This week offers no capital case decisions but stunning news out of the Supreme Court that could well effect how we litigate every capital case. The Supreme Court has asked for the Solicitor General's opinion in Domingues v. Nevada over the applicability of International Covenant on Civil and Political Rights, the reservation made to that treaty, and the juvenile death penalty. In Focus this week examines the organization, Rights International, that helped draft the model brief in that case.

In other Supreme Court news, the Court examined exhaustion once again this week. InO'Sullivan v. Boerckel the Supreme Court held that exhaustion is not met where a petitioner does not pursue a discretionary appeal to the state supreme court even where that appellate court strongly discourages such discretionary appeals in all but the most extraordinary cases.

Capital Cases

The U.S. Supreme Court has asked the Clinton Administration for its views on the execution of juvenile offenders in light of an international treaty which forbids such executions. The U.S. has signed and ratified the International Covenant on Civil and Political Rights, but filed an exception so that states could continue to execute juvenile offenders. The Nevada case of Domingues v. Nevada (No.98-8327) has challenged the legality of that reservation. Michael Domingues was 16 years old at the time of his crime. More details as they emerge. (DPIC)

United States Supreme Court

O'Sullivan v. Boerckel The United States Supreme Court holds to meet the exhaustion requirements of federal habeas corpus a Petitioner must exhaust all remedies, including discretionary appeals, in a state court forum before proceeding to have those claims adjudicated in federal court. From the syllabus

After respondent Boerckel’s state convictions were affirmed by the Illinois Appellate Court and the Illinois Supreme Court denied his petition for leave to appeal, he filed a federal habeas petition raising six grounds for relief. In denying the petition, the District Court found, among other things, that Boerckel had procedurally defaulted his first three claims by failing to include them in his petition to the Illinois Supreme Court. The Seventh Circuit reversed and remanded, concluding that Boerckel had not procedurally defaulted those claims because he was not required to present them in a petition for discretionary review to the Illinois Supreme Court in order to satisfy 28 U.S.C. § 2254(b)(1), (c), under which federal habeas relief is available to state prisoners only after they have exhausted their claims in state court.

Held: In order to satisfy the exhaustion requirement, a state prisoner must present his claims to a state supreme court in a petition for discretionary review when that review is part of the State’s ordinary appellate review procedure. As a matter of comity, §2254(c)–which provides that a habeas petitioner “shall not be deemed to have exhausted [state court] remedies . . . if he has the right under [state] law . . . to raise, by any available procedure, the question presented”–requires that state prisoners give state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts. See, e.g., Castillev. Peoples, 489 U.S. 346, 351. State prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process. Here, Illinois’s established, normal appellate review procedure is a two-tiered system: Most criminal appeals are heard first by the intermediate appellate courts, and a party may petition for leave to appeal a decision by the Appellate Court to the Illinois Supreme Court. Whether to grant such a petition is left to the sound discretion of the Illinois Supreme Court, Ill. Sup. Ct. Rule 315(a). Although a state prisoner has no right to reviewin the Illinois Supreme Court, he does have a “right . . . to raise” his claims before that court. That is all §2254(c) requires. Boerckel’s argument that Rule 315(a) discourages the filing of discretionary petitions raising routine allegations of error, and instead directs litigants to present to the Supreme Court only those claims that present questions of broad significance, is rejected. Boerckel’s related argument, that a rule requiring state prisoners to file petitions for review with that court offends comity by inundating the Illinois Supreme Court with countless unwanted petitions presenting routine allegations of error, is also rejected. There is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a procedure is unavailable, but the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable. As the time for filing a petition for leave to appeal to the Illinois Supreme Court has long past, Boerckel’s failure to present three of his federal habeas claims to that court in a timely fashion has resulted in a procedural default of those claims. Pp. 4—10.

135 F.3d 1194, reversed.

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

Habeas Cases

Lucas v. O'Dea Sixth Circuit grants relief on murder charges in this non-capital case due fatal variance in the indictment and evidence adduced at trial (A variance occurs when the charging terms of an indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. The court however denies relief on claims that (a) defense counsel was ineffective in failing to object to the "persistent felony offender" sentence enhancement, and (b) he was exposed to double jeopardy.

Caldwell v. Russell Sixth Circuit denies habeas relief on claims relating to prosecutorial misconduct in its closing remarks, destruction of evidence (creating a rule that bad faith needs to be shown relating to destruction of evidence), and holds procedurally defaulted arguments relating to sufficiency of the evidence.

Restrepo v. Kelly Second Circuit, in a solid discussion of the issue, holds that cause and prejudice has been met for procedural default and remands for a hearing on the issue of whether petitioner was denied effective assistance of counsel by counsel's failure to file a notice of appeal.

971390P.pdfEllis v. Norris Eighth Circuit remands to permit plaintiff to delete claims which were not exhausted.

982449P.pdfLouisell v. Dept. of Corrections Eighth Circuit holds jury instruction on self-defense and justification were not erroneous; claims of prosecutorial misconduct rejected.

Prisoner's Rights/Governmental Misconduct Cases

983389P.pdfHedges v. Poletis Eighth Circuit holds defendant was entitled to qualified immunity for his role in plaintiff's involuntary commitment.

In Depth

This week, in light of the Supreme Court's action in Domingues v. Nevada (No.98-8327), I would like to draw attention to one group of lawyers actively engaged in challenging the death penalty in the United States under international law, Rights Internationalhttp://www.rightsinternational.org/. The Rights International website offers some fantastic resources for lawyers interested in challenging the death penalty under international law. Rights International model briefs were used, at least in part, in Domingues v. Nevada (No.98-8327). I would strongly encourage a quick examination of that website for all readers.

Topics covered include:

1.Death row phenomenon

2.Execution by gas asphyxiation

3.Execution by hanging

4.Execution by electrocution

5.Execution of persons who committed crimes under age of 18

6.Failure to instruct jury to not consider race of defendant and victim

7.Failure to inform alien defendant's consulate

8.Failure to inform alien defendant of his/her right to consult consulate

9.Execution for less than the most serious crimes (viz., murder)

10.Defendant has no opportunity to seek pardon or commutation

11.Extradition of defendant from one state to another

There are several other due process-type areas in which international law may help (e.g., presumption of innocence, and jury/judge impartiality).

For those who are as befuddled by international law as I am, Rights International also offers a research and reference guide that is among the best self help materials around.

I am more then willing to help anyone either get in touch with Rights International or forward samples of how I have used International Law in some of my pleadings and briefs.

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