A wave of cases this weeks emerges this week from the mid-Atlantic states and all of them losses. Three of the four cases are from Maryland. The spate of opinions concerning the "Old Line State" apparently relate to the decision inBaker v. Corcoranaddressing whether or not Maryland is an opt-in jurisdiction. InOken v. Corcorana different Fourth Circuit panel rejects claims arising from allegations relating ot the accused's Sixth Amendment right to testify, as well as jury selection issues. Finally, the Fourth Circuit inEvans v. Smith, addresses questions about jury selection and holds that no federal forum exists for petitioner to raise his substantial Brady claim. (Note in an additional Maryland/Fourth Circuit opinion dneying relief will be discussed next week , Grandison v. Corcoran, No. 00-5 (4th Cir. 07/24/2000), an unpublished opinion).

In the fourth mid-Atlantic decision, The Third Circuit inWeeks v. Snyderalso hands a defeat. Continuing the trend of death row inmates in Delaware receiving short shrift in the Court of Appeals compared to other Third Circuit capital defendants (and where the spouse of one of the Third Circuit judges is in a very tight race for reelection to the U.S. Senate) Weeks loses on his ineffective assistance of counsel claims. Despite the denying relief, Judge Sloviter offers this nugget, "[w]e are not unaware of the controversy currently surrounding the imposition of the death penalty in this country. . . . Whether this is an appropriate case for administration of the death penalty is a political question, not a judicial one."

In the fifth case of the week, the Tenth Circuit grants relief. A panel inThomas v. Gibson, grants relief on the ground that the aggravator in this case (heinous, atrocious and cruel , "HAC") was not proven by sufficient evidence and therefore impermissibly permitted the imposition of capital punishment.

In the final case of this week, the Eleventh Circuit en banc reexamines the first death sentence under the federal drug kingpin statute,Chandler v. United States.Relief inChandlerwas denied on his claims that he received ineffective assistance of counsel during the sentencing phase of trial because his trial counsel failed to investigate and to present character witnesses.

Due to the length of this issue (which has lead to its tardiness), "In Depth Feature" will not run this week. Note that due to what already appears to be a very capital case intensive next issue, the "In Depth Feature" probably will not run next week as well.

Supreme Court

Liberty is more secure. the Supreme Court is in summer recess.

Capital Cases

Thomas v. Gibson, No. 99-5030 (10th Cir. 07/18/2000) "On appeal, Thomas raises three challenges each to the validity of his convictions and the validity of his death sentence. As to the validity of his underlying convictions, Thomas argues as follows: (1) his trial counsel provided constitutionally ineffective assistance by failing to investigate evidence supporting Thomas' innocence and, in particular, evidence supporting the likely guilt of the victim's husband; (2) the prosecutor deprived Thomas of his right to due process by failing to endorse three witnesses in a timely manner; and (3) the introduction of inadmissible hearsay rendered his trial fundamentally unfair. After a thorough review of Thomas' contentions, this court concludes that his claims of error regarding the guilt phase of his trial are either procedurally barred or without merit. Accordingly, we affirm the district court's denial of relief as to these three issues. In addition to his challenges to the validity of the underlying convictions, Thomas also asserts that his death sentence is unconstitutional. In particular, Thomas asserts: (1) the sole aggravating circumstance found by the jury­that the murder was especially heinous, atrocious, and cruel­is not supported by sufficient evidence; (2) the verdict form used during the guilt phase directed a verdict of death, thereby depriving Thomas of a fair and individualized sentencing determination; and (3) the state trial court deprived Thomas of a fundamentally fair sentencing proceeding when it precluded Thomas from presenting to the jury evidence that the prosecutor had offered Thomas a life sentence in exchange for a guilty plea. Upon review of the record in this case, we conclude that no reasonable fact finder could conclude that the murder in this case was heinous, atrocious, or cruel, as that term is defined by Oklahoma law."

1. Heinous, Atrocious, and Cruel Aggravating Circumstance

Thomas argues that Oklahoma's heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague in that it fails to adequately narrow the class of murders wherein the perpetrator is subject to the death penalty. See generally Maynard v. Cartwright, 486 U.S. 356 (1988); Godfrey v. Georgia, 446 U.S. 420 (1980). Even assuming the heinous, atrocious, or cruel aggravator is constitutional on its face, Thomas asserts that the state did not present sufficient evidence that his conduct during the murder of Powell fell within the parameters of the aggravator. See generally Lewis v. Jeffers, 497 U.S. 764 (1990). (13)

As Thomas candidly admits in his brief on appeal, each of his challenges to the facial validity of Oklahoma's heinous, atrocious, or cruel aggravator was recently rejected by this court in Moore, 195 F.3d at 1175-76. In fact, "[w]e have held that the 'heinous, atrocious, or cruel' aggravating circumstance as narrowed by the Oklahoma courts after [the Supreme Court's decision in] Maynardto require torture or serious physical abuse characterized by conscious suffering can provide a principled narrowing of the class of those eligible for death." Medlock, 200 F.3d at 1321. Because this court's decision in Moorecompletely disposes of Thomas' facial challenge to Oklahoma's heinous, atrocious, or cruel aggravator, and because this panel is bound by the decision in Moore, (14)we conclude that the district court did not err in denying Thomas habeas relief on this ground.

In addition to the facial challenge rejected above, Thomas mounts an as-applied challenge to Oklahoma's heinous, atrocious, or cruel aggravator. As correctly noted by Thomas, under Oklahoma law, only those murders "'preceded by torture or serious physical abuse'" will be deemed to be heinous, atrocious, or cruel. Id.(quoting Turrentine v. State, 965 P.2d 955, 976-77 (Okla. Crim. App. 1998). The OCCA has identified two kinds of cases in which "torture or serious physical abuse" is present: those characterized by the infliction of "great physical anguish" and those characterized by the infliction of "extreme mental cruelty." Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995). In the mental cruelty context, the OCCA has emphasized that the torture required for finding the "heinous, atrocious, or cruel" aggravator "must produce mental anguish in addition to that which of necessity accompanies the underlying killing." [ Turrentine, 965 P.2d at 976.] As the majority notes, "[w]ith respect to the physical anguish branch of the Oklahoma test, '[a]bsent evidence of conscious physical suffering by the victim prior to death, the required torture or serious physical abuse standard is not met.'" Cheney, 909 P.2d at 80 (quoting Battenfield v. State, 816 P.2d 555, 565 (Okla. Crim. App. 1991)).

Medlock, 200 F.3d at 1324 (Lucero, J., concurring). Thomas does not, and could not, contest that Powell suffered a severe beating. Thomas I, 811 P.2d at 1349 ("Certainly [the evidence adduced at trial] supports a finding that Powell was subjected to serious physical abuse allowing us to proceed to a determination as to whether the murder was especially heinous, atrocious or cruel."). Thus, the only question in this habeas appeal is whether Oklahoma adduced sufficient evidence from which a reasonable fact finder could have concluded beyond a reasonable doubt (15)that Powell was conscious during some part of the beating. See Spears v. State, 900 P.2d 431, 443 (Okla. Crim. App. 1995) (holding that "[c]onscious[ness] . . . is the critical inquiry in determining whether a murder was especially heinous, atrocious or cruel").

After an exacting review of the trial record, we hold that no reasonable fact finder could conclude from the evidence presented that Powell consciously suffered prior to her death and that the decision of the OCCA to the contrary is unreasonable. In so holding, this court recognizes that "[w]hether [s]ection 2254(d)(1) or 2254(d)(2) applies to our review of the sufficiency of the evidence to support an aggravator is unsettled in our Circuit because we have applied both in the past, sometimes analyzing the sufficiency of the evidence as a factual question and sometimes as a legal question." Medlock, 200 F.3d at 1321 n.6 (citing Moore, 195 F.3d at 1176-77). Even assuming that the OCCA's sufficiency determination is a factual one entitled to a presumption of correctness, this court is clearly convinced, see28 U.S.C. § 2254(e)(1), that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id.§ 2254(d)(2).

In support of its contention that the murder of Powell was heinous, atrocious, or cruel, the prosecution produced the testimony of Dr. M. F. Merchant, a forensic pathologist employed by the state of Oklahoma. Dr. Merchant testified that Powell "died as a result of multiple blunt force injuries and shock force injuries, and among the blunt force injuries included manual strangulation." In particular, Dr. Merchant testified that Powell had been stabbed twice in the upper torso and twice in the abdomen; that she had suffered a large contusion to the left side of her face, resulting in a fracture of the nasal bone, lower jaw, adam's apple, and hyoid bone, as well as extensive hemorrhaging; that she had suffered a less severe, but nonetheless significant, contusion to the right side of her face, resulting in hemorrhaging; that she had a large contusion to the right side of her neck and right shoulder, resulting in a large purplish bruise and hemorrhaging in the underlying muscles; and that she had a contusion to the back of her head that resulted in a laceration and hemorrhaging. When asked if he could tell the order in which Powell's wounds were inflicted, Dr. Merchant replied as follows: "The two stab wounds that I saw on the abdomen, I would say because of the very nature of being post-mortem, would be the last to be inflicted. The others, I cannot tell which was inflicted before or after." Dr. Merchant was not asked, and did not opine, as to whether any of the blows noted above likely would have rendered Powell unconscious.

Other than the testimony of Dr. Merchant, the only other evidence adduced by the prosecution bearing on the applicability of the heinous, atrocious, and cruel aggravator was the testimony of officer Robert Robertson who testified that Powell's "dentures had been expelled from her mouth and one of the dentures had been broken in half." There was no evidence that a struggle had taken place, that Powell had defensive wounds, or that Thomas had any wounds on his body consistent with a struggle when he was arrested shortly after the murder. While Powell's neighbor was close enough to observe many details of Thomas' presence on the night of the murder, he did not testify to hearing any noises, voices, or screams. (16)

Against this remarkably limited evidentiary backdrop, the OCCA concluded as follows:

Although there is no direct evidence that Powell suffered before her death, there is certainly circumstantial evidence to support such a theory. The medical examiner's testimony that two of the stab wounds were post mortem leads to the conclusion that the other injuries occurred prior to the stabbing. The injuries to Mrs. Powell resulted in a great loss of blood. It is highly improbable that Powell would have been beaten, strangled and stabbed if she was rendered immediately unconscious by the first blow. We find that the evidence supports a finding that [the] murder was especially cruel in that the killing was pitiless and appears to have been designed to inflict a high degree of pain on the victim.

Thomas, 811 P.2d at 1349 (emphasis added). As should be apparent from the above passage, the entirety of the OCCA's finding of conscious suffering is based on the following inference: it is unreasonable to assume that a murderer would continue striking a murder victim if the first landed blow rendered the victim unconscious. See id.Whatever the merits of such an inference generally, (17)in light of the evidentiary record in this case, the inference is clearly unreasonable. See28 U.S.C. § 2254(d)(2), (e)(1). The testimony of Dr. Merchant is clear: Thomas did, in fact, stab Powell twice after her death. In light of this uncontradicted testimony, it is wholly unreasonable to infer that Thomas would not have inflicted such blows once Powell became unconscious. It makes no sense to assume that a murderer would not continue to inflict blows after a victim fell unconscious when faced with uncontroverted expert testimony that the same murderer continued to inflict blows after the victim was dead. Even in light of the heightened deference accorded the decisions of state courts under the provisions of the AEDPA, the decision of the OCCA cannot withstand the review for reasonableness mandated by the AEDPA. See id.

Because the OCCA's sufficiency finding as to the heinous, atrocious, or cruel aggravator is based exclusively on its stated inference, and because the drawing of that inference is clearly unreasonable in light of the undisputed contrary trial testimony of the state medical examiner, this court concludes that no rational fact finder could have found the existence of the aggravator beyond a reasonable doubt. Because the only aggravating circumstance advanced by the state of Oklahoma at trial is not supported by sufficient evidence, Thomas' death penalty cannot stand.

Weeks v. Snyder,No. 98-9005 (3d Cir. 07/17/2000) Petitioner "raises one narrow issue before us: whether his trial attorney afforded him constitutionally ineffective assistance of counsel in connection with his guilty plea."

As Justice O'Connor emphasized in Flores-Ortega , "[t]he second part of the Strickland test requires the defendant to show prejudice from counsel's deficient performance." 120 S. Ct. at 1037. Thus, even ifWeeks established that his counsel's performance was objectively unreasonable, he must also demonstrate that "there is reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. The Court in Hill stated that the prejudice inquiry in many guilty plea cases "will closely resemble the inquiry engaged in by courts reviewing ineffective- assistance challenges to convictions obtained through trial." Id. Thus, as the Supreme Court explained in Strickland, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.

In order to examine the prejudice issue, we mustfirst determine what Willard would have learned had he researched the effect of Govan's refusal to testify. We must then determine whether there is a reasonable probability that ifWeeks had been informed of the results of this research, he would have insisted on going to trial.

In this connection, it is important to recall that Govan had given three inculpatory statements shortly after the murders, each of which placed the principal responsibility onWeeks but which also implicated Govan to differing extents.Weeks contends that under the applicable Delaware rule of evidence, the prosecutor cannot use the prior statements of an accomplice as affirmative evidence if s/he refuses to testify. See 11 Del. C.S 3507.2 As stated byWeeks, "if Govan had refused to testify and therefore could not be cross-examined, his out-of-court statements inculpatingWeeks would have been inadmissible againstWeeks." Appellant's Br. at 22-23. The parties agree that there was no effective way to compel Govan to testify if he was unwilling, as effective sanctions would be unavailable inasmuch as Govan was already facing at least a life sentence. Although the parties disagree as to whether Govan's prior statements would have been admissible even if he chose not to testify, this appeal does not turn on that issue.3

Weeks' point is that Willard failed to tell him that they may not have been admissible. However, even if Willard did not tell him, he could not have been prejudiced because the trial judge told him. DuringWeeks' guilty plea colloquy, which took place while the parties were aware of Govan's equivocation about testifying, Judge Babiarz stated toWeeks in open court that it was an "open question" whether Govan's prior statements would have been admissible. The court stated:

It's an open question as to whether I could then compel him [Govan] to testify or let the State use his statements against you and not decide it. There was uncertainty about whether that could be used against you, but as of yesterday afternoon, Mr. Govan was going to stand on that Fifth Amendment Right and call into question the State's ability to use any of that material against you.

App. at 43-44 (Plea Hearing Transcript). This summary by the judge was an accurate and simple synopsis of the legal ramifications of Govan's refusal to testify. See supra note 3. When the judge askedWeeks, "If you have any questions, please ask me and I'll try to explain further,"Weeks responded "No, sir. Thank you, sir. I understand." App. at 44. (emphasis added). The judge then askedWeeks if this information would have made a difference in his decision to plead guilty, to whichWeeks responded, "No Sir." App. at 44.

This colloquy beliesWeeks' assertion that he would have insisted on going to trial if he had known about the legal ramifications of Govan's refusal to testify. In light of the judge's clear explanation toWeeks of the uncertainty with respect to the admissibility of Govan's statements, Willard's alleged failure to do so can hardly have prejudicedWeeks. The absence of prejudice from the alleged deficient legal representation is clear.

While one may wonder why, under these circumstances,Weeks proceeded to plead guilty, in this case an explanation is reflected in the record.Weeks himself made plain his reason for pleading guilty in his post-conviction testimony.

Q: So in your mind, the main reason you pled guilty was to avoid putting the victim's family and your family through the trauma of re-living the events of the killings?

A: [Weeks] Yes.

Q: And you thought by pleading guilty you would accomplish that?

A: [Weeks] Yes.

App. at 499 (Post-Conviction Hearing Transcript).

This is consistent with Willard's statements at the time of the guilty plea thatWeeks chose to plead guilty due to concerns for his family and the family of the victims and Willard's testimony at the post conviction hearing. The District Court's conclusion that further information regarding the legal uncertainties over whether Govan's out- of-court statements may be used against him was irrelevant toWeeks' decision to plead guilty has ample support in the record. It follows ineluctably thatWeeks was advised of the implications of Govan's possible failure to testify, if not by Willard then at least by the judge, and, in any event, he was emotionally committed to pleading guilty.Weeks failed to make the requisite showing that there is a reasonable probability that but for Willard's alleged errors,Weeks would have insisted on going to trial and he was therefore not prejudiced by the alleged ineffective assistance.

CONCLUSION

We are not unaware of the controversy currently surrounding the imposition of the death penalty in this country. However, this case does not trench upon the issues in the forefront of that controversy, usually identification of the defendant or the defendant's competency at any of the critical stages of the event or the criminal proceeding. This is a case in which an estranged husband pled guilty to murdering his wife and her friend, and that plea was supported by ample evidence. Whether this is an appropriate case for administration of the death penalty is a political question, not a judicial one. Only one judicial issue was presented to this court on this appeal, and we have no basis to disagree with the judgment of the District Court and the findings of the Delaware courts thatWeeks had not shown that he received ineffective assistance of counsel. We will therefore affirm the judgment of the District Court denying a writ of habeas corpus.

Baker v. Corcoran, No. 99-24 (4th Cir. 07/19/2000) Petitioner argues on appeal that the trial court gave the jury an unconstitutional instruction regarding reasonable doubt and premeditation; counsel were constitutionally deficient for failing to conduct an independent investigation of the case; counsel were ineffective for failing to investigate his codefendant; counsel's failure to obtain expert analysis of the firearms and ballistics evidence; and counsel were constitutionally deficient for failing to present mitigation testimony regarding family history from his mother and social worker. "The State cross-appeals an order of the district court denying its motion to dismiss Baker's petition as untimely under 28 U.S.C.A. § 2263 (West Supp. 2000), maintaining that the district court incorrectly ruled that Maryland has not satisfied the "opt-in" requirements of 28 U.S.C.A. § 2261(b), (c) (West Supp. 2000)."

Turning at last to the merits of Baker's claims, we consider first his contention that the trial court gave the jury an unconstitutional instruction regarding reasonable doubt.14 That instruction was as fol- lows: The State has the burden of proving the guilt of the Defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The Defendant is not required to prove his innocence. However, the State is not required to prove guilt beyond all possible doubt or to a mathematical certainty. Nor is the State required to negate every conceivable circumstance of innocence.

A reasonable doubt is a doubt founded upon reason. It is not a fanciful doubt, a whimsical doubt or a capricious doubt. Proof beyond a reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own business or personal affairs.

In deciding whether a charge has been proved beyond a reasonable doubt and to a moral certainty, you may ask yourselves, "Is the evidence of guilt of the kind that I would put my trust in or rely upon in coming to a decision concern- ing the more important matters of my own life?" If the evi- dence does have the same force as information you would rely upon in such important matters, you may conclude that the charge has been proved beyond a reasonable doubt and to a moral certainty. However, if you are not satisfied of the Defendant's guilt to that extent, then reasonable doubt exists and the Defendant must be found not guilty.

J.A. 126-27. Baker contends that this instruction relieved the state of its burden to prove the elements of the charged offenses beyond a rea- sonable doubt, mandating reversal of his convictions. See Sullivan v. Louisiana, 508 U.S. 275, 279-80 (1993) (holding that erroneous rea- sonable doubt instruction cannot be reviewed for harmless error).

Although due process requires that the government prove each ele- ment of an offense beyond a reasonable doubt, see In re Winship, 397 U.S. 358, 364 (1970), the Constitution neither requires that trial courts define reasonable doubt nor prohibits them from doing so, see Victor v. Nebraska, 511 U.S. 1, 5 (1994). And, when a trial court elects to define reasonable doubt, the Constitution does not mandate a particu- lar definition. See id. Rather, the question is whether the instruction, taken as a whole, correctly conveyed the concept of reasonable doubt to the jury. See Holland v. United States, 348 U.S. 121, 140 (1954).

We conclude that, taken as a whole, the instruction given by the trial court correctly conveyed the concept of reasonable doubt to the jury. The instruction was one of the type called"willing to act" instructions, i.e., it informed the jurors that the reasonable doubt stan- dard is satisfied by evidence on which they would be willing to act in their personal affairs. Such instructions have been criticized by the courts. For example, in Holland the Court considered an instruction that defined reasonable doubt as "the kind of doubt . . . which you folks in the more serious and important affairs of your own lives might be willing to act upon." Id. (internal quotation marks omitted) (alteration in original). While the Court declined to declare this instruction unconstitutional, it noted that "this section of the charge should have been in terms of the kind of doubt that would make a per- son hesitate to act." Id.; see Monk v. Zelez, 901 F.2d 885, 890 (10th Cir. 1990) (per curiam) (holding unconstitutional a"willing to act" instruction because it was not expressed in terms of hesitation to act). However, courts have affirmed reasonable doubt instructions that informed jurors that the standard was satisfied by evidence on which they would be willing to act "without hesitation." See, e.g., United States v. Daniels, 986 F.2d 451, 457-58 (11th Cir. 1993) (per curiam).

Here, the "willing to act" language to which Baker points was given in the course of an instruction that correctly conveyed the con- cept of reasonable doubt to the jury. In particular, the court stated that "reasonable doubt requires such proof as would convince you of the truth of a fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own busi- ness or personal affairs." J.A. 126 (emphasis added). Accordingly, the rejection of this claim by the state court was neither contrary to, nor involved an unreasonable application of, clearly established federal law.

Oken v. Corcoran, No. 99-27 (4th Cir. 07/18/2000) "Oken, a Maryland inmate under sentence of death, appeals from the district court's denial of his application under 28 U.S.C. § 2254 for a writ of habeas corpus. Oken claims,inter alia, that the state trial court's voir dire questions were constitutionally inadequate underMorgan v.Illinois,504 U.S. 719(1992), and that he surrendered his right to testify at the criminal responsibility phase of his trial in reliance on advice from the trial court that was erroneous underSimmonsv.United States,390 U.S. 377(1968)."

Oken argues that the district court erred in denying him relief on his claim that the state trial court's voir dire questions were constitu- tionally inadequate under Morganv.Illinois, 504 U.S. 719(1992), because they failed to satisfy Morgan's requirement of an "inquiry" sufficient to identify "those jurors who, even prior to the State's case in chief, had predetermined [. . .] whether to impose the death pen- alty," id. at 736. Specifically, Oken contends that, even though the trial judge asked some of the potential jurors follow-up questions, the initialquestions propounded to every member of the jury panel were inadequate to identify all of the potential jurors who would need to be asked follow-up questions in order to satisfy the dictates of Mor-gan.

We reject this claim as procedurally defaulted, and, in the alterna- tive, on its merits. 1.

We reject Oken's Morganclaim as procedurally defaulted because he failed to raise this claim on direct appeal in Oken Iand thereby waived it as a matter of state law, and because, as a matter of state law, he failed to show special circumstances excusing this waiver. See Oken II, 681 A.2d at 36-38. We are satisfied that this state procedural rule requiring that, absent special circumstances, issues first be raised on direct review is both "independent" and"adequate," as required by Colemanv.Thompson, 501 U.S. 722, 750(1991). It is "adequate" because it is "consistently or regularly applied," Johnsonv.Missis-sippi, 486 U.S. 578, 587(1988), by Maryland courts. See,e.g.,McEl-royv.State, 617 A.2d 1068, 1070, 1075 (Md. 1993); Smithv.Warden, Maryland Penitentiary, 243 A.2d 897, 898 (Md. Ct. Spec. App. 1968),cert.denied sub nom.Smithv.Maryland, 393 U.S. 989(1968);Anglinv.Director, Patuxent Institution, 232 A.2d 532, 533 (Md. Ct. Spec. App. 1967), cert.denied sub nom.Anglinv.Maryland, 389 U.S. 873(1967). We are also satisfied that this procedural bar is sufficiently "independent" of federal law, even though the Maryland Court of Appeals, in applying it, referred to Johnsonv.Zerbst, 304 U.S. 458(1938), since the Maryland court's decision does not "fairly appear to rest primarily on federal law or to be interwoven with fed- eral law," Coleman, 501 U.S. at 735, 740. The rule that issues must first be raised on direct appeal, on which the Maryland court based its decision that Oken's Morganclaim was waived, is itself clearly a state-law rule. Seecases cited supra. Admittedly, the Maryland court did look to federal law in making the antecedent determination that this waiver need not be "intelligent and knowing." Because Maryland caselaw has relied in part on Johnsonv.Zerbstin construing the scope of Md. Code Art. 27, § 645A(c)'s"intelligent and knowing" waiver standard, see,e.g.,McElroy, 617 A.2d at 1070, the Maryland court did look to federal law in determining that this waiver standard did not apply. Nevertheless, we cannot say that, by virtue of this fact alone, the Maryland court's decision "rest[s] primarilyon federal law" or is "interwoven with federal law." To the extent that the Mary- land court did look to federal law in making the antecedent determi- nation that the waiver need not be "intelligent and knowing," the court's reliance on federal law was limited to one aspect of the hold- ing in Morganand to state-law precedents applying Johnson's dicta that "fundamental constitutional rights" may be waived only intelli- gently and knowingly, 304 U.S. at 464. And, more importantly, the Maryland court did not look primarilyto federal law in making this antecedent determination. Rather, it based its determination in large part on the state-law premise that the failure to raise a Morganclaim on direct appeal is the sort of "tactical decision of counsel" that Mary- land courts have, as a matter of state law, construed as falling outside the intended scope of section 645A(c). See Oken II, 681 A.2d at 37 (citing Curtisv.Maryland, 395 A.2d 464, 474 (Md. 1978)).

Under the rule of Colemanv.Thompson, we are therefore barred from reviewing the merits of Oken's Morganclaim, unless Oken has demonstrated that the "failure to consider [this claim] will result in a fundamental miscarriage of justice" or that sufficient "cause" and "prejudice" exist to excuse this procedural default. Coleman, 501 U.S. at 750. Oken has demonstrated neither. He makes no argument that the failure to consider his Morganclaim will result in a "fundamental miscarriage of justice." And the only "cause" that Oken has advanced for this procedural default -- the ineffective assistance of his Oken I appellate counsel -- was itself procedurally defaulted because Oken failed to make any mention of it in his opening brief to the Maryland Court of Appeals in Oken II.See Oken II, 681 A.2d at 36 n.5; see alsoHealth Servs. Cost Review Comm'nv.Lutheran Hospital of Mary-land, Inc., 472 A.2d 55, 61 (Md. 1984) (holding that issues raised only in the reply brief, and not the opening brief, are waived); FederalLand Bank of Baltimore, Inc.v.Esham, 406 A.2d 928, 938 (Md. Ct. Spec. App. 1979) (same). And Oken has also failed to make any showing of "cause" and "prejudice" to excuse this last procedural default. Thus, the alleged ineffective assistance of Oken's appellate counsel cannot serve as "cause" to excuse Oken's failure to raise his Morganclaim on direct appeal. See Edwardsv.Carpenter, 120 S. Ct. 1587, 1592 (2000). Consequently, we reject Oken's Morganclaim as procedurally defaulted, and thus we need not reach the merits of this claim.

Even if we were to reach the merits of Oken's Morganclaim, we would still deny Oken relief on this ground because the Maryland Court of Appeals' rejection of his Morganclaim was not "contrary to," or an "unreasonable application of," Morgan. The four questions initially asked of every member of the jury panel were as follows:

[1.] Do you have any strong feelings, one way or the other, with regard to the death penalty?

[2.] Do you feel that your attitude, regarding the death penalty, would prevent or substantially impair you from making a fair and impartial decision on whether the Defen- dant is not guilty or guilty, based on the evidence presented and the Court's instructions as to the law?

[3.] Do you feel your attitude, regarding the death penalty, would prevent or substantially impair you from making a fair and impartial decision on whether the Defendant was or was not criminally responsible by reason of insanity, based on the evidence presented and the Court's instructions on the law?

[4.] Do you feel that your attitude, regarding the death penalty would prevent or substantially impair you from sen- tencing the Defendant, based upon the evidence presented and the Court's instructions as to the law which is applica- ble?

Oken II, 681 A.2d at 38-39. These questions were not the sort of "general fairness and `follow the law' questions" that the Court held inadequate in Morgan, 504 U.S. at 734; see id. at 724 ("Do you know of any reason why you cannot be fair and impartial?"; "Do you feel you can give both sides a fair trial?"). Rather, they explicitly referred to the death penalty and asked whether the potential juror's feelings about the death penalty were "strong." Compare United Statesv.Tip-ton, 90 F.3d 861, 878-79 (4th Cir. 1996) (holding that "the district court's inquiry into death penalty attitudes was sufficient" to satisfy the dictates of Morgan, where the only question propounded to every member of the jury panel explicitly referred to the death penalty and asked whether the potential juror's feelings about the death penalty were "strong"), cert.denied, 520 U.S. 1253(1997). Moreover, we fail to see any meaningful difference between the question "Do you have strong feelings in favor of the death penalty?", which Oken apparently concedes would be adequate, seeAppellant's Br. at 15-16 (citing Tip-ton, 90 F.3d at 878), and the first question asked here -- "Do you have any strong feelings, one way or the other, with regard to the death penalty?". Fairly read, the initial four questions, if truthfully answered, would have enabled the trial court to determine whether a potential juror's feelings about the death penalty"would prevent or substantially impair the performance of his duties as a juror in accor- dance with his instructions and his oath," Morgan, 504 U.S. at 728(citation omitted). Consequently, even if the trial court had not asked several of the potential jurors additional follow-up questions on an individual basis, as the court did here, we would still be satisfied that the initial four questions asked of every member of the jury panel were by themselves sufficient to satisfy Morgan's requirement of an "inquiry" sufficient to identify "those jurors who, even prior to the State's case in chief, had predetermined [. . .] whether to impose the death penalty," id. at 736; see also id. at 729 ("The Constitution [. . .] does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial jury.").

Evans v. Smith, No. 99-22 (4th Cir. 07/17/2000) Petitioner here argues that the state exercised its peremptory challenges during jury selection for Evans' state trial in a racially discriminatory fashion in violation ofBatson v. Kentucky,476 U.S. 79(1986); that he was denied his Sixth Amendment right to the effective assistance of counsel at his resentencing (counsel were deficient in failing to interview several witnesses whose testimony would purportedly have helped to show that Evans was not a "principal in the first degree" and thus not death-eligible under Maryland law as well as failed to conduct further investigation and offer expert testimony concerning Evans' likely federal parole date) as well as a claim under Brady v. Maryland.

The first claim raised by Evans on appeal is that the state exercised its peremptory challenges during jury selection for Evans' state trial in a racially discriminatory fashion in violation of Batson v. Kentucky, 476 U.S. 79(1986). Batsonprovides that"the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Id.at 89. A prosecutor is otherwise entitled to exercise his allotted peremptory challenges "for any reason at all, as long as that reason is related to his view concerning the outcome of the case." Id.(internal quotation marks omitted). Batsonsets forth a three-step evidentiary framework for evaluating claims of racial discrimination in jury selection. See id.at 93-98. This familiar framework is derived from the Supreme Court's equal pro- tection and Title VII jurisprudence.See id.First, the defendant must make out a prima facie case that the prosecutor has exercised peremp- tory challenges in a racially discriminatory manner. See id.at 96-97. Second, if the defendant has made a prima facie showing, "the burden shifts to the State to come forward with a neutral explanation for chal- lenging black jurors." Id.at 97. The prosecutor, of course, may not rebut the defendant's prima facie case "merely by denying that he had a discriminatory motive or affirming his good faith in making individ- ual selections." Id.at 98 (internal quotation marks omitted). Rather, "the prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges." Id.at 98 n.20 (internal quotation marks omitted). Yet the explanation "need not rise to the level justifying exercise of a challenge for cause." Id.at 97. In fact, "[t]he second step of this process does not demand an explana- tion that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 767-68(1995) (per curiam) (internal quotation marks omitted). "Unless a discriminatory intent is inherent in the prosecutor's expla- nation, the reason offered will be deemed race neutral," for in this context "a legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection."Id.at 768, 769 (internal quotation marks omitted). Third, if the prosecutor has articulated "a neutral explanation related to the particular case to be tried," the trial court then has "the duty to determine if the defendant has established purposeful discrimination." Batson, 476 U.S. at 98. The defendant at all times bears the ultimate burden of persuasion as to the existence of purposeful discrimination. See, e.g.,id.at 93; Purkett, 514 U.S. at 768.

In reviewing a trial court's decision concerning the presence of intentional discrimination, it is essential that we accord that decision the deference required by law. See, e.g.,Hernandez v. New York, 500 U.S. 352, 364(1991) (plurality opinion) ("[T]he trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal."); Batson, 476 U.S. at 98n.21 ("[A] finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court." (inter- nal quotation marks omitted)). As in other areas of the law that address invidious discrimination, "[w]hether the prosecutor intended to discriminate on the basis of race in challenging potential jurors is, as Batsonrecognized, a question of historical fact." Hernandez, 500 U.S. at 367. Indeed, deference to trial court findings on discriminatory intent is particularly important in this context because the Supreme Court has instructed that such findings turn principally on credibility determinations.See id.at 365; Batson, 476 U.S. at 98n.21. As the plurality explained in Hernandez:In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within a trial judge's province. 500 U.S. at 365(internal quotation marks omitted).

The precise formula used to review a finding of fact concerning prosecutorial motive in exercising peremptory challenges depends on the particular context. See id.Thus, on federal habeas, the same stan- dard of review applied to other questions of fact governs our inquiry concerning intentional discrimination. See id.at 366. Accordingly, a state court's determination on this issue "shall be presumed to be cor- rect" and the habeas petitioner bears "the burden of rebutting the pre- sumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

B. Evans argues initially that no state court has actually applied Bat-sonat any stage of this long course of litigation. As a result, Evans claims, the state court decisions are entitled to no deference under the habeas statute. Evans contends that these decisions are instead "con- trary to . . . clearly established Federal law", 28 U.S.C. § 2254(d)(1), and that he is therefore entitled to a new trial. Evans further argues that the prosecutor's exercise of his peremptory challenges did not in any event comport with Batson's requirements.

Our review of the record, however, has uncovered no reason to overturn Evans' conviction on Batson grounds. To begin with, the trial court demonstrated that it was very sensitive to the possible use of race-based peremptory strikes during the jury selection process. Although jury selection in Evans' state trial took place two years before Batsonwas decided, the trial court warned the prosecutor that "[t]here has been some extremely strong language in dicta about using peremptory challenges for racial purposes." The court then instructed the prosecutor to take this case law into account in exercising the state's peremptory challenges. The court also kept a record of the racial identities of the potential jurors that were struck and the jurors that were seated.

After the jury had been selected, Evans' counsel informed the court that the panel was unacceptable to the defendant because the defense believed that the state had "exercised its peremptory challenges to purposely limit blacks from representation on the panel." The state had utilized eight of its ten peremptory challenges to strike African Americans from the venire. Two of the twelve jurors chosen were African Americans, and one of the two alternates later chosen was also African-American.

The court invited the prosecutor to respond to Evans' objections. The prosecutor explained, "We struck on background, age, occupa- tion, what was learned during the voir dire at the bench and in open court. We did not strike on racial grounds." After some further discus- sion, the court overruled Evans' objections and stated that the objec- tions were noted for the record. Evans did not ask the court to seek any further explanation of the peremptory strikes from the prosecutor.

It is thus clear that the trial court applied Batsonin essence. The trial court warned the prosecutor that it would scrutinize the state's exercise of its peremptory challenges for any racial bias. When the defense objected, the court gave the prosecutor an opportunity to explain his actions. The prosecutor provided a race-neutral explana- tion that the trial court could assess in light of its own observation of jury selection. Evans provided no further support for his allegation of intentional discrimination and did not seek further explanation from the prosecutor. Although the trial court did not record explicit find- ings, its overruling of Evans' objection in the context of the proceed- ings makes it clear that the trial court accepted the prosecutor's explanation and found that there was no discriminatory intent.

Evans nonetheless contends that the trial court erred in failing to require the prosecutor to render individualized explanations for each particular peremptory strike of an African American. Batson, how- ever, does not require individualized explanations for peremptory strikes. Rather, it requires only that the explanation be race-neutral, see Batson, 476 U.S. at 97, "clear and reasonably specific," id.at 98 n.20, and "related to the particular case to be tried," id.at 98. While the prosecutor in many cases will offer more individualized explana- tions, a court may nonetheless find that the prosecutor has complied withBatsonbased on an overall explanation that is found satisfactory as to each of the challenged strikes, see, e.g.,United States v. Allison, 908 F.2d 1531, 1537, 1538 n.9 (11th Cir. 1990); United States v.Davis, 871 F.2d 71, 72 (8th Cir. 1989). Here it is apparent that the trial court found that the prosecutor's explanation was satisfactory as to each individual juror. And like the Supreme Court, we refuse to impose stringent, detailed requirements as to how trial courts are to implement Batson. See Batson, 476 U.S. at 99& 99-100 n.24. We therefore cannot say that the trial court acted contrary to the law of Batson.

Not only did the state trial court apply Batsonin essence, but no state court to which Evans' Batsonclaim was subsequently presented indicated that it found any merit in the claim. In 1985, the Maryland Court of Appeals applied a remarkably Batson-like framework itself in affirming the trial court's judgment on direct appeal. The appellate court noted that, whereas the Supreme Court's decision in Swain v.Alabama, 380 U.S. 202(1965), required defendants to prove system- atic exclusion of racial minorities from juries over time, there was a growing body of state and federal case law that enabled a defendant to show a constitutional violation based on the exercise of peremptory challenges at the defendant's trial alone. See Evans, 499 A.2d at 1281; see also Ford v. Georgia, 498 U.S. 411, 420(1991) (" Batsondid not change the nature of the violation recognized in Swain, but merely the quantum of proof necessary to substantiate a particular claim"). Indeed, several of the cases relied upon by the Maryland Court of Appeals for its evidentiary framework were also cited by the Supreme Court in Batsonboth in describing the growing departures fromSwain's burden and in articulating the Batsonframework itself. Com-pare Batson, 476 U.S. at 82n.1, 92 n.17, 97, 98 n.20, with Evans, 499 A.2d at 1281. 1The Maryland court also pointed to a number of other state cases employing a Batson-like framework and noted that in com- menting on the denial of certiorari in McCray v. New York, 461 U.S. 961(1983), five Justices indicated that the time might be approaching for a reexamination of Swain.See Evans, 499 A.2d at 1281. The appellate court then described the strikingly Batson-like approach proposed by recent cases:

Each [case] starts with the presumption established by Swain, that the prosecution is using the State's challenges properly. Each then requires the defendant to establish a prima facie case of discrimination sufficient to overcome the presumption, followed by an opportunity for explanation on the part of the prosecution if a prima facie case is made out, with the ultimate resolution of any dispute to be made by the trial judge.

Evans, 499 A.2d at 1281. The court then applied this framework to Evans' claim. It began by assuming arguendothat Evans had made a prima facie showing of discrimination and proceeded to assess the prosecutor's explanation. 2 See id.at 1282. The court concluded, however, that "the explanation offered by the prosecutor, and appar- ently accepted by the court, was sufficient under the circumstances to support the decision of the trial judge in overruling the defendant's objection." Id.The court emphasized that"the explanation of the prosecutor stood uncontroverted and unimpeached." Id.

Further, the first state post-conviction court found in 1991 -- five years after Batsonhad been decided -- that the earlier state court con- clusions were consistent with the subsequent Supreme Court decision. Although the first state post-conviction court found that Evans' Bat-sonclaim had been "finally litigated," it nonetheless examined Evans' claim in light of Batsonto find that no constitutional violation had occurred. And the second state post-conviction court declined to address the substance of Evans' Batson claim because it found that the matter had already been "finally litigated." Thus, the state courts that had the opportunity to reevaluate Evans' claim in light of the Bat-sondecision found no reason to disturb the earlier adjudications.

Evans nonetheless argues that a Batsonviolation did in fact occur. For example, he attacks the prosecutor's explanation at this late stage by asserting that some similarly situated jurors were not stricken from the venire. Evans claims that the prosecutor's proffered reasons thus cannot explain the prosecutor's exercise of his peremptory challenges.

But as the Supreme Court has stated, our review of a trial court's adjudication of a Batsonclaim must be marked by great deference to the trial court's finding on the question of discrimination. See, e.g.,Batson, 476 U.S. at 98n.21; Hernandez, 500 U.S. at 364(plurality opinion); see also Matthews v. Evatt, 105 F.3d 907, 917 (4th Cir. 1997) (trial court's Batsonfindings "turn largely on credibility deter- minations" and are thus entitled to deference);United States v.Bynum, 3 F.3d 769, 772 (4th Cir. 1993) (trial court is in best position to enforce Batson's requirements because trial court can evaluate the prosecutor's candor in offering reasons for challenges). Indeed, it would be an impermissible exercise in hindsight for us now to upset the trial court's credibility determination in evaluating the prosecu- tor's explanation. And as the district court correctly observed, the "re- trospective parsing of the `curricula vitae' of the jurors" is no substitute for the observations of the trial judge, who witnessed first- hand the process. We simply cannot overlook the fact that the trial court had conducted an extensive voir dire of the jury pool, which was documented in several hundred pages of trial transcripts, and was able to observe the demeanor and hear the responses of the prospec- tive jurors in court. This insight enabled the trial court to compare the prosecutor's explanation with what occurred at the bench and in open court. Most significantly, the trial court was able to observe the prose- cutor's demeanor and conduct and evaluate the credibility of his explanation. And all of this was after the court had warned the prose- cutor that his peremptory challenges would be under scrutiny for any taint of racial bias. Evans has failed to persuade us that the trial court's finding that there was no intentional discrimination was incor- rect.

In sum, the state courts have carefully examined on several occa- sions Evans' challenge to the prosecution's exercise of its peremptory strikes. They have examined the prosecution's conduct for any hint of racial animus, and none of these courts has found that a constitu- tional violation occurred. And Evans has failed to overcome the pre- sumption of correctness accorded to the state courts' conclusion that there was no racial discrimination in the selection of his jury. We hold that the state court adjudications were neither"contrary to" nor "an unreasonable application of" clearly established federal law. 28 U.S.C. § 2254(d)(1). The district court therefore properly denied Evans' request for habeas relief on hisBatsonclaim.

Chandler v. United States, No. 97-6365 (11th Cir. 07/21/2000) "Petitioner, invoking the Sixth Amendment, claimed that he received ineffective assistance of counsel -- during the sentencing phase of trial -- because his trial counsel failed to investigate and to present character witnesses." Relief denied.

Petitioner says that his trial counsel's performance during the sentencing phase of his trial was unreasonable. Trial counsel at the sentencing phase called Petitioner's mother and wife to testify, advanced two statutory mitigating factors, and stressed lingering doubt about Petitioner's true guilt. Our court's proper inquiry is limited to whether this course of action might have been a reasonable one. And, we begin with the strong presumption that it was. We conclude that -- given the record in this case and taking in the principles for ineffective assistance claims -- Petitioner has failed, as a matter of law, to overcome the presumption.

Although Petitioner's claim is that his trial counsel should have done something more, we first look at what the lawyer did in fact. Trial counsel focused on obtaining an acquittal and then, at sentencing, on lingering doubt. *fn26 This defense was a reasonable one. *fn27 We have said before that focusing on acquittal at trial and then on residual doubt at sentencing (instead of other forms of mitigation) can be reasonable. See Tarver v. Hopper, 169 F.3d 710, 715-16 (11th Cir. 1999). Especially when -- as in this case - - the evidence of guilt was not overwhelming, *fn28 we expect that petitioners can rarely (if ever) prove a lawyer to be ineffective for relying on this seemingly reasonable strategy to defend his client.

Trial counsel did not pursue character witnesses for mitigation; *fn29 but he had other mitigators in hand. That trial counsel's approach (preparing and presenting a case for doubt about Petitioner's guilt instead of focusing on mitigating character evidence) was reasonable is even more clear in the light of the questionable value of the mitigating character evidence.

A lawyer reasonably could have determined that character evidence would not be compelling in this case. And a lawyer reasonably could also fear that character evidence might, in fact, be counterproductive: it might provoke harmful cross-examination and rebuttal witnesses. *fn30 Misgivings about hurtful cross-examination and rebuttal witnesses have been decisive to the Supreme Court when it determined that counsel was effective. See, e.g., Burger v. Kemp, 107 S. Ct. 3114, 3124-25 (1987) (concluding that failure to introduce character evidence was effective performance because witnesses could have been subjected to harmful cross-examination or invited other damaging evidence); Darden v. Wainwright, 106 S. Ct. 2464, 2474 (1986) (same); Strickland v. Washington, 104 S. Ct. 2052, 2057 & 2071 (1984) (same). Trial counsel in this case has testified that he had these thoughts and concerns.

At the section 2255 hearing, trial counsel testified that, although he knew that testimony about Petitioner's character would be admissible as mitigation evidence, he thought that character witnesses would not be very helpful or compelling, in this case. A[I]t would be at least questionable whether a sufficient impact of character type testimony could overcome a fixed opinion based on the other evidence . . . [whether it] could change it from life to death. Or death to life.@ *fn31 The trial record indicates that counsel used other evidence and stressed lingering doubt. He thought character evidence (even evidence of specific good acts by Petitioner) would not prevent the jury -- if they were sure Petitioner had procured this murder -- from giving Petitioner the death penalty. *fn32 And trial counsel also questioned whether evidence of instances of Petitioner's specific good acts would have been compelling, considering that the Government was not arguing that Petitioner was in all ways a bad man, but arguing that he had committed specific criminal acts, including offering to pay for a murder. *fn33

As every reasonable trial lawyer knows, character witnesses that counsel called could be cross-examined by the Government. And as trial counsel said, such cross-examination might not be helpful to his case. It is uncontroverted that, based on his earlier interviews with people in the pertinent community, he knew that Asome individuals in the community considered [Petitioner] to be a drug dealer@ and Athat there were people in the community [who] were afraid of him.@

Trial counsel also had seen at this very trial how a character witness's testimony could be twisted by cross-examination and the arguments of opposing counsel. A witness at the guilt phase testified that Petitioner had given him some property for a house after the witness was newly married, even though the witness did not have the money to pay for the land. Trial counsel then had attempted to paint the story as good-act evidence. Trial counsel accurately noted that the Government, however, used this testimony to argue that Petitioner's gift to this man was, in reality, part of a money laundering operation. *fn34

That counsel's concerns about using character evidence were reasonable is confirmed by the transcript of the evidentiary hearing for section 2255 relief. At the hearing, the Government did effectively cross-examine the proffered character witnesses. The district court judge -- the same, very experienced judge who presided at the murder trial itself -- after seeing and hearing these witnesses, did not think they were helpful to Petitioner's case because they were nullified on cross-examination. See Burger, 107 S. Ct. at 3124 (concluding that trial counsel acted reasonably in not calling witness at sentencing that district judge later heard fully at habeas hearing and found not to be helpful); see also White v. Singletary, 972 F.2d 1218, 1225 (11th Cir. 1992) (questioning whether counsel would even have presented evidence had he possessed it because it had substantial internal weaknesses).

Trial counsel also testified that he was Afearful@ of rebuttal witnesses: AI felt that the law enforcement community in Piedmont, in that part of the county, was hostile to [Petitioner], antagonistic to him. And that they certainly could have produced witnesses of that sort.@ *fn35 A reasonable lawyer could decide to limit reliance on character testimony instead of exposing the jury (right at sentencing) to a new string of Government witnesses who could testify to Petitioner's bad acts. *fn36 We must conclude that trial counsel's approach to the sentencing proceedings was a reasonable one.

Petitioner, on this record, has given us no cause to doubt this conclusion. Petitioner never testified at his section 2255 hearing. The reasonableness of a trial counsel's acts, including lack of investigation or excluding character witnesses from the sentencing phase, depends Acritically@ upon what information the client communicated to counsel. Strickland, 104 S. Ct. at 2066. In this case, Petitioner and trial counsel shrouded the conversations between themselves in attorney-client privilege; *fn37 so we do not know to what extent Petitioner informed trial counsel's acts. *fn38 Therefore, given the absence of evidence in the record, we must assume counsel carried out his professional responsibility and discussed mitigation with his client. *fn39 See Williams v. Head, 185 F.3d 1223, 1235 (11th Cir. 1999). In addition, the section 2255 transcript is clear on two points: trial counsel testified -- without dispute -- that he frequently met with Petitioner before and during trial and that no one who spoke with trial counsel ever came forward with facts about character evidence that he thought would be helpful. *fn40

In short, trial counsel, based on his professional judgment as an experienced trial lawyer, determined (or some reasonable lawyer could have) that his client had a fair chance for acquittal, saw (or some reasonable lawyer could have) character witnesses -- with the potential dangers associated with cross-examination and rebuttal witnesses -- as less than compelling in mitigation, and allocated (or some reasonable lawyer could have) his time and resources accordingly. Trials are full of imponderables. Nothing in the record indicates with force that this lawyer's conduct was outside of the range of reasonable conduct.

When the guiding principles are applied to the record, the record will allow only one legal conclusion: Petitioner is due no relief. *fn41 In the light of the strong presumption that counsel was effective and the circumstances of the case, Petitioner has not met his heavy burden to prove that counsel's acts -- at sentencing, focusing largely on residual doubt and not investigating or presenting mitigating character witnesses -- were unreasonable. *fn42 Nothing more needs to be said. The Constitution did not demand that trial counsel, in this case, use more character witnesses.

Habeas Cases

United States v. Moree, No. 99-1301 (2d Cir. 07/17/2000) "Moree contends that he was denied his Sixth Amendment right to effective assistance of counsel at his sentencing hearing because his appointed attorney was laboring under an actual conflict of interest resulting from the fact that Moree had accused him of coercing Moree's plea and of ineffective representation. Moree, however, is not seeking to vacate the plea. He seeks only to be re-sentenced while represented by new counsel. We affirm the judgment."

Spence v. Superintendent, No. 97-2945 (2d Cir. 07/18/2000) Petitioner was under a suspended sentence. Subsequently he was rearrested and the suspended sentence was imposed. Petitioner was found not guilty on the subsequent charges. Imposition of the suspended sentence held to be a gross miscarriage of justice and the writ issued.

Zahrey v. Coffey, No. 99-9119 (2d Cir. 07/20/2000) (Not available at the time of writing)

In re Jones, No. 99-767 (4th Cir. 07/18/2000) On a gatekeeping action for a successive petition petitioner "maintains that § 2255, as amended by the AEDPA, is inadequate or ineffective to test the legality of his detention, and that he should therefore be entitled to file a petition for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2241. The Government has filed a short brief agreeing with Jones' position . . . ." Fourth Circuit permits a successive filing.

Hughes v. Booker, No. 98-60786 (5th Cir. 07/18/2000) Petitioner was rendered ineffective assistance of counsel on appeal due to a bad Anders brief.

Jones v. Cain, No. 99-30564 (5th Cir. 07/21/2000) In what would have otherwise been a memorandum opinion, the dissent notes his contention that the COA should have failed for vagueness and should have been remanded so that the district court could list with particularity the issues in which appeal was warranted.

Jackson v. Johnson, No. 98-40881 (5th Cir. 07/18/2000) "[W]e granted a certificate of appealability on the issue "whether Jackson's attorney rendered ineffective assistance of counsel because he failed to file a timely motion for rehearing from Jackson's first appeal of right." Concluding that the failure of Jackson's counsel to file a motion for rehearing or, alternately, to inform him of his right to file such a motion pro se did not constitute denial of the Sixth Amendment's guarantee of the right to effective counsel, we affirm the district court's denial of Jackson's application for habeas relief."

Sanders v. Freeman, No. 98-6512 (6th Cir. 07/19/2000) "He sought a writ of habeas corpus following his conviction for unlawfully depriving the State of Tennessee in its collection of sales tax revenues. The district court denied Sanders's petition and granted summary judgment for the state. We affirm."

Levine v. United States, No. 99-1153 (7th Cir. 07/19/2000) " Levine appealed and a requestedcertificate of appealability was granted by the district judge on the sole issue of whether thecourt that tried Levine's case lacked jurisdiction due to the fact that the prosecuting Assistant U.S. Attorney ("AUSA") resided outside the judicial district." Affirmed.

Saffold v. Newland, No. 99-15541 (9th Cir. 07/17/2000) Panel looks at when is the AEDPA tolled and adopts formally the so-called prison mailbox rule in AEDPA cases as far as signifying the date on which a petition is deemed filed for the one year statute of limitations.

Mederos v. United States, No. 99-11024 (11th Cir. 07/17/2000) "[I]n the present case, justice required the district court to treat Mederos's second motion as an amendment that cured the initial § 2255 motion's technical deficiency, and related back to the date of filing of the original motion for statute of limitations purposes."

Prisoner's Rights/§ 1983

Massey v. Wheeler, No. 99-2663 (7th Cir. 07/20/2000) Panel holds that prison's monitoring of inmate phone calls did not violate the constitution and that the inmate plaintiff's here did not have standing to raise the claims of third party recipients of the phone calls.

Graves v. Norris, No. 99-3626 (8th Cir. 07/172000) District court properly dismissed Section 1983 action because, at the time the suit was decided, the prisoners had not exhausted prison grievance procedures with respect to some of the claims.

InDepth Feature

Due to the length of this issue "In Depth Feature" will not run this week.

Errata

TheDeath Penalty Information Centerreports:

Racial Disparity in Federal Death Penalty Plea Agreements According to data collected by the Federal Death Penalty Resource Counsel Project, white defendants are more likely than black defendants to receive plea agreements in federal death penalty cases. An analysis of 146 cases prosecuted since Congress reinstated the federal death penalty in 1988 shows that while 60% of white defendants have avoided capital punishment through plea bargaining, only 41% of black defendants have reached the same agreements with federal prosecutors. (Chicago Tribune, 7/24/00)

"United States of America: Worlds Apart. Violations of the Rights of Foreign Nationals on Death Row." This new report by Amnesty International details the cases of 10 European citizens, from countries such as France, Germany, Poland, Spain, and the United Kingdom, who are currently on death row in the U.S. "In a clear breach of international law, none of these people were informed upon arrest of their right to consular assistance," Amnesty International said. "In many of these cases, timely consular intervention could have meant the difference between life and death." (Amnesty International Press Release, 7/18/00) See also, foreign nationals.

Judge Rules Puerto Rico Not Subject to Federal Death Penalty U.S. District Judge Salvador Casellas ruled that the federal death penalty cannot be applied in Puerto Rico because residents there have no voting representation in Congress, which passed laws reinstating the federal death penalty. "It shocks the conscience to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such punishment," wrote Casellas. U.S. Attorney Guillermo Gil said his office will ask the solicitor general to appeal. Puerto Rico's Constitution prohibits the use of the death penalty, and the U.S. territory has not executed anybody in 73 years. (Orlando Sentinel, 7/19/00)

A discussion list for legal professionals doing capital litigation is in the beginning stages. The hope of the new list is to get some cross-pollination of ideas, as well as to give those practitioner's, who may not be at a public defender's office or similar non-profit, a forum to seek advice and bounce ideas around. The list is private, and moderated only to try to weed out prosecutors and law enforcement.

Post message:capitaldefense@onelist.com

Subscribe:capitaldefense-subscribe@onelist.com

Unsubscribe:capitaldefense-unsubscribe@onelist.com

List owner:capitaldefense-owner@onelist.comAsalways, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.

DISCLAIMER & CREDITS--Anti-copyrite1997-2000. ISSN: 1523-6684. Written with the legal professional in mind. Use does not constitute creation of an attorney-client relationship. If you have a legal question contact a lawyer authorized to practice in your state. This weekly has been prepared for educational and information purposes only. Since the content contains general information only, it may not reflect current legal developments, verdicts or settlements. The content does not provide legal advice or legal opinions on any specific matters. The law changes quickly, and information provided may be outdate by the time it is read. Complete disclaimer located athttp://capitaldefenseweekly.com/disclaimer.html. This letter may be freely redistributed with attribution. Please note that the current set up of the weekly is a one way list. Subscription information, including all names and addresses are private and unavailable to third parties. Please note all rights to terminate a subscription are retained by the editorial staff. Publisher information: All comments, inquiries or complaints may be sent to: Capital Defense Weekly/Karl R. Keys/167 Milk Street/Suite 127/Boston, MA 02109/kkeys@capitaldefenseweekly.com/617.249.0219ISSN: 1523-6684 Volume III, issue 27