Seven wins are had this edition, as is one notable loss.

The most encouraging opinion is perhaps In re: Marvin Lee Wilson. In Wilson the Fifth Circuit, on rehearing, holds that the Hobson's choice the Texas "two-forum" rule provides, on these unusual facts, permits equittable tolling. The two-forum rule forced counsel " into the untenable position of having to choose between two equally undesirable alternatives. First, Wilson could have filed his successive petition in state court while his federal petition remained pending. Under the two-forum rule, the state court petition would have been dismissed, satisfying our exhaustion requirement but sacrificing meaningful review of his Atkins claim in state court. Second, Wilson could have dismissed his pending federal petition and filed his successive petition in state court. This would have allowed Wilson to pursue relief on his Atkins claim in state court, but only by sacrificing review of the claims asserted in his pending federal petition. Wilson chose the first alternative, but only after waiting in vain for this court to rule on his motion for COA before the expiration of the limitations period. As we concluded in Hearn, this is precisely the kind of Hobson's choice that may not be imposed on a habeas petitioner."

The California Supreme Court granted penalty phase relief in People v. Sturm. Numerous "of the trial judge’s comments should have been made at sidebar, and not in front of the jury; in commenting in front of the jury, the trial judge often made comments unnecessary to explain his rulings from the bench, and also substantively undermined the defense theory of the case." As one legal commentator asked "so why the difference in this case? It comes down to the quantity and quality of the remarks made by the judge, who are, after all, human, and occasionally fail to maintain an appearance of impartiality and fairness. The sporadic inappropriate comment may draw an appeal court’s attention but not warrant reversal. But sustained negative comments, despite the objections of counsel during the trial, are sure to lead to trouble for the judge."

The Fourth Circuit in Walton v. Johnson denied relief en banc by the closest of margins, 7-6. The issue left open in Ford v. Wainwright, what are the standards by which competency to be executed is to be judge, divides the court. The judges split (including Chief Judge Wilkins writing for the dissent) on how much comprehension of what death means must a petitioner have. Here Percy Levar Walton apparently wants to go to Burger King after he is executed.

Landrigan v. Schriro, from the Ninth Circuit, also sitting en banc, grants relief as trial counsel failed to investigate and present mitigating evidence during sentencing. Landrigan purportedly instructed trial counsel not to present mitigating evidence through two family members. As the blawg Harmful Error notes, "a client's apparently last-minute decision not to have family members testify cannot excuse his counsel's failure to conduct an adequate investigation prior to the sentencing. The Court also found that the client's waiver was not knowing and voluntary as the cursory questions to the defendant by the trial judge did not adequately establish the basis for the waiver.

In the news of the week, the Privy Council in the cases of Forrester Bowe & Trono Davis struck down the mandatory death sentence scheme in the Bahamas holding the law "should be construed as imposing a discretionary and not a mandatory sentence of death." Cornell Law ReviewVolume 91 Number 2 January 2006 Symposium, The Great Writ: Developments in the Law of Habeas Corpus is now available here, and includes several powerful law review articles including what should be mandatory reading for habeas practitioner or law clerk, John Blume's AEDPA: The “Hype” and the “Bite.” The President's DNA Initiative has released Principles of Forensic DNA for Officers of the Court, a CD-ROM that addresses the use of DNA in judicial settings.Finally, with the developments in United States v. Moussaoui moving faster than the news cycle can keep up with, you can find the interactive docket sheet available here and please feel free to make your own analysis.

Looking ahead there is another Fifth Circuit action of note in the next edition, Nelson v. Dretke. The Fifth Circuit ordered rehearing en banc sua sponte. The Nelson panel denied relief despite a remand from the SCOTUS. Judge Dennis's concurrence to the panel's opinion is remarkable insightful but also is markedly at odds with the majority opinion and may well be why the opinion was ordered reheard en banc.

As always thanks for reading. - k

Archived on the net athttp://capitaldefenseweekly.com/archives/06013.htm

Recent Executions

March

15 Tommie Hughes (Texas)

Pending Executions

March

15 Tommie Hughes (Texas)

17 Patrick Moody (North Carolina)

22 Robert Salazar Jr. (Texas)

28 Raymond Martinez (Texas)

29 Kevin Kincy (Texas)

More Execution information

In Favor of Life & Liberty

Landrigan v. Schriro, 2006 U.S. App. LEXIS 5775 (9th Cir 3/7/2006) Relief granted on whether counsel was ineffective at sentencing where the accused had purportedly instructed his attorney not to present mitigating evidence.

In re Marvin Lee Wilson 2006 U.S. App. LEXIS -- - (5th Cir 3/10/2006) The Fifth Circuit reverses itself holding Wilson will be permitted to pursue a mental retardation challenge. The Court had previously held the claims as time barred.

People v. Sturm, 2006 Cal. LEXIS 2977 (Ca 3/6/2006) Numerous "of the trial judge’s comments should have been made at sidebar, and not in front of the jury; in commenting in front of the jury, the trial judge often made comments unnecessary to explain his rulings from the bench, and also substantively undermined the defense theory of the case."

Green v. State, 2006 Ark. LEXIS 167 (Ark 3/9/2006) Trial court committed reversible error in allowing the State to present reputation and other bad acts evidence.

Collins v. State, 2006 Ark. LEXIS 164 (Ark 3/9/2006) Counsel who filed post-conviction petitioner were not properly qualified under Arkansas Rule 37.5 and made several key errors in pursuing post-conviction relief. "Clearly, in this death case we have a breakdown in the postconviction relief proceedings. We therefore remand this case to the circuit court for the appointment of a Rule 37.5 qualified attorney and for Collins to file a verified petition for postconviction relief that complies with Rule 37.5. Collins may raise any and all issues he wishes to raise in the new petition."

State v. Laney, 2006 S.C. LEXIS 70 (S.C. 3/6/2006) "Appellant argues the trial judge erred by failing to charge the jury that a life imprisonment sentence meant life without parole. We agree."

State v. Burke, 2006 Ohio 1026 (Ohio 10th App 3/7/2006) The State requested reconsideration of a ruling that defendant was entitled to two attorneys for his Atkins-Lott claim. Motion for rehearing. On remand the Atkins proceedings will be required to have two counsel.

Favoring Death

Walton v. Johnson, 2006 U.S. App. LEXIS 5898 (4th Cir 3/9/2006) (en banc) Even if Percy Levar Walton is psychotic, has difficulty grasping reality, and wants to go to Burger King after he is executed, he can still be killed by the Commonwealth of Virginia.

State v. Conway, 2006 Ohio LEXIS 539 (Ohio 3/8/2006) Sixth Amendment right to legal counsel violated when prosecutors obtained information against Conway by enlisting his cellmate as a government snitch. That snitch asked Conway incriminating questions and recorded his statements. Error held harmless beyond a reasonable doubt.

State v. Crandell, 2006 La. LEXIS 769 (LA 3/10/2006) Petition for review filed out of time in this pretrial attempt to bar the death penalty following a prior jury deadlock (and therefore imposition of LWOP sentence) and a subsequent grant of federal habeas corpus relief.

Manning v. State, 2006 Miss. LEXIS 109 (Miss 3/9/2006) Relief denied on claims relating, generally, to: "I) failure to disclose exculpatory evidence; II) polygraph examination; III) ineffective assistance of counsel; and, IV) cumulative errors." IAC claims include: "(A) impeachment of Earl Jordan and Frank Parker; (B) the testimony of Paula Hathorn; and (c) defense counsel’s failure to present an alibi defense and mitigating evidence and failure to preserve issues for appeal."

Ibar v. State, 2006 Fla. LEXIS 383 (FL 3/9/2006) Relief denied. "Ibar raises eight issues in this appeal: (1) whether certain out-of-court statements were “statements of identification” as contemplated by section 90.801(2)(c), Florida Statutes (1995); (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony; (3) whether the trial court erred in admitting the transcript of testimony given by a deceased witness in a prior trial; (4) whether the trial court erred in allowing the State to introduce hearsay evidence and certain expert testimony; (5) whether the trial court erroneously precluded the admission of evidence regarding third-party motive and animosity and reputation evidence; (6) whether the trial court erred in allowing the admission of evidence regarding a live lineup; (7) whether the integrity of the trial was affected by references to certain evidence denying Ibar due process; (8) whether the death penalty in this case violates the Florida and Federal Constitutions."

Smith v. State, 2006 Fla. LEXIS 388 (FL 3/9/2006) Relief denied on claims including: "(A) that the State withheld material and exculpatory evidence and knowingly presented false or misleading evidence; (B) that the circuit court erred in limiting the scope of the postconviction evidentiary hearing; (C) that trial counsel provided ineffective assistance during the guilt phase of trial; (D) that newly discovered evidence proves Smith’s innocence; and (E) that trial counsel provided ineffective assistance during the penalty phase of trial. Several of these issues contain subclaims." Smith also denied relief on habeas claims including: "(1) whether this Court’s disposition of Smith’s direct appeal rests upon an error of fact; (2) whether the State failed to disclose pertinent facts regarding Smith’s direct appeal; (3) whether appellate counsel was ineffective for failing to raise meritorious issues; and (4) whether Florida’s capital sentencing procedure violates Ring."

Other

Awkal v Mitchell, 2006 U.S. App. LEXIS 5984 (6th Cir 3/8/2006) Remand ordered for the second time on the issue of competency to waive appeal. Partial concurrence / dissent on whether the correct standards under such circumstances is Rees v. Peyton, 384 U.S. 312, 314 (1966) or 18 U.S.C sec. 4241.

Selected excerpts from this Edition's Cases

Landrigan v. Schriro, 2006 U.S. App. LEXIS 5775 (9th Cir 3/7/2006) Relief granted on whether counsel was ineffective at sentencing where the accused had instructed his attorney not to present mitigating evidence.

At the time the sentencing judge asked Landrigan whether he instructed his lawyer not to present any mitigating circumstances, the only mitigating evidence that the lawyer could have brought to the court’s attention was the testimony of the two witnesses. Landrigan’s response to the court’s rather vague question cannot, in context, be construed as anything more than confirmation that he did not want his birth mother and ex-wife testifying on his behalf. Indeed, due to his lawyer’s meager investigation, there was no other mitigating evidence available to which Landrigan could object or not object.

When the sentencing judge then asked Landrigan whether there were any other mitigating circumstances to be taken into account, Landrigan replied that there were not. This, of course, was a direct consequence of the fact that his counsel had not presented him with any options other than the two witnesses he opposed. Had his lawyer conducted an investigation and uncovered other types of mitigating evidence, Landrigan might well have been able to direct the court to other mitigating circumstances. Viewing the entire colloquy in proper context, it is clear that the sentencing judge was only inquiring about Landrigan’s willingness to allow his birth mother and ex-wife to testify, and that Landrigan simply confirmed that he was not.

****

As discussed above, there was a significant amount of potential mitigating evidence that was not unearthed or presented to the sentencing judge. Landrigan alleges he was exposed to alcohol and drugs in utero, which may have resulted in cognitive and behavioral deficiencies consistentwith fetal alcohol syndrome. He was abandoned by his birth mother and suffered abandonment and attachment issues, as well as other behavioral problems throughout his childhood.

His adoptive mother was also an alcoholic, and Landrigan’s own alcohol and substance abuse began at an early age. Based on his biological family’s history of violence, Landrigan claims he may also have been genetically predisposed to violence. [14] If true, Landrigan’s allegations are “the very sort of mitigating evidence that ‘might well have influenced the [judge’s] appraisal of [Landrigan’s] moral culpability.’ ” Earp, 431 F.3d at 1179 (quoting T. Williams, 529 U.S. at 398). “Evidence regarding social background and mental health is significant, as there is a ‘belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional or mental problems, may be less culpable than defendants who have no such excuse.’ ” Douglas, 316 F.3d at 1090 (quoting Boyde v. California, 494 U.S. 370, 382 (1990)).5 We also note that in finding Landrigan’s background or emotional character was not a mitigating circumstance, the state sentencing judge specifically noted that he had “received very little information concerning the defendant’s difficult family history,” implying a more complete picture could have tipped the scale in Landrigan’s favor.

In comparison, there were two aggravating circumstances relied upon by the sentencing judge: (1) the defendant had prior felony convictions involving the use or threatened use of violence on another person, and (2) the defendant committed the offense with the expectation of receiving pecuniary gain. See Ariz. Rev. Stat. §§ 13-703(F)(2), (5). There was limited evidence regarding the pecuniary gain aggravator. The judge noted that the victim’s apartment had been ransacked as if the perpetrator were looking for something, and that this demonstrated an expectation of pecuniary gain, even though Landrigan did not actually steal anything of value. On the other hand, Landrigan had been previously convicted of two violent crimes — second degree murder for the stabbing death of an individual in Oklahoma and assault and battery with a deadly weapon for stabbing another inmate while serving his second degree murder sentence.

[15] Notwithstanding these obviously serious prior offenses, Landrigan still may have been prejudiced by his attorney’s alleged shortcomings. Even in cases involving particularly heinous murders, or substantial criminal histories, a defendant can be prejudiced by an attorney’s failure to investigate and present mitigating evidence that could influence the judge’s appraisal of moral culpability. See T. Williams, 529 U.S. at 398; Stankewitz, 365 F.3d at 724 (mitigating evidence could have fostered sympathy for defendant and could also have diminished the aggravating impact of the prosecution’s case). Presented with the additional mitigating evidence regarding Landrigan’s background and emotional and mental problems, there is a reasonable probability that, if Landrigan’s allegations are true, the sentencing judge would have reached a different conclusion.

In re Marvin Lee Wilson 2006 U.S. App. LEXIS -- - (5th Cir 3/10/2006) The Fifth Circuit reverses itself holding Wilson will be permitted to pursue a mental retardation challenge. The Court had previously held the claims as time barred.

Wilson contends, however, that he was prevented from timely filing in federal court by the Texas habeas corpus procedure that was in effect during the year immediately following Atkins. Until recently, a unique rule in the Texas courts prevented habeas petitioners from maintaining both state and federal applications at the same time. Often referred to as the “two-forum rule,” it forced a petitioner to “decide which forum he [would] proceed in, because [the state courts would not] consider a petitioner's application so long as the federal courts retain[ed] jurisdiction over the same matter.” Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App. 1977), quoted in In re Hearn, 376 F.3d 447, 456 (5th Cir. 2004); see also Ex parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972) (dismissing state writ when federal courts had not dismissed parallel writ). Wilson argues that this Texas rule precluded the filing of an Atkins claim, which was in effect throughout the pendency of his initial habeas proceedings, while the initial application was still pending, and that it justifies equitable tolling for his successive application.

We have previously considered, in a case involving similar circumstances, whether Texas’s two-forum rule could present a rare and exceptional circumstance preventing prisoners from asserting their rights. In In re Hearn, 376 F.3d 447 (5th Cir. 2004)(“Hearn I”), we determined that the “two-forum rule appears to have effectively forced Hearn to choose between federal review of his pending writ petition and his right to pursue successive habeas relief under Atkins.” Id. at 457. Even though we did not squarely hold that Hearn was entitled to equitable tolling, we granted his motion for appointment of “counsel to investigate and prepare a tolling claim.” Id.

Upon a motion for rehearing following Hearn I, we denied rehearing and clarified our opinion. See In re Hearn, 389 F.3d 122 (5th Cir. 2004) (“Hearn II”). Although we limited our opinion in Hearn II to cases in which petitioner lacked counsel, we found that equitable tolling did apply in that case “because of the combination of the problem created by the Texas two-forum rule, which Texas has overturned, and the withdrawal of petitioner’s counsel.” Id. at 123.

The two-forum rule presented Wilson with the same dilemma that Hearn faced. Although Texas recently abandoned the rule, see Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004), it was still in effect for the entire year following the Supreme Court’s ruling in Atkins. As in Hearn I, Wilson had already filed his initial federal habeas petition and was awaiting our ruling on his application for a certificate of appealability (COA) when the limitations period expired.4

Not only did the two-forum rule prevent Wilson from filing his Atkins claim in state court, it also kept him from amending his federal application to include an Atkins claim because it would have been dismissed as unexhausted. See Rose v. Lundy, 455 U.S. 509, 510 (1982) (requiring dismissal of “mixed petitions” containing both exhausted and unexhausted claims). Thus, the rule presented a dilemma for Wilson, as it did for Hearn, because bringing his Atkins claim in state court would have required him to abandon his initial federal habeas application and sacrifice permanently the claims within it.5 This problematic situation is precisely what ultimately led the Texas Court of Criminal Appeals to abandon the rule. See Soffar, 143 S.W.3d at 806.

People v. Sturm, 2006 Cal. LEXIS 2977 (Ca 3/6/2006) Numerous "of the trial judge’s comments should have been made at sidebar, and not in front of the jury; in commenting in front of the jury, the trial judge often made comments unnecessary to explain his rulings from the bench, and also substantively undermined the defense theory of the case."

Throughout defendant’s second penalty phase trial, beginning with voir dire, and continuing through defense counsel’s presentation of mitigating evidence, the trial court interjected itself unnecessarily and inappropriately into the adversary process. Many of the trial judge’s comments should have been made at sidebar, and not in front of the jury; in commenting in front of the jury, the trial judge often made comments unnecessary to explain his rulings from the bench, and also substantively undermined the defense theory of the case.

The trial court erroneously commented during voir dire that defendant’s premeditation of the murders was a “gimme,” despite knowing from the first penalty phase trial that defendant’s lack of premeditation was a central piece of defendant’s case in mitigation. Further, the trial court made clear to the jury that he did not take seriously the expert witnesses put on by the defense, making various sarcastic remarks related to their testimony and qualifications. It was also abundantly clear, even upon assessment of a “cold record,” that the trial judge did not approve of the aggressive style of defense counsel and conveyed this disapproval on numerous occasions to the jury by commenting on defense counsel’s training, blaming defense counsel for the length of the penalty phase trial, and specifically pointing out to the jury that he had ruled against defense counsel “99 times out of 100.” Furthermore, the trial judge was not evenhanded; rather, he interjected himself more vociferously and on many more occasions during the defense case in mitigation than he did during the prosecution’s case in aggravation.

Although the crime committed was undeniably heinous, a death sentence in this case was by no means a foregone conclusion. Defendant was quite young at the time of the murders and had no criminal history. At the guilt phase, defendant succeeded in avoiding a conviction for premeditated and deliberate murder, and at the first penalty phase, the jury was unable to reach a verdict, voting 10 to 2 in favor of life imprisonment without the possibility of parole. It was reasonably probable that the second penalty phase jury’s verdict would have been different had the trial judge exhibited the patience, dignity, and courtesy that is expected of all judges. (See Cal. Code Jud. Ethics, canon 3B(4) [“A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses,\ lawyers, and others with whom the judge deals in an official capacity . . . .”] .)

Green v. State, 2006 Ark. LEXIS 167 (Ark 3/9/2006) Trial court committed reversible error in allowing the State to present reputation and other bad acts evidence.

Rule 404(b) "permits introduction of testimony of other criminal activity if it is independently relevant to the main issue, that is, relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal." Spencer v. State, 348 Ark. 230, 236, 72 S.W.3d 461, 464 (2002). The State is entitled to produce evidence showing circumstances which explain the act, show a motive for the killing, or illustrate the accused's state of mind. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Consequently, "if the evidence of another crime, wrong, or act is relevant to show that the offense of which the appellant is accused actually occurred and is not introduced merely to prove bad character, it will not be excluded." Anderson v. State, 357 Ark. 180, 198, 163 S.W.3d 333, 342 (2004) (quoting Smith v. State, 351 Ark. 468, 473, 95 S.W.3d 801, 804 (2003)). However, even if evidence is relevant pursuant to Rule 404(b), Ark. R. Evid. 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The State is not entitled to introduce evidence of other offenses to persuade the jury that the accused is a criminal and likely to commit the crimes he has been charged with. Hickey v. State, 263 Ark. 809, 569 S.W.2d 64 (1978). Specifically, "proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime." Id. at 810-811, 569 S.W.2d at 65 (quoting Alford v. State, 223Ark. 330, 333, 266 S.W.2d 804, 806 (1954)). In dealing with issues relating to the admission of evidence pursuant to Rule 404(b), a trial court's ruling is entitled to great weight and this court will not reverse absent an abuse of discretion. Anderson, 357 Ark. 180, 163 S.W.3d 333; Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). With this standard in mind, we now look at the following testimony.

A. Kathy Elliott Hart

The first testimony Appellant claims was improperly allowed is Kathy Elliott Hart's. Kathy testified that her brother, Carl, and her nephew, Shane Martin, stole Appellant's marijuana plants. Kathy also testified that she was afraid for her brother to be around the Greens because her nephew had died mysteriously after the theft. Appellant immediately objected to this statement and moved for a mistrial. The trial court overruled the mistrial motion, but offered a limiting instruction. Appellant accepted the offer, but a limiting instruction was not given at that time. Kathy further testified that she did not want her brother around the Greens because she knew Carl was involved with stealing Appellant's marijuana plants. After further testimony and an objection on a hearsay issue, Appellant renewed his objection to the testimony about Martin's death and also renewed his motion for mistrial. The trial court again asked if Appellant wanted a limiting instruction, but this time he responded, "I don't know yet."

The court again revisited this issue after the testimony of John Hart. At that time, the trial court offered a limiting instruction that "there's been absolutely nothing to prove" a link between Appellant and Martin's disappearance, and that "it was only elicited for the fact toshow fear on behalf of Mrs. Hart." Appellant declined the offer on the basis that he feared it would be more prejudicial.

Upon reviewing this testimony, it is clear that the trial court abused its discretion in admitting Mrs. Hart's testimony. First, Mrs. Hart's statement was clearly prejudicial and alluded to her belief that Appellant played a role in Martin's murder and disappearance. Second, no admonition could have cured this statement, even if the trial court had intervened and attempted to curb the statement's effect on the jury. This statement was not only prejudicial but also irrelevant to the issue of whether Appellant committed the Elliott murders. In fact, it was nothing more than an attempt to prove that Appellant was a bad person.

A mistrial is a drastic remedy to be used only when an error is so prejudicial that justice cannot be served by continuing the trial and when the prejudicial statement cannot be cured by an instruction. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). The trial court has the sound discretion to decide whether to grant a mistrial, and this decision will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Id. Additionally, even if a remark is improper, the trial court may deny the mistrial motion and cure any prejudice by issuing a jury admonishment to disregard the remark. Smith, 351 Ark. 468, 95 S.W.3d 801; Dandridgev. State, 292 Ark. 40, 727 S.W.2d 851 (1987). Moreover, "where the possible prejudice could have been cured by admonition by the trial court, this court has found no abuse of discretion when defense counsel has refused the trial court's offer of such a curative instruction." Ferguson v. State, 343 Ark. 159, 177, 33S.W.3d 115, 126 (2000). Nevertheless, there are instances where a statement is so prejudicial that an admonishment could never cure. See Moore v. State, 323 Ark. 529, 537, 915 S.W.2d 284, 289 (1996) (holding that the unresponsive testimony that appellant had admitted he killed another woman was so prejudicial that it could not be cured by an admonition to the jury and the trial court abused its discretion in its denial of a motion for mistrial "in the face of such a patently inflammatory and prejudicial statement.") Because of the nature and prejudice attached to Mrs. Hart's statement, we find that the trial court abused its discretion when it failed to grant the motion for mistrial.

Collins v. State, 2006 Ark. LEXIS 164 (Ark 3/9/2006) Counsel who filed post-conviction petitioner were not properly qualified under Arkansas Rule 37.5 and made several key errors in pursuing post-conviction relief. "Clearly, in this death case we have a breakdown in the post conviction relief proceedings. We therefore remand this case to the circuit court for the appointment of a Rule 37.5 qualified attorney and for Collins to file a verified petition for post conviction relief that complies with Rule 37.5. Collins may raise any and all issues he wishes to raise in the new petition."

A petition under Rule 37.5 was filed on October 12, 1999. However there is nothing in the record to show that the attorneys were qualified under Rule 37.5. The petition raises several points on appeal, but it is not verified by Collins. "The petitioner must execute the verification, and if the petitioner is represented by counsel, counsel may not sign and verify the petition for him." Boyle v. State, ___ Ark. ___, ___ S.W.3d ___ (May 5, 2005). The same attorneys filed two additional Rule 37 petitions on October 13, 1999, and October 14, 1999. Again, they were not verified by Collins. The State responded on October 18, 1999. However, no action was ever taken on these petitions.

Nothing further appears in the record regarding postconviction relief until a new attorney was appointed on January 31, 2003. Again, there is nothing in the record to show that he was qualified to represent Collins under Rule 37.5. Next, we find a pleading captioned "Rule 37 Petition" filed March 6, 2003, which appears to be a pro se petition by Collins relating to an alleged improper search and seizure. It is a form document that is mostly blank, and it was not notarized, verified, or signed. Additional similar form Rule 37 petitions and other handwritten documents alleging a void conviction were filed by Collinson March 6, 2003. They are largely illegible and incomprehensible.

*****

Clearly, in this death case we have a breakdown in the postconviction relief proceedings. We therefore remand this case to the circuit court for the appointment of a Rule 37.5 qualified attorney and for Collins to file a verified petition for postconviction relief that complies with Rule 37.5. Collins may raise any and all issues he wishes to raise in the new petition.

Appointment of counsel must meet Rule 37.5 requirements. Hill v. State, ___ Ark. ___, ___S.W.3d ___ (Oct. 13, 2005). All issues to be considered by the circuit court should be fully set out in a petition meeting the requirements of Rule 37.5.

State v. Laney, 2006 S.C. LEXIS 70 (S.C. 3/6/2006) "Appellant argues the trial judge erred by failing to charge the jury that a life imprisonment sentence meant life without parole. We agree."

Appellant argues the trial judge erred by failing to charge the jury that a life imprisonment sentence meant life without parole. We agree.

Appellant contends a jury charge that life imprisonment meant life without parole was required under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187 (1994); Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263 (2001); and Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726 (2002), because the State offered evidence of Appellant’s future dangerousness. The State concedes it submitted evidence supporting Appellant’s future dangerousness during the sentencing phase of the trial.[1] The State further concedes due process required Appellant be given an opportunity to inform the jury of parole ineligibility, but contends the issue is procedurally barred from review. In the alternative, the State argues due process was not violated because Appellant’s counsel told the jury that life imprisonment meant life without parole.

After reviewing the entire record, we find the issue sufficiently preserved for review on appeal. Further we find it unnecessary to address the State’s due process argument to resolve this issue.

In Shafer and Kelly, the United States Supreme Court held that where a defendant’s future dangerousness is at issue in a capital sentencing proceeding, and the only sentencing alternative to death available to the jury is life imprisonment without parole, due process entitles the defendant to inform the jury of his parole ineligibility.[2] The Kelly Court specifically noted counsel’s arguments in Shafer that the defendant “would die in prison” or would “spend his natural life there” and the trial judge’s instructions that “life imprisonment means until the death of the defendant” were insufficient to convey a clear understanding to the jury of Shafer’s parole ineligibility. 534 U.S. at 257, 122 S.Ct. at 733-34; see also State v. Stone, 350 S.C. 442, 567 S.E.2d 244 (2002) (reversing and remanding for a new sentencing proceeding where the State submitted evidence of Stone’s future dangerousness but trial court failed to instruct jury after request by defense counsel that Stone would be ineligible for parole if sentenced to life imprisonment and finding statements by counsel and the court to the jury that Stone would spend the rest of his life in prison did not convey to the jury that Stone would be ineligible for parole as required by Kelly).

In State v. Shafer, 352 S.C. 191, 202, 573 S.E.2d 796, 801-02 (2002), we stated, “given the United States Supreme Court’s decision in Kelly, the better practice is for trial judges to give the capital sentencing jury a parole eligibility charge whether it is requested or not.”[3] Today we conclude where a defendant’s future dangerousness is at issue in a capital sentencing proceeding, and the only sentencing alternative to death available to the jury is life imprisonment without parole, the trial judge shall charge the jury, whether requested or not, that life imprisonment means until the death of the defendant without the possibility of parole. The trial judge erred in failing to charge the jury that life imprisonment meant until the death of Appellant without the possibility of parole because the State placed Appellant’s future dangerousness in issue during the capital sentencing proceeding.