been subject to a maximum of only two years. The Supreme Court rejected the constitutional claim that recidivism must be treated as an element of an offense, holding instead that conviction of a prior felony is merely a sentencing enhancement.

Lewis v. United States Debra Faye Lewis was accused of killing her husband's four year-old daughter while on a federal Army base in Louisiana. She was convicted of violating a state murder statute, which the court applied under the federal Assimilative Crimes Act. The Fifth Circuit ruled that the state law was inapplicable, and that the federal murder statute (which contains a slightly different sentencing scheme) should have been applied. The Supreme Court agreed with the appeals court, but ordered a resentencing. Spencer v. Kemna The court's 8-1 ruling said an inmate's suit challenging the cancellation of his parole became moot when he again was released on parole. Brogan v. United States A man who falsely anwered "no" to a federal investigators questions may not escape criminal liability, the Supreme Court ruled. Justices found there is no exception to criminl liability "for a false statement consisteing merely of an "exculpatory no.""

Buchanan v. Angelone In an appeal by a death row inmate, justices ruled that a Virginia court did not err at the trial stage by failing to instruct the jury with information about mitigating circumstances.

Rogers v. United States The court dismissed an appeal by a man convicted of possessing an unlicensed gun silencer in a case questioning whether a person can be convicted of a crime if the judge did not instruct the jury on an element of the offense.

Hudson v. United States In a decision reducing the reach of double jeopardy protection, the Supreme Court ruled that three men who had paid civil penalties for illegal financial operations may also be tried on criminal charges.

Trest v. Cain A Louisiana prisoner serving a 35-year sentence for armed robbery was granted a new hearing today, when the Supreme Court set aside an appellate court's ruling dismissing the case on procedural grounds.

Salinas v. U.S. Sheriff's deputy Mario Salinas accepted goods in exchange for providing special treatment for a prisoner in his department's custody. Convicted of bribery and RICO violations, Salinas appealed, arguing that the bribery statute does not apply to his acts, and that he had not committed sufficient predicate crimes to qualify for RICO. The Supreme Court rejected his appeal, ruling that even if Salinas did not accept or agree to accept two bribes, there was ample evidence of conspiracy to facilitate the bribery scheme. Bates v. United States Acme Institute for Technology, a recipient of federal student loan funds, violated the loan program's requirement that participating institutions return to the lender a portion of the loan when a student withdrew from the institution. Reinstating an indictment against the school's treasurer, the Supreme Court unanimously ruled that prosecutors need not prove that people charged with misusing federally guaranteed student loan money intended to defraud the government.