This week edition looks at the Supreme Court's decisions of last week, as well as a brief overview of cases where the issue of competency to be executed is at stake, in the "In Depth" section.

This Week's Focus

Stewart v. Martinez-Villareal Supreme Court examines the issue of whether mental competence for execution under Ford v. Wainwright can be adjudicated where the issue was previously raised in an earlier § 2254 petition. Explicitly holding open whether raising "a Ford claim for the first time in a petition filed after the federal courts have already rejected the prisoner's initial habeas application . . .. [is ]a "second or successive habeas corpus application" within the meaning of AEDPA.," the Supreme Court concludes the issue was not ripe in the first petition, and hence the petition was not successive.

If the Court of Appeals in this case had granted respondent leave to file a second or successive application, then we would be without jurisdiction to consider . . . . The State contends that because respondent has already had one "fully litigated habeas petition, the plain meaning of §2244(b) as amended requires his new petition to be treated as successive." . . . This may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to §2244(b). There was only one application for habeas relief, and the District Court ruled (or should have ruled) on each claim at the time it became ripe. Respondent was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief. The Court of Appeals was therefore correct in holding that respondent was not required to get authorization to file a "second or successive" application before his Ford claim could be heard.

If the State's interpretation of "second or successive" were correct, the implications for habeas practice would be far-reaching and seemingly perverse. In Picard v. Connor , 404 U.S. 270, 275 (1971), we said:

It has been settled since Ex Parte Royall , 117 U.S. 241 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus . . . . The exhaustion-of-state-remedies doctrine, now codified in the federal habeas statute, 28 U. S. C. §§2254(b) and (c), reflects a policy of federal-state comity. . . . It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied. Later, in Rose v. Lundy , 455 U.S. 509, 522 (1982), we went further and held that "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims."

But none of our cases expounding this doctrine have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition

. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition. We believe that respondent's Ford claim here - previously dismissed as premature - should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies. True, the cases are not identical; respondent's Ford claim was dismissed as premature, not because he had not exhausted state remedies, but because his execution was not imminent and therefore his competency to be executed could not be determined at that time. But in both situations, the habeas petitioner does not receive an adjudication of his claim. To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review. See, e.g. , United States ex rel. Barnes v . Gilmore , 968 F. Supp. 384, 385 (ND Ill. 1997) ("If Barnes continues in his nonpayment of the required $5 filing fee . . . this Court will be constrained to dismiss his petition"); Marsh v . United States District Court for the Northern District of CalNorther , 1995 WL 23942 (ND Cal., Jan. 9, 1995) ("Because petitioner has since not paid the filing fee nor submitted a signed affidavit of poverty, the petition for writ of habeas corpus is dismissed without prejudice"); Taylor v . Mendoza , 1994 WL 698493 (ND Ill., Dec. 12, 1994).

The State places great reliance on our decision in Felker v. Turpin , 518 U.S. 651 (1996), but we think that reliance is misplaced. In Felker we stated that the "new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what used to be called in habeas corpus practice 'abuse of the writ.' " 518 U. S., at 664. It is certain that respondent's Ford claim would not be barred under any form of res judicata. Respondent brought his claim in a timely fashion, and it has not been ripe for resolution until now. Thus, respondent's Ford claim was not a "second or successive" petition under §2244(b) and we have jurisdiction to review the judgment of the Court of Appeals on the State's petition for certiorari

But for the same reasons that we find we have jurisdiction, we hold that the Court of Appeals was correct in deciding that respondent was entitled to a hearing on the merits of his Ford claim in the District Court.

Bousley v. US Supreme Court holds with no dissents "Although petitioner's claim was procedurally defaulted, he may be entitled to a hearing on its merits if he makes the necessary showing to relieve the default. Pp. 3-10. (a) Only a voluntary and intelligent guilty plea is constitutionally valid. Brady v. United States, 397 U.S. 742, 748. A plea is not intelligent unless a defendant first receives real notice of the nature of the charge against him. Smith v. O'Grady, 312 U.S. 329, 334. Petitioner's plea would be, contrary to the Eighth Circuit's view, constitutionally invalid if he proved that the District Court misinformed him as to the elements of a §924(c)(1) offense. Brady v. United States, supra , McMann v. Richardson, 397 U.S. 759, and Parker v. North Carolina, 397 U.S. 790, distinguished. The rule of Teague v. Lane, 489 U.S. 288 that new constitutional rules of criminal procedure are generally not applicable to cases that became final before the new rules were announced-does not bar petitioner's claim. There is nothing new about the principle that a plea must be knowing and intelligent; and because Teague by its terms applies only to procedural rules, it is inapplicable to situations where this Court decides the meaning of a criminal statute enacted by Congress. Nonetheless, there are significant procedural hurdles to consideration of the merits of petitioner's claim, which can be attacked on collateral review only if it was first challenged on direct review. Since petitioner appealed his sentence, but not his plea, he has procedurally defaulted the claim he presses here. To pursue the defaulted claim in habeas, he must first demonstrate either "cause and actual prejudice," e.g., Murray v. Carrier, 477 U.S. 478, 489, or that he is "actually innocent," id., at 496."

Capital Cases Reviewed

Williams v. French Fourth Circuit, in a deep analysis of procedural default (including exceptions) holds most claims procedurally defaulted: [1] conflict of interest, [2] discrimination in the grand jury (not novel under case law as existed at time of appeal), [3] challenge under McKoy concerning mitigation phase denied, [4] challenge to failure investigate mitigation phase witnesses denied, [5] failure to submit statutory mitigators, & [6] "evidence in this case satisfied the Enmund standard because Williams was a major participant in the murder itself, and his actions showed a reckless indifference to Joines' life. "

Each of the claims raised by Williams in this appeal, save two, was found in state court to be procedurally defaulted. As to each claim held to be procedurally defaulted, the state court concluded that Williams was in a position to raise the claim on direct appeal, but did not, and, therefore, the claim was procedurally defaulted under North Carolina General Statutes § 15A-1419(a)(3), which provides that a claim is not cognizable on state habeas if the defendant was in a position to raise the claim in a previous appeal. The state court's application of a procedural default rule brings into play the federal rules of procedural default. Findings of the state court supporting its decision to apply the state procedural default rule are entitled to a presumption of correctness in determining whether cause exists to excuse a procedural default. See 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 547 (1981); Stockton v. Murray, 41 F.3d 920, 924 (4th Cir. 1994). Objective factors that constitute cause include "interference by officials' that makes compliance with the State's procedural rule impracticable, and `a showing that the factual or legal basis for a claim was not reasonably available to counsel.'" McClesky v. Zant, 499 U.S. 467, 493-94 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)); see also Smith v. Murray, 477 U.S. 527, 537 (1986) ("[T]he question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was 'available' at all."); Clanton v. Muncy, 845 F.2d 1238, 1241 (4th Cir. 1988). Additionally, the novelty of a claim has been held to constitute cause. See Reed v. Ross, 468 U.S. 1, 12-16 (1984); see also Dugger v. Adams, 489 U.S. 401, 407 (1989)(cause may be established upon demonstration that a constitutional claim is "so novel that its legal basis is not reasonably available to counsel"). Finally, a petitioner may establish "cause" by showing he received constitutionally ineffective assistance of counsel. See Coleman , 501 U.S. at 753; Murray, 477 U.S. at 488. If attorney error amounts to constitutionally ineffective assistance of counsel under the standard established in Strickland v. Washington, 466 U.S. 668 (1984), the Sixth Amendment dictates that the attorney's error must be imputed to the state. See Coleman, 501 U.S. at 754. Williams is constitutionally entitled to the effective assistance of counsel on direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Accordingly, he may establish cause to excuse his procedural default by showing appellate attorney error that satisfies the standard set forth in Strickland. See Coleman, 501 U.S. at 752. Under Strickland, a defendant is deprived of the assistance of counsel guaranteed by the Constitution when counsel's performance falls "below an objective standard of reasonableness" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. To establish "actual prejudice," the petitioner "must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir.), cert. denied, 118 S. Ct. 595 (1997).

Oats v. Singletary Eleventh Circuit denies relief in this capital case "The primary focus of Oats' ineffective assistance of counsel claims is his assertion that, at all material times in this case, he was mentally retarded with organic brain damage, complicated by both physical and psychological abuse as a child and by his own abuse of alcohol and other substances. Oats claims that his attorneys failed to adequately and fully present evidence of his mental deficiencies at numerous proceedings in the state trial court. The record reveals that, during the pendency of the case in state court, a minimum of eight different mental health experts testified and/or issued reports concerning Oats' mental capacity."Other issues include [1] Competency at penalty phase rehearing; [2] Whether Oats was entitled to a new advisory jury at resentencing; [3] Oats' capacity to validly waive his Miranda rights; [4] Competency to stand trial.

Franklin v. Francis Sixth circuit holds in a next-of-kin competency to waive execution case, "pursuant to 28 U.S.C. § 2254(d), because the Ohio Supreme Court decision was not contrary to or did not involve an unreasonable application of clearly established federal law, we are bound by the determination of the Ohio Supreme Court that Berry was competent. Because he is competent, the petitioners herein do not have standing to pursue a writ of habeas corpus on Berry's behalf. Thus, the district court did not have jurisdiction to entertain the petition and the stay should not have been granted. "

Habeas -- General

Aragon v. Shanks Tenth Circuit holds "Aragon filed the instant 28 U.S.C. § 2254 habeas corpus petition in December 1993, challenging the constitutionality of New Mexico's application of certain meritorious and industrial good time credits . . . [district court held did [ not violate the Ex Post Facto Clause and that New Mexico had applied the good time credits in a manner consistent with the relevant state statutes. . . . Because Aragon has completed his term of incarceration and because he has failed to identify, and this court has been unable to find, any support for his assertion that a favorable ruling on the merits would affect the length of his separate and distinct probationary period, this appeal is moot."

Biami v. US Seventh Circuit holds that in a § 2255 proceeding where petitioner claims that the record is unclear whether the drug is crack on cocaine, the district may hold an evidentiary hearing, that it is not stuck with the then developed record.

Ineffective Assistance of Counsel

Crandell v. Bunnell Crandell was sentenced to death. The California Supreme Court affirmed the judgment of guilt and reversed the death sentence. In 1990, Crandell filed a petition for writ of habeas corpus in federal district court alleging that he did not voluntarily waive his right to counsel and elect to proceed pro se at trial. The district court dismissed the petition. We reversed, holding that "Crandell could not have been forced to choose between incompetent counsel and no counsel at all" and remanded to the district court for an evidentiary hearing. Crandell, 25 F.3d at 755. On remand, the district court found that Gordon's representation "fell below an objective standard of reasonable ness under prevailing professional norms for capital cases." Crandell favored a "self-defense/mutual combat" defense. This theory did not comport with the evidence that Edward Pruett had been shot through a pillow at close range. This theory also did not explain the attempted rape of Marie Pruett. Given the evidence, Gordon decided that Crandell should seek a plea bargain and forgo the self-defense theory. That approach to the case may have been sound. Gordon's incompetency, however, lay in his failure to seek formal discovery, to investigate the crime, to interview witnesses and to develop a working relationship with Crandell. We previously stated "that the two-month delay is unusual enough within our experience to raise doubts about the lawyer's competence." Crandell, 25 F.3d at 755. The court's fears were realized in the evidentiary hearing, and Crandell's claims were substantiated. At the point when Crandell requested alternative coun sel, Gordon's representation, viewed in its totality, was incompetent and the state trial court should have appointed substitute counsel. Even if Gordon was justified in his belief that a plea bargain was the only alternative, his bargaining position could only have been enhanced by investigation of guilt and penalty evidence. Gordon was also deficient in his failure to meet and develop a working relationship with his client. The magnitude of Gordon's inadequacies are multiplied by the fact that it was a capital case."

Pratt v. Cain Fifth Circuit holds: Pratt's counsel's failure to object to the prosecutor's references to Pratt's involvement with illegal drugs, both in questions on cross-examination of Pratt and during rebuttal closing argument, constitutes ineffective assistance of counsel, violative of the Sixth Amendment. The district court concluded that it did. We reverse. . ."

Prisoner's Rights & Police Misconduct Cases

Hadix v. Johnson Sixth Circuit holds, despite upholding the constitutionality of the PLRA, upholds it by contorting it to read the dissolution of consent decrees to be non-mandatory:

The PLRA automatic stay, as construed by the state prison officials, impermissibly circumvents the judicial process. The defendants argue that legislative authority to enact an automatic stay of judicial proceedings has long been established, as evidenced by the time- honored automatic stay in the bankruptcy arena. . . . . In contrast, once Congress establishes jurisdiction of the lower federal courts in an area outside Congress's enumerated Article I plenary powers, "the courts are vested with judicial powers pursuant to Article III." Eash v. Riggins Trucking Inc., 757 F.2d 557, 562 (3d Cir. 1985) (en banc). Having conferred jurisdiction upon the lower courts in this area, the Legislature cannot then displace the courts and itself exercise judicial power, save through impeachment. See Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1317 (1996) ("[N]o decision of any court of the United States can, under any circumstances . . . agreeable to the constitution, beliable to a revision, or even suspension, by the legislature itself, in whom no judicial power of any kind appears to be vested, but the important one relative to impeachments."). As articulated by Madison, "[t]he entire legislature can perform no judiciary act," and "[w]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator." The Federalist No. 47, at 141 (James Madison) (Roy Fairfield 2d ed., 1981) (quoting Montesquieu). Our analysis convinces us that were we to interpret the PLRA' s automatic stay provision as automatically suspending judicial orders without allowing for the exercise of the courts' equitable authority to stay the automatic stay, the PLRA automatic stay provision would be constitutionally deficient and could not stand.

Hickman v. Missouri Eighth Circuit holds that because prisoners had been released, district court lacked subject matter jurisdiction to issue declaratory relief.

Jolly v. Badgett Eighth Circuit hods plaintiff failed to make a submissible case of deliberate indifference.

Moore v. Novak Eighth Circuit holds district court properly found that prison officials did not use excessive force in restraining appellant.

Sanchez v. Tagart Eighth Circuit holds summary judgment inappropriate where record showed evidence of deliberate indifference by one prison official to prisoner's medical condition.

Roberts v. Kling Tenth Circuit holds, on remand from the US Supreme Court "[w]e reaffirm our earlier opinion affirming the district court's grant of absolute immunity to Kling for his conduct in preparing the criminal complaint against Roberts and in seeking a warrant for her arrest. We affirm the district court's judgment granting Kling qualified immunity for his conduct in executing the criminal complaint."

Pracher v. Correctional Med. Sys. Sixth Circuit in this prisoner's rights case holds this "issue that has divided our sister circuits: whether an attorney who eventually withdraws or is disqualified from a case may take an immediate, interlocutory appeal from an order in that case levying attorney's fees and costs against her for discovery violations. We believe the better view to be that an attorney in these circumstances may not take an immediate appeal, but rather must wait to file an appeal until final judgment is entered in the case. Because we lack jurisdiction to entertain this interlocutory appeal, we cannot disturb the order assessing attorney's fees and costs against Cunningham."

Other Perspectives

TheNational Law Journal's Courthouse reports this week

McDonald v. Johnson: FOR PURPOSES OF 28 U.S.C. 2254(e)(2), a petitioner cannot be said to have "failed to develop" a factual basis for his habeas corpus claim unless the undeveloped record is a result of his own decision or omission, the 5th U.S. Circuit Court of Appeals held May 11, in a ruling of first impression. . . . Affirming, Judge Jerry E. Smith noted, "This conclusion does not end the analysis, however, for even if [the petitioner's] claim is not precluded by Sec. 2254(e)(2), that does not mean he is entitled to an evidentiary hearing--only that he may be." "We agree with the district court that an evidentiary hearing was unnecessary under the[] circumstances," Judge Smith concluded. "Given that the court had before it affidavits from the two central parties--[the petitioner] and his trial counsel--it is uncertain what additional evidence could have been introduced."

State v. Edrozo: A SURREPTITIOUS tape recording of statements made by a suspect to a companion, while both were seated in a marked police car, was not the functional equivalent of a custodial interrogation and did not violate the suspect's right against compelled self-incrimination, the Supreme Court of Minnesota ruled . . . . Reversing, Justice Sandra S. Gardebring held further that voluntary and unsolicited statements made to a police officer away from a place of detention were not custodial interrogation subject to recording requirements.

People v. Benson: WHEN A COURT has stayed sentence on an otherwise qualifying conviction under the "Three Strikes" law, the stayed conviction may be treated as a strike, the Supreme Court of California ruled . . . . Affirming the decision of the court of appeal, the high court held that when multiple punishment for separate offenses has been barred in an earlier proceeding, the legislature is free to authorize the designation of such prior felony convictions as separate priors for purposes of determining the appropriate sentence following a subsequent conviction. Chief Justice Ronald M. George said, "Whether [the] defendant formed the intent to assault his victim prior to his felonious entry into his victim's residence, or after he encountered her, is less significant for purposes of the Three Strikes law than the fact that his prior criminal conduct yielded two convictions."

In Depth (formerly "Did you miss")

Mental health issues have always dotted the landscape of death penalty practice. Competence or intent in the guilt phase, mitigation in the penalty phase, or even ineffective assistance of counsel for missing mental health issue, mental health issues have been a fertile field for investigation. In recent weeks the issue has taken a marked new turn, opening potentially new avenues of exploration, competence to be executed.

In Ford v. Wainwright the Court held that the constitution would be violated if the mentally ill were executed, and cases challenging competence to be executed have been so few in the intervening years that many of the ambiguities of Ford have been left unresolved. Although litigated irregularly in the intervening years, in the last few months competence to be executed has again become a hot topic. In addition toStewart v. Martinez-Villareal decided last week by the Supreme Court, two other competency cases have come to the forefront, one, Horace Kelley from California, and the other Charles Singleton of Arkansas.

Kelley, often called "Smelly Kelley" by other death row inmates for his lack of sanitary habits, was found to be sane enough to execute in a 9-3 jury verdict in Marin County, California. The procedures in California call for a jury trial when the issue of competence is raised by the warden of San Quentin. As this is the first time the issue has arisen in California since Ford (or even Gregg) it is unclear whether the procedure & this adjudication specifically meets the requirements of Ford and Eighth Amendment standards. As a side note, Kelley's counsel was held to have waived federal habeas under the AEDPA as the Ninth Circuit held his McFarland motion for appointment alone was insufficient to stop the clock for filing & that Kelley's competence was not grounds not to file.

Singleton is a death row inmate who is delusional when not forced to take anti-psychotic medication. An Arkansas trial court on April 20 heard arguments on whether the state can forcibly medicate him to achieve competency to be executed. Mr. Singleton stated he would rather be insane then dead.

These cases will be updated as decisions come forward.

Mental health issues will be the focus of the next few weeks "In Depth" sections, including mitigation, mental health investigations & beneficial case law.

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