This week's decisions bring a myriad of Supreme Court decisions, the most notable here is Stewart v. LaGrand dealing with the issue procedural default and waiver. In two other non-capital decisions the Supreme Court examines the federal car jacking statute, with clear capital overtones (Holloway v. U.S. ) and a second case concerning the right of a defendant to be informed of the right to appeal (Peguero v. U.S.).

In the Courts of Appeals, the Fifth Circuit in Muhleisen v. Ieyoub, a capital case, holds that the petition was not time barred, but that the AEDPA's new standards of adjudication require denial of relief on the defining of the term of "reasonable doubt." In Nevers v. Killinger the Sixth Circuit brings it's own spin to the AEDPA in the first in depth decision on the issue by the circuit, the spin it brings is quite unique.

In Focus this week examines some recent articles on the death penalty.

In Depth

Stewart v. LaGrand Supreme Court holds that execution by lethal gas in this case is not unconstitutional, (all the LaGrand decisions are not yet available):

Walter LaGrand, by his actions, has waived his claim that execution by lethal gas is unconstitutional. At the time Walter LaGrand was sentenced to death, lethal gas was the only method of execution available in Arizona, but the State now provides inmates a choice of execution by lethal gas or lethal injection, see Ariz. Rev. Stat. §13-704(B) (creating a default rule of execution by lethal injection). Walter LaGrand was afforded this choice and decided to be executed by lethal gas. On March 1, 1999, Governor Hull of Arizona offered Walter LaGrand an opportunity to rescind this decision and select lethal injection as his method of execution. Walter LaGrand, again, insisted that he desired to be executed by lethal gas. By declaring his method of execution, picking lethal gas over the state’s default form of execution–lethal injection–Walter LaGrand has waived any objection he might have to it. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938). To hold otherwise, and to hold that Eighth Amendment protections cannot be waived in the capital context, would create and apply a new procedural rule in violation of Teague v. Lane, 489 U.S. 288 (1989).

In addition, Walter LaGrand’s claims are procedurally defaulted, and he has failed to show cause to overcome this bar. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). At the time of Walter LaGrand’s direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that Walter LaGrand cannot show cause for his failure to raise this claim. Arguments concerning the constitutionality of lethal gas have existed since its introduction as a method of execution in Nevada in 1921. See H. Bedau, The Death Penalty in America 16 (1982). In the period immediately prior to Walter LaGrand’s direct appeal, a number of states were reconsidering the use of execution by lethal gas, see Gray v. Lucas, 710 F.2d 1048, 1059-61 (CA5 1983) (discussing evidence presented by the defendant and changes in Nevada’s and North Carolina’s methods of execution), and two United States Supreme Court Justices had expressed their views that this method of execution was unconstitutional, see Gray v. Lucas, 463 U. S 1237, 1240-44 (1983) (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari). In addition, lethal gas executions have been documented since 1937, when San Quentin introduced it as an execution method, and studies of the effect of execution by lethal gas date back to the 1950s. See Bedau, supra, at 16.

Walter LaGrand’s alternative argument, that his ineffective assistance of counsel claim suffices as cause, also fails. Walter LaGrand specifically waived the claim that his trial counsel was ineffective, representing to the District Court prior to filing his first federal habeas petition that there was no basis for such claims. See LaGrand v. Lewis, supra, at 456 n. 3; LaGrand v. Stewart, supra, at 1269. In addition, the ineffective assistance claim is, itself, procedurally defaulted. The Arizona court held that Walter LaGrand’s ineffective assistance arguments were barred pursuant to a state procedural rule, see State v. LaGrand, No. CR-07426, Minute Entry (Pima County Super. Ct. March 2, 1999), and Walter LaGrand has failed to demonstrate cause or prejudice for his failure to raise these claims on direct review.

Capital Cases

Muhleisen v. Ieyoub Fifth Circuit in this capital case holds that the petition was not time barred, but that the AEDPA's new standards of adjudication require denial of relief on the defining of the term of "reasonable doubt."

Louisiana argues that under the terms of the Antiterrorism and Effective Death Penalty Act of 1996, petitioner is time barred from raising his habeas corpus claim. After the government filed its brief in this case, we decided United States v. Flores, 135 F.3d 1000 (5th Cir. 1998). In Flores, we addressed the z`application of the one-year limitations period for motions brought under 28 U.S.C. § 2255, a provision analogous to § 2254 under which this state habeas corpus claim is brought. See Flores, 135 F.3d at 1002-06. We held that prisoners whose convictions had become final before the April 24, 1996, effective date of the AEDPA "must be accorded a reasonable time after the . . . effective date within which to file petitions for collateral relief." Id. at 1004-05 (footnote omitted). We determined that "one year, commencing on April 24, 1996, presumptively constitutes a reasonable time for those prisoners whose convictions had become final prior to the enactment of the AEDPA to file for relief." Id. at 1006 (footnote omitted).

We apply this rule to Muhleisen's habeas petition brought under § 2254. See id. at 1002 n.7. Muhleisen's conviction became final before the April 24, 1996, effective date of the AEDPA. Under Flores, Muhleisen had until late April 1997 to file for relief. His petition was filed January 29, 1997, and is thus not barred.

* * *

There are three phrases in this instruction, each emphasized above, which are problematic from a Due Process perspective. The most important is what in prior decisions we have described as an "articulation requirement," i.e. the description that a reasonable doubt is one for which you could give good reason. See Humphrey v. Cain, 120 F.3d 526, 531 (5th Cir. 1997), reasoning adopted in Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998)(en banc), cert. denied, No. 98-55, 1998 WL 396303 (Oct. 13, 1998). The others troublesome phrases are the descriptions "grave uncertainty" and "actual or substantial doubt." See Cage v. Louisiana, 498 U.S. 39, 40 (1990).

Muhleisen filed his petition for a writ of habeas coprus after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). That statute alters the standards and scope of our review in habeas corpus petitions filed after AEDPA's effective date. See Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) (applying AEDPA standards to a habeas petition filed after AEDPA's effective date of April 24, 1996). Applying these statutory amendments to 28 U.S.C. § 2254(d)(1) , we can grant a writ of habeas corpus only if the state court's determination of law, on a de novo review, violated Supreme Court precedent in existence at the time of the petitioner's conviction. See Drinkard v. Johnson, 97 F.3d 751, 768 (5th Cir. 1996), overruled on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997).

We cannot say that this has occurred. The Supreme Court handed down Cage v. Louisiana, 498 U.S. 39 (1990), upon which petitioner relies, a little over thirteen years after petitioner's conviction became final.(1) That was the first, and so far the only, time the Supreme Court has held a definition of reasonable doubt to have violated the Due Process Clause. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). We are therefore bound by AEDPA to deny Muhleisen's petition for a writ of habeas corpus.

Supreme Court non-capital cases

Holloway v. U.S. Supreme Court holds the federal anti-carjacking law, 18 U.S.C. 2119, applies to crimes committed with a showing of "conditional intent."

We believe, however, that a commonsense reading of the carjacking statute counsels that Congress intended to criminalize a broader scope of conduct than attempts to assault or kill in the course of automobile robberies. As we have repeatedly stated, " `the meaning of statutory language, plain or not, depends on context.' " Brown v. Gardner, 513 U. S. 115, 118 (1994) (quoting King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991)). When petitioner's argument is considered in the context of the statute, it becomes apparent that his proffered construction of the intent element overlooks the significance of the placement of that element in the statute. The carjacking statute essentially is aimed at providing a federal penalty for a particular type of robbery. The statute's mens rea component thus modifies the act of "tak[ing]" the motor vehicle. It directs the factfinder's attention to the defendant's state of mind at the precise moment he demanded or took control over the car "by force and violence or by intimidation." If the defendant has the proscribed state of mind at that moment, the statute's scienter element is satisfied. . . .

Accordingly, if Congress had used words such as "if necessary" to describe the conditional species of intent, it would also have needed to add something like "or even if not necessary" in order to cover both species of intent to harm. Given the fact that the actual text does not mention either species separately--and thus does not expressly exclude either--that text is most naturally read to encompass the mens rea of both conditional and unconditional intent, and not to limit the statute's reach to crimes involving the additional actus reus of an attempt to kill or harm.

Two considerations strongly support the conclusion that a natural reading of the text is fully consistent with a congressional decision to cover both species of intent. First, the statute as a whole reflects an intent to authorize federal prosecutions as a significant deterrent to a type of criminal activity that was a matter of national concern.7 Because that purpose is better served by construing the statute to cover both the conditional and the unconditional species of wrongful intent, the entire statute is consistent with a normal interpretation of the specific language that Congress chose. See John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86, 94-95 (1993) (statutory language should be interpreted consonant with "the provisions of the whole law, and ... its object and policy" (internal quotation marks omitted)). Indeed, petitioner's interpretation would exclude from the coverage of the statute most of the conduct that Congress obviously intended to prohibit.

Second, it is reasonable to presume that Congress was familiar with the cases and the scholarly writing that have recognized that the "specific intent" to commit a wrongful act may be conditional. See Cannon v. University of Chicago, 441 U. S. 677, 696-698 (1979). The facts of the leading case on the point are strikingly similar to the facts of this case. In People v. Connors, 253 Ill. 266, 97 N. E. 643 (1912), the Illinois Supreme Court affirmed the conviction of a union organizer who had pointed a gun at a worker and threatened to kill him forthwith if he did not take off his overalls and quit work. The Court held that the jury had been properly instructed that the "specific intent to kill" could be found even though that intent was "coupled with a condition" that the defendant would not fire if the victim complied with his demand.8 That holding has been repeatedly cited with approval by other courts 9 and by scholars.10 Moreover, it reflects the views endorsed by the authors of the Model Criminal Code.11 The core principle that emerges from these sources is that a defendant may not negate a proscribed intent by requiring the victim to comply with a condition the defendant has no right to impose; "[a]n intent to kill, in the alternative, is nevertheless an intent to kill."

Peguero v. U.S.Supreme Court holds that "[a] district court's failure to advise the defendant of his right to appeal does not entitle him to ... relief if he knew of his right and hence suffered no prejudice from the omission," While stating that trial judges "must be meticulous and precise in following the requirements of Rule 32 in every case," every violation "does not entitle a defendant to collateral relief in all circumstances."

Cert grants

Smith v. Robbins (No. 98-1037) Court below: 152 F.3d 1062 (9th Cir 09/23/97) non-capital habeas case from California to address the following questions:

(1) Did Ninth Circuit err in finding that California's no-merit brief procedure, in which appellate counsel who has found no non-frivolous issues remains available to brief any issues appellate court might identify, violates Sixth Amendment Anders right to effective assistance of counsel on appeal?

(2) Did Ninth Circuit err when it ruled that asserted Anders violation required new appeal, without testing claimed Sixth Amendment error under Strickland v. Washington?

(3) Did Ninth Circuit violate rule announced in Teague v. Lane, which prohibits retroactive application of new rule on collateral review, when it invalidated California's well-settled, good-faith interpretation of federal law?

The court below held: (1) appointed state appellate counsel failed to comply with Anders by filing a no-merit brief; (2) granting habeas relief on Anders claim did not violate proscription against applying new constitutional rules retroactively because no "new" constitutional law was invoked; and (3) district court should have ruled on issues before reaching Anders claim, but in the interest of judicial economy the questions regarding the appellate claims will stand.

Habeas Cases

Nevers v. Killinger Sixth Circuit brings it's own spin to the AEDPA and grants relief on the claim that the jury suffered from extraneous influences in its decision making. A portion of this key AEDPA decision follows:

The issues in the case before us today involve whether pretrial publicity necessitated a change of venue in order for the defendants to receive a fair trial, and whether the errors surrounding the extraneous influences on the jury were harmless. The former issue, like the issue in Harpster, is a heavily fact-intensive mixed question of law and fact for which there is no clear "rule" enunciated by the Supreme Court requiring a certain result. Therefore, on the question of pretrial publicity, "under either [the Fifth and Seventh Circuits' or the First Circuit's] approach we must decide whether the state court [decision] . . . `involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court.'" Id. at 327 (quoting 28 U.S.C. § 2254(d)(1)). The extraneous jury influence issue also may be viewed as a "mixed question" case which, under the Fifth and Seventh Circuits' approaches, necessitates review under the "unreasonable application" clause.9 Under the First Circuit's test, the extraneous jury influences issue boils down to a question of "harmless error," an issue on which the Supreme Court has adopted a specific rule, namely the Chapman rule, see generally Chapman v. California, 386U.S. 18 (1967), which governs all state court harmless error review of "trial" errors involving federal constitutional rights. See Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). However, because "harmless error" cases inevitably are extremely fact- intensive and case-specific, we cannot say that the Supreme Court's Chapman rule is one which "can fairly be said to require a particular result in a particular case," O'Brien, 145 F.3d at 25, and thus this issue under O'Brien would also be governed by the "unreasonable application" clause of § 2254(d)(1).

Likewise, neither Neelley nor Green counsels consideration of the issues in this case under anything other than the "unreasonable application" clause in § 2254(d)(1). This case involves neither an instance in which "a state court [has] face[d] a set of facts that is essentially the same as those the Supreme Court has faced earlier," but reaches a different result, or in which a state court has failed to apply the correct legal principles, as enunciated by the Supreme Court, to decide a case, the circumstances of which necessitate application of the "contrary to" clause under Neelley. Neelley, 138 F.3d at 923. Similarly, this case does not involve "a decision of pure law or the application of law to facts indistinguishable in any material way from those on the basis of which the precedent was decided . . . . " See Green, 143 F.3d at 870. Accordingly, as in Harpster, we need not decide today which specific approach we find most persuasive, as they all point to the "unreasonable application" clause in § 2254(d)(1).

The lack of agreement among the circuits is even sharper with regard to the meaning and application of the term "unreasonable application." While all the cases appear to agree that "the `unreasonable application' clause does not empower a habeas court to grant the writ merely because it disagrees with the state court's decision, or because, left to its own devices, it would have reached a different result," O'Brien, 145 F.3d at 25,10 they do not agree on what the district court must find in order to issue the writ due to an "unreasonable application of[] clearly established Federal law," § 2254(d)(1). The disagreement is not about whether the AEDPA requires a high degree of deference to the state court's judgment; rather, it is about how to gauge the degree of deference necessary. The Fifth Circuit holds that an application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court decision is incorrect. In other words, [the court will] . . . grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.

Drinkard, 97 F.3d at 769. The Fourth and Eleventh Circuits have expressly adopted this test as their own. See Green, 143 F.3d at 870, 873; Neelley, 138 F.3d at 924. However, the First Circuit has specifically declined to adopt the Drinkard test and instead has stated that "for the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien, 145 F.3d at 25 & n.7. The Seventh Circuit has articulated divergent standards. See Lindh v. Murphy, 96 F.3d at 871 (stating that a state court's "`reasonable' decision . . .must be honored," but failing to articulate what that might be other than to say that a federal court must "take into account the care with which the state court considered the subject"); Hennon, 109 F.3d at 335 (specifically rejecting the "care-with- which-the-state-court-considered-the- subject" language in Lindh and stating instead that the question of "unreasonable application" turns on "whether the determination is at least minimally consistent with the facts and circumstances of the case"); Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir.) ("The statutory `unreasonableness' standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes."), cert. denied, 118 S. Ct. 264 (1997).

Since we heard oral argument in this case this Court, in Herbert v. Billy, --- F.3d -- -, 1998 WL 801319 (6th Cir. Nov. 20, 1998), has stated its agreement with the "reasonable jurist" approach taken by the Fifth Circuit in Drinkard, 97 F.3d at 769. Today we state as well our agreement with the standard enunciated by the First Circuit, namely, that "for the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien, 145 F.3d at 25; accord Hall, 106 F.3d at 748-49 ("The statutory `unreasonableness' standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes."). We recognize that the First Circuit specifically rejected Drinkard's "reasonable jurist" test when articulating its own standard, O'Brien, 145 F.3d at 25 n.7. We think, however, that the two are not mutually exclusive; rather, both standards can be employed to aid in arriving at the correct answer to the question of "unreasonableness." The deference to the state courts' judgments required by the AEDPA is achieved by adopting the rule that the unreasonableness of a state court's application of clearly established Supreme Court precedent will not be "debatable among reasonable jurists," Drinkard, 97 F.3d at 769, if it is "so offensive to existing precedent, so devoid of record support, or so arbitrary, as toindicate that it is outside the universe of plausible, credible outcomes," O'Brien, 145 F.3d at 25.

Ramos v. Rogers Sixth Circuit denies relief on plea agreement as any error in the deal was cured by the plea colloquy.

Schledwitz v. USA Sixth Circuit grants relief on a § 2255 motion for prosecutorial suppression of evidence.

Lucas v. O'Dea Sixth Circuit, excusing procedural default, holds that grand jury's indictment and jury charge was of too great a variance as to not warrant habeas relief.

Prisoner's Rights/Governmental Misconduct Cases

Breen v. Garrison Second Circuit holds that a non-lawyers use of the phrase to the effect they would bury a prosecuting officer on a traffic ticket on appeal did not constitute probable cause for arrest.

Moore v. Carwell Fifth Circuit remands on the question of body cavity searches by female guards on male prisoners where male guards are available and present.

Paige v. USA Eighth Circuit holds that when prisoner chose to have someone in another prison prepare and mail his federal habeas petition, he took the risk that it might be late, and Houston v. Lack would not be applied to save it.

Greig v. Goord Second Circuit holds that PLRA's exhaustion requirements do not apply to those who sue for prison conditions after they are released.

In Depth

Below is a listing of some recent death penalty law review articles from various sources.

ST. MARY'S LAW JOURNAL VOLUME 30, NUMBER 2, 1999

DEAD MAN TALKING: COMPETING NARRATIVES AND EFFECTIVE REPRESENTATION IN CAPITAL CASES, Jeffrey J. Pokorak, p. 421

CORNELL LAW REVIEW VOLUME 83, NUMBER 6, SEPTEMBER 1998

SYMPOSIUM HOW THE DEATH PENALTY WORKS: EMPIRICAL STUDIES OF THE MODERN CAPITAL SENTENCING SYSTEM

HOW EMPIRICAL STUDIES CAN AFFECT POSITIVELY THE POLITICS OF THE DEATH PENALTY, Ronald J. Tabak, p. 1431

UPDATE: AMERICAN PUBLIC OPINION ON THE DEATH PENALTY--IT'S GETTING PERSONAL, Samuel R. Gross, p. 1448

FORECLOSED IMPARTIALITY IN CAPITAL SENTENCING: JURORS' PREDISPOSITIONS, GUILT-TRIAL EXPERIENCE, AND PREMATURE DECISION MAKING, William J. Bowers, Marla Sandys & Benjamin D. Steiner, p. 1476

THE CAPITAL JURY AND ABSOLUTION: THE INTERSECTION OF TRIAL STRATEGY, REMORSE, AND THE DEATH PENALTY, Scott E. Sundby, p. 1557

BUT WAS HE SORRY? THE ROLE OF REMORSE IN CAPITAL SENTENCING, Theodore Eisenberg, Stephen P. Garvey & Martin T. Wells, p. 1599

RACIAL DISCRIMINATION AND THE DEATH PENALTY IN THE POST-FURMAN ERA: AN EMPIRICAL AND LEGAL OVERVIEW, WITH RECENT FINDINGS FROM PHILADELPHIA, David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Barbara Broffitt, p. 1638

POST-McCLESKEY RACIAL DISCRIMINATION CLAIMS IN CAPITAL CASES, John H. Blume, Theodore Eisenberg & Sheri Lynn Johnson, p. 1771

PROBING THE CAPITAL PROSECUTOR'S PERSPECTIVE: RACE OF THE DISCRETIONARY ACTORS, Jeffrey J. Pokorak, p. 1811

TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW, Volume 8 Fall 1998 Number 1

NOTES:O'Dell v. Netherland: Unconstitutional Death Sentence Affirmed on a Technicality, p. 169

WHITTIER LAW REVIEW Volume 20 Winter 1998 Number 2

THE DEFINITIVE INHUMANITY OF CAPITAL PUNISHMENT, John P. Rutledge, p. 283

WASHINGTON AND LEE LAW REVIEW Volume 55 Fall 1998 Number 4

DEATH IS DIFFERENT, EVEN ON THE BAYOU: The Disproportionality of Crime and Punishment in Louisiana's Capital Child Rape Statute, J. Chandler Bailey, p. 1335

Errata

The correct address and phone number for The Legal Aid Society Capital Defense Unit is: 90 Church Street, New York, N. Y. 10007; 800-634-9805.

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