Four capital cases are highlighted this week. The Eighth Circuit examines the rules of procedural default and holds a new Missouri court rule is a new rule and remands in White v. Bowersox for the district to examine the merits of several claims the court below had held procedurally defaulted. The Eleventh Circuit in Mincey v. Head holds (among twenty-five grounds) that incriminating statements were not obtained from Petitioner after he had asked for a lawyer. In a first of its kinds holding (should the decision withstand rehearing and cert) the Fifth Circuit in a capital case holds the capital petitioner in Felder v. Johnson has filed his petition out of time. Similarly, another Fifth Circuit panel in Soria v. Johnson (5th Cir) denies a petition containing a traditional grab bag of jury challenges.

As many long time readers know, I strongly believe in incorporating international law claims into defense litigation strategy. This week's in depth is from the CALIFORNIA CRIMINAL LAW REVIEW © (http://www.boalt.org/CCLR/v1amanntext.htm) and relates to several issues in using international law to zealously defend one's clients.

As always, this newsletter was put together, flying by the seat of my pants, and only reviewed while under the influence of a caffeine induced stupor, or put another way, please excuse any creative use of the mother tongue, typos and/or errors.

Supreme Court

No criminal law decisions from the court this week. The Supreme Court is in recess until Monday, March 27, 2000.

Capital Cases

White v. Bowersox (8th Cir) Court-imposed procedural bar announced in White's Missouri case was not sufficient to preclude federal review of the barred claims because the decision imposing the bar announced principles which were neither readily ascertainable nor firmly established; district court erred in finding claims were barred, and case remanded for consideration of the claims; district court order rejecting on the merits the remaining claims of juror and judicial bias and ineffective assistance of counsel affirmed.

Federal review of a habeas petition is barred when a state court dismisses or rejects a prisoner's claims on independent and adequate state grounds unless a petitioner can demonstrate either (1) cause and prejudice or (2) actual innocence.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Procedural default of a claim under state law may constitute an independent and adequate state ground, Harris v. Reed, 489 U.S. 255, 262 (1989), but only if the state procedural rule is firmly established, regularly followed, and readily ascertainable. Ford v. Georgia, 498 U.S. 411, 423-4 (1991). The underlying principle is "that failure to follow state procedures will warrant withdrawal of a federal remedy only if those procedures provided the habeas petitioner with a fair opportunity to seek relief in state court." Easter v. Endell, 37 F.3d 1343, 1347 (8th Cir. 1994). Or, as Justice Holmes expressed it, "[w]hatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice." Davis v. Wechsler, 263 U.S. 22, 24 (1923). We believe that Mr. White was denied a fair opportunity to seek relief in this case because the procedural rule that barred his second amended petition was neither firmly established nor readily ascertainable.

The procedural default in this case was based on two limitations of Missouri's remedy for abandonment newly introduced in Mr. White's own case. First, the Missouri Supreme Court held that Mr. White's second amended motion was not entitled to consideration because he had been abandoned only as to the timing of his first amended motion, but not as to its content. At the time of Mr. White's case, the Missouri Supreme Court had just recently decided that there should be a remedy for attorney abandonment in post-conviction proceedings. The Court had stated a general rule that relief was appropriate where the attorney, and not the movant, was responsible for the untimeliness or improper verification of the motion. Mr. White's case, White II, was the first in which the distinction between timing and content was announced and employed to limit the remedy available to an abandoned defendant.

Even in retrospect, the basis for this distinction is unclear to us. The Missouri Supreme Court found that Mr. White's first attorney had abandoned him by leaving his second attorney without time to file a timely motion. We cannot see why such an abandonment, forcing Mr. White's second attorney to prepare and write a motion in fourteen days, would not include the content of the motion. Mr. White's attorney lacked the time to write a motion because he lacked the time to write its content. With no concern for content, one day would have been sufficient. As confusing as this distinction is in retrospect, we have no trouble finding that neither Mr. White nor his attorneys could reasonably have anticipated any such rule in advance of its first application in Mr. White's own case.

Before White II, the Missouri Supreme Court had held that where abandonment occurred new counsel would be appointed and an extension provided as necessary to file an amended motion. Luleff v. State, 807 S.W.2d 495 (Mo. 1991) (en banc); Bradey v. State, 811 S.W.2d 379 (Mo. 1991) (en banc). In White II, the Missouri Supreme Court stated a new rule limiting the remedy for abandonment. The State of Missouri argues vigorously that this limit was implicit in, and correctly derived from, Missouri's prior precedents. The State's argument, however, is not determinative of the issue before us. Even though a rule appears in retrospect to form part of a consistent pattern of procedures, it should not be applied as a procedural default if the defendant could not be deemed to have been apprised of its existence. Ford v. Georgia, 498 U.S. at 423. The limitation on extensions announced in Mr. White's case is dependent upon the distinction, discussed above, between abandonment as to timeliness and abandonment as to content. For the reasons already discussed, we cannot say that Mr. White was fairly apprised of its existence. Accordingly, even if, as Missouri argues, this rule forms a consistent pattern with prior precedents, we could not apply it as a procedural default in this case.

As a second ground for limiting Mr. White's abandonment remedy, the Missouri Supreme Court held that Mr. White had waived any claim that he had been abandoned as to the content of the motions when he signed the "blank" verification. This waiver principle was, again, first announced in Mr. White's own case, White II. The Court based this principle on the fact that Mr. White knew or should have known he was an active participant in falsely verifying a document that had not yet been written. The Missouri Supreme Court was free to interpret its procedural rules in this way. Nevertheless, we do not see how, before the decision in Mr. White's own case, anyone could have known that signing this sort of open-ended verification constituted a waiver of remedies for abandonment.

To begin with, before White II, there was no Missouri precedent relating to the signing of "blank" verifications. Moreover, in White I, the Missouri Supreme Court itself suggested that the blame for the "blank" verification might fall on the second attorney who asked Mr. White to sign it; the Court remanded Mr. White's case to the Circuit Court for a determination of whether the attorney's actions in procuring the improper verification constituted abandonment. In the absence of any precedent, we do not see how Mr. White could have known the legal significance of the improper verification before the Missouri Supreme Court did. In sum, this principle was also neither readily ascertainable nor firmly established at the time of Mr. White's case.

Given the state of the law at the time, Mr. White did not have a fair opportunity to seek relief in this case. Mr. White was presented with a very difficult decision wheN his attorneys abandoned him: to lose all of his claims in an untimely motion or to sign an improper verification and hope that the motion would be at least timely. The new principles announced by the Missouri Supreme Court in his case were not available to guide him in making that decision. Because these principles were neither readily ascertainable nor firmly established, the procedural default that ensued cannot be considered an adequate state ground to bar federal review.

Mincey v. Head (11th Cir)His principle grounds for relief (among twenty-five grounds) are that the police obtained incriminating statements from him after he asked for a lawyer, that the prosecution withheld evidence favorable to his defense, and that his attorneys rendered ineffective assistance of counsel.

Mincey contends that the police obtained incriminating statements from him after he asked for a lawyer, in violation of the Fifth Amendment and the rules laid down by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981) (collectively "Miranda rights"). Accordingly, Mincey argues that the trial court should have granted his motion to suppress the statements.

1.

Unless otherwise indicated, at the pre-trial suppression hearing, the parties did not dispute the following version of the events surrounding Mincey's statements to the police. When Mincey was arrested outside his mother's trailer-home, he was handcuffed and Boren placed him in the back of Spires' patrol car. Spires drove the car and Boren sat in the back seat with Mincey. As the three men began their drive to the LEC, Boren began advising Mincey of his Miranda rights. Mincey interrupted him and said that he knew his rights. After the interruption, Boren read Mincey his rights in full. He then asked Mincey if he understood his rights and Mincey said that he did. At this point, Mincey claimed, and Boren and Spires denied, that he told the officers to "go ahead and run the lawyers."

When the three men reached the LEC at approximately 5:15 a.m., Boren and Spires took Mincey to an investigation room; Boren then exited, leaving Spires and Mincey alone. Mincey had known Spires for five years - since 1977, when Spires questioned him about an armed robbery.

As soon as Boren left the room, Spires read Mincey his Miranda rights, using a waiver of rights form. Mincey said that he understood them. Spires then handed the form to Mincey and asked him to read and sign it. Mincey read the form, taking approximately three minutes, but refused to sign it, with these words, "I'm not going to sign anything. I signed the last time. I'm not going to sign anything this time. I did time the last time [referring to his encounter with Spires following the 1977 armed robbery] . . . . You had me for armed robbery before . . . . Man I'm looking at two murders this time. I'm not signing anything." Spires then asked Mincey if he would sign the form if part of it were deleted Mincey pointed to the phrases "fully understand my right to an attorney" and "to make a statement to the officers," and Spires crossed them out. Despite these deletions, Mincey still refused to sign the form. "I told him, you know, that I needed a lawyer before I did anything." Spires acknowledged that Mincey refused to sign the form but denied that Mincey said he needed a lawyer. When his attorney asked him to explain why he told Spires to delete the two phrases from the form, but still refused to sign it, Mincey answered "because I knew I needed a lawyer."

After he refused to sign the waiver form, Mincey told Spires about the robbery of the Mini Food Store and the shootings; precisely what he said, however, was not brought out at the hearing. When asked why he was willing to discuss those events with Spires, Mincey testified at the suppression hearing, "I don't know, I just saw that I wasn't going to get a lawyer so I figured I had better talk to him because I knew him. And I didn't too much want to talk to Boren because he was playing, you know, the rough side of it."

After Mincey spent approximately twenty minutes with Spires, Boren took him to a conference room; there, Boren and Deputy Sheriff Michael Smallwood interviewed Mincey for about forty- five minutes. Before the interview began, Smallwood read Mincey his rights. Mincey responded "I know my rights." After that, Boren and Smallwood inquired about the events that had taken place at the Mini Food Store. Mincey acknowledged that he had been to the store with Jones and Jenkins and admitted shooting Peterman. When the officers asked him if he would give them a signed statement, Mincey replied "I'm not going to sign anything, I'm not going to give you anything, nothing written . . . I need forty-five lawyers to get out of this stuff." This was the first and only time during the interview with Boren and Smallwood that Mincey uttered the word "lawyer." After Mincey made this statement, the officers ceased their questioning.

On cross-examination, Mincey testified that the forty-five lawyer comment "was a wild exaggeration, you know, nothing really specific in it," and said that "I had told them all at one time or another that I needed a lawyer. I didn't bring it straight out and say, you know, go get me one; I just told them, you know, I felt like I needed a lawyer." Later, in response to further cross-examination, Mincey acknowledged that he knew that he had a right to remain silent and to ask for counsel at any time during his interviews, first with Spires and then with Boren and Smallwood; that his rights were read to him several times; that he was not forced to respond to the officers' questions about the events at the Mini Food Store; that his statements to the officers were made freely and voluntarily; and that he refused to sign anything because he drew a "sharp distinction" between what he was willing to say and what he was willing to sign. Finally, he answered "yes" to the question: "you knew that you had a constitutional right as an American citizen not to open your mouth and say one word without a lawyer?"

On August 13, 1982, ten days before Mincey went to trial, the court, in a written order containing findings of fact and conclusions of law, denied his motion to suppress the incriminating statements he made to Spires, Boren, and Smallwood. The court found that both Boren and Spires had read Mincey his rights and that Mincey, who was "knowledgeable due to his numerous past contacts with the law enforcement process," fully understood his rights. That is, he understood that he had a right to the presence of counsel before the officers questioned him, or at any time during the interview, and that (with or without counsel) he had the right to remain silent. The court found that Mincey waived both rights, and answered the officers questions, knowing that they could be used against him. Addressing the significance of Mincey's request that Spires delete certain portions of the waiver of rights form and Mincey's subsequent refusal to sign the form, the court found that such conduct did not constitute a request for counsel or an invocation of the right to remain silent; rather, it demonstrated that Mincey was simply "toying with Investigator Spires." Mincey "knew that it would be easier to deny his statements if they were not in writing and that is why he refused to sign the waiver form." The court acknowledged that Mincey indicated "in the patrol car and again at the LEC that he wanted a lawyer," but found that he "never asked for a lawyer. [He] knew if he asked, he would get one immediately . . . [and his] reference to needing 45 lawyers made towards the end of his interview [with Boren and Smallwood] was not such a request but merely an offhand remark." Given this factual background, the court concluded that Mincey's statements were made freely and voluntarily, and therefore, were admissible.

On direct appeal, the Georgia Supreme Court concluded that the trial court's findings of fact had support in the record and that the court properly concluded that Mincey's statements were made "freely and voluntarily" after a waiver of Miranda rights. See Mincey, 304 S.E.2d at 889. Later, in denying Mincey habeas corpus relief, the district court adopted the state trial court's findings of fact, according them a presumption of correctness pursuant to 28 U.S.C. § 2254(d), and also concluded that Mincey's statements were made freely and voluntarily, after being fully advised of his rights.

Mincey seeks habeas corpus relief under the provisions of 28 U.S.C. § 2254 in effect prior to the time the President signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-134, 110 Stat. 1214 (1996) (the "AEDPA") into law, because he filed his habeas petition before that signing took place. We agree.

In this case, as noted above, the district court presumed the state trial court's findings of historical fact to be correct and adopted them as its findings of historical fact. The district court was entitled to indulge the presumption because the state court held a "full, fair, and adequate hearing" on Mincey's claim (regarding the incriminating statements he made to the police) and the record before that court fairly supported its findings of fact. See 28 U.S.C. § 2254(d); Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995); Weeks v. Jones, 26 F.3d 1030, 1033-34 (11th Cir. 1994). In short, we are bound by the state court's findings of historical fact. We review de novo, however, the district court's resolution of questions of law and of mixed questions of law and fact. See Cunningham v. Zant, 928 F.2d 1006, 1011 (11th Cir. 1991).

Whether a suspect in custody has been informed of his Miranda rights is a question of fact. See United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). Whether Mincey knowingly and intelligently waived his rights to the presence of counsel and to remain silent, and, if so, whether his subsequent admissions to the police were voluntary are questions of law. Id. Mincey does not dispute the trial court's finding that he was fully advised of his Miranda rights and that he understood them. He knew from the outset - when Boren read him his rights in the back seat of the patrol car - that he did not have to submit to questioning and that he had the right to an attorney upon demand. Mincey contends, instead, that he did not waive his right to remain silent and his right to counsel.

His claim that he did not waive his right to remain silent is without merit. Mincey admitted at the suppression hearing that he spoke to the officers of his own free will. As the trial court found at the conclusion of the suppression hearing, "[Mincey] was willing to talk and knew that any oral communications could be used against him. [He] also knew it would be easier to deny his statements if they were not in writing and that is why he refused to sign the waiver form." And, as the district court correctly observed, "[t]here is no evidence [in the record of the suppression hearing] that [Mincey] was bullied or tricked into answering questions, or that any promises were made." Given these circumstances, it seems to us that what Mincey is really contending is that he invoked his right to the presence of counsel and that, after he did so, the officers continued their questioning.

When a suspect undergoing custodial interrogation asserts his right to counsel, the interrogation must cease. See Miranda, 384 U.S. 436 at 474, 86 S. Ct. at 1628. "Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994) (internal quotation marks and citation omitted). The Court in Davis found the statement, "Maybe I should talk to a lawyer," not to be an unequivocal request for counsel. Id. at 462, 114 S. Ct. at 2357. Such a statement, the Court stated, extended Miranda's prophylactic rule too far, requiring police officers to guess whether a suspect wanted a lawyer present. The Court therefore concluded, "[i]f the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 461-62, 114 S. Ct. at 2356.

The state trial court found that Mincey "indicate[d] in the patrol car and again at the LEC that he wanted a lawyer . . . but that he never asked for a lawyer." The court was apparently referring to (1) Mincey's statement, "go ahead and run the lawyers," which Mincey claims to have made en route to the LEC, and (2) Mincey's statement to Boren and Smallwood that "it would take forty-five lawyers to get out of this [expletive]." Since Boren and Smallwood (and Mincey) agree that the interview ended immediately after Mincey made the second statement, Mincey's claim - that the officers (first Spires, then Boren and Smallwood) questioned him after he asked for an attorney - turns on whether "go ahead and run the lawyers" constituted an "unambiguous or unequivocal request for counsel." Davis, 512 U.S. at 462, 114 S. Ct. at 2356. Obviously, it did not.

In his brief, Mincey argues that his refusal to sign the form constituted - was the equivalent of - an immediate demand for counsel, and that Spires should have recognized it as such. We are not persuaded. Although a refusal to sign a waiver of rights form may indicate that the suspect is invoking his right to counsel, it is not conclusive proof that he has invoked the right. See North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S. Ct. 1755, 1758-59, 60 L. Ed. 2d 286 (1979); U.S. v. Boon San Chong, 829 F.2d 1572, 1574 (11th Cir. 1987) ("Courts have for some time rejected the argument that a refusal to sign a waiver form automatically renders subsequent questioning improper."). In this case, the trial court, in determining whether Mincey had invoked his right to counsel, gave due consideration to his refusal to sign the waiver of rights form and found, in light of all of the surrounding circumstances, see Edwards, 451 U.S. at 482, 101 S. Ct. at 1884; Butler, 441 U.S. at 374-75, 99 S. Ct. at 1758, that he "was toying with Investigator Spires." In addition, the court found that Mincey "drew a sharp distinction between what he was willing to say and what he was willing to sign." Mincey was willing to talk to the officers in the absence of counsel; "it would be easier [for him] to deny his statements if they were not in writing and that is why he refused to sign the waiver form."

Felder v. Johnson (5th Cir) "Petitioner Leslie Parnell Felder appeals from the district court's dismissal of his 28 U.S.C. § 2254 petition, arguing that the court erred in concluding his petition was time-barred. He argues that his circumstances warrant equitable tolling. Those circumstances include (1) his incarceration before AEDPA's effective date; (2) his litigating pro se; (3) his claiming that he is innocent of the crime for which he was convicted; and (4) his alleged unawareness of AEDPA's requirements (as judicially interpreted) due to inadequacies of his prison's library, which he claims made the law's text inaccessible throughout his one-year grace period. Because we find these circumstances to be clearly insufficient to warrant equitable tolling, we affirm."

In his appellate reply brief, Felder specifically contends that equitable tolling of AEDPA's statute of limitations is warranted under the circumstances discussed by the district court. None of the district court's orders in this case, nor any of Felder's prior filings, addressed equitable tolling. We note that the court did not have the benefit of our opinion in Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998), cert. denied, 119 S. Ct. 1474 (1999).

In Davis, we held, as a matter of first impression, that the AEDPA one-year limitations period was a statute of limitations, not a bar to federal jurisdiction. See id. at 807. As a statute of limitations, it could be equitably tolled, albeit only in "rare and exceptional circumstances." Id. at 811; see alsoFisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (asserting that courts must "examine each case on its facts to determine whether it presents sufficiently 'rare and exceptional circumstances' to justify equitable tolling" (quoting Davis, 158 F.3d at 811)). We have since provided additional insight into the types of circumstances that may be seen as rare and exceptional. In Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999), for example, we stated that "'[e]quitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.'" Id. at 402 (quoting Rashidi v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). It is undisputed that, if equitable tolling for at least twenty-one days of Felder's one-year grace period is unwarranted, Felder's petition must be dismissed as untimely.

In light of Davis and our other jurisprudence, the circumstances enumerated by the district court in granting a COA are clearly insufficient to warrant equitable tolling. We have held that a petitioner's incarceration prior to AEDPA's passage does not present an extraordinary circumstance warranting equitable tolling. See Fisher, 174 F.3d at 714 (noting that AEDPA's one-year grace period affected hundreds of prisoners, none of whom learned of it on its effective date). Likewise, proceeding pro se is not a "rare and exceptional" circumstance because it is typical of those bringing a § 2254 claim. Cf.United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (holding pro se status, illiteracy, deafness, and lack of legal training are not external factors excusing abuse of the writ); B arrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (holding equitable tolling of limitations within the Age Discrimination in Employment Act not warranted by plaintiff's unfamiliarity with legal process, his lack of representation, or his ignorance of his legal rights). Felder's actual innocence claim also does not constitute a "rare and exceptional" circumstance, given that many prisoners maintain they are innocent.

Felder has linked the fourth and fifth circumstances, arguing that he did not have notice of AEDPA's requirements due to inadequacies of his prison's law library. He contends that without notice of AEDPA's requirements, he was denied the opportunity to timely file his petition. Because Felder clearly filed his petition before becoming aware of AEDPA's requirements, his unawareness of the law arguably has not "prevented in some extraordinary way [his] asserting his rights." Coleman, 184 F.3d at 402.

In Fisher, we rejected a petitioner's claim that he was entitled to equitable tolling for the forty-three day period between AEDPA's effective date and the date on which he received actual notice of AEDPA. See 174 F.3d at 714. We gave a number of reasons for our decision, including the fact that "ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing." Id. To support this reasoning, we cited prior decisions of this court holding that mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling or other exceptions to a law's requirements. See id. at 714 n.13 (citing Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (holding that neither prisoner's pro se status nor ignorance of the law constitutes "cause" for failing to include a claim in a prior petition), and Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (holding that "lack of knowledge of the filing deadlines" does not justify equitable tolling)). We could have just as easily cited to other cases for the same "ignorance of the law is no excuse" proposition. See, e.g., Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir. 1978); Howard v. Sun Oil Co., 404 F.2d 596, 601 (5th Cir. 1968).

Other language in Fisher would appear to lend support to Felder's argument that his circumstances warrant equitable tolling. See Fisher, 174 F.3d at 715 ("In the right circumstances, a delay in receiving information might call for equitable tolling - such as if the prison did not obtain copies of AEDPA for months and months . . . ."). This language is dicta, however, and we need not follow it. Moreover, in addition to our long line of cases holding that mere ignorance of the law or of statutes of limitations is insufficient to warrant tolling, we have Congress' language in § 2244(d) to support our similar conclusion in this case.

In defining the one-year statute of limitations in § 2244(d), Congress explicitly laid out three circumstances under which the statute of limitations would begin to run after the date on which the prisoner's judgment became final. See §§ 2244(d)(1)(B),(C),(D). We have previously noted that Congress did not provide for tolling based on a failure to receive timely notice. See Fisher, 174 F.3d at 714 ("Congress knew AEDPA would affect incarcerated individuals with limited access to outside information, yet it failed to provide any tolling based on possible delays in notice."). Although in Davis we in effect suggested that circumstances beyond those indicated by Congress may warrant equitable tolling, we must nonetheless be mindful of the framework Congress established in § 2244(d). Cf. Fisher, 174 F.3d at 713 (noting that "the Supreme Court has expressed deference to the rules that Congress fashioned concerning habeas"). Viewing §§ 2244(d)(1)(B),(C), and (D) as providing Congress' description of "extraordinary circumstances," cf.Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (noting the existence of § 2244(d)(1)(D), which is described as an "equitable-tolling provision," and of other express tolling provisions of § 2244(d)), suggests that we should not toll unless the circumstances presented in a particular case are on a par with the conditions listed in § 2244(d). None of Felder's circumstances, and particularly not his ignorance of the law, can be said to be on a par with those conditions.

That ignorance of the law is insufficient is, in fact, supported by the language of § 2244(d)(2). In that tolling provision, Congress provided that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." § 2244(d)(2). The "properly filed" limitation indicates that Congress does not view ignorance of the law as a sufficient reason for tolling, for a "properly filed" petition would be one that was filed within any statute of limitations the state imposes. SeeVillegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999).

We are mindful of the effect a dismissal will have on Felder's ability to have his claims heard by a federal court. This is his first federal habeas petition. We are also mindful of the Supreme Court's cautionary statements in Lonchar v. Thomas, 517 U.S. 314, 324 (1996) ("Dismissal of a first habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty."). It is the case, however, the Felder's circumstances are clearly not among those "rare and exceptional" conditions that warrant deviation from both the express rules Congress has provided and the grace-period we have already granted prisoners whose convictions were final before AEDPA's effective date. To hold otherwise would characterize as "rare and exceptional" circumstances that countless other prisoners could claim as their own. Cf. Fisher, 174 F.3d at 715 ("[T]he same concept would apply equally to many other prisoners and in different variations of delayed information, becoming a judicial tolling rule. Such broad decisions are for Congress, not equity.").

Soria v. Johnson (5th Cir) "Petitioner . . . , requests from this Court a Certificate of Appealability (COA) pursuant to 28 U.S.C. § 2253(c)(2). Soria raises numerous arguments on appeal, including denial of equal protection, denial of an impartial jury, and ineffective assistance of counsel. Finding that Soria has not made a substantial showing of the denial of a constitutional right, we deny the COA."

Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), Soria asserts that the state trial court's refusal to require the prosecutor to provide racially neutral explanations for peremptorily challenging two Hispanic venire members resulted in a violation of the Equal Protection Clause of the Fourteenth Amendment. To evaluate a Batson claim, we look to the following framework: (1) the petitioner must make a prima facie showing that the prosecutor exercised his peremptory strikes on the basis of race; (2) the burden of production then shifts to the prosecutor to articulate a race-neutral reason for challenging the venire member; and (3) finally, the trial court must decide whether the petitioner has sustained his burden of proving purposeful discrimination. Thompson v. Cain, 161 F.3d 802, 810-11 (5th Cir. 1998).

To establish a prima facie case, Soria was required to demonstrate that the prosecutor exercised peremptory challenges against minority venire members--in this case Hispanics(2)--and that the relevant circumstances raised an inference of purposeful discrimination. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. An inference may be drawn from such circumstances as a "pattern" of strikes against minority venire members and the remarks made by a prosecutor during voir dire. Id. at 96-97, 106 S.Ct. at 1723.

In the instant case, the trial court's statement that it did not "see a pattern or a systematic exclusion" and its refusal to require the prosecutor to articulate his reasons for the strikes should be treated as a finding that Soria failed to make a prima facie case of discrimination under Batson.(3)

On direct appeal, the Texas Court of Criminal Appeals provided the following factual analysis upholding the trial court's finding that no prima facie case was made:

Eighty-four (84) veniremembers were examined by the parties during the selection process. Of these, 25 were excluded for cause on motion of one or the other party, and 13 were excused by the trial judge, either on agreement of the parties, due to a previously unclaimed exemption, or for reasons of hardship. Two of these 38 prospective jurors were hispanic people, but there is no suggestion that either was excluded in violation of Batson . . . .

Of the 46 remaining veniremen, three were hispanic people. Two of these were struck by the State. The other was not challenged by either party, and so served on the jury. Given the proportion of hispanic people on the venire and comparing it with the proportion of hispanic people struck by the prosecutor, the following observations seem pertinent to the issue of deliberate racial discrimination.

The State used 16 peremptory challenges during the selection process. Forty-six (46) people were potential targets of these strikes. Three were hispanic. The prosecuting attorney actually struck two hispanic people and 14 nonhispanic people. This means that he used 12.50 % of his peremptory strikes against members of an identifiable ethnic group comprising only 6.52 % of the eligible venire. In other words, he struck hispanic people at almost twice the rate such people would have been eliminated by random exclusion.

Nevertheless, had the prosecutor struck one less hispanic person, the rate of exclusion (6.25 %) would have been nearly the same as if random. Thus, but for a single peremptory strike out of the 16 actually exercised by the State, no inference of intentional discrimination would be statistically supportable.

* * *

We have not been asked to consider anything but the foregoing statistics. It should be noted, however, that the voir dire examination of the two hispanic people who were struck by the State does not appear to differ significantly as regards any implication of racial bias from that of the hispanic person who actually served as a juror. In this regard, [Soria] has not suggested any such basis nor referred us to any portion of the record which he alleges to disclose racial discrimination by the prosecuting attorney.

* * *

A deviation from the norm of but a single strike simply does not so clearly raise an inference of racial discrimination that a factfinding to the contrary must be disturbed on appeal. Although, in this case, one peremptory challenge amounts to twice the number expected from random selection, it also represents but a single increment greater than random selection would produce under ideal circumstances. Thus, . . . this case does not clearly raise an issue of purposeful discrimination, since little can legitimately be inferred from an unexpectedly high rate of strikes when the absolute number of those strikes is very low. In these circumstances we cannot fairly conclude that the trial judge erred to think the number and circumstances of peremptory challenges against hispanic veniremembers did not actually present a bona fide issue of racial discrimination.

The state court's determination that Soria failed to make a prima facie showing is a factual finding. See Branch, 989 F.2d at 755. Therefore, in reviewing this finding, we must accord it a presumption of correctness, which can only be rebutted by "clear and convincing evidence." Thompson, 161 F.3d at 811; § 2254(e)(1). Citing Batson, Soria asserts that "the trial judge reviewed the evidence for 'purposeful discrimination,'" as opposed to an inference of purposeful discrimination. Soria does not provide a cite to the record to support his contention that the trial court erroneously held him to a higher standard. Our independent review of the record reveals that, in fact, the trial court found "there was no pattern or systematic exclusion of persons of the same ethnic background." Contrary to Soria's assertion, the trial court's finding comports with the Supreme Court's requirements as memorialized in Batson. Indeed, the Supreme Court, by way of example, opined that "a `pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination." 476 U.S. at 97, 106 S.Ct. at 1723 (emphasis added).

Soria further argues that "by refusing to put the prosecutor to his burden under Batson, the trial judge denied petitioner of the very evidence which would be used to establish purposeful discrimination." This argument indicates a fundamental misunderstanding of the burden-shifting framework crafted in Batson. "The `shifting burden' described in the Batson framework is one of production only." United States v. Bentley-Smith, 2 F.3d 1368, 1373 (5th Cir. 1993). The party asserting the claim of purposeful discrimination always shoulders the ultimate burden of persuasion. See id. More important, Batson makes clear that a petitioner must establish a prima facie case before a prosecutor is required to come forward with a neutral explanation for the challenges. 476 U.S. at 96-97, 106 S.Ct. at 1723. Once a prima facie case is established, the reason proffered by the prosecutor will be deemed race neutral unless a discriminatory intent is inherent in such explanation. Bentley-Smith, 2 F.3d at 1373.

Soria does not now point to any evidence establishing a prima facie case of purposeful discrimination during voir dire other than the fact that two Hispanics were peremptorily challenged. Although a peremptory challenge based on the race of even one minority venire member constitutes a violation of Batson, "a defendant must prove discrimination by more than the sole fact that the minority venire-person was struck by peremptory challenge." Branch, 989 F.2d at 755.(4) In light of the confidence placed in trial judges to make this determination,(5) we cannot conclude that Soria has overcome the presumption of correctness afforded the state court's finding. Soria's failure to rebut the state court's factual finding that a prima facie case of purposeful discrimination was not made effectively precludes him from making a substantial showing of the denial of a federal right.

Habeas Cases

Romandine v. USA (7th Cir) Romandine must serve his federal sentence after his state sentence ends, unless he can persuade the Attorney General to start the federal clock while he is still in state custody.

Smith v. McGinnis (2nd Cir) "Appeal from judgment . . . dismissing appellant's petition for a writ of habeas corpus as untimely pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d). Because the district court correctly applied the AEDPA's tolling provision and properly calculated the limitations period, we affirm."

Adeline v. Stinson (2nd Cir) "Appeal from a judgment . . . dismissing petitioner's petition for a writ of habeas corpus as time barred. Affirmed."

Section 1983 & Related Filings

Jackson v. Sauls (11th Cir) "In summary, we find (a) that the district court properly denied Defendants' motions for summary judgment on their qualified immunity defenses to the Plaintiffs' illegal stop claims, (b) that the district court erred in denying Defendants' motions for summary judgment on their qualified immunity defenses to Plaintiffs' excessive force claims, (c) that the district court erred in granting Plaintiffs' motion for summary judgment on Defendants' qualified immunity defenses to Plaintiffs' illegal stop and excessive force claims, and (d) that the district court erred in failing to rule on Defendants' motion for summary judgment on their qualified immunity defenses to Plaintiffs' equal protection claims."

Welch v. Galie (2nd Cir) "[L]awsuit dismissed prior to enactment of §1915(g) may nevertheless be counted for the purposes of determining whether that provision applies."

Aguillard v. McGowen (5th Cir ) "Appellants . . . . appeal from a jury verdict holding them liable for the wrongful death of Susan Harrison White pursuant to 42 U.S.C. § 1983. The district court, giving preclusive effect to McGowen's Texas state criminal conviction for murder, forbade McGowen to present evidence on the issue of excessive force. Because the state court of appeals reversed McGowen's criminal conviction on appeal, we vacate and remand for a new trial on the merits. We further determine, pursuant to our sufficiency of the evidence analysis, that insufficient evidence supports the County's liability, and we therefore reverse and dismiss the County from the suit. Finally, we hold that White's sisters, appellees Sandra Harrison ("Harrison") and Gloria Hamilton ("Hamilton") lack standing in their individual capacities, and we thus dismiss them from the suit as individual plaintiffs."

Mahaney v. Warren County (8th Cir) Plaintiffs failed to establish defendants conspired to deprive them of their civil rights, and district court did not err in granting defendants' motion for summary judgment.

In Depth

As many long time readers know, I strongly believe in incorporating international law claims into defense litigation strategy. This week's in depth is from the CALIFORNIA CRIMINAL LAW REVIEW © (http://www.boalt.org/CCLR/v1amanntext.htm)

USING INTERNATIONAL LAW TO DEFEND THE ACCUSED

(cite as “1 CALIF.CRIM.L.REV. 1”; pincite using paragraph numbers)

by Diane Marie Amann,* Cynthia R.L. Fairweather,** and Vivian Rhoe***

¶1You represent a U.S. permanent resident, a bank teller charged with embezzling $50,000. She admits that she dipped into the till to pay her mortgage, but claims that she took no more than $15,000. In response to your question about her confessions to the contrary, she tells you:

One day the boss and an armed security guard put me in a small room and kept me there all day. They wouldn’t let me call anyone, have a glass of water, or use the restroom. They ordered me to sign papers that said I’d stolen $50,000. I told them it was only $15,000. I said I was sorry and started crying and they laughed at me. They called in coworkers and told them that I was a thief. The boss promised that if I confessed to the full amount they’d keep the law out of it. So I signed. But right away they turned me over to federal agents, who told me my Miranda rights. I signed their confession, too.

¶2Your outrage at this treatment turns to frustration as you discover that U.S. law allows the use of confessions to private persons.1 The FBI interrogation, moreover, appears to have been by the book. Have you exhausted challenges to the confessions? Not quite.

¶3Treaties to which the United States belongs offer at least two avenues of defense. First, the International Covenant on Civil and Political Rights (ICCPR) forbids anyone -- not just government officials -- from subjecting a person to "cruel, inhuman, or degrading treatment."2 Second, the Vienna Convention on Consular Relations requires that a foreign national be told of her right to talk with officials of her home country before U.S. agents may question her.3 Arguably, violations of these treaties justify excluding the confessions from evidence.

¶4International human rights law has mushroomed in recent decades, thanks to a new recognition that even in the global arena, an individual is guaranteed certain rights against governmental abuse.4 International law -- found both in treaties and in customary international law, a kind of global common law -- contains a trove of potential defenses. Yet U.S. criminal defense attorneys seldom invoke such defenses. Perhaps this stems from a lack of understanding of international law, perhaps from a sense that judges will reject the defenses out of hand. These are valid concerns. As this article will show, persuading a court to apply international law in a criminal case is indeed a formidable task, but one worth pursuing.

Hurdles to Using InternationalLaw Defenses in U.S. Courts

¶5The Supremacy Clause of the U.S. Constitution provides that treaties, no less than acts of Congress or the Constitution itself, are "the Supreme Law of the Land."5 The United States has lagged behind other Western countries in ratifying human rights treaties. Several of those it has ratified guarantee an accused significant rights. These include not only the ICCPR, but also the Convention Against the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment6 and the Convention for the Elimination of Racial Discrimination.7

¶6Regarding customary international law, the U.S. Supreme Court proclaimed nearly a century ago: "International law is part of our law."8 You might thus assume that courts in the United States routinely enforce international law. To the contrary, courts have established a number of doctrines that severely limit the use of both treaty law and customary international law. These hurdles to enforcement include:

¶7Self-executing treaties. Even though a U.S. treaty is U.S. law, a court will not give the treaty full and automatic effect unless it is deemed to be "self-executing."9 This means that the court must be persuaded that the treaty was ratified with the intent that it would operate immediately, without Congress having to pass additional, implementing legislation. Although there may be some exceptions, most human rights treaties are considered not to be self-executing, and in most cases implementing laws have not been enacted. For this reason alone a court may refuse to apply a treaty provision.10

¶8RUDs. Reservations, understandings, and declarations are the ifs, ands, or buts of treaty ratification. RUDs, as they are often called, are statements that a country attaches to a treaty upon ratification, with the intent to limit the effect of the treaty within its borders. When the United States ratified the ICCPR, for example, it reserved its "right" to impose capital punishment, constrained only by U.S. constitutional provisions.11 Therefore, U.S. courts are unlikely to sustain defenses that turn on the fact that much of the world community has rejected the death penalty. The degree to which the United States attached RUDs to some human rights treaties, in fact, has prompted questions whether the United States really has joined the treaties at all.12

¶9Standing. At times a court may refuse to consider whether government officials have breached international law on the ground that the defendant has no standing to challenge such a violation. For example, a statute targeting international drug smuggling authorizes the U.S. government to stop ships on the high seas, search for and seize drugs, and prosecute the crew.13 Defense arguments that if a ship flies the flag of another country, the United States must obtain that country’s consent before boarding, have been rejected. Ignoring the modern view that the individual plays a role in international law, courts have effectively ruled that the party aggrieved by the international-law violation is not the defendant, but the other country, which could address the breach through diplomatic channels.14

¶10Deference. Criminal defense attorneys often complain that courts place the government’s interest in fighting crime above society’s interest in preserving individual rights. This problem is amplified in the international arena, where courts explicitly avoid results that might interfere with stated government needs touching on foreign affairs. Such extreme deference was a prime reason that the U.S. Supreme Court in 1998 refused to extend the Fifth Amendment privilege against self-incrimination to a witness who feared foreign prosecution.15

An Open Lane: Using International Law to Inform Constitutional Principles

¶11Although these hurdles largely preclude direct enforcement of international human rights norms in the United States, courts sometimes are willing to give the norms indirect effect.16 The methods by which officials investigate, prosecute, and punish offenders often are subject to review under broadly worded clauses in the Bill of Rights. For instance, the people have a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."17 The government may not subject someone to "cruel and unusual punishments," nor deprive a person of "life, liberty, or property, without due process of law."18 Defendants at times have succeeded in persuading courts to consult international law to determine how to apply one of these constitutional provisions.

¶12A few decades ago, it was not uncommon for the U.S. Supreme Court to rely on international human rights law, as well as laws of other countries, to inform the meaning of constitutional principles. In Miranda v. Arizona, the Court derived from English rules the warnings police were instructed to give interrogees.19 The Court used international law on a number of occasions to help it determine whether a practice constituted cruel and unusual punishment in violation of the Eighth Amendment.20

¶13In recent years this practice has waned. In 1988 the Supreme Court, relying in part on international principles, condemned the execution of children 16 and under.21 A year later, however, execution of 17 year olds was deemed constitutional, in an opinion by Justice Scalia, who, dissenting in the earlier case, had declared international law to be irrelevant.22 Still, at least four Justices are sometimes receptive to international law arguments.23 Lower courts also may be willing to consult international law as an aid to constitutional interpretation. Thus it remains worthwhile to press international-law defenses in appropriate cases.

Laying the Groundwork: Some Potential International-Law Defenses

¶14Does your embezzlement client have an appropriate case? Let’s look at how the international law defenses suggested at the beginning of this article might fare in litigation:

¶15Denial of Right to Talk with Consular Official. This is an avenue deserving your attention. A panel of the Ninth Circuit held that a statement made before notice of consular rights may be suppressed if the lack of notice prejudiced the defendant. 24 Although that opinion was withdrawn pending rehearing25, and although defendants in other cases have been unable to surmount procedural defaults and other hurdles26, the Supreme Court has yet to decide the issue. Thus it should be preserved for further review.

¶16Article 36(1)(b) of the Vienna Convention on Consular Relations states that officials who arrest a foreign national "shall inform the person concerned without delay" of her right to communicate with consular representatives of her home country.27 Your client, like most foreign nationals since the convention took effect in 1969, was not so informed.28 File a motion to suppress your client’s statements. Be sure to include the text of the treaty and any appropriate drafting history or case law from other nations.29 Argue that had she talked with consular officers, they could have helped her contact family members, explained her options to her, and helped her to obtain counsel before she spoke to authorities.30 Failure to give her this opportunity, you would argue, resulted in the unfair extraction of a false confession. An adequate showing of such prejudice might entitle her to relief.31

¶17Mistreatment by Private Actors. Article 7 of the ICCPR condemns "cruel, inhuman, or degrading treatment," without limitation to acts by government officials32. It thus offers broader protection than U.S. constitutional doctrine, which provides remedies only for mistreatment suffered at the hands of government actors. Yet direct enforcement of Article 7 is unlikely, because of U.S. RUDs asserting that the article is not self-executing and applies only insofar as it coincides with U.S. constitutional law.33

¶18You could contend that the ICCPR’s broader international protection justifies overruling existing constitutional doctrine; that is, that it justifies holding that, by admitting a confession obtained as your client’s was, the court would abdicate its duty to ensure fundamental fairness.34 This argument is unlikely to win immediate acceptance. But articulation of the international norm might help persuade the court that the treatment of your client was outrageous enough to call into question the reliability of her confession to the full $50,000. Judicial acceptance of $15,000 as the amount taken might compel a sentencing reduction that means the difference between probation and jail.35

¶19Other potential defenses, for other cases, might work as follows:

¶20Extradition That Might Result in Mistreatment. As part of their hands-off policy in foreign-relations areas, courts routinely refuse to consider whether a fugitive would suffer mistreatment if extradited.36 This rule of noninquiry conflicts with international principles. In an often-cited opinion, the European Court of Human Rights carefully examined what lay in store for a German national whom Virginia sought to try for capital murder. The court held that, because of the likelihood of a protracted, anguishing wait on death row, extradition would violate a ban on "torture or . . . inhuman or degrading treatment or punishment."37 Moreover, the Torture Convention forbids extraditing a fugitive "where there are substantial grounds for believing that he would be in danger of being subjected to torture."38 Based on these sources of law, you might argue that to extradite your client would violate contemporary understandings of due process.39 Again, even if your argument does not fully succeed, it might work some modification for your client, and might pave the way to curtailment of the rule of noninquiry.

¶21Death Row Phenomenon. The European Court of Human Rights holding above has given rise to litigation contending that prolonged stays on death row constitute cruel and unusual punishment. Defendants in courts of some other countries have, in fact, won relief based on this claim.40 In 1995, the U.S. Supreme Court declined to grant certiorari in a case raising the issue.41 Nonetheless, two Justices invited lower courts to continue exploring it.42

¶22Treatment of Juveniles. Unlike in the United States, in many countries child offenders are still considered to be less morally culpable than adult criminals, and thus to require treatment aimed at rehabilitation, rather than punishment aimed at retribution.43 The ICCPR reflects this distinction. It requires that accused juveniles be detained separately from adults.44 If found responsible, child offenders "shall be segregated from adults and be accorded treatment appropriate to their age and legal status."45 The United States, while "generally . . . supportive of" these provisions, has reserved "the right, in exceptional circumstances, to treat juveniles as adults."46 Taken together, these statements may help persuade a court that an accused child should be treated as a child, and that transfer to adult court rarely should occur.

¶23Conditions of Confinement. Courts have proved willing to consult international standards in deciding challenges to the conditions under which a defendant is detained or incarcerated. For example, the U.S. Supreme Court cited U.N. Standard Minimum Rules for the Treatment of Prisoners47 to determine the proper medical care due inmates.48 The Second Circuit, meanwhile, consulted the U.N. standards regarding the proper number of people in a cell to support its holding that double celling violated due process and equal protection rights of pretrial detainees.49

¶24Perhaps the most novel such use of international law occurred in the case of Gen. Manuel Noriega, the former leader of Panama who surrendered after the United States had invaded his country, and was brought to Florida for prosecution on charges of drug trafficking. Noriega persuaded the court that he was a prisoner of war, entitled to the protections of the Third Geneva Convention during the course of his confinement.50 Though this precedent would not apply in the ordinary case, it exemplifies how creative use of international law can benefit a defendant.

¶25It is apparent that invoking international law in defense of your client is a challenge. But it is one worth pursuing, in order to assure that your client receives the fullest representation, and in hopes that you might, over the long term, change the law.

Errata

The Death Penalty Information Center offers the following news:

After spending nearly seven years on Florida's death row, Joseph Nahume Green was acquitted on March 16 of the murder of Judith Miscally. Circuit Judge Robert P. Cates entered a not guilty verdict for Green, citing the lack of any witnesses or evidence tying Green to the murder. Green, who has always maintained his innocence, was convicted largely on the testimony of the state's only eyewitness, Lonnie Thompson. In 1996, GreenÕs conviction was overturned by the Florida Supreme Court, which held that ThompsonÕs testimony was inconsistent and contradictory, and that he had not been mentally fit to testify during Green's trial. (St. Petersburg Times, 3/17/00) Green is the 3rd person exonerated and freed from death row this year, and the 87th since 1973. Florida has had more innocent people released from death row than any other state.

Eric Clemmons was freed from death row in Missouri on February 18 after a jury acquitted him of murder at retrial. Clemmons was sentenced to death in 1987 for a 1985 murder which occurred in a Missouri prison. After losing all his appeals in state court and his initial appeal in federal court, Clemmons had called his mother to make his funeral plans. But new attorneys convinced a federal appeals court to reverse itself and grant a new trial, partly because of issues and evidence that Clemmons had filed himself. When all the new evidence was presented, the jury acquitted him in 3 hours. Clemmons remains incarcerated on other charges, which he is also challenging. (Kansas City Star, 2/27/00)

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.

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