Against the backdrop of a week in which America saw its 50th person executed this year alone and issues relating to the politics of death consume the headlines, the Supreme Court has again stopped an execution, this time in Virginia. The high court issued the stay but did not give its reasons. Five justices agreed to it. Claims raised include newly discovered exculpatory evidence, conflict of interest as trial counsel was counsel for an alternate suspect, and competency to plead guilty to capital murder.

Three capital decisions are from the federal courts of appeal are likewise reported. Adopting a consistent reading to the recently announced standards Williams v. Angeleone, the Tenth Circuit inBeavers v. Saffle, remands for a federal evidentiary hearing("If the facts alleged by Mr. Beavers are true, he would be entitled to relief under 28 U.S.C. § 2254(d)(1). . . . having pursued but been denied a hearing on this claim in state court, Mr. Beavers is entitled to a hearing."). In Tucker v. Catoea Fourth Circuit panel denies relief on claims relating to the apparent jury deadlock and the subsequently given Tilman v. Cook, denies relief on claims relating the jury charge on the prosecutions burden of proof, prosecutorial statements in closing, and an interesting due process claim relating to a majority of state supreme court justices holding either the death sentence OR underlying conviction were reversible error, and yet the death sentence not being vacated.

The Supreme Court inMiller v. French upheld, 5-4, upheld key provisions of the Prison Litigation Reform Act's constitutionality. Holding the automatic stay provision relating to injunctions does not violate the separation of powers, the majority reverses the Seventh Circuit. Where this decision leaves legally all prisoner's rights class action at the federal level remains unclear.

This week's edition concludes with information about two executions. Jessy Carlos San Miguel is scheduled to be executed next week after a trial that highlights the continued interplay of race, the death penalty and the Lone Star state. And finally a quick reflection on the execution of Shaka Sankofa, Gary Graham.

Supreme Court

Miller v. French, No. 99-224 (U.S. 06/19/2000) Supreme Court [5-4] upholds the constitutionality of key provisions of the PLRA.

In 1975, prison inmates at the Pendleton Correctional Facility brought a class action, and the District Court issued an injunction, which remains in effect, to remedy violations of the Eighth Amendmentregarding conditions of confinement. Congress subsequently enacted the Prison Litigation Reform Act of 1995 (PLRA), which, as relevant here, sets a standard for the entry and termination of prospective relief in civil actions challenging prison conditions. Specifically, 18 U.S.C. § 3626(b)(2) provides that a defendant or intervenor may move to terminate prospective relief under an existing injunction that does not meet that standard; §3626(b)(3) provides that a court may not terminate such relief if it makes certain findings; and §3626(e)(2) dictates that a motion to terminate such relief “shall operate as a stay” of that relief beginning 30 days after the motion is filed and ending when the court rules on the motion. In 1997, petitioner prison officials (hereinafter State) filed a motion to terminate the remedial order under §3626(b). Respondent prisoners moved to enjoin the operation of the automatic stay, arguing that §3626(e)(2) violates due process and separation of powers principles. The District Court enjoined the stay, the State appealed, and the United States intervened to defend §3626(e)(2)’s constitutionality. In affirming, the Seventh Circuit concluded that §3626(e)(2) precluded courts from exercising their equitable powers to enjoin the stay, but that the statute, so construed, was unconstitutional on separation of powers grounds.

Held:

1. Congress clearly intended to make operation of the PLRA’s automatic stay provision mandatory, precluding courts from exercising their equitable power to enjoin the stay. The Government contends that (1) the Court should not interpret a statute as displacing courts’ traditional equitable authority to preserve the status quo pending resolution on the merits absent the clearest command to the contrary and (2) reading §3626(e)(2) to remove that equitable power would raise serious separation of powers questions, and therefore should be avoided under the canon of constitutional doubt. But where, as here, Congress has made its intent clear, this Court must give effect to that intent. Sinclair Refining Co.v. Atkinson, 370 U.S. 195, 215. Under §3626(e)(2), a stay is automatic once a state defendant has filed a §3626(b) motion, and the command that it “shall operate as a stay during” the specified time period indicates that it is mandatory throughout that period. The statute’s plain meaning would be subverted were §3626(e)(2) interpreted merely as a burden-shifting mechanism that does not prevent courts from suspending the stay. Viewing the automatic stay provision in the context of §3626 as a whole confirms the Court’s conclusion. Section 3626(e)(4) provides for an appeal from an order preventingthe automatic stay’s operation, not from the denialof a motion to enjoin a stay. This provision’s one-way nature only makes sense if the stay is required to operate during a specific time period, such that any attempt by a district court to circumvent the mandatory stay is immediately reviewable. Mandamus is not a more appropriate remedy because it is granted only in the exercise of sound discretion. Given that curbing the courts’ equitable discretion was a principal objective of the PLRA, it would have been odd for Congress to have left §3626(e)(2)’s enforcement to that discretion. Section 3626(e)(3) also does not support the Government’s view, for it only permits the stay’s starting point to be delayed for up to 90 days; it does not affect the stay’s operation once it begins. While construing §3626(e)(2) to remove courts’ equitable discretion raises constitutional questions, the canon of constitutional doubt permits the Court to avoid such questions only where the saving construction is not plainly contrary to Congress’ intent. Pp. 6—12.

2. Section 3626(e) does not violate separation of powers principles. The Constitution prohibits one branch of the Government from encroaching on the central prerogatives of another. Article III gives the Federal Judiciary the power, not merely to rule on cases, but to decidethem, subject to review only by superior Article III courts. Plautv. Spendthrift Farm, Inc., 514 U.S. 211, 218—219. Respondents contend that §3626(e)(2) violates the separation of powers principle by legislatively suspending a final judgment of an Article III court in violation of Plautand Hayburn’s Case,2 Dall. 409. Unlike the situation in Hayburn’s Case,§3626(e)(2) does not involve direct review of a judicial decision by the Legislative or Executive Branch. Nor does it involve the reopening of a final judgment, as was addressed in Plaut. Plautwas careful to distinguish legislation that attempted to reopen the dismissal of a money damages suit from that altering the prospective effect of injunctions entered by Article III courts. Prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law. Cf. Landgrafv. USI Film Products, 511 U.S. 244, 273. This conclusion follows from the Court’s decision in Pennsylvaniav. Wheeling & Belmont Bridge Co.,18 How. 421, 432 (Wheeling Bridge II),that prospective relief it issued in Pennsylvaniav. Wheeling & Belmont Bridge Co.,13 How. 518 (Wheeling Bridge I),became unenforceable after Congress altered the law underlying the ongoing relief. Applied here, the Wheeling Bridge IIprinciples demonstrate that §3626(e)(2)’s automatic stay does not unconstitutionally suspend or reopen an Article III court’s judgment. It does not tell judges when, how, or what to do, but reflects the change implemented by §3626(b), which establishes new standards for prospective relief. As Plautand Wheeling Bridge IIinstruct, when Congress changes the law underlying the judgment awarding such relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a final judgment for purposes of appeal, it is not the last word of the judicial department, for it is subject to the court’s continuing supervisory jurisdiction, and therefore may be altered according to subsequent changes in the law. For the same reasons, §3626(e)(2) does not violate the separation of powers principle articulated in United Statesv. Klein,13 Wall. 128, where the Court found unconstitutional a statute purporting to prescribe rules of decision to the Federal Judiciary in cases pending before it. That §3626(e)(2) does not itself amend the legal standard does not help respondents; when read in the context of §3626 as a whole, the provision does not prescribe a rule of decision but imposes the consequences of the court’s application of the new legal standard. Finally, Congress’ imposition of the time limit in §3626(e)(2) does not offend the structural concerns underlying the separation of powers. Whether that time is so short that it deprives litigants of an opportunity to be heard is a due process question not before this Court. Nor does the Court have occasion to decide here whether there could be a time constraint on judicial action that was so severe that it implicated structural separation of powers concerns. Pp. 12—21.

178 F.3d 437, reversed and remanded.

O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in which Souter and Ginsburg, JJ., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.

Capital Cases

Beavers v. Saffle, No, 99-6154 (10th Cir. 6/16/200) "We granted a COA on four issues: (1) whether Mr. Beavers procedurally defaulted certain claims because of advice given by the Oklahoma Court of Criminal Appeals (OCCA); (2) the voluntariness of his plea; (3) ineffective assistance of counsel; and (4) the applicability ofMiller v. Champion, 161 F.3d 1249 (10th Cir. 1998)." REM AND for evidentiary hearing.

Here, the state endorses the district court's conclusion that Mr. Beavers' ineffectiveness claim is procedurally barred because it was not raised in his first application for post-conviction relief. SeeAplee. Br. at 13-14. We held in Moore v. Reynolds, 153 F.3d 1086, 1096-97 (10th Cir. 1999), that raising the ineffective assistance claim for the first time in a second application for post-conviction relief was insufficient to preserve a claim for federal review and constitutes independent and adequate state procedural bar. See Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000). Thus, a defendant not procedurally barred by the failure to raise an ineffectiveness claim on direct appeal, must ordinarily raise the claim in his firstapplication for post-conviction relief.

Mr. Beavers did raise an ineffective assistance claim in his February 5 (refiled March 4) application but failed to do so in his April 26 application. Thus, the critical question is whether the February/March application was an application for post-conviction relief. If so, it was the first application and Mr. Beavers' ineffective assistance claim is not procedurally barred.

State procedural rules that bar habeas review of ineffective assistance claims are viewed "with a healthy degree of skepticism." Smallwood v. Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999). Oklahoma Rules specify that a petition for an appeal out of time is an application for post-conviction relief.SeeOkla. Crim. Rules 2.1E(1). Although not determinative, Mr. Beavers specifically characterized the February/March application as an "Application To Appeal Out Of Time." The critical factor in this inquiry, however, is the manner in which the Oklahoma courts treated the application. In dealing with the 1997 application for post-conviction relief, the Oklahoma district court specifically noted that Mr. Beavers' first application (i.e. the February/March application) was treated "as an application for post-conviction relief and apparently denied by Judge Jackson . . . ." Aplt. App. at 118. This treatment is determinative. Thus, Mr. Beavers' ineffective assistance claim was raised in his first application for post-conviction relief and is not procedurally barred.

The federal district court, however, refused to address the ineffective assistance claim because Mr. Beavers had not alleged the facts underlying his claim in the first application. "Although petitioner raised a generic claim of ineffective assistance of counsel in his first application for post-conviction relief, he provided no factual basis for the trial court to review the effectiveness of counsel. . . . [Therefore] petitioner failed to raise his claims of ineffective assistance of counsel in his first application for post-conviction relief." Aplt. App. at 189-90.

This determination fails to take into consideration the context of the application and how it was handled by the OCCA. Mr. Beavers was seeking an appeal out of time, which would only be granted upon proof that he was denied an appeal through no fault of his own. If the motion were granted, Mr. Beavers would then be required to pursue his direct appeal in the normal course (i.e. by filing a notice of intent to appeal and then briefing his arguments). SeeOkla. Crim. Rules 2.1E(2). If the motion were denied, he could appeal the denial but must still show that he was without fault. Neither the district court nor the OCCA would rule on the merits of Mr. Beavers' ineffective assistance claim based upon his appeal out of time motion. SeeYoung v. State, 902 P.2d 1089, 1090 n.1 (Okla. Crim. App. 1994); Buchanan v. Page, 451 P.2d 17, 18 (Okla. Crim. App. 1969).

Indeed, that is what happened. In denying Mr. Beavers' "application for post-conviction relief/request for appeal out of time," the OCCA affirmed the district court's denial solely on the basis that "he has not established that his failure to appeal was through no fault of his own, the critical issue to appeal out of time." Aplt. App. at 82. In view of the OCCA's advice to Mr. Beavers' on how to proceed, and its subsequent denial of Mr. Beavers' first postconviction application on the sole and express basis that an appeal out of time was not warranted, it is not outcome determinative that the factual basis for the claim was not specified in the first application. We have not hesitated to allow federal court consideration of an ineffectiveness claim on habeas where a petitioner has been afforded no opportunity to develop the claim. See Stouffer v. Reynolds, No. 99-6327, 2000 WL 728826, * 1, 4 n.2 (10th Cir. June 7, 2000) (rejecting State's exhaustion defense where OCCA declined to accept petitioner's filings). Given our resolution, we need not address whether procedural bar in these circumstances would constitute an independent and adequate state law ground precluding review of Mr. Beavers' ineffectiveness claims. We now turn to the merits of the claim.

"[G]ross misadvice concerning parole eligibility can amount to ineffective assistance of counsel." Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988). See alsoLucero v. Attorney General, No. 99-1070, 1999 WL 1206658, at *2 (10th Cir. Dec. 16, 1999) (unpublished); Meyers v. Gillis, 93 F.3d 1147, 1153-54 (3d Cir. 1996); James v. Cain, 56 F.3d 662, 667-69 (5th Cir. 1995); United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990); Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989); O'Tuel v. Osborne, 706 F.2d 498 (4th Cir. 1983); Cepulonis v. Ponte, 699 F.2d 573, 577 (1st Cir. 1983); cf.Worthen v. Meachum, 842 F.2d 1179, 1184 (10th Cir. 1988), overruled on other grounds, Coleman v. Thompson, 501 U.S. 722 (1991) (noting that "a bad guess by his attorney does not render a plea involuntary" but is only involuntary "when the attorney is held to have been constitutionally ineffective."). In order to succeed on a claim of ineffective assistance, Mr. Beavers must establish that his counsel's performance: (1) fell below an objective standard of reasonableness and (2) that he was prejudiced by this performance. SeeScoggin v. Kaiser, 186 F.3d 1203, 1206 (10th Cir. 1999).

First, attorney advice which misrepresents the date of parole eligibility by several years can be objectively unreasonable. See O'Tuel, 706 F.2d at 501 (holding that ten year difference in parole dates deprived defendant of effective assistance). Second, Mr. Beavers alleges that he "would not have waived my rights to a jury trial and entered a plea of guilty . . . had I known that it would take twenty-two and one-half (22 ½) years to make parole." Aplt. App. at 90. This may be sufficient to meet the prejudice requirement. SeeHill v. Lockhart, 474 U.S. 52, 59 (1985) (defendant must "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.").

If the facts alleged by Mr. Beavers are true, he would be entitled to relief under 28 U.S.C. § 2254(d)(1). See Miller, 161 F.3d at 1253. Trial counsel admits that he gave incorrect advice and that parole eligibility was an important part of the plea. SeeAffidavit of Counsel, Aplt. App. at 94-95 ("One of Mr. Beavers' major concerns was the amount of time it would take to make parole on a life sentence. I advised him that it would take ten (10) to twelve (12) years to make parole . . . . I have since learned . . . that my statement to Mr. Beavers was wrong and that it was wrong at the time given."). The crime of first degree malice murder was punishable by either life imprisonment without parole or life imprisonment, thus further highlighting the importance of parole eligibility. As noted, Mr. Beavers contends that he would have insisted on going to trial.

Thus, having pursued but been denied a hearing on this claim in state court, Mr. Beavers is entitled to a hearing. See Miller, 161 F.3d at 1253. Accordingly, we remand this issue to the district court to conduct an evidentiary hearing. See Yordan v. Dugger, 909 F.2d 474, 478-79 (11th Cir. 1990) (remanding for evidentiary hearing); Holmes, 876 F.2d at 1553 (same); Sparks, 852 F.2d at 884 (same); see alsoUnited States v. Leonard, No. 91-5021, 1992 WL 232468 (10th Cir. Aug. 28, 1992). If the court determines that Mr. Beavers' factual allegations are uncontested or true and he was denied the effective assistance of counsel, then it must order an appropriate remedy. Oklahoma can either retry Mr. Beavers within a reasonable period of time, or reduce his sentence so as to provide parole eligibility within ten to twelve years. See O'Tuel, 706 F.2d at 501; see alsoStrader v. Garrison, 611 F.2d 61, 65 (4th Cir. 1979).

Our resolution of Mr. Beavers' ineffective assistance claim as not procedurally barred makes it unnecessary for us to further discuss the import of Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998), on this case.

Tucker v. Catoe, No. 99-14 (4th Cir. 06/13/2000) "Tucker raises two separate Sixth Amendment claims of ineffective assistance of counsel arising out of the South Carolina trial court'sAllen charge and the facts surrounding the administration of that charge during the penalty phase of his trial. First, Tucker claims that his trial counsel was constitutionally ineffective in failing to object to theAllen charge on the basis of a South Carolina statute, S.C. Code § 14-7-1330, which prohibits an Allen charge under certain circum- stances. Second, Tucker asserts that his counsel on direct appeal was ineffective in failing to challenge the Allencharge on the same bases raised in the trial court, because appellate counsel's failure to do so resulted in the procedural default of his Allencharge arguments. We consider these Sixth Amendment claims in turn."

A defendant is constitutionally entitled to effective assistance of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396 (1985), and the standards governing effectiveness at trial are equally applicable to representation on direct appeal. See Smith v. South Car-olina, 882 F.2d 895, 898 (4th Cir. 1989) (citing Strickland, supra).

At trial, Tucker's counsel raised several objections to theAllencharge. First, before the charge was administered, trial counsel requested: (1) that the jury should be asked whether"they are hope- lessly deadlocked" before anAllencharge was to be given; and (2) that the jury be instructed that Tucker would receive life imprison- ment if a unanimous recommendation of death were not returned. These requests were rejected, and following the charge, trial counsel made several other objections: (3) "I object to the entire charge, per se. It's the very nature of an Allen charge outside of public policy, that it helps avoid the cost of another trial which would not be appli- cable here"; (4) "It is our position particularly at paragraph number -- the third paragraph referred to by the Court is, in effect -- it could be interpreted as singling out either one or two jurors and could lead to some coerciveness inside the deliberations. It could be interpreted by a juror that juror has to switch over because of a particular charge. So we would object to the charge in toto as being coercive"; and (5) I "renew again our request that they be given further instruction as to the consequences of not being able to reach a unanimous verdict." J.A. 167. All of these objections were overruled.

On direct appeal, Tucker was represented by a different lawyer, who challenged the Allencharge on several grounds. The Supreme Court of South Carolina rejected each argument on the grounds of procedural default:

The trial judge then gave the jury an Allencharge. [Tucker's trial counsel] objected generally on the ground an Allen charge is coercive in nature and requested an instruction as to the consequences of not being able to reach a unanimous decision for the death penalty ( i.e.the defendant would be sentenced to life).

On appeal, appellant argues the trial judge should have told the jury not to reveal their vote pursuant to State v. Middle-ton, 218 S.C. 452, 63 S.E.2d 163 (1951) (it is improper for trial judge to make the jury publicly reveal their standing). Further, on appeal appellant contends the trial judge, know- ing only one juror prevented the jury from a unanimous decision, erred in giving an Allencharge. These arguments are procedurally barred. State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (a party cannot argue one ground below and then argue another ground on appeal); State v. Crowley, 226 S.C. 472, 85 S.E.2d 714 (1955) (objection must be on specific ground).

Tucker, 462 S.E.2d at 264-65.

Put simply, we are unable to discern how the Supreme Court of South Carolina could have concluded that Tucker's direct appeal counsel procedurally defaulted these arguments. Indeed, when trial counsel's objections are compared to the arguments summarized in the Supreme Court's opinion, the trial objections and arguments on appeal appear to be virtually identical. Tucker's argument on direct appeal that "the trial judge, knowing only one juror prevented the jury from a unanimous decision, erred in giving an Allen charge" is con- sistent with his trial counsel's objection that the Allencharge "could be interpreted as singling out either one or two jurors and could lead to some coerciveness inside the deliberations. It could be interpreted by a juror that juror has to switch over because of a particular charge." This is especially so because Tucker's trial counsel did notknow that the trial court knew the jury's vote at that point. In this regard, Tucker's appellate counsel's argument that"the trial judge should have told the jury not to reveal their vote pursuant to State v.Middleton" could not have been preserved at trial for this reason. In context, it is unclear what more could have been done -- either by trial counsel or direct appeal counsel -- to preserve these arguments.

Faced with these facts, the state PCR court was similarly unable to find any deficiency in the performance of Tucker's direct appeal counsel: "This Court must find that [Tucker's direct appeal counsel] met the standards required of appellate counsel in criminal cases." J.A. 323. We agree; in fact, if there was any error in this regard, it was the conclusion of the Supreme Court of South Carolina that Tucker's arguments were procedurally defaulted. We thus agree with Chief Justice Finney, who dissented from the decision of the Supreme Court of South Carolina:

I am also concerned with the majority's disposition of the claim that the trial judge should have instructed the jury not to reveal its vote and that the judge erred in giving an Allencharge knowing only one juror opposed the death sentence. While I agree that these issues were not raised below, it is apparent from this record that the trial judge never revealed to trial counsel that the notes reflected the jury's division.

462 S.E.2d at 266.

For Tucker, however, our analysis means that the performance of his counsel on direct appeal was not deficient. Tucker's counsel apparently did all that effective counsel could have been expected to do under the circumstances. In sum, we find no error in the conclu- sion of the state PCR court that the performance of Tucker's direct appeal counsel was effective, and we certainly do not believe that the State's conclusion is "unreasonable" in the Williamssense.

Further, even if the conduct of Tucker's counsel had been deficient, we could not conclude that the state PCR court unreasonably rejected Tucker's claim. While we have concluded that the state PCR court was incorrect in finding that the Allencharge was not coercive, we believe this to be a close issue. See supra at 20. In other words, an objectively reasonable review could have concluded that there was no reasonable probability of success on the Allencharge arguments. Therefore, we cannot conclude that the state PCR court's dismissal of this claim was unreasonable. See Barnabei v. Angelone, No. 99-16, at 10 (4th Cir. Jun. 5, 2000) (To justify federal habeas corpus relief under section 2254(d), "the state court's application of federal law . . . must have been more than merely `incorrect' in the estimation of the federal habeas court.") (quoting Williams, 120 S. Ct. at 1521-22).For these reasons, we affirm the dismissal of Tucker's claim of ineffective assistance of counsel on direct appeal.

Tilman v. Cook, No. 98-4160 (10th Cir. 6/15/2000) "Mr. Tillman presents six grounds on which habeas relief may be predicated: (1) the reasonable doubt instruction given at his trial lowered the government's burden of proof; (2) the prosecutor made statements that rendered the sentencing procedure fundamentally unfair; (3) the jury convicted him on the basis of elements for which there was insufficient evidence; (4) his indictment was insufficient; (5) his sentence of death was arbitrary, and thus unconstitutional, because the distinction between first-degree and second-degree murder was entirely unclear to a jury, and; (6) his sentence of death was arbitrary and unconstitutional, because three of five Justices of the Utah Supreme Court have, in different decisions and on different grounds, dissented in some way from the affirmance of his conviction and sentence." On the second (prosecutorial statements) and sixth issues (state supreme court issue):

We note at the outset that not every improper or unfair remark made by a prosecutor will amount to a federal constitutional deprivation. SeeCaldwell v. Mississippi, 472 U.S. 320, 338 (1985) (plurality). A prosecutor's improper comment or argument warrants habeas corpus relief only where the remark "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974). We apply this standard to sentencing proceedings as well. See Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998), cert. denied, 526 U.S. 1025 (1999).

To view the prosecutor's statements in context, we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution. . . . We also ascertain whether curative instructions by the trial judge, if given, might have mitigated the effect on the jury of the improper statements. . . . When a prosecutor responds to an attack made by defense counsel, we evaluate that response in light of the defense argument. . . . Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly.

Id.(quoting Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994)) (internal quotations omitted); see alsoUnited States v. Young, 470 U.S. 1, 11-12 (1985) (criminal conviction not readily overturned on basis of prosecutor's comments alone; statements must be viewed in context of entire proceeding to determine whether conduct affected fairness of trial).

A prosecutor may permissibly comment only upon subjects that the jury may properly consider in determining a defendant's sentence. See Coleman v. Brown, 802 F.2d 1227, 1239 (10th Cir. 1986). We agree with the Utah Supreme Court that because the prosecutor's remark made a representation of fact not supported by the evidence (the average length of a life sentence in Utah) and misstated the law, it was improper. (6)However, we also agree that "when placed within the context of his and defense counsel's entire arguments," the statements do not rise to the level of a Due Process violation.Id.; see alsoDarden v. Wainwright, 477 U.S. 168, 181 (1986) (noting it is "not enough that . . . remarks were undesirable or even universally condemned").

The prosecutor was legally permitted to ask the jury to consider Mr. Tillman's future dangerousness and to urge its members to impose the death penalty based on "specific deterrence." See Davis v. Maynard, 869 F.2d 1401, 1410 (10th Cir. 1989), vacated on other grounds sub nom.Saffle v. Davis, 494 U.S. 1050 (1990); Coleman, 802 F.2d at 1239. The defense counsel responded to that argument, speculating as to the probable length of a life sentence, and the prosecutor replied in kind. We do not believe the statement affected the jury's ability to judge the evidence fairly or rendered the sentencing proceeding fundamentally unfair. Cf.Brecheen v. Reynolds, 41 F.3d 1343, 1356 (10th Cir. 1994) (holding "improper appeals to societal alarm" and requests for "vengeance for the community" do not amount to a denial of Due Process); United States v. McMurray, 20 F.3d 831, 834 (8th Cir. 1994) (holding prosecutor's repeated use of words "lie" and "lying" in reference to defendant's testimony not reversible error where not inflammatory); Talamante v. Romero, 620 F.2d 784, 791 (10th Cir. 1980) (holding prosecutor's improper comment that if there were no evidence of guilt, jurors would not be present, because case would have been dismissed as a matter of law, did not require federal habeas relief).

D. Sufficiency of the Evidence to Justify Instructions on Killing During Arson or Aggravated Arson

The information in this case charged Mr. Tillman with first-degree murder in violation of Utah Code Ann. § 76-5-202 by "intentionally or knowingly caus[ing] the death of Mark Allen Schoenfeld, while [Mr. Tillman] was engaged in the commission of, or attempting to commit, Burglary or Aggravated Burglary; arson or aggrivated arson [sic]." (7)Not merely matters for consideration during sentencing and for capital punishment purposes, "aggravating factors" are elements of murder in the first degree (now aggravated murder) and must be proven beyond a reasonable doubt. SeeUtah Code Ann. § 76-5-202; State v. Thurman, 911 P.2d 371, 373 (Utah 1996) ("The statute's structure demonstrates that an intentional or knowing mental state is the threshold element of the offense of capital homicide and that this threshold element must be combined with proof of one or more of the statute's seventeen aggravating factors."); State v. Tuttle, 780 P.2d 1203, 1215-16 (Utah 1989).

The jury returned a general verdict of guilty, rather than a specific statement of which aggravating factor was found beyond a reasonable doubt. Mr. Tillman contends the rule of Stromberg v. California, 283 U.S. 359 (1931), (8)requires a grant of habeas corpus relief, because the state violated his fundamental right to Due Process. Mr. Tillman alleges that because a general verdict was returned, the state must prove each and every aggravating factor, yet failed to prove felony arson. Mr. Tillman does not, however, contest the sufficiency of the evidence to support the burglary and aggravated burglary aggravators.

The state counters that the evidence was sufficient to support the aggravated arson aggravator, (9)or at least, attempted aggravated arson. It also suggests misdemeanor arson was sufficient under Utah Code Ann. § 76-5-202(1)(d).

On direct appeal, the Utah Supreme Court held that "the record contains ample evidence, both eyewitness testimony and physical evidence, to support a jury verdict that at the time of the commission of the homicide, defendant intentionally and knowingly caused the death of the victim under any one of the several objective aggravating circumstances at issue." Tillman I, 750 P.2d at 566 (Howe, J., concurring in the result). On habeas corpus review, the same court held either felony or misdemeanor arson satisfies the statute. SeeTillman II, 855 P.2d at 219 n.33.

As the district court noted, "[s]tate law determines the parameters of the offense and its elements and a federal court may not reinterpret state law." Tillman IV, 25 F. Supp.2d at 1283 (citing Mullaney v. Wilbur, 421 U.S. 684, 691 (1975); Estelle, 502 U.S. at 67-68; Richmond v. Embry, 122 F.3d 866, 870 (10th Cir. 1997)). We, thus, accept the state court's interpretation of Utah Code Ann. § 76-5-202(1)(d), holding misdemeanor arson satisfies the statute. Given the state supreme court's interpretation of the statute and our own review of the record, we agree that the evidence is sufficient to support the arson or aggravated arson elements. (10)

Finally, Mr. Tillman claims that his execution is barred by the Eighth Amendment, because "[t]hree of the five members of the Utah Supreme Court have voted to either reverse Tillman's conviction for capital murder (Justices Durham and Zimmerman in Tillman I, 755 P.2d at 590-91), or to vacate Tillman's sentence of death (Justice Stewart in Tillman II, 855 P.2d at 231)." Aplt. Br. at 55-56. The district court determined Mr. Tillman's argument to state a new rule, barred by Teague. Although we certainly agree with the district court regarding the novelty of Mr. Tillman's argument, we reject it as meritless, but do not believe it to beTeague-barred.

Mr. Tillman's focuses on the identity of individual justices dissenting in different proceedings as to different issues. In each proceeding before the Utah Supreme Court, however, a majority of the court affirmed his conviction and sentence, then denied the petition for post-conviction relief. At no time have three justices concurred on any issue for reversal. Mr. Tillman may not cobble together a majority from multiple proceedings and multiple issues. Indeed, Mr. Tillman's "argument is one of merely counting judicial noses regardless of the content of the issue on which the individual justice dissents." Tillman IV, 25 F. Supp.2d at 1312.

As the district court noted, Mr. Tillman "has cited no precedent for his position on this point. None has been found." Id.at 1312. Because Mr. Tillman has failed to demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different matter or that the issue[] presented w[as] 'adequate to deserve encouragement to proceed further,'" we deny the certificate of appealability and dismiss his appeal as to this issue. Slack, 120 S. Ct. at 1603-04 (quoting Barefoot, 463 U.S. at 893 & n.4).

Habeas Cases

United States v. Leone, No. 99-1255 (2d Cir. 06/14/2000) "Katz subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, after reviewing the record, he believed that there were no non-frivolous issues to be raised on appeal. The government, in turn, moved for dismissal of the appeal, or in the alternative for summary affirmance. We denied both motions and directed Katz to brief the issue of whether Velez was ineffective in failing to advise Thompson adequately concerning the First Agreement. Instead of doing so, Katz submitted a new motion asking us to hold further briefing in abeyance and to remand the case to the district court so that an evidentiary hearing could be conducted on the ineffective assistance issue. He argued that "the record is . . . bereft of any reference to the rejected, but obviously more beneficial, initial plea offer," and that "[i]t is therefore impossible for appellant's present counsel to meaningfully address" the issue of trial counsel's possible ineffective assistance in that regard without an evidentiary hearing to develop the record. . . . In this particular case, given the simplicity of Thompson's ineffective assistance claim, we choose to exercise our discretion to remand to the district court for further fact-finding rather than to dismiss the appeal and force the appellant to use up his only habeas petition."

Flores v. Demskie, No. 98-2558 (2d Cir. 06/15/2000) "Appeal from a judgment entered . . . . denying the petitioner-appellant's petition for a writ of habeas corpus. We hold that the petitioner was denied his Sixth Amendment right to effective assistance of counsel when his state trial counsel, whowas unfamiliar with the well-established New York State Rosario rule that a failure by the prosecutor to deliver a prior statement of a witness whom the prosecutor intends to call at trial constitutes per se error requiring a new trial, waived a violation of this disclosure requirement that would have entitled the petitioner to a new trial."

Prisoner's Rights

In re Jacobs, No. 00-20106 (5th Cir. 06/12/2000) Fifth CIrcuit issues a "three strikes" PLRA warning in this mandamus action

Henson v. US Bureau of Prisons, No. 99-31200 (5th Cir. 06/16/2000) "Correctional officers found a tobacco pipe containing a residue which field tested positive for marijuana. . . .. The officers instituted disciplinary proceedings against him for possession of marijuana. Henson requested a urinalysis test, which came back negative, but the Bureau of Prisons ("BOP") denied his request to retest the pipe residue at his own expense. After a hearing, he was found guilty and hispunishment included the loss of fourteen days of good time credit." Failure to retest not reversible error

In Depth

This week's analysis focuses on the offensive use of the Texas Attorney General's concession in Saldano v. Texas that the application of the death penalty in some cases in Texas has been impermissible infected with racial animus. Slightly modified extracts from Ex Parte Jessy Carlos San Miguel are provided below. [counsel is Danalynn Recer, (DLRecer@aol.com). Legal Pleadings and additional information at: [http://capitaldefenseweekly.com/law/sanmiguel.html][html] [wordperfect]

Jessy Carlos San Miguel is scheduled to be put to death on June 29, 2000 for his role in the 1991 robbery-murder of Michael Phelan at a Taco Bell restaurant in Irving, Texas. Defense counsel inexplicably during cross-examination asked witnesses whether such violent behavior was typical of Mexican-Americans. At punishment phase, defense counsel not only failed to portray Mr. San Miguel as a human being whose life should be spared, but encouraged the jury to indulge in racist stereotyping and all but conceded the second special issue regarding "future dangerousness" by arguing that Mexican Americans are inherently violent.

The prosecution contributed to the racial text of the trial with his own improper argument that Mexican-Americans are not law abiding and will never change. He also asked the jury to consider evidence outside the record in the form of Mr. San Miguel's non- testimonial demeanor and made an improper comment on the defendant's silence.

Two weeks ago, the United States Supreme Court granted certiorari and vacated the 1991 death sentence of Victor Hugo Saldaño, of Collins County, remanding to the Texas Court of Criminal Appeals for further consideration in light of a confession of error by the state. Saldaño v. Texas, 2000 WL 157271 (June 5, 2000). In confessing error, the State of Texas agreed that Mr. Saldaño was entitled to a new sentencing hearing because the use of race in Saldaño's sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process. Exhibit A, Respondent's Brief at 7 (quoting Zant v. Stephens, 462 U.S. at 886)

In Saldaño, the prosecution called on Walter Quijano, a clinical psychologist, to testify regarding Saldaño's future dangerousness. One of the twenty-four factors used to establish future dangerousness was Saldaño's "race". Quijano testified that blacks and Hispanics are over-represented in the criminal justice system. Respondent's Brief at 4. Despite the belief that there was sufficient additional evidence to establish future dangerousness, the Attorney General professed error in this case and petitioned the Supreme Court to vacate the judgement. Accordingly, the Supreme Court vacated the judgement on June 5, 2000. The Attorney General's Office then urged six other petitioners to amend their pleadings to include this claim, indicating that the state would not raise any procedural barriers to its consideration on the merits. Exhibit B, Houston Chronicle, June 10, 2000, (quoting AG representative Heather Browne). Without qualification, the Attorney General noted that "it is inappropriate to allow race to be considered as a factor in our criminal justice system."

Like the jury which sentenced Victor Saldaño to death, the San Miguel jury was impermissibly allowed and encouraged to consider race as a factor in sentencing San Miguel to death. During Mr. San Miguel's sentencing hearing, racist stereotypes of "macho" Mexican-Americans who "cross that border...and commit crimes" were invoked by both the defense counsel and the prosecutor. These overtly racist statements encouraged jurors to consider race in sentencing San Miguel.

The State's confession of error and the United States Supreme Court's ruling in Saldaño have changed both the law and the facts applicable to this court's review of Mr. San Miguel's sentence in several ways: First, the state has made it clear that the infusion of race as a consideration is so injurious to the state's interest in reliable sentencing that it will not invoke any available procedural defenses. In essence, the State has indicated that the consideration of race in determination of sentence amount to fundamental error. Secondly, the State has dispensed with the requirement of actual harm. Finally, the State has publicly announced that it will not contest similar claims of error in the appeals of similarly situated appellants.

NonCase Law Developments

The following joint statement was posted earlier this week by myself and renowned New York criminal defense attorney David Seth Michaels on the Graham execution. I take the liberty of reposting, not for vanity sake, but to preserve for posterity on the web this strange moment in history and in the march towards "a more perfect union."

On June 22, 2000, Texas executed Gray Graham a/k/a Shaka Sankofa. He is the 648th person executed in the United States, and the 222nd person executed in Texas since the resumption of the death penalty. What is striking about this execution is the probability that Graham is actually innocent of the murder 19 years ago of Bobby Lambert in a Houston supermarket parking lot.

Graham’s case transcends the debate about the death penalty. No one on either side of the debate approves executing an innocent person. Graham’s probable innocence assumes heightened importance from its context. It emerges after a moratorium declared in Illinois when thirteen people on death row were found to be innocent, and after last week’s widely distributed report by a Columbia University Law Professor finding that two thirds of death row cases were deeply flawed, and after repeated demonstrations by the Innocence Project that DNA established the innocence of prisoners who had been condemned to death and/or

imprisonment.

A review of Graham’s case, which took only two days to try, leaves the very uncomfortable, unsatisfying feeling that he is probably innocent and that his trial was deeply flawed by the incompetence of his attorney.

Reasonable doubts abound. There is no physical evidence of any kind connecting Graham to the crime.

No fingerprints.

No ballistics.

No informant evidence.

The .22 caliber bullet removed from the victim’s body did not match the gun seized from Graham, and a police expert stated that Graham’s weapon could not have fired the fatal bullet.

Rather, the evidence against Graham comes from a singleeyewitness, Bernadine Skillern, who identified Graham as the killer after a very brief view of his face from 30 feet away. After the crime, Skillern helped police draw a compositeof the shooter: the drawing looks nothing like Graham. Skillern was unable two weeks after the trial to pick Graham’s face from a photo array even though his photograph was the only one with a blackout from marker. The next day, Skillern picked Graham from a live line-up. Graham was the only person in both the photo and live line-ups.

Another eyewitness to the crime would have testified that she stood in the check out line next to the killer, and that he was not Graham. Six of the living crime scene witnesses say that the assailant was shorter than Bobby Lambert, who was 5'6" tall. Graham is 5'9". Finally, four witnesses, who say they were with Graham miles away from the supermarket at the time of the crime have all taken polygraph tests and passed. But none of these witnesses testified at trial. These witnesses did not testify because they were not called by Graham’s appointed lawyer, Ronald Mock. Mock was clearly incompetent in this case. He flunked criminal law at Texas Southern University Law School, and he had only three years of l experience when he took on this death penalty case. Mock has had more convicted clients on death row than any other lawyer. He has been reprimanded several times by the Texas Bar Association for professional misconduct. He has received complaints from clients for smelling of alcohol. Five of his death row clientsstill have petitions pending alleging ineffectiveness of counsel, and Mock has not had a new death penalty case for a decade.

In Graham’s case, Mock conducted no pre-trial investigation. He called no witnesses during the trial, which lasted a total of two days. He did not challenge Skillern’s identification testimony. He did not call the other witnesses who would have testified either that Graham was not the killer or that the killer they saw was much shorter than Bobby Lambert. He did not call any of the four, available alibi witnesses. In sum, Mock provided no real defense.

If compassion has any place in our justice system surely it is appropriate at this time.

David Seth Michaels, Esq. & Karl R.Keys, Esq.

[David Seth Michaelsis an attorney who lives and practices in Spencertown, Columbia County, New York. He is a ecipient of the Thurgood Marshall Award of the Association of the Bar of the City of New York for his successful representation of James V. Moffett in a Mississippi death penalty case. email: davidseth@davidseth.com /website http://www.davidseth.com].

]

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As always, 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 at http://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 24