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This Week's Focus

Calderon v. Thompson In an outcome driven case, the court holds that Ninth Circuit recall and reversal of its earlier denial of habeas relief was "a grave abuse of discretion" and prevented the "powerful and legitimate interest in punishing the guilty." "[H}ere a federal court of appeals sua sponte recalls its mandate to revisit the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus jurisprudence."

The real motive behind the Supreme Court opinion is to close yet another avenue of relief.

"These procedural misunderstandings included a mishandled law clerk transition in one judge's chambers and the failure of another judge to notice that the original panel had issued its opinion in the case. Id., at 1067 (Kozinski, J., dissenting). Second, the en banc court asserted the decision of the original panel "would lead to a miscarriage of justice." Id., at 1048. Having recalled the mandate in Thompson's case, the en banc court went on to address the merits of his first federal habeas petition. The court held that Thompson's trial counsel had provided ineffective assistance as to the rape charge and rape special circumstance, to the defendant's prejudice. A plurality of the court would have granted habeas relief on the additional ground of inconsistent theories by the prosecution at his trial and the later trial of David Leitch. The majority made no effort to determine whether Thompson was actually innocent of the rape and murder of Fleischli. The court nonetheless affirmed the District Court's grant of the writ as to the rape conviction and rape special circumstance, vacated Thompson's death sentence, and further "remand[ed] the question of the murder conviction for [the District Court's] initial consideration in light of our vacatur of the rape conviction."

As the dissent notes "Whatever policy the Court is pursuing, it is not the policy of AEDPA. Nor is any other justification apparent. In this particular case, when all else is said, we simply face a recall occasioned by some administrative inadvertence awkwardly corrected; while that appellate process may have left some unfortunate impressions, neither its want of finesse nor AEDPA warrant the majority's decision to jettison the flexible abuse of discretion standard for the sake of solving a systemic problem that does not exist."

Capital Cases Reviewed

Truesdale v. Moore Fourth Circuit denies relief on issues rising out of [1]the failure to present evidence either in mitigation or that would rebut the State's case on the aggravating factors of kidnapping and sexual assault; [2]the failure to raise the claim that African Americans were underrepresented in the jury pool in violation of the Sixth and Fourteenth Amendments. [3] that admission of evidence about his assertion of the right to remain silent denied him a fair trial; [4] the trial court's instruction on reason- able doubt; ad [5] the exclusion of two potential jurors under Witherspoon v. Illinois, 391 U.S. 510 (1968), and Lockhart v. McCree, 476 U.S. 162 (1986). Thirteen grounds/claims are procedurally defaulted because they were not raised on direct appeal of his conviction and sentence. Interestingly, petitioner also claims "that the timetable established in Order No. 113 for the disposition of habeas petitions brought by death-sentenced defendants is invalid as inconsistent with AEDPA and because it was promulgated without the public notice and opportunity for comment outlined in 28 U.S.C. § 332(d)(1).

California First Amendment Coalition v. Calderon Ninth Circuit holds that First Amendment does not require media access to view all stages of an execution.

Calderon v. Thompson Supreme Court splits sharply denying Thompson relief holding that claims that the rape occurred post death was not shown by "clear and convincing evidence" and hence barred under McCleskey. (See above)

Supreme Court Cases Reviewed

Calderon v. Thompson Supreme Court splits sharply denying Thompson relief holding that claims that the rape occurred post death was not shown by "clear and convincing evidence" and hence barred under McCleskey. (See above)

Edwards, et. al . v. United States Supreme Court examines judicial discretion in sentencing where a crack & concaine dealership exists as one. As the online edition of theNational LawJournal notes

Writing for a unanimous court, Justice Stephen G. Breyer said it does not matter that the jury did not make clear whether it found five men guilty of conspiring to distribute powder or crack cocaine. The sentencing judge was free, he said, to sentence the men as if they had been convicted of dealing in both drugs. The trial judge had told jurors they could convict the men of violating a federal drug-conspiracy law if prosecutors proved they were involved with measurable amounts of powdered cocaine "or" crack cocaine. After the jury found the men guilty, the judge sentenced them based on his finding that the illegal conduct involved both drugs.

"The judge was authorized to determine for sentencing purposes whether crack, as well as cocaine, was involved in the offense-related activities," the court ruled. "The Sentencing Guidelines instruct the judge in a case like this one to determine both the amount and the kind of 'controlled substances' for which a defendant should be held accountable--and then to impose a sentence that varies depending upon amount and kind."

Habeas Rules & Procedures

In re: Larry Wilson Sixth Circuit holds that where "a habeas petition filed after a previous petition was dismissed without prejudice for failure to exhaust state court remedies is not a "second or successive" petition that may not be filed without an order from this court authorizing thedistrict court to consider the petition. See Carlson v. Pitcher, 137 F.3d 416, 418-20 (6th Cir. 1998); McWilliams v. Colorado, 121 F.3d 573, 575 (10th Cir. 1997); In re Gasery, 116 F.3d 1051, 1052 (5th Cir. 1997) (per curiam)."

Parretti v. USA Ninth Circuit (en banc) holds fugitive disentitlement doctrine bars habeas relief, despite panel's granting relief prior to flight.

Pisciotti v. Washington Seventh Circuit holds on claims of prosecutorial misconduct that "Pisciotti is unable to establish that his attorney's failure to lodge contemporaneous objections to the prosecutor's comments at trial rendered his trial unfair. Thus, he cannot show cause for his failure to present his constitutional claims to the state courts."

Ineffective Assistance of Counsel

White v. Godinez Seventh Circuit remands on questions centering around "concerning the length and substance of trial counsel's consultation with his client, then consider that consultation along with the other claims of ineffective assistance of counsel," as well as issues of procedural default.

Tejeda v Dubois First Circuit grants relief on ineffective assistance claim related to allegations of the police testilying and fabricating evidence.

Meyer v. Gillis Third Circuit grants habeas where counsel had told he would be parole eligible and crime plead to carried an automatic LWOP sentence.

Prosecutorial Misconduct

Singh v. Prunty Ninth Circuit holds the State's suppression of evidence violated Singh's constitutional rights to due process and a fair trial. As the online edition of theNational LawJournal notes

[The prosecutor urged]Look at each witness' motive, he urged jurors, and note the only one with a reason "for lying and fabricating is the defendant....There's been no shenanigans, no hiding anything."

Not so, found the 9th U.S. Circuit Court of Appeals April 27, 14 years after the murdered woman's husband, Jaitsen J. Singh, was sentenced to 56 years to life. The court ruled that the prosecutor's "knowing and deliberate suppression of evidence of benefits" given the prosecution's key witness, convicted heroin addict Raymond P. Copas, denied jurors information they needed to assess the credibility of Mr. Copas' testimony against Mr. Singh.

Over the years, lower courts have held that although Mr. Copas' testimony was part of a deal with prosecutors, nondisclosure was irrelevant because the circumstantial evidence against Mr. Singh was overwhelming. Rejecting that analysis, the 9th Circuit found the undisclosed evidence "material" as well as "vital to the prosecution's case."

Prisoner's Rights & Police Misconduct Cases

Rowe v. Schreiber Eleventh Circuit holds public defender immune entitled to qualified immunity from suit.

Other Perspectives

The online edition of theNational Law Journal notes these cases this week :

Garcia v. Silbert Prisoner Litigation Reform Act, or PLRA, only applies to actions brought after its effective date . . . . Reversing and remanding, Judge Carlos F. Lucero said, "[T]he plain language of Sec. 1915 (g) restricts a prisoner's ability to 'bring a civil action or appeal a judgment in a civil action' in forma pauperis....It does not apply to actions pending at the time the PLRA went into effect."

- Karl R. Keys, Esq.

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