This week's edition focuses onFlorida v. Jones decided by the Florida Supreme Court vacating the death sentence due to the delay in this case where delay was not attributable to the condemned. Other litigants didn' t fare as well. InMueller v. Angeleonethe Fourth Circuit examines an interesting AEDPA argument that it finds unpersuasive. The Tenth Circuit denies relief inLafevers v. Oklahomaon a wide grab bag of issues. And finally in two emergency proceedings, Kilgore v. Bowersox (Eighth Circuit) &Faulder v. Johnson(Fifth Circuit) the petitioners were unsuccessful.

Syllabus from United States Supreme Court opinions will continue to be mailed out on the day of decision as the October 1998 Term comes to close.

Finally, the long promised links to onlinebriefs(http://members.aol.com/karlkeys/briefs.html) has been uploaded and will be updated from time to time until the ABA Brief Bank, or a similar non subscription/members only database, is online. Briefs available includeJones v. Florida, Domingues v. Nevada (cert petition on juvenile executions and the International Covenant on Civil and Political Rights), as well as numerous recent Florida capital cases.

In Focus

Florida v. Jones Florida Supreme Court, citing Lackey v. Johnson (Breyer, J., dissenting), reverses this death sentence where state failed to hold a hearing on competency to stand trial for thirteen years.

In this sense, due process envisions a court that "hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties. In this respect the term 'due process' embodies a fundamental conception of fairness that derives ultimately from the natural rights of all individuals."Scull v. State, 569 So. 2d 1251, 1252 (Fla. 1990) (citation omitted);seeU.S. Const., amend. V; Art. I, § 9, Fla. Const. Procedural due process, therefore, requires adequate notice and an opportunity to be heard "at a meaningful time and in a meaningful manner."Boddie v. Connecticut, 401 U.S. 371, 378 (1971).

The United States Supreme Court has cautioned that determining competency to stand trial retrospectively is inherently difficult, even under the most favorable circumstances.SeeDrope v. Missouri, 420 U.S. 162, 183 (1975);Pate, 383 U.S. at 387. The Court has reversed convictions where it determined as a matter of law that a trial court could not make a retrospective competency determination that would afford due process, based solely on the amount of time that elapsed from the date of trial.See,e.g.,Drope, 420 U.S. at 183 (where six years elapsed from the trial date to the release of the Supreme Court's decision);seePate, 383 U.S. at 387 (where elapse of six years from time of trial was a significant factor in like determination). The chances of conducting a meaningful retrospective competency hearing decrease when experts must rely on a cold record.SeeMason v. State, 489 So. 2d 734, 737 (Fla. 1986).

In the present case, appellant's due process rights were impacted by the twelve-year delay in holding the competency hearing when measured from this Court's remand order for such hearing inJones II. The trial court adjudicated guilt and sentenced appellant in 1981, this Court ordered an evidentiary hearing concerning appellant's competency to stand trial in 1985, and the trial court did not hold that hearing until 1997. Our remand for an evidentiary hearing was based on appellant having submitted "a strong preliminary showing of incompetence," the State's failure to rebut the claim, and the trial court's summary denial of relief.James v. State, 489 So. 2d 737, 739 (Fla. 1986)(discussingJones II);seeJones II, 478 So. 2d at 347. The State offered no explanation for the delay and did not dispute appellant's claim at oral argument that the delay was not due to his conduct, except to argue that somehow appellant's 1986 petition for writ of prohibition to disqualify the judge contributed to the delay. We reject this argument. Moreover, the record on appeal does not reveal the reason for the delay. For twelve years and without explanation, the defendant sat on death row awaiting the competency hearing ordered by this Court. Thus, this delay, which was undisputedly not due to appellant, deprived him of a timely hearing.

Other factors that weigh against the ability to make a meaningful retroactive competency determination are that appellant was not subject to a competency evaluation by a qualified expert contemporaneous with his trial. Furthermore, the State's only expert witness (Dr. Weinstein) testified at the hearing that he could not opine as to appellant's competency at trial since he did not evaluate appellant at that time. We therefore conclude that the twelve-year delay undisputedly not due to appellant, the lack of psychological testing contemporaneous to trial, and the State's own evidence that a retroactive competency determination is not possible establish the inability to provide appellant a meaningful retrospective competency determination that complies with due process.

We further note that the trial court's failure to hold a timely hearing and to make findings of fact and conclusions of law violated Florida Rule of Criminal Procedure 3.850(d). InJones II, this Court reversed the trial court's summary denial of appellant's rule 3.850 motion that raised the identical competency issue. This Court explained that appellant had submitted evidence entitling him to an evidentiary hearing and reversed and remanded with instructions for such a hearing.Jones II, 478 So. 2d at 347. Pursuant to rule 3.850, "[i]f an evidentiary hearing is required, the court shall grant a prompt hearing thereon and shall . . . determine the issues, and make findings of fact and conclusions of law with respect thereto." Fla. R. App. P. 3.850(d). Here, the trial court held an extensive hearing solely on the issue of competence, heard conflicting evidence, and made no findings of fact or conclusions of law.SeeFla. R. Crim. P. 3.211 (1980) (providing numerous factors to be considered). The trial court, moreover, did not make a verbal ruling on the issue, took the matter under advisement, and made no findings in the written order. When an appellate court finds that a defendant's postconviction claim requires an evidentiary hearing, the trial court must hold the hearing in a timely manner and must announce its findings and conclusions as required by law.Seeid.; Fla. Code Jud. Conduct, Canon 3B(8)("A judge shall dispose of all judicial matters promptly, efficiently, and fairly.").

The egregious delay in this case brings to mind the criticism by Justice Breyer of the United States Supreme Court, who condemned excessive delays in the processing of death penalty appeals.SeeElledge v. Florida, 119 S. Ct. 366 (1998) (Breyer, J., dissenting from denial of certiorari). Although writing in terms of the Eighth Amendment's prohibition against cruel and unusual punishment, his comments are equally pertinent in the instant case. Justice Breyer opined that:

Twenty-three years under sentence of death is unusual--whether one takes as a measuring rod current practice or the practice in this country and in England at the time our Constitution was written. See,e.g., P. Mackay, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776-1861, p. 17 (1982) (executions took place soon after sentencing in 18th century New York);Pratt v. Attorney Gen. of Jamaica, [1994] 2 App. Cas. 1, 17 (P.C. 1993) (same in United Kingdom); see also T. Jefferson, A Bill for Proportioning Crimes and Punishments (1779), reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John Marshall 207-207 (C. Cullen & H. Johnson eds. 1977) (petition seeking commutation of a death sentence in part because of lengthy 5-month delay).

Moreover, petitioner argues forcefully that his execution would be especially "cruel." Not only has he, in prison, faced the threat of death for nearly a generation, buthe has experienced that delay because of the State's own faulty procedures and not because of frivolous appeals on his own part. His three successful appeals account for 18 of the 23 years of delay. A fourth appeal accounts for the remaining 5 years-which appeal, though ultimately unsuccessful, left the Florida Supreme Court divided 4-2, 706 So.2d 1340 (1997); see Brief in Opposition 12 (conceding that "[a]ll delays were a result of [petitioner's] 'successful litigation' in the appellate courts of Florida and the federal system.").

. . . .

Finally, a reasoned answer to the "delay" question could help to ease the practical anomaly created when foreign courts refuse to extradite capital defendants to America for fear of undue delay in execution. See Soering v. United Kingdom, 11 Eur. H. R. Rep. 439 (1989) (holding that the extradition of a capital defendant to America would be a violation of Article 3 of the European Convention on Human Rights, primarily because of the risk of delay before execution).

Id.at 366-67 (emphasis added).

The delay in the instant case may be viewed as more egregious than inElledgesince the delay there was spent processing the defendant's appeals in both the Florida and federal courts. Here, the State sought and secured the death penalty, appellant filed his postconviction competency claim, this Court ordered a hearing, yet the case was unexplainedly continued without the hearing for all these years.

The trial court, prosecutor, and defendant all share in the responsibility of acting in a timely manner. When this Court orders an evidentiary hearing, judicial economy and a sense of justice militate that the lower court actpromptlyon our instructions. Failure to act promptly deprives defendants of due process under the law and reflects poorly on our justice system.

Accordingly, the trial court's order is reversed and appellant's judgment and sentence is vacated. Appellant's other issues on appeal and his petition for writ of habeas corpus are rendered moot. The State may reprosecute appellant if he is found to be presently competent to stand trial.SeeDrope, 420 U.S. at 183.

Capital Cases

Mueller v. AngeleoneFourth Circuit examines and rejects this challenge to Petitioner's sentence of death onMiranda,Brady(alternate suspect) and ineffective assistance of counsel (failure to investigate -- including alternate suspect -- & admission of guilt in closing) grounds. Before reaching the merits, however, the Fourth Circuit examines one of the current arguments arguing against the AEDPA.

We address first petitioner's contention that the district court erred in applying the AEDPA to his habeas petition because the new sec- tion 2254 had an impermissible retroactive effect in his case. Specifi- cally, petitioner argues that the Supreme Court did not intend its holding inLindhv.Murphy, 521 U.S. 320(1997), that "the new pro- visions of chapter 153 generally apply only to cases filed after the Act became effective,"id. at 336, to extend to cases filed after the date of enactment, like his, in which the Act's application would have a genuinely retroactive effect on a petitioner's pre-enactment litigation conduct.

Disposition of this claim requires us to consider the apparent ten- sion between two sets of recent courts of appeals cases. In the first, we and other courts of appeals have explicitly readLindhto hold that the AEDPA amendments to chapter 153 of Title 28 of the United States Code apply to every petition filed after the date of the Act's enactment. In the second, we and other courts have readLindh, more narrowly, as permitting application of several of the new provisions of the chapter only where the effect of doing so is not impermissibly retroactive. Petitioner argues that the latter understanding ofLindhis the correct one, and that application of the new section 2254 to his case has exactly that impermissible retroactive effect. Although we agree with petitioner's interpretation ofLindh, we disagree with his claim because we conclude that the amended section 2254 does not have an impermissible retroactive effect under the analytical frame- work ofLandgrafv.USI Film Products, 511 U.S. 244(1994). We therefore reaffirm our earlier holdings applying that section as amended to cases filed after the enactment date of the Act. (1)

InLindh, the Supreme Court reversed a decision of the Seventh Circuit that the new provisions of chapter 153 applied to non-capital federal habeas casespendingon April 24, 1996, the date of the AEDPA's enactment.Lindhv.Murphy, 96 F.3d 856 (1996). The Court did not, however, dispute -- or even, in fact, directly address -- the Seventh Circuit's conclusion that application of the new sec- tion 2254 to cases pending at the date of the Act's enactment would not have an impermissible retroactive effect underLandgraf. Rather, employing "normal rules of construction," the Court concluded, from the language of the Act, that Congress had intended"to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment,"Lindh, 521 U.S. at 326, and thus not to cases pending at enactment. For this latter class of cases, the Court held, it was clear that Congress had "remove[d] even thepossibilityof retro- activity."Id. (emphasis added). The Court divined Congress' intent regarding chapter 153 by drawing the negative implication from sec- tion 107(c) of the Act, which explicitly extends the newly-created chapter154to cases pending on the date of enactment.The Court thus dispensed with the necessity of undertaking aLandgrafretroac- tivity analysis, concluding that Congress' inferred intentnotto apply the new provisions of chapter 153 to pending non-capital habeas cases was dispositive of the reach of those provisions.

The Court inLindhframed its holding by stating "that the negative implication of sec. 107(c) is that the new provisions of chapter 153generallyapply only to cases filed after the Act became effective."Lindh, 521 U.S. at 336(emphasis added). Many courts, including this one, have cited this statement in support of the proposition that the provisions of the AEDPA amending section 2254 necessarilydoapply to habeas petitions filed after April 24, 1996, the date on which the Act was signed into law and became effective.See,e.g.,Greenv.French, 143 F.3d 865, 868 (4th Cir. 1998),cert.denied, 119 S. Ct. 844 (1999);Breardv.Pruett, 134 F.3d 615, 618 (4th Cir.),cert.denied sub nom.Breardv.Greene, 523 U.S. 371(1998);Riverav.Sheriff of Cook County, 162 F.3d 486, 489 (7th Cir. 1998);Fieldsv.Johnson, 159 F.3d 914, 915 (5th Cir. 1998);Neelleyv.Nagle, 138 F.3d 917, 921 (11th Cir. 1998),cert.denied, 119 S. Ct. 811 (1999).

Several courts, including this one, however, have recently con- cluded, in considering whether other of the new provisions of chapter 153 apply to cases filed after the date of enactment, that "[t]he Court's holding [inLindh] that Chapter 153 generally applies only to cases filed after enactment does not imply that it applies where a retroactive effect would thereby result."In re Hanserd, 123 F.3d 922, 933 n.22 (6th Cir. 1997) (holding that the AEDPA did not apply to bar filing of second or successive petition under section 2255 where first peti- tion was filed before date of enactment).See In re Minarik, 166 F.3d 591 (3rd Cir. 1999) (concluding, after thorough analysis, thatLindhdid not mandate application of amended section 2244's limitation on the filing of second or successive federal habeas petitions to a case in which its application would have a genuine retroactive effect). Most significantly, this latter understanding of the limits of the Court's holding inLindhhas also been confirmed on one occasion by this court. InBrownv.Angelone, 150 F.3d 370 (4th Cir. 1998), we modified the application of the new one-year statute of limitations on habeas petitions to cases in which a conviction became final more than one year prior to the date of the AEDPA's enactment. Noting that underLindh, new section 2244(d)(1)"generally appl[ied]" to the case, the panel nonetheless employedLandgraf's analytical frame- work to determine whether we would apply its statute of limitations to petitions filed after enactment by prisoners whose statutory right to seek federal habeas relief had accrued prior to the AEDPA's enact- ment.Id. at 372. Because the effect of applying section 2244(d) (as well as section 2255, the analogous statutory provision governing habeas petitions filed by federal prisoners) to bar such petitions would have been impermissibly retroactive, we joined six of our sister cir- cuits in extending the limitations period in such cases for one year after the date of enactment, regardless of the date of accrual.SeeUnited Statesv.Flores, 135 F.3d 1000, 1002-04 (5th Cir. 1998),cert.denied, 119 S. Ct. 846 (1999);Burnsv.Morton, 134 F.3d 109, 111 (3rd Cir. 1998);Calderonv.United States Dist. Ct. for the Cent. Dist.of Cal., 128 F.3d 1283, 1287 n.3 (9th Cir. 1997),overruled on othergrounds, 163 F.3d 530 (9th Cir. 1998);United Statesv.Simmonds, 111 F.3d 737, 744-46 (10th Cir. 1997);Petersonv.Demskie, 107 F.3d 92, 93 (2d Cir. 1997);Lindh, 96 F.3d at 865-66. Mueller argues that theLandgrafanalysis applies as well to the application of section 2254 to his case, and that even afterLindh, amended section 2254 is not applicable to a petition filed post-enactment if such application would not pass muster underLandgraf.

We agree with petitioner and those courts that, having had cause to consider the question in full, have concluded that the Supreme Court did not hold inLindhthat courts arenecessarilyto apply the new provisions of chapter 153 to all habeas petitions filed after April 24, 1996. More particularly, we hold thatLindhdid not foreclose -- and indeed contemplated -- continuing resort to theLandgrafanaly- sis in order to ensure that application of chapter 153's new provisions is not impermissibly retroactive in such cases.

One could be forgiven for taking a contrary meaning from the Court's delphic statement of its holding inLindh. As recounted above, the Court held inLindhthat the "negative implication of § 107(c) is that the new provisions of chapter 153generally apply onlyto cases filed after the Act became effective."Lindh, 521 U.S. at 336(empha- sis added). The most natural reading of this concluding language -- and the one courts have appeared uniformly to adopt in the absence of a direct challenge to a new provision's retroactivity in a case filed post-enactment -- is that the new provisions of chapter 153willapply to cases filed after enactment and willonlyapply to those cases, except in those limited circumstances, discussed at some length ear- lier in the opinion, in which because of section 107(c) and the incor- poration by chapter 154 of certain provisions of chapter 153, these provisions apply as well topendingcapital habeas cases.See Lindh, 521 U.S. at 326("The statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases.")). Thus, at first blush, the Court's holding could appear simply to be that the new provisions of chapter 153, including section 2254, apply to all cases filed after enactment of the AEDPA, but thatsomeof the new sec- tions will apply, where explicitly provided for, in a broader class of cases as well. While this interpretation of the Court's language is correct on one level, it is, in a fundamental sense, incomplete. Although the Court inLindhdid "remove the possibility" of the new provisions applying to pending cases, it did not mean to suggest that in cases filed after enactment the new provisions wouldnecessarilyapply. Rather, the Court left open the possibility, consistent withLandgraf, that it wouldnotapply the new provisions of chapter 153 even to a post-enactment petition if doing so would result in an impermissible retroactive effect.See Lindh, 521 U.S. at 326("In sum, if the application of a statutory term would be retroactive as to [petitioner], the term will not be applied, even if in the absence of retroactive effect, we might find the term applicable."). On this reading ofLindh, the Court's holding that the AEDPA generally applies only to that class of cases filed post-enactment was not intended to supersede, even with respect to the new chapter 153 provisions, theLandgrafrule that a new statute will not be applied in any case in which its application would have a genuinely retroactive effect unless Congress has clearly manifested its intent to override the judicial presumption against such retroactiv- ity.See Lindh, 521 U.S. at 328(noting the"clear statement required for a mandate to apply a statute in the disfavored retroactive way");id. at 325 (reiteratingLandgrafrequirement of an "express command" or "unambiguous directive" before a retroactive application will be authorized).

To put the point differently, the word "apply" in the Court's state- ment of its holding is, at first glance, ambiguous, for there are two dif- ferent senses in which an arguably retroactive statute might be said to "apply" to a case. First, a court must determine, through its normal rules of statutory construction, whether (in the first sense) the statute "applies" to the category of cases to which the case before it belongs. If the court concludes that the statute does not, as was the case inLindh, the analysis ends. If, however, the court determines under nor- mal rules of statutory construction that the statute does indeed "apply" to that class of cases -- that is to say, the possibility of its application has not been removed by Congress -- the court must then proceed to theLandgrafanalysis before it may actually"apply" the law (in the second sense) to the case before it.Lindhdid not purport to eliminate the necessity of theLandgrafstep; the Court inLindhsimply had no need to reach that step. Thus, when the Court held that the AEDPA "applies" to cases filed after the Act's effective date, it did so only in the first sense of "apply" -- what normal rules of interpretation tell us about an Act's reach -- and not in the second sense -- whether, after one conducts aLandgrafanalysis, the Act will, ultimately, "apply" either because of the absence of impermissible retroactive effect or because of a clearly stated congressional intent to override one.

Further, we do not readLindhto suggest that the Court, by resort- ing to negative implication in order toremovean entire class of poten- tially troublesome cases from a statute's reach, had also found the express command thatLandgrafrequires for a statute toapplyto a different class of cases with respect to which its application might yet have retroactive effect.See In re Minarik, 166 F.3d at 598 ("LandgrafandLindhmake clear . . . that while such an inference is sufficient to eliminate the possibility of a retroactivity problem, it is not the kind of unambiguous statement that will justify overriding the judicial pre- sumption against retroactivity in a case where a retroactivity problem exists.").But see Grahamv.Johnson, 168 F.3d 762, 781 (5th Cir. 1999) (readingLindhto recognizeimplicitcongressional intent as sat- isfyingLandgrafclear statement requirement). Quite to the contrary, theLindhmajority was not even prepared to state that the explicit extension (in section 107(c)) of chapter 154 to pending cases would prove sufficiently unambiguous to override the judicial presumption against retroactivity.Lindh, 521 U.S. at 328-29 (noting that "the terms of § 107(c) may not amount to the clear statement required for a man- date to apply a statute in the disfavored retroactive way" and that even with respect to chapter 154 there "may well be difficult issues . . . that application ofLandgraf'sdefault rule will be necessary to settle").

Accordingly, like our sister circuits inMinarikandHanserd, we conclude that the Court inLindhdid not foreclose the possibility that in certain cases filed after enactment, certain of the new provisions, because of an impermissible retroactive effect, still could not, consis- tent with the Court's retroactivity precedents, be applied. Petitioner claims that his is such a case and section 2254 is such a provision. We disagree.

992532P.pdf &992556P.pdfKilgore v. Bowersox Eighth Circuit denies this emergency successive petition and request for a stay in near summary fashion as claims were either raised in prior petitions or didn't meet the requirements of § 2244.

Faulder v. JohnsonFifth Circuit denies this Canadian citizen's attempts to enforce US treaty law after having been denied a TRO in the district court.

Appellant Joseph Stanley Faulder is scheduled to be executed on June 17, 1999. Less than one week ago, this court rejected Faulder's challenge to the procedures used by the Texas Board of Pardons and Paroles. This week, Faulder is pursuing a lawsuit under 28 U.S.C. § 1350 and § 1983, the purpose of which is to obtain a stay of his execution because of his alleged tort claim against Texas officials for violating international human rights treaties and the Vienna Convention on Consular Relations.

The district court held an expedited hearing on the motion to stay execution and for temporary restraining order, after which the court entered a thoughtful order denying relief on June 14, 1999. On June 15, Faulder filed a notice of appeal "from the order denying a temporary restraining order in the above-numbered cause." For the following reasons, we again reject Faulder's last-minute assertions.

First, it is well settled that this court has no appellate jurisdiction over the denial of an application for a temporary restraining order.In re: Lieb, 915 F.2d 180 (5th Cir. 1990). The appeal ought to be dismissed for that reason alone.

Second, although we are aware of no applicable exception to the foregoing rule, in the event that there is some exception, we reiterate this court's recent holding that federal courts lack jurisdiction to stay executions under § 1983, and we would extend this holding to Faulder's claim under the Alien Tort Claims Act, 28 U.S.C. § 1350.SeeMoody v. Rodriguez, 164 F.3d 893 (5th Cir. 1999). The essence of Faulder's last-minute request for relief in the district court and this court is an attempt ultimately to obtain an injunction against the death sentence lawfully imposed upon him by the state of Texas. He is asking the federal courts to interfere with the state's carrying out of the death penalty. This is tantamount to seeking "a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law . . ."Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 1834 (1973). Faulder's exclusive, appropriate remedy was for a writ of habeas corpus to obtain this equitable relief.

Finally, if we are in error about the courts' lack of jurisdiction, we nevertheless reject Faulder's claims on the merits for the reasons stated by the district court.

Lafevers v. OklahomaTenth Circuit denies relief on a grab bag of claims citing state court fact-finding on certain issues were not outside the bounds of §2254, other issues were procedurally defaulted, and other issues (most notably regarding DNA testing) failed on the merits.

A. CLAIMS FORECLOSED BY 28 U.S.C. § 2254(d)

1. Did the State Trial Court Violate the U.S. Constitution by refusing to Suppress Statements that Followed Mr. LaFevers' Alleged Invocation of Counsel?

2. Did the State Trial Court Violate the Confrontation Clause When it Read Into the Record of the Second Trial the Testimony of David Hawkins?

3. Did Mr. LaFevers' Prosecution Under the Felony-Murder Rule in his Second Trial, with Kidnaping as the Predicate Felony, Violate the Double Jeopardy Clause of the U.S. Constitution?

4. Did the State Trial Court Violate the U.S. Constitution When it Failed to Sua Sponte Instruct the Jury on the Meaning of the Phrase "Reasonable Doubt"?

5. Was Trial Counsel Ineffective During the Penalty Phase Because he Failed to Present Evidence of Mr. LaFevers' Drug Use and Abuse?

B. CLAIMS GOVERNED BY PRIOR DECISIONS OF THIS COURT

1. Did the State Trial Court Violate the U.S. Constitution When it Declined a Request to Instruct Jurors That They Could Return a Verdict of Life, Instead of a Death Sentence, Even if They Found the Aggravating Circumstances to Have Outweighed the Mitigating Circumstances?

2. Did the State Trial Court Violate the U.S. Constitution When it Rejected a Request to Instruct Jurors that Mitigating Circumstances Need Not be Found Unanimously?

3. Is the "Continuing Threat" Aggravator Unconstitutionally Vague or Overbroad?

4. Is the "Especially Heinous, Atrocious or Cruel" Aggravator Unconstitutionally Vague?

C. CLAIMS SUBJECT TO PROCEDURAL DEFAULT

1. Was Petitioner's Plea of Nolo Contendere Involuntarily Given in Violation of the Constitution?

2. Was Mr. LaFevers Entitled Under the Constitution to DNA Testing?

D. CLAIMS HEARD IN THE FIRST INSTANCE BY THE FEDERAL DISTRICT COURT WHICH ARE NOT BARRED BY PROCEDURAL DEFAULT

1. Other Claims Regarding DNA Testing

Mr. LaFevers presents two other claims pertinent to DNA testing: his appellate counsel was ineffective for failing to ask for such tests after trial; and the federal district court improperly denied his discovery request for DNA testing. Ultimately, he postulates DNA evidence "would prove that he was not present when Ms. Hawley was brutally murdered."

a. Was Mr. LaFevers' Appellate Counsel Ineffective for Failing to Request DNA Testing?

Mr. LaFevers believes his state appellate counsel was ineffective for failing to request DNA testing or at least raise the issue on direct appeal. To establish his counsel was constitutionally defective, petitioner must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment, and that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

This claim fails for the simple reason that the DNA testing argument on direct appeal would have been frivolous because even favorable DNA test results would not make a difference in this case. As the district court found:

At most, the "DNA testing" requested by Petitioner will prove whether Petitioner was bleeding at the time he was at the crime scenes or whether Petitioner bled on the clothing found in Cannon's home. The "DNA testing" cannot, despite Petitioner's assertions to the contrary, prove that he was not at the crime scenes or that he was not involved in Ms. Hawley's murder.

Furthermore, even assuming the claim was not frivolous, case law provides appellate counsel has no constitutional obligation to raise every nonfrivolous issue, whether requested by the defendant or not. See Jones v. Barnes, 463 U.S. 745, 750-54, 103 S. Ct. 3308, 3312-14 (1983). As the Ninth Circuit has stated:

[The] weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. . . . [E]very weak issue in an appellate brief or argument detracts from the attention a judge can devote to the stronger issues, and reduces appellate counsel's credibility before the court. For these reasons, a lawyer who throws in every arguable point--"just in case"--is likely to serve her client less effectively than one who concentrates solely on the strong arguments.

Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989); see also Jones, 463 U.S. at 751-53, 103 S. Ct. at 3313.

b. Did the Federal District Court Abuse its Discretion When it Denied Mr. LaFevers' Discovery Request for DNA Testing?

In a related claim, Mr. LaFevers urges the federal district court improperly denied his discovery request for DNA testing. Rule 6(a) of the Rules Governing Section 2254 Cases requires a habeas petitioner to show good cause before he is afforded an opportunity for discovery. Good cause is shown if the petitioner makes a specific allegation that shows reason to believe the petitioner may be able to demonstrate he is entitled to relief. See Harris v. Nelson, 394 U.S. 286, 300, 89 S. Ct. 1082, 1091 (1969); Bracy v. Gramley, 520 U.S. 138, ___, 117 S. Ct. 1793, 1799 (1997) (approving the Harris standard). We review a district court's decision on good cause for an abuse of discretion. See Bracy, 520 U.S. at ___, 117 S. Ct. at 1799. Given our previous discussion, we have no doubt Mr. LaFevers has failed to show good cause for this discovery request.

2. Was There Sufficient Evidence to Support the Jury's Aggravating Circumstance That the Murder was Committed to Avoid Arrest or Prosecution?

Mr. LaFevers questions whether there was sufficient evidence presented in the penalty phase of the trial to support a finding on the aggravating circumstance that the murder was committed to avoid arrest or prosecution. In determining whether a state court's application of its constitutionally adequate aggravating circumstance was so erroneous as to raise an independent due process or Eighth Amendment violation, the appropriate standard of review is the "rational factfinder" standard established in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See Lewis v. Jeffers, 497 U.S. 764, 781, 110 S. Ct. 3092, 3102 (1990). Jackson holds that where a federal habeas corpus claimant alleges his state conviction is unsupported by the evidence, federal courts must determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S. Ct. at 2789. "These considerations apply with equal force to federal habeas review of a state court's finding of aggravating circumstances." Lewis, 497 U.S. at 782, 110 S. Ct. at 3103. "Like findings of fact, state court findings of aggravating circumstances often require a sentencer to 'resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Jackson, 443 U.S. at 319, 99 S. Ct. at 2789).

The federal district court reviewed the trial transcripts and exhibits and concluded that a rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. The court stated:

After beating Ms. Hawley, Petitioner "decided that he needed to get rid of her". . . "to try to dispose of any future testimony or evidence." (TR 1091-92) Further, Petitioner told the investigating police officers that he and Cannon discussed Cannon's desire to kill Ms. Hawley because she had seen their faces and they could be identified from police lineups. . . . [¶] It is quite logical to assume that the jury concluded from the evidence that Ms. Hawley was kidnapped from her home and driven, in her stolen car, to a remote location so that she could be murdered before she identified Petitioner and Cannon as the men who burglarized her home and stole her car.

We agree with the district court's assessment of the evidence.

3. Was Trial Counsel Ineffective for Failing to Explain That Mr. LaFevers' Nolo Contendere Plea Could be Used Against Him in the Penalty Phase of the Second Trial?

Mr. LaFevers posits that at the time he made his nolo contendere pleas to the Paden/Austin crimes, he was told by his attorney the plea could never be used against him as an admission of guilt. Specifically, he argues his trial counsel was ineffective for failing to explain that his nolo contendere plea could be used against him in the penalty phase of the second trial. To succeed on this issue, however, petitioner must demonstrate that his lawyer's deficient performance prejudiced his defense. To make out prejudice, he must demonstrate there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. The proper focus is on whether counsel's ineffectiveness rendered the proceedings fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 369-73, 113 S. Ct. 838, 842-44 (1993).

The federal district court concluded there was no prejudice here because the state had presented other evidence of Mr. LaFevers' crimes against Ms. Paden and Ms. Austin. Specifically, the court stated:

Further, even if this Court were to agree that Petitioner's nolo contendere pleas were inadmissible (which it does not), evidence of Petitioner's crimes against Ms. Paden and Ms. Austin would have been admissible under state law. The Court of Criminal Appeals has been consistent in its approval of the use of unadjudicated bad acts as evidence to support the "continuing threat" aggravating circumstance. Ms. Paden and Ms. Austin testified as to the acts of Petitioner and [his co-defendant] Cannon during the second stage of Petitioner's trial . . . .

We agree with the district court's conclusion that Mr. LaFevers' suffered no prejudice. Even if he had not pleaded nolo contendere, the prosecution would have in any event established the Paden/Austin crime through use of unadjudicated offense evidence. Although the district court looked exclusively to Oklahoma law on this point, we also have held due process is not violated by admission of unadjudicated offenses. See Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999); Williamson v. Ward, 110 F.3d 1508, 1523 (10th Cir. 1997); Hatch v. State of Okla., 58 F.3d 1447, 1465-66 (10th Cir. 1995).

Furthermore, the prosecution presented additional evidence from which a rational trier of fact could find beyond a reasonable doubt that Mr. LaFevers was a continuing threat to society. The state relied on the specific circumstances of Ms. Hawley's brutal murder and two unadjudicated prison stabbings. With respect to the latter evidence, the jury heard that in 1987, after the first trial, LaFevers and another inmate went after Cannon and stabbed him twenty-two times in prison; and, in 1990, LaFevers and yet another inmate stabbed inmate, Charles Coleman, in a prison library altercation, during which LaFevers also struggled with a prison guard. See LaFevers, 897 P.2d at 307. Even if counsel's performance was deficient, the presence of other evidence of violent acts makes that deficiency inconsequential. Counsel's lack of explanation did not render the proceedings fundamentally unfair or unreliable.

4. Was Trial Counsel Ineffective During the Penalty Phase Because he Failed to Present Other Mitigating Evidence?

Mr. LaFevers contends that his trial counsel was aware of, but did not use, testimony of two men who claimed that the co-defendant in the case, Cannon, had "confessed" to them while they were incarcerated together in prison. Mr. LaFevers claims both men would have testified that Cannon took the responsibility for the murder and the burning of Ms. Hawley. "While this does not excuse Mr. LaFevers from being guilty of the crime charged," petitioner argues, "it could certainly prove critical when the jury deliberated the sentence during the second stage of the trial."

The district court reviewed this claim carefully and rejected it because it found no prejudice. The court noted:

Petitioner's two sentence summary of the two interviews ignores the true nature of the prisoners' rendition of Petitioner's involvement in the murder of Ms. Hawley. In each inmate's interview, it is clear that Petitioner was a principal in the burglary, robbery and kidnapping; that he purchased the gasoline which was poured on Ms. Hawley and her car; and he knew that Cannon intended on murdering Ms. Hawley, but did nothing to stop the murder. Further, both inmates stated that Petitioner served as the "lookout" while Cannon raped and killed Ms. Hawley. Finally, both inmates stated that Petitioner, Cannon and a third man worked together to burn Ms. Hawley's car.

These facts demonstrate that Petitioner was a major participant in the criminal activities. . . . Further, since Petitioner took no action to prevent the murder of Ms. Hawley it is clear that he acted with a reckless indifference to human life. Therefore, under Tison v. Arizona, Petitioner's death sentence would have been appropriate even if the inmates had testified and the jury believed their version of the rendition of the events.

Finally, it should be noted that Petitioner's trial counsel apparently made a tactical decision to not call these two inmates. Petitioner's trial counsel filed numerous pre-trial motions, including a Motion in Limine Jail House Informants, in which he sought to exclude the testimony of jail house informants. In arguing for the exclusion of the testimony of jail house informants, Petitioner's trial counsel argued that the "testimony form [sic] jail house informants is inherently unreliable."

Mr. LaFevers has provided no reason, nor could we find any, to quarrel with the district court's assessment on this issue.

5. Was Appellate Counsel Ineffective Because he Allegedly Failed to Communicate With Mr. LaFevers Before Filing the Brief on Direct Appeal and Failed to Appeal the Nolo Contendere Plea Issue?

Habeas Cases

United States v. BarrettFirst Circuit examines the nature of a traverse. In a procedurally complex case, the panel denies relief on an issue raised in the first habeas proceeding in Petitioner's "traverse" (Jencks Act materials turned post-Answer casting serious doubt on the competency of the government's sole witness). The appropriate remedy for the Government's misconduct was amendment not traverse. A second habeas petition raising the Jencks Act claim was therefore barred. (Opinion was handed down in late May but not internet posted until this week.)

The lessons of this case for the criminal defense bar are clear. A first petition for post-conviction relief under § 2255 should raise all available claims. Informal reference to a new claim in a reply brief will not suffice to raise a claim if the district court does not address that claim in its order. Failure to raise an available claim does not permit an end-run around the requirements of § 2255 by resort to § 2241 or the All Writs Act. There is only one bite at the post-conviction apple unless a second or successive petition can show one of two things: a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or newly discovered evidence sufficient to establish by clear and convincing evidence, on the whole record, that no reasonable factfinder would have returned a guilty verdict. A claim of actual innocence -- defined as factual innocence, not mere legal insufficiency -- will have a mechanism for review.

Santoro, et al. v. United StatesFirst Circuit holds petitioners erred in not raising on direct appeal issues relating to aiding /abetting and using/carrying a firearm during a drug trafficking crime, . (Bailey v. United States ) and have offered no excuse for their procedural default. (Opinion was handed down in early June but not internet posted until this week.)

Turner v. JohnsonFifth Circuit holds that the one year time limit of § 2244(d)sowa not violate the Due Process or Suspension Clauses.

Shorter v. Ohio Dep't of Rehabilitation Sixth Circuit denies relief in this habeas action. Petitioner had not been denied effective assistance of counsel in his appeal of right to the Ohio Court of Appeals. He procedurally defaulted his claims because the Ohio Supreme Court had dismissed the appeal of his application to reopen that appeal and that the failure of the United States Postal Service to deliver his merit brief timely to the Ohio Supreme Court did not constitute cause for the procedural default.

Charles v. Chandler &Wofford v. Scott Sixth & Eleventh Circuits, respectively, deny relief under §2241 as petitioners failed to show that § 2255 was not an available remedy and petitioner's claim is successive without meeting either of the predicates for a successive petition.

Bargas v. BurnsNinth Circuit denies relief upholding the district court's finding that petitioner procedurally defaulted his ineffective assistance of counsel claim and the lower court's merits determination that Petitioner's guilty plea was knowing and voluntary.

Prisoner's Rights/Governmental Misconduct Cases

Powe v. EnnisFifth Circuit holds, for the first time in that circuit, the PLRA's dismissals for failing to exhaust administrative remedies are to be subjected to de novo review. Because the petitioner presented his claims to the proper prison authorities, the authorities addressed some but not all of the claims, and the time for the authorities to address the claims had long since run, the district court erred in dismissing this suit for failing to exhaust administrative remedies.

Benson v. O'BrianSixth Circuit holds that dismissal of a prisoner's suit pursuant to 28 U.S.C. § 1915(e)(2) of the PLRA is inappropriate where no motion to proceed in forma pauperis had been filed.

Martinez v. City of AlbuquerqueTenth Circuit remands this suit arising out of an allegedly badarrest holding that excessive force claims can go forward but state court conviction precludes allegations that (1) the police officers had no probable cause to arrest him and (2) he did not actively resist arrest or attempt to evade arrest, must be stricken because any such finding by the jury in this case would suggest the invalidity of Martinez' state court conviction for resisting arrest.

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.com

DISCLAIMER & CREDITS-- Anti-copyrite 1997-2000. 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.