Four Ninth Circuit cases dominate this edition, all four wins. InLambright v. Stewarta remand is had remand for the district court to determine whether Lambright was denied effective assistance of counsel at sentencing because of the failure to investigate and present evidence of his psychiatric condition and social history. In the companion case to Lambright,Smith v. Stewart, is likewise remanded for if allegations that counsel neither investigated his mental condition nor presented adequate mitigating psychiatric testimony during the sentencing phase are true he was denied effective assistance of counsel. The Ninth Circuit has ordered a third remand inPetrocelli v. Angeloneas the lower court erred in applying the abuse of the writ principles to that petition. Finally, inParadis v. Aravethe prosecution's withholding of a doctor's notes that concluded that the time and place of victim's death was unknown required a new trial where jurisdiction of murder was at issue.

Subscription to the weekly is available by sending an email to karl@karlkeys.com with the word "subscribe" in the subject line. This issue is now available in unedited form at http://www.capitaldefenseweekly.com/archives/010312.htm & http://karlkeys.com/010312.htm. The last issue is still available at http://www.capitaldefenseweekly.com/archives/010305.htm & http://karlkeys.com/010305.htm.

Supreme Court

No cases noted this week.

Captial Case Relief Granted

Paradis v. Arave(9th Cir) Prosecution's withholding of doctor's notes that concluded that the time and place of victim's death was unknown required a new trial where jurisdiction of murder was at issue.

The State argues that on remand the district court improperly shifted the burden to the State to disprove Paradis' Brady claim. In support of this argument, the State relies on the following passage from the district court's opinion:

The Ninth Circuit Court of Appeals previously concluded that the notes conflicted with Dr. Brady's testimony at trial and that counsel was not given the right to investigate or cross-examine on it. The court of appeals further concluded that the defense was put to an actual disadvantage as previously outlined in this decision. Nothing in the evidentiary hearing occurred or was presented that would make these notes less material.

The State claims that this passage shows that the district court required the State to disprove the "speculative conclusions" contained in our prior opinion, rather than requiring Paradis to prove his Brady claim.

The argument lacks merit. The quoted passage follows approximately five pages of analysis in which the district court explains the ways in which the evidence introduced at the evidentiary hearing supports Paradis' claim. [*17] In addition, the district court found against Paradis in one important respect precisely because he had "not supported his claim that this information [i.e., the color photographs] was not disclosed to him prior to trial," thus indicating that the court did not relieve Paradis of the burden of proving his claims. Finally, the passage on which the State relies can be interpreted in a way that implies no illicit burden shifting--in referring to our prior conclusions and saying that nothing at the hearing "would make these notes less material," the court apparently meant only that our conclusions were borne out, and not undermined, by what transpired at the hearing.

In sum, the record does not support the argument that the district court shifted the burden of proof to the State.

Captial Cases Remanded for Further Adjudication

Smith v. Stewart(9th Cir) State court's denial of postconviction petition for ineffective assistance of counsel based on a finding that the lawyer would have raised such a claim if petitioner had a colorable claim is insufficient to invoke a state procedural rule to bar federal habeas review.

Smith raised an ineffective assistance of counsel claim for the first time in his third state post-conviction petition. The state court dismissed the claim in October of 1995. Two months later, the state court revisited Smith's claim in an order denying his motion for reconsideration. In the order, the court wrote:

Counsel's assertion on page 4, line 3 through 6 of his Motion for Rehearing, that "each of the deputies of the Public Defender's Office have been appointed ...to 'conduct the affairs' of the Pima County Public Defender's Office rather than to independently represent Mr. Smith" is either outrageous or ridiculous, whichever adjective is most appropriate. Deputies in the Public Defender's Office [*9] do not represent the Public Defender's Office. They are attorneys for and have an attorney-client relationship with the actual defendant charged with the crime. It may, indeed, be correct that it would be inappropriate for a public defender to allege a different public defender was ineffective at trial (although it has been done by this Public Defender's Office in the past). However, this does not absolve an attorney representing a client in an appellate matter from ineffective assistance of counsel. That is an absolute and undelegable duty. Failure to do so is at the very best malpractice and malfeasance. An attorney who discovers a colorable claim of ineffective assistance of counsel must immediately withdraw, notify the Court that there is such a claim, and allow the Court to appoint an attorney who has no conflict in representing that client. To suggest that one could wait for ten years, from 1985 to the present, and never even examine the case to see if the client had such a claim is an admission of the grossest malpractice.

It is HEREBY ORDERED Defendant's Motion for Rehearing is denied.

The claims are so old they are (1) precluded by failure to bring them previously, in accordance [*10] with Rule 32.2(a) and/or (2) for those claims raised under Rules 32.1(e), 32.1(f) or 32.1(g), are summarily dismissed due to the petition's failure to set forth the reason for not raising such claims in a previous petition or in a timely manner, in accordance with Rule 32.2(b).

We must determine whether the state court judgment in Smith's case bars federal review of his Sixth Amendment claim. See Coleman v. Thompson, 501 U.S. 722, 736, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). A state court's procedural ruling will bar our review only if its basis is separate and distinct from the federal question. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991); see also Coleman, 501 U.S. at 729-30. n2 The State contends that the Arizona court's procedural default ruling in this case constitutes an independent state ground that bars us from reviewing Smith's ineffectiveness claim. n3

In Ake v. Oklahoma, 470 U.S. 68, 75, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), the Supreme Court held that when a state's procedural default rule depends on an assessment of a federal claim, federal review is not barred. The state court in that case explicitly held that Ake had waived his federal constitutional claim by omitting it from his motion for a new trial. Id. at 74. That court had ruled in another state case, however, that the waiver rule did not apply in cases of fundamental trial error. Id. By creating such an exception, "the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed." The Supreme Court concluded that because "resolution of the state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded." Id. at 75.

We have similarly held that federal habeas review is not barred when a state makes the application of its default rule depend on a consideration of federal [*13] law. See, e.g., Park v. California, 202 F.3d 1146 (9th Cir. 2000), cert. denied, 148 L. Ed. 2d 202, 121 S. Ct. 277 (2000); McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995); Russell v. Rolfs, 893 F.2d 1033, 1035-36 (9th Cir. 1990). In Park, 202 F.3d at 1149, the state court refused to consider the petitioner's federal constitutional claim because he had failed to raise it on direct appeal. Despite the state court's explicit reliance on procedural default in its ruling, we held that Park's federal claim was cognizable in federal habeas corpus proceedings because the California Supreme Court had held in another case that a petitioner could over-come the procedural bar if he could show a violation of "fundamental constitutional rights." 202 F.3d at 1152. As we explained, "in light of [the California Supreme Court's ]acknowledgment that the constitutional error exception encompassed consideration by the court of the merits of federal constitutional questions, the California Supreme Court necessarily made an antecedent ruling on federal law before applying the [procedural] bar to [*14] any federal constitutional claims raised in Park's state habeas petition." Id. at 1153.

We also held in McKenna v. McDaniel, 65 F.3d at 1489, that a state court judgment explicitly invoking Nevada's procedural default rule as the basis for dismissing a post-conviction petition did not preclude federal review because the state court had explained in another case that it enjoyed the discretion to address errors of "constitutional dimension." We concluded that the existence of a discretionary exception in cases of constitutional dimension rendered the court's state-law procedural ruling "necessarily intertwined with its analysis of the merits of McKenna's constitutional claims and does not constitute a clear statement of independent and adequate state grounds for the decision." Id. at 1489.

It is unclear from the order denying rehearing of Smith's ineffective assistance of counsel claim whether the court invoked a procedural bar as the basis of its ruling. The court suggested that Smith's lawyer would have raised an ineffective assistance of counsel claim if Smith had a colorable one. In other words, the court implied that the record [*15] failed to demonstrate that Smith had a colorable claim of ineffective assistance of counsel. Such a holding does not satisfy the requirement that a state court clearly and explicitly invoke a state procedural rule to bar federal habeas review.

Moreover, it is clear that at the time of the state's procedural ruling, Arizona courts were required to consider the merits of a claim. Ariz. R. Crim. Pro. 32.2(a) generally bars a defendant from obtaining relief from his conviction on a ground that he waived at trial, on appeal, or in any previous collateral proceeding. n4 At the time of the state court's procedural ruling, however, Arizona courts were required to examine the nature of a claim to determine whether the state's procedural default rule applied. See State v. Curtis, 912 P.2d 1341, 1344 (Ariz. Ct. App. 1995); see also State v. French, 7 P.3d 128, 130 (Ariz. Ct. App. 2000). Under Arizona's procedural default rule, "[a] claim is precluded that could have been, but was not, raised in a prior appeal or PCR, unless the asserted claim is of sufficient constitutional magnitude." Curtis, 912 P.2d at 1344 (internal quotation marks omitted). [*16] n5 Thus, Rule 32.2's procedural default rule applies where a petitioner's "belated focus" on an alleged error "lacks sufficient constitutional magnitude to revive an issue." Id. at 1344. n6

Given Arizona's exception for errors of "constitutional magnitude," the state court's finding of procedural default in Smith's case necessarily included an evaluation of the strength of his federal claim. Indeed, like the procedural rulings in Ake, Park, and McKenna the state court's procedural ruling in this case was necessarily intertwined with its implicit determination that the merits of his claim were of insufficient constitutional magnitude. Thus, federal review is not barred.

Petrocelli v. Angelone(9th Cir) In habeas appeal, raising additional grounds for relief on motion for rehearing at state supreme court level does not qualify as a "second or successive petition" for abuse of writ purposes under Rule 9(b) of the Rules Governing Section 2254 cases.

When petitioner filed his first federal habeas petition, the district court dismissed it without prejudice, because it contained unexhausted claims. Petitioner then filed a second state petition for post-conviction relief to meet the exhaustion requirements. When petitioner filed his amended federal petition, he asserted that ground 6 was "exhausted on direct appeal," ground 9 was "partially exhausted on petitioner's first petition for state post-conviction relief, "and grounds 26-28 were "raised for the first time."

The district court found that "the characterization [*16] of ground 9 has been materially changed from that which was presented to the state courts." It also found that there was no exhaustion of ground 6 because "it was raised for the first time on a petition for rehearing in the Nevada Supreme Court," and the "state supreme court does not consider issues raised for the first time on appeal." n7 Finally, the district court found grounds 26-28 could not be exhausted, because petitioner admitted they were now being raised for the first time. The district court further held, under Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996), cert. denied, 520 U.S. 1188, 117 S. Ct. 1474, 137 L. Ed. 2d 686 (1997), overruled by Slack, 120 S. Ct. at 1605, that all of the claims should be dismissed for abuse of the writ, because none of them had been fully presented to the court in the original habeas petition, and also because petitioner failed to include the new, non-exhausted claims in his second state petition. See Calderon v. United States Dist. Court (Kelly), 163 F.3d 530, 538 (9th Cir. 1998) (en banc), cert. denied, 526 U.S. 1060, 119 S. Ct. 1377, 143 L. Ed. 2d 535 (1999) [*17] (noting that generally the abuse of the writ doctrine "forbids the reconsideration of claims that were or could have been raised in a prior habeas petition").

Petitioner contends that the district court erred in dismissing the claims as an abuse of the writ, but he does not contest the finding that the claims were not exhausted. Under Rule 9(b) of the Rules Governing Section 2254 cases, abuse of the writ may be found only when the new claims are asserted in "[a] second or successive petition." In Farmer, on which the district court relied, we held that a petition filed after one previously dismissed without prejudice for exhaustion in state court could be a "second or successive" one for purposes of abuse of the writ. Farmer, 98 F.3d at 1556. In Slack, however, the Supreme Court overruled Farmer, holding that such an amended petition is not a" second or successive petition" for purposes of abuse of [*18] the writ. 120 S. Ct. at 1605. The Slack rule applies even to claims not contained in the original petition, but that are later asserted in an amended petition. See id. at 1605-06. Thus, we conclude that the district court abused its discretion in dismissing these claims as an abuse of the writ. n8

Our conclusion in this regard more than meets [*19] Slack's requirement that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1600-01. We therefore proceed to the second part of the COA analysis under Slack, namely, whether "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Id.

Because the district court dismissed these claims on procedural grounds, petitioner has not had an opportunity to support them on the merits through briefing or argument, or the introduction of evidence. In Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000), we encountered precisely this situation, and we held that "we need not remand for full briefing to determine whether a COA can issue." Id. at 1026. Rather, "we will simply take a 'quick look' at the face of the complaint to determine whether the petitioner has 'facially alleged the denial of a constitutional right." Id. (citing Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000); Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000)). If so, [*20] we will grant a COA. Id.

Accepting petitioner's allegations as true and taking a quick look at the underlying merits, we conclude that in each of grounds 6, 9, and 26-28, petitioner has facially alleged the denial of a constitutional right -- in particular, they allege violations of petitioner's right to effective assistance of counsel, his due process rights, and his Eighth Amendment rights. See Lambright, 220 F.3d at 1028. We therefore grant a COA as to each of those grounds.

2. Grounds 14-25: Procedural Default

The Nevada Supreme Court held that all of grounds 14-25 were procedurally defaulted. On that basis, the district court likewise dismissed those grounds as procedurally barred.

"In order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner's purported default." Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). Under Fields v. Calderon, 125 F.3d 757, 760-62 (9th Cir. 1997), the rule must have been consistently applied at the trigger dates of 1983 (petitioner's direct [*21] appeal) and 1985 (his first state post-conviction proceeding) in order to be an adequate state ground. Petitioner argues that the district court erred in dismissing grounds 14-25, because the Nevada Supreme Court has not consistently applied its procedural bar rules.

Ninth Circuit case law on this issue is complex. In McKenna v. McDaniel, 65 F.3d 1483 (9th Cir. 1995), we considered whether a Nevada prisoner's claim regarding his counsel's failure to object to a particular aggravating circumstance had been procedurally defaulted because it was not raised on direct appeal. The Nevada Supreme Court had stated that the claim was defaulted. Id. at 1488. But we noted the following passage from the Nevada Supreme Court's opinion in Pertgen v. State, 110 Nev. 554, 875 P.2d 361 (Nev. 1994):

Moreover, the power of this court to address plain error or issues of constitutional dimension sua sponte is well established. Because this case involves the ultimate punishment and because appellant's claims of ineffective assistance of counsel are directly related to the merits of his claims, we will consider appellant's claims on the merits.

875 P.2d at 364. Relying on this language, we concluded that, because the Nevada Supreme Court exercises discretion to hear the merits of federal constitutional claims, the procedural bar was not adequate. See McKenna, 65 F.3d at 1488-89.

However, in Moran v. McDaniel, 80 F.3d 1261 (9th Cir. 1996), we held that the Nevada Supreme Court does consistently apply certain timeliness bars, namely, Nev. Rev. Stat. §§ 34.726, 34.800. See Moran, 80 F.3d at 1268-70. Section 34.726 requires state post-conviction petitions to be filed no later than one year after the entry of judgment, unless good cause is shown. See Nev. Rev. Stat. § 34.726. Section 34.800 mandates dismissal of a petition where the state's ability to respond to the petition is prejudiced by any delay in filing, unless the petitioner can show good cause. See Nev. Rev. Stat. § 34.800. Our holding was limited to these timeliness bars, and we distinguished McKenna by stating:

McKenna involved defense counsel's failure to object to a constitutionally vague jury instruction on depravity as an aggravating circumstance. We held the Nevada courts had [*23] not consistently treated the failure to object to constitutional error in an instruction as a procedural bar to review of a constitutional claim in a death penalty case.

Moran, 80 F.3d at 1270.

Finally, in Bargas v. Burns, 179 F.3d 1207 (9th Cir. 1999), we held that the Nevada Supreme Court has consistently applied a rule barring claims that were raised and denied in a state post-conviction proceeding but whose denial was not then appealed. See id. at 1210-13. We reasoned that such a rule followed from the well-established and consistently applied rule that petitioners must raise all of their claims at the earliest time possible. See id. at 1210-11. All three of these cases are good law -- Moran and Bargas did not (and could not n9) overrule McKenna. But the cases are not easy to reconcile -- McKenna contains broad language suggesting that no Nevada procedural bars can ever be adequate, while Moran and Bargas clearly hold that some can.

In view of this tension in our case law regarding the adequacy of Nevada's procedural bars, we find that jurists of reason would find it debatable whether the district court was correct in its procedural ruling dismissing grounds 14-25. Because each of those grounds also facially alleges the denial of a constitutional right -- in particular, petitioner's Fourth Amendment right to be free from unreasonable searches and seizures, n10 his rights to effective assistance of counsel and to due process, his Fifth Amendment right against self-incrimination, and his Sixth Amendment right to counsel -- we grant COAs as to all of them.

Lambright v. Stewart(9th Cir) Failure to raise an ineffective assistance of counsel claim on direct appeal under Arizona Rule of Criminal Procedure 32.2 will not bar raising the issue in a federal habeas petition if the claim could not be determined from the trial record.

The last reasoned opinion on Lambright's Sixth Amendment claim is the state trial court's order denying rehearing on his first state post-conviction petition. In the order, the court wrote:

Ineffective assistance of counsel.

Paragraph a -- this issue existed factually prior to appeal; the [*11] Arizona Supreme Court looked at the entire sentencing process exhaustively, testing it for error of constitutional dimensions and found none. There is therefore the suggestion, and strong inference, that this claim is precluded under Rule 32.2(a)(2); however, it [sic] not, the Court finds that since it clearly could have been raised on direct appeal, that it has been knowingly, voluntarily and intelligently waived by failure to raise it, and is therefore precluded pursuant to Rule 32(a)(c) and (c).

By stating that there was a "strong inference" that the claim was "precluded" under Rule 32.2(a)(2), the state court indicated that it believed that the Arizona Supreme Court had already rejected it on the merits, which prevented Lambright from further litigating the claim. n5 In the next part of the order, however, the court suggested a contradictory possibility: that Lambright had failed to raise the claim before and had therefore waived it under Rule 32.2(a)(3).

The last reasoned opinion on Lambright's ineffective assistance of counsel did not clearly invoke a procedural default rule and therefore does not bar federal review. It is well established that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 103 L. Ed. 2d 308, 109 S. Ct. 1038. Indeed, "a procedural default based on an ambiguous order that does not clearly rest on an independent and adequate state ground is not sufficient to preclude federal collateral review." Morales v. Calderon, 85 F.3d at 1392.

In Ceja v. Stewart, 97 F.3d 1246, 1253 (9th Cir. 1996), we held that a state court's finding that was virtually indistinguishable from the one in this case did not bar federal habeas review. There, the state court rejected Ceja's second post-conviction petition "for the reasons stated in[the State's] Response to Petitioner's Petition." In the response, the State had argued that, "all of petitioner's grounds [*13] are precluded because petitioner either knowingly, intelligently and voluntarily withheld them on direct appeal or his previous Rule 32 proceeding, or they have been previously determined against petitioner's position on the merits." Id. We concluded that a finding of both waiver, based on a petitioner's failure to comply with procedural rules, and preclusion, based on a court's belief that the state courts had already adjudicated and rejected the claim, was "inconsistent." Id. In ruling that such an inconsistent order did not bar federal review of Ceja's dismissed claims, we explained, "preclusion does not provide a basis for federal courts to apply a procedural bar. By adopting Arizona's mixed arguments of preclusion and waiver with respect to these claims, the state court in Ceja's second Rule 32 proceeding did not clearly base its decision on independent and adequate state grounds." Id. (citations omitted).

The order in this case similarly does not bar federal review. Like the order in Ceja, the state court's ruling in Lambright's case contains mixed and inconsistent findings of preclusion and waiver. By invoking two contradictory arguments, the state court failed [*14] to make a clear finding of procedural default and federal review is not barred.

Because the state court in this case did not clearly and expressly invoke a procedural bar as the basis of its ruling, the State's reliance on Poland v. Stewart, 169 F.3d 573 (9th Cir. 1999), is misplaced. In Poland, the state court dismissed the petitioner's constitutional claims on procedural grounds without explanation. 169 F.3d at 579. Faced with the unexplained state court order, we looked to the prior proceeding to determine whether it was based on procedural default. Id. n6 In doing so, we specifically contrasted the order in Poland, which was unexplained, with the order in Ceja, which by including "mixed arguments of preclusion and waiver with respect to these claims...did not clearly base its decision on independent and adequate state law grounds." Id. at 579 n. 10 (quoting Ceja, 97 F.3d at 1253). Because the order in this case also included "mixed arguments of preclusion and waiver with respect to [Lambright's ineffectiveness] claim," it does not bar federal habeas review.

Federal Captial Cases Relief Denied

No cases covered this week.

State Captial Cases Relief Denied

Ex parte Jarrod Taylor(Alabama) State Supreme Court, affirming, holds that judicial override is not inappropriate even though state law and precedent does not substantially curtail a trial judges override to death.

Colwell v. State(Georgia) "The evidence presented at Colwell’s sentencing trial showed that Colwell, wishing to die but unable to commit suicide, formulated a plan to kill more than one person in order to secure his own execution. He put his plan in motion on July 20, 1996, when he drove to a store parking lot in Sumter County and approached Mitchell and Judith Bell as they conversed with a friend. Colwell shot Mr. Bell in the back, stood over him as he begged for his life, and shot him in the head. Colwell then shot Mrs. Bell in the head as she lay on the pavement wailing. Colwell left the Bells, got into his car, and drove to the Americus Police Department where he gave a tape recorded confession. In the tape-recorded statement, which was played for the sentencing jury, Colwell explained that he had purchased a handgun to commit suicide but “didn’t have the nerve to pull the trigger to [his] head.” He went on to say that he wanted to commit suicide and saw “going to the electric chair” as “a way of dying.” After Colwell’s counsel presented extensive evidence in mitigation, Colwell testified and told the jury he had committed the murders for the purpose of obtaining a death sentence and that he would kill again if he did not receive the death penalty. After reviewing the record and transcript of this case, we conclude, with the exceptions set forth below, that the trial court correctly entered judgment on Colwell’s guilty pleas and that the evidence presented at the sentencing trial was sufficient to authorize the jury to find the existence of at least one statutory aggravating circumstance for each murder beyond a reasonable doubt.”

State v. Austin(Tennesee) "In 1977, Richard Hale Austin was found guilty by a Shelby County jury of accessory before the fact to the first degree murder of Julian Watkins. Austin's conviction stemmed from his role in commissioning the murder of Watkins, a reserve deputy sheriff. The jury subsequently found the presence of aggravating factor (i)(4), murder for remuneration, and imposed a sentence of death. In 1997, Austin was granted habeas corpus relief in the form of a new sentencing hearing by the Sixth Circuit Court of Appeals. At the re-sentencing hearing, twenty-two years after his original trial, a jury again found the presence of the (i)(4) aggravating factor and again imposed a sentence of death. It is from this sentencing decision that Austin appeals. In this appeal, Austin presents numerous issues for our review, including (1) the disqualification of the Tennessee Supreme Court; (2) challenges to the selection of various jurors; (3) the admission and exclusion of evidence; (4) the introduction of victim impact evidence; (5) prosecutorial misconduct during closing argument; (6) the propriety of the jury instructions; (7) whether application of the (i)(4) aggravator violates State v. Middlebrooks; (8) prejudice due to the delay in imposing a sentence of death; (9) the constitutionality of Tennessee's death penalty statutes; and (10) whether the jury imposed a proportionate sentence. After a careful review of the record, we affirm the imposition of the sentence of death."

State v. Dellinger & Sutton(Tennesee) Following a jury trial, the Appellants were convicted of first degree murder. After a subsequent sentencing hearing the jury imposed the death penalty on both appellants. They raise thirty five alleged errors concerning both the guilt and sentencing phase of their trial with the strongest of the claims being that of failing to empanel separate juries for each defendant in both the guilt and penalty phases..

State v. Storey(Missouri) Relief denied on issues relating to: "A) the trial court erred during jury selection by refusing to quash the jury panel, in failing to grant the defendant's request to strike two jurors for cause, and in granting the state's request to strike a potential juror for cause (Storey's points 1 and 7); B) the trial court erred in admitting certain victim impact evidence and in limiting the testimony of an expert witness (Storey's points 4, 5, and 8); C) the trial court erred during closing arguments when it allowed the State to characterize the mitigating circumstances as "excuses" and the defendant's plea for mercy as a plea for "weakness" (Storey's points 2 and 3); D) the trial court erred when it overruled defense objections to jury instructions eleven and twelve (Storey's points 9 and 10); and E) the trial court erred by submitting two statutory aggravating circumstances to the jury (Storey's point 6). Finally, we conduct an independent review of the sentence pursuant to section 565.035, RSMo 1994, and we address Storey's claim that the sentence of death in this case is disproportionate (Storey's point 11)."

Other Notable Cases(As reported by Findlaw, and other sources)

Finley v. Johnson(5th Cir) Where there is a reasonable probability that the jury would have rejected government's argument if it had seen certain evidence contradicting the prosecution's case, the petitioner has made out a sufficient showing of "actual innocence" to satisfy the fundamental miscarriage of justice exception for a procedurally defaulted Brady claim.

Wilson v. Briley(7th Cir) A habeas petitioner who fails to fairly present the substance of hisfederal claim to the state courts first has no recourse in federal court.

Bunney v. Mitchell(9th Cir) Under 28 USC 2244(d)(2), the one-year time period to file a habeas petition does not toll for the 90-day period a party could file for a petition of certiori after a denial of state court petition.

US v. Ruiz(9th Cir) Prosecutor may not require a defendant to waive her rights to see favorable evidence, under Brady v. Maryland, in order to obtain a downward departure in sentence under a plea agreement.

English v. Cody(10th Cir) Use of a second lineup containing defendant's picture, after a witness chose the wrong picture from the first lineup, is not alone so improperly suggestive as to violate defendant's due process rights.

US v. Raines(8th Cir) Deputy did not violate defendant's Fourth Amendment rights by entering the curtilage of home, where deputy's attempt to serve civil process warranted a limited intrusion on to the property.

Kikumra v. Hurley(10th Cir) While the Religious Freedom Restoration Act, 42 USC 2000bb-1, is unconstitutional as applied to states, it may still be validly applied against the federal government.

US v. Allen-Brown (03/09/01 - No. 99-13688) Race-based peremptory challenges are prohibited under Batson, even if exercised by a criminal defendant trying to obtain a racially diverse jury.

Outrages of the Week

To return next week.

Featured

Bob Herbert has long been an outspoken critic of capital punishment, especially as administered in this country. In a recent article, reprinted below, Mr. Herbert examines the Antonio Richardson stay:

ntonio Richardson had already eaten what was supposed to have been his last meal. Now he was waiting, frightened, in the prison cell with the gray walls and the telephone at the Potosi Correctional Center in Potosi, Mo., about 65 miles southwest of St. Louis.

The state of Missouri has a death penalty but no death row. Executions are carried out in the same prison wing as the infirmary at Potosi. In the last few hours of their lives the condemned prisoners are kept in a cell near the infirmary and are allowed to make and receive as many phone calls as they like.

Time had nearly run out for Antonio Richardson when word came about 10:15 p.m. Tuesday that the U.S. Supreme Court had ordered a temporary stay of his execution. Mr. Richardson had been scheduled to be killed by lethal injection at 12:01 a.m. Wednesday.

Mr. Richardson, who is brain-damaged and mentally retarded, was part of a group of two young men and two teenage boys who raped and murdered two young women in St. Louis in 1991. He was 16 at the time of the attack.

Only the United States, Congo and Iran continue to execute people for offenses committed when they were juveniles. But that is not the issue on which Mr. Richardson's case — and life — hinges. His lawyer, Gino Battisti, is trying to convince the courts that it is a cruel and unusual punishment, and therefore a violation of the Eighth Amendment, to execute someone who is mentally retarded.

What passes for justice in some of these cases is ludicrous. A lawyer for Antonio Marquez, a brain-damaged and mentally retarded man who was executed in Texas in 1995, would later say, "I was never able to discuss the specifics of his legal case with him, but instead we talked a lot about his favorite animals, things he liked to draw, and how he missed being able to see his brothers and sisters."

Anthony Porter — whose I.Q. was 51, among the lowest on record for a condemned prisoner — spent 16 years on death row in Illinois. At one point he was just 48 hours away from execution when the State Supreme Court granted him a reprieve. Which was a good thing. Because it turned out he was innocent. After all those years on death row, he was exonerated and released in 1999.

The U.S. Supreme Court considered this issue more than a decade ago, and ruled in 1989 that executing the mentally retarded was not a violation of the Eighth Amendment. Justice Sandra Day O'Connor, writing for the majority in that case, said there was insufficient evidence of a "national consensus" against such executions. At the time, Georgia and Maryland were the only states that barred the execution of the mentally retarded.

Mr. Battisti, Antonio Richardson's lawyer, has asked the Supreme Court to consider his argument that such a consensus has since developed. Tuesday night's stay of execution will give the court time to decide whether to hear his argument. If it decides not to consider it, the stay will automatically expire.

Since 1989, 11 additional states have enacted laws prohibiting the execution of the retarded, and a number of others, including Missouri, are considering such laws.

Capital punishment is always problematic. But additional serious difficulties arise when those subject to the death penalty are mentally retarded. It is extremely difficult to determine the level of culpability of offenders with mental handicaps, and the death penalty is supposed to be reserved for the most blameworthy perpetrators of the most heinous acts.

In addition, mentally retarded defendants most often find it difficult, and sometimes impossible, to participate effectively in their own defense. And there are documented cases of mentally retarded individuals confessing to murders that they hadn't committed.

Gino Battisti told me yesterday that, given the opportunity, he will ask the Supreme Court to hold as a matter of law "that there now exists a national consensus against executing retarded people" in the United States, and therefore such executions violate the Eighth Amendment.

"That's the single issue I have in my petition," he said. "That's my only issue."

His client's life was at stake and he'd been up all night. And over the phone you could hear the exhaustion in his voice.

Errata

From theDeath Penalty Information Centerreports:

DNA Tests May Lead to the Exoneration of Another Texas Death Row Inmate New DNA tests on evidence used to convict Texas death row inmate Michael Blair confirm that hairs found on the victim's body and hairs found in Blair's vehicle do not match that of the victim, according to a lab report made public on March 2 by the Texas Attorney General's office. Blair, who repeatedly maintained his innocence, was convicted and sentenced to death for the 1993 abduction and murder of Ashley Estell. At trial, forensic analyst Charles Linch testified, and prosecutors maintained, that hairs found on a sheet used to move the child's body, hairs found in the waistband of Estell's underwear, and hairs found in Blair's vehicle linked Mr. Blair to the girl. The new test, however, confirmed that the hairs belonged to neither Blair nor Estell. The DNA technology used in the new tests was not available at the time of Blair's trial.

The Texas Attorney General's office has filed a motion to return Blair's case to the trial court to consider the new evidence. (Dallas Morning News, 3/3/01) See also, Innocence.

Death Penalty Support Remains Low

A Gallup Poll conducted in February showed that support for the death penalty remains near the 19-year low recorded last year. Sixty-seven percent of Americans support the death penalty for murder, while 25% are opposed. The poll also found that, when given the sentencing alternative of life imprisonment without the possibility of parole, only 54% said they would choose the death penalty, while 42% favored life imprisonment.

When supporters were asked their reasons for favoring the death penalty, the most (48%) mentioned "an eye for an eye," 20% said that it saved taxpayers money, and only 10% said it was a deterrent. (Gallup Poll Release, 3/2/01) For complete results of the Gallup poll, including comparisons with previous polls, see http://www.gallup.com/poll/indicators/inddeath_pen.asp See also, Public Opinion and Polls.

Massachusetts Lawmakers Defeat Measure to Bring Back the Death Penalty By Large Margin

The Massachusetts House, by a 94-60 vote, defeated efforts to reinstate the death penalty. Among the reasons cited for voting against bringing back capital punishment was the recent exonerations of Peter Limone and Joseph Salvati, both of whom served over 30 years in prison for crimes they did not commit. Also cited was the decision by Illinois Gov. George Ryan to place a moratorium on executions in his state because of wrongful convictions and the possibility of executing the innocent. "Flaws are showing up that you can't brush aside when you talk about putting someone to death," said Robert Correia (D-Fall River), who previously backed measures to reinstate the death penalty. Other legislators were concerned with the financial burdens associated with capital punishment. Rep. Colleen Garry (D-Dracut), who also backed reinstatement measures in the past, stated, "I'd rather spend the money on preventative measures - more police officers and more alcohol and drug treatment."

Previous reinstatement measures were defeated by 1 vote in 1997 and 7 votes in 1999. (Boston Herald, 3/13/01) See also, proposed legislative changes.

European Union Stance on the Death Penalty Angers Bush AdministrationThe London Telegraph reports that the European Union's criticism of the U.S. for ignoring "human rights norms" in its refusal to abolish the death penalty has angered the Bush Administration. "We don't believe there is reason to start a major row on this across the Atlantic," said Willy Helin, spokesman for the EU in Washington. "We just don't believe the death penalty is a sufficient deterrent." Helin stated that the EU was opposed to the death penalty in principle but particularly in cases involving juvenile offenders, those with mental retardation, or foreign nationals. (UK London Telegraph, 3/8/01) See also, International death penalty

New Resources:

The Claude W. Pettit College of Law at Ohio Northern University has published articles from its recent Annual Law Review Symposium, "The Ultimate Penalty: A Multifarious Look at Capital Punishment." (26 Ohio Northern University Law Review 517 (2000)). Symposium articles include:

"Still Unfair, Still Arbitrary - But Do We Care?," Samuel R. Gross - Keynote Address

"The Future of the Federal Death Penalty," Rory K. Little

"Equality of the Damned: The Execution of Women on the Cusp of the 21st Century," Elizabeth Rapaport

"The Unusualness of Capital Punishment," Louis D. Bilionis

"Europe- A Death Penalty Free Zone: Commentary and Critique of Abolitionist Strategies," Peter Hodgkinson

"Adieu to Electrocution," Deborah W. Denno

"Crossing the Line: Rape-Murder and the Death Penalty," Phyllis L. Crocker

"Emerging Issues in Juvenile Death Penalty Law," Victor L. Streib

"When the Wall Has Fallen: Decades of Failure in the Supervision of Capital Juries," Jose Felipe Anderson - Lead Article

Federal Legislation Aimed at Preventing Wrongful Executions Introduced In Congress

On March 7, 2001, U.S. Senators Patrick Leahy (D-Vt.), Gordon Smith (R - Ore.), Susan Collins (R-Maine), and Russ Feingold (D-Wisc.), joined U.S. Representatives William Delahunt (D-Mass.) and Ray LaHood (R-Ill.) to reintroduce the Innocence Protection Act in Congress. The bipartisan legislation seeks to address problems of fairness in the death penalty in order to avoid the risk of wrongful convictions and executions. The bill would have states provide qualified and experienced attorneys to all defendants facing the death penalty, and allow for greater access to DNA testing. Both bills (S.486 and HR.912) began with record levels of bipartisan support - 16 (4 R, 12 D) original cosponsors in the Senate and 119 (19 R, 100 D) in the House. Since the death penalty was reinstated, 95 people have been released from death row after new evidence led to their exoneration. (The Justice Project, Press Release, 3/7/01)

Read about the Innocence Protection Act at www.thomas.loc.gov/bss/d107query.html (search by bill number S.486 or HR.912) or visit the Justice Project's Web site for a section-by-section summary. See also, Innocence

Texas Carries Out 700th U.S. Execution Since Reinstatement of the Death Penalty

The March 7th execution of Dennis Dowthitt in Texas marks the 700th execution in the U.S. since the death penalty was reinstated. Over 80% of those executions occurred in the South, and 326 of the 700 (46%) were carried out in Texas and Virginia alone. See also, Number of executions by state since 1976.

Georgia Supreme Court Halts Electric Chair Execution; U.S. Supreme Court Grants Stay to Mentally Retarded Inmate in Missouri

The Georgia Supreme Court granted a stay to Ronald Spivey until the court decides whether use of the electric chair constitutes "cruel and unusual punishment." Georgia has not used its electric chair since 1998. The state has since passed legislation to change its method of execution to lethal injection, but the statute only applies to those sentenced after May 1, 2000. In a concurring opinion issued just four hours before Spivey's execution, Justice Sears noted that the Legislature changed the method of execution to lethal injection because electrocution "offends the evolving standards of decency that characterize a mature, civilized society." (Atlanta Journal-Constitution, 3/6/01) See also, methods of execution.

The U.S. Supreme Court halted the execution of Antonio Richardson, a mentally retarded juvenile offender scheduled to be executed in Missouri on March 7, 2001. The Court granted the reprieve to give the Justices more time to consider whether to hear his case. The Supreme Court will hear Penry v. Johnson, a case related to mental retardation and the death penalty on March 27. (St. Louis Post-Dispatch 3/7/01 ) For more information on Antonio Richardson's case, see below. The Supreme Court also granted a stay in the case of Ernest McCarver (see below), a mentally retarded defendant in North Carolina.