This week sees one partial win (Mapes v. Coyle) and one loss (972084P.pdf Hunter v. Bowersox) in the federal habeas corpus cases being reported . In Mapes v. Coyle the Sixth Circuit remands on the issue of ineffective assistance of appellate counsel and while giving a good summary of what is and is not to be considered in determining when the right to appellate counsel if violated. The Eighth Circuit in Hunter v. Bowersox upholds a upholds a guilty plea in this capital case, as well as holds that claims of ineffective assistance of counsel were unpersuasive. In the non-capital arena, the Third Circuit in Matteo v. Superintendent SCI Albion (en banc) gives a solid review of the current state of AEDPA law adopts one plausible reading of the First Circuit's interpretation of AEDPA claims.

Please note that not all cases from the last week have been listed here as the various websites databases have not all been updated (especially the Ninth Circuit). Additionally, Eighth Circuit cases are only available in PDF format (http://www.adobe.com/supportservice/custsupport/download.html).

In Depth

Mapes v. Coyle Sixth Circuit remands in this capital case on appellate ineffective assistance counsel without granting a writ:

Mapes contends that his appellate counsel was unconstitutionally ineffective because he failed to raise the following arguments on appeal: (1) trial counsel wasineffective; (2) the jury was erroneously instructed that its death sentence would only be a recommendation; (3) the jury was erroneously instructed that it had to unanimously reject a death sentence before it could consider a term of years; (4) the jury was not, in fact, unanimous on its death verdict; and (5) the sentencing jury was wrongly precluded from considering relevant mitigating evidence. Additionally, sixth, Mapes contends that his appellate attorney did not competently argue the constitutional issue regarding whether Mapes could be sentenced to death absent a finding that he intended to kill Allen.

We are satisfied that Mapes's counsel's failure to raise issues (2) and (6) above-(2) whether the jury's role was merely to "recommend" the death sentence, and (6) whether the jury found that Mapes intended to kill John Allen-was not unconstitutionally ineffective representation. As to the former, the jury's death sentence verdict was merely a recommendation. As to the latter, the jury did find that Mapes intended to kill Allen. The specific intent inherent in the aggravated-murder charge is supported by sufficient evidence, and the allegedly inconsistent verdicts on the specifications are irrelevant on this point. The finding of Mapes's specific intent to kill supports the murder conviction and brings the imposition of the death penalty within constitutional limits. Counsel could not be unconstitutionally ineffective for failing to raise these meritless arguments.

However, appellate counsel's failure to raise the trial errors surrounding the death sentence, most of which were objected to by trial counsel, is almost inexplicable. To summarize: (1) trial counsel apparently did no mitigation investigation, and presented no mitigation defense save an unsworn and uncorroborated statement by Mapes that he was not the New Jersey triggerman, even though corroborating evidence almost certainly existed; (2) over trial counsel's objection, the trial judge erroneously prohibited the sentencing jury from considering Mapes's only mitigating evidence, effectively requiring the jury to recommend death; (3) the trial judge erroneously required the jury to reject the death penaltyunanimously before considering a life sentence; and (4) over trial counsel's objection, the court accepted a death recommendation from the jury despite one juror's obvious hesitation.

The cases decided by this court on the issue of ineffective assistance of appellate counsel suggest the following considerations that ought to be taken into account in determining whether an attorney on direct appeal performed reasonably competently.

(1)Were the omitted issues "significant and obvious"?

(2)Was there arguably contrary authority on the omitted issues?

(3)Were the omitted issues clearly stronger than those presented?

(4)Were the omitted issues objected to at trial?

(5)Were the trial court's rulings subject to deference on appeal?

(6)Did appellate counsel testify in a collateral proceeding as to his appeal strategy and, if so, were the justifications reasonable?

(7)What was appellate counsel's level of experience and expertise?

(8)Did the petitioner and appellate counsel meet and go over possible issues?

(9)Is there evidence that counsel reviewed all the facts?

(10)Were the omitted issues dealt with in other assignments of error?

(11)Was the decision to omit an issue an unreasonable one which only an incompetent attorney would adopt?

See Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir.), cert. denied, 119 S. Ct. 383 (1998); Bethea v. Artuz, 126 F.3d 124, 126 (2d Cir. 1997), cert. denied, 118 S. Ct. 1092 (1998); Mason v. Hanks, 97 F.3d 887, 893-94 (7th Cir. 1996); Sistrunk v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996); Parker v. Bowersox, 94 F.3d 458, 462 (8th Cir. 1996), cert. denied, 117 S. Ct. 1439 (1997); McBride v. Sharpe, 25 F.3d962, 973 (11th Cir. 1994); and Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).

Manifestly, this list is not exhaustive, and neither must it produce a correct "score"; we offer these inquiries merely as matters to be considered.

Applying them to Mapes's case, it appears that most of the factors fall in Mapes's favor. First, the issues omitted were significant and probably obvious. Although some of the cases cited were published after the appellate brief was submitted, nevertheless, by 1984: (1) Ohio's death- penalty statute did not require unanimous rejection of a death sentence before a jury could consider a life sentence, and in fact implied the opposite; (2) the Supreme Court had indicated that all relevant mitigating evidence, including evidence relating to a defendant's prior criminal record, must be considered by a sentencing jury; (3) State v. Brown, State v. Fields, and Emmert v. State all indicated that a trial judge must inquire further of an equivocating polled juror or send the jury back for further deliberations; and (4) the Sixth Amendment required that a defendant receive reasonably effective counsel at all stages of the proceedings. These errors should have been obvious in 1984; moreover, there appears to be no authority that would have tempered counsel's enthusiasm for bringing them, satisfying the second criterion.

Third, these issues were clearly stronger than some of those presented. Appellate counsel brought 12 assignments of error, indicating that winnowing of issues was not a primary consideration. And all but one of these assignments pertained to the guilt phase, despite the overwhelming evidence of Mapes's guilt. In fact, the Ohio Court of Appeals expressly relied on the strength of the evidence in finding some errors harmless. Moreover, as the Ohio Court of Appeals' opinion demonstrates, several of the assignments were almost entirely meritless.

Fourth, the lack-of-unanimity and prohibition-of-mitigating-evidence issues were objected to at the sentencing phase. Concededly, it is unclear whether trial counselobjected to the court's erroneous instruction that the jury must unanimously reject the death penalty before considering a life sentence. But trial counsel's other objections should have prompted appellate counsel to investigate and raise those issues. Fifth, many of these omitted issues would have been subject to de novo review upon appeal. Thus, appellate counsel cannot have strategically reasoned that a court of appeals would defer to the trial court's rulings.

Sixth, appellate counsel has never been asked to defend his decisions, thus we can only guess what his reasons were for having failed to raise these issues. Similarly, we can only speculate whether he in fact read all the sentencing transcript. Seventh, the record does not reflect the level of appellate counsel's experience and expertise. Eighth, there is no evidence that Mapes and his appellate counsel met and discussed possible issues; nor is there evidence, ninth, that counsel knew all the relevant facts Although we have not been provided Mapes's direct-appeal briefs, we note that the court of appeals did not mention in its opinion any of the facts pertinent to the omitted issues. This indicates that appellate counsel may not have discussed these facts either. Tenth, the omitted issues were not dealt with in other assignments of error.

Finally, eleventh, there seems to be no reasonable justification for omitting these issues. We find entirely plausible Mapes's contention that his appellate counsel did not read the entire sentencing transcript, as the attorney appears to have addressed every other conceivable nonsentencing argument in his brief. Interestingly, the Eleventh Circuit has held it unreasonable as a matter of law to fail to review a sentencing transcript where trial counsel made colorable objections. See Joiner v. United States, 103 F.3d 961, 963 (11th Cir.), cert. denied, 117 S. Ct. 1857 (1997).

Importantly, Mapes has not forfeited his right to a hearing on this issue, because he properly raised it on post-conviction review and Ohio courts erroneously refused to consider it. As we have noted, the trial court declined to conduct post-conviction review because it believed it could not pass on the validity of the court of appeals' direct-review decision. If the trial court had found ineffective assistance of appellate counsel, it would have had to vacate the appellate judgment, a result which the court felt was beyond its authority. Inexplicably, the court of appeals rejected the ineffective assistance of appellate counsel argument because the trial court was correct in its opinion that it did not have the power to review the claim. It was thus that the erroneous circular reasoning was concluded. The Ohio Supreme Court did not discuss any of the merits upon post-conviction review. Consequently, Ohio's procedural ground for denying review of this claim is not "adequate" and cannot obviate the need for review of the constitutional merits. In light of the strong possibility that Mapes's Sixth Amendment rights in this regard were violated, he is entitled to have his ineffective-assistance-of-counsel argument heard in the federal district court.

Of course, even if counsel is found to have been ineffective, prejudice must still be shown. However, considering that all four errors concern the sentencing phase and that juror Chatman almost certainly did not favor a death recommendation, we think there is a "reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." See Strickland, 466 U.S. at 695.

Capital Cases

972084P.pdf Hunter v. Bowersox Eighth Circuit upholds murder conviction and death sentence affirmed. Guilty plea was valid. Claims of ineffective assistance of counsel and irregularities at sentencing rejected

Hunter next argues -- in conclusory, shotgun fashion -- that the trial court in many ways conducted an arbitrary, improper sentencing that violated Hunter’s due process, equal protection, and Eighth Amendment rights. The district court granted a COA on this issue as framed in paragraph 2.F of Hunter’s COA application. We limit our review accordingly.

Hunter argues the trial court gave inadequate consideration to the substantial mitigating evidence in the sentencing record. In a capital case, the sentencing court may not exclude mitigating evidence from consideration as a matter of law. See Eddings v. Oklahoma, 455 U.S. 104, 113-115 (1982). The transcript of Hunter’s sentencing hearing demonstrates that the trial court heard and expressly considered mitigating evidence. (The judge’s postconviction deposition testimony is not to the contrary.) The relative weight the trial court gave that evidence, compared to the overwhelming evidence of multiple aggravating factors, is not a proper subject of federal habeas review. In addition, some of the cumulative mitigating evidence on which Hunter now relies was not developed until the postconviction evidentiary hearing, so it obviously could not have been considered at sentencing. We likewise reject Hunter’s contention the trial court erred in its consideration of aggravating factors. “A state court’s finding of an aggravating circumstance in a particular case . . . is arbitrary or capricious if and only if no reasonable sentencer could have so concluded.” Lewis v. Jeffers, 497 U.S. 764, 783 (1990). Here, substantial evidence supported the finding of three aggravating factors -- that Hunter had prior murder and serious assaultive convictions, that he murdered the Hodgeses during a robbery, and that the murder of Richard Hodges was committed during the murder of Mildred Hodges. There was no improper “double-counting” of aggravating circumstances. Cf. Lowenfield v. Phelps, 484 U.S. 231, 246 (1988).

Hunter further argues the trial court improperly considered his PSR. Because there was no timely objection, the Missouri Supreme Court reviewed this contention for plain error and found none. See Hunter, 840 S.W.2d at 866. Assuming we should apply the same standard of review, rather than consider the issue procedurally barred, see Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.), cert. denied, 118 S. Ct. 189 (1997), we agree with the Missouri Supreme Court that consideration of the PSR did not amount to “manifest injustice.” See also State v. McMillin, 783 S.W.2d 82, 96 (Mo. banc), cert. denied, 498 U.S. 881 (1990). Hunter also suggests the trial court improperly shifted the burden of proof to Hunter at sentencing. He offers no factual support for this allegation, and it is without merit. Also without merit is his contention the trial court failed to issue valid written findings of statutory aggravating factors. In the Warrant of Execution, the trial court found three aggravating circumstances proved beyond a reasonable doubt, and found they “outweigh[ed] the existence of any mitigating factors.” This complied with the requirements of Mo. Rev. Stat. § 565.030.4. See Hunter, 840 S.W.2d at 868.

V. Ineffective Assistance of Counsel

Hunter next argues in the most conclusory fashion that he was provided constitutionally ineffective assistance of counsel at every stage of the pretrial, plea, and sentencing proceedings. All claims of ineffective assistance up through the entry of Hunter’s guilty plea are without merit because he voluntarily discharged counsel and pleaded guilty despite counsel’s contrary advice. See United States v. Schmidt, 105 F.3d 82, 89-90 (2d Cir.), cert. denied, 118 S. Ct. 130 (1997); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992). Given Hunter’s long-standing resolve to plead guilty, his contention that counsel could have done anything to dissuade Hunter from this course of action is sheer speculation. And the trial and postconviction record clearly refute the contention that Hunter was prejudiced by counsel’s failure to pursue an adequate mental health defense.

Hunter was again represented by counsel at sentencing, and he argues counsel was ineffective in numerous respects at that proceeding. Counsel’s alleged failure to object to improper sentencing procedures was not prejudicial because, as we have explained, the sentencing procedures were not improper. See Carter v. Hopkins, 92 F.3d 666, 671 (1996), cert. denied, 117 S. Ct. 1113 (1997). Defense counsel called many witnesses at sentencing and then vigorously argued the mitigating circumstances which these witnesses sought to address. The trial court was not persuaded, but that does not mean counsel’s assistance was ineffective. Indeed, before pronouncing sentence, the trial court told defense counsel, “You have done the best you can with what you have. . . . You don’t have much with Mr. Hunter.” Mindful of the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland v. Washington, 466 U.S. 668, 689 (1984), we conclude the district court and the state courts properly rejected Hunter’s claims of ineffective assistance of counsel.

VI. Denial of an Evidentiary Hearing

Hunter argues the district court erred in denying him an evidentiary habeas hearing “because Petitioner alleged facts which if proven would entitle him to relief.” When the state courts have held multiple evidentiary hearings, as in this case, that is not the proper standard. See, e.g., Thatsaphone v. Weber, 137 F.3d 1041, 1045-46 (8th Cir.), cert. denied, 118 S. Ct. 1822 (1998); Clemmons v. Delo, 124 F.3d 944, 952 (8th Cir. 1997), cert. denied, 118 S. Ct. 1548 (1998). Hunter was given full hearings in the state courts. The trial court, the Rule 24.035 motion court, and the Missouri Supreme Court all made specific findings on each of the three claims on which he now seeks habeas relief. To the extent Hunter seeks to introduce facts not submitted 4 For example, the addendum to Hunter’s brief includes a lengthy affidavit from psychologist Robert L. Smith purporting to show that Hunter’s prior mental health evaluations were all inadequate. The affidavit is dated November 10, 1997, long after these appeals commenced. It was attached to a Rule 60(b) motion submitted to the district court in March 1998. We are not advised whether the district court has ruled on that motion. The affidavit is not properly part of the record on appeal. to the state courts,4 he must overcome his prior procedural default by showing cause and prejudice, which he has not even attempted to do. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 11 (1992); McCann v. Armontrout, 973 F.2d 655, 658 (8th Cir. 1992), cert. denied, 507 U.S. 942 (1993). To the extent Hunter simply wishes to rehash evidence previously submitted to the state courts, he has not established any of the grounds set forth in § 2254(d)(1)-(8) for overcoming the presumption of correctness to which the state court findings are otherwise entitled. See Thompson v. Keohane, 516 U.S. 99, 107-09 (1995). Though we recognized in Clemmons that the federal habeas court retains discretion to hold an evidentiary hearing even when one is not required, we conclude the district court did not abuse its discretion in denying a hearing in this case.

Supreme Court

Cert Grant: Fiore v. White, Prison warden (No 98-0942) Appealed From: 3rd Circuit Court of Appeals (149 F.3d 221)

Question(s) presented: (1) Did the state flout the due process clause of the 14th Amendment and evade federal habeas corpus relief for an incontestably innocent prisoner by claiming that the appellate decision constituted "new law," when in fact the state did not and could not prove a key element of the crime at trial? (2) Should federal habeas relief be extended to protect federal constitutional rights when a state refuses to retroactively apply a case that based its decision on the already existing clear language of the statute?

Non-Capital Habeas Cases

Matteo v. Superintendent SCI Albion Third Circuit (en banc) in a solid review of the current state of AEDPA law adopts the First Circuit's reasoning for the adjudication of AEDPA claims.

Smith v. Singletary Eleventh Circuit holds that petitioner's counsel in this rape conviction did not render ineffective assistance of counsel for advising him that his out-of-state conviction could not be used to enhance his sentence.

981499P.pdf Sysouvong v. Meschner Eighth Circuit holds record supported decision that prisoner's confession was voluntary and properly admitted in his state court trial.

Fisher v. Texas Fifth Circuit denies relief on claims that the prosecutorial strikes violated equal protection when it struck venirepersons based on their religious faith.

982462P.pdf United States v. Joseph Navin Eighth Circuit holds habeas petition filed before the enactment of the Anti-Terrorism and Effective Death Penalty Act was not subject to the Act's requirement of a certificate of appealability, and prisoner could brief issues not included in the certificate issued by the District Court.

Prisoner's Rights and Governmental Misconduct Cases

Chicerol v. Phillips Fifth Circuit upholds summary judgment on a petitioner's claim of the denial of the mailing of certain religious materials and denial of disbursment of certain inmate account money for legal purposes.

Meehan v. Edwards Second Circuit orders complaint dismissed on federal law claims on qualified immunity grounds.

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