Four capital cases are covered this week, three of which are out of the Ninth Circuit. Key among these cases is the decision in Sandoval v. Calderon in which a Ninth Circuit panel holds that prosecutorial invocation of religion in a death penalty case must invalidate a death sentence. A different panel in United States v. Fernandez holds that exclusion of the death penalty is inappropriate for certain discovery violations during a federal prosecution. The Ninth Circuit in Anderson v. Calderon denies relief chiefly finding that the 72 hour delay in arraigning defendant caused by holiday weekend violated defendant's 4th Amendment rights, but did not merit suppressing his murder confession during that period because he waived his rights voluntarily. Finally, in the only non-Ninth Circuit case covered in this issue the Eighth Circuit in Kreutzer v. Bowersox , should the decision stand, became the first court to outright deny any federal habeas review due to violation of the one year statute of limitations in habeas actions..

In depth focuses this week on two of George Bush's potential Supreme Court nominees.

Finally, for convenience sake, links to the Supreme Court filings in the Florida election mess and Findlaw's collection of filings in all the ongoing litigation relating to the various cases in Florida.

Supreme Court

No cases reported this week.

Capital Cases

Sandoval v. Calderon (9th Cir. 11/06/2000 - No. 99-99010) "We find noconstitutional infirmity in Sandoval's convictions. The trial court wasnot required to sever any counts in this case. The district court thereforeerred in granting the writ on severance grounds. We also reject Sandoval'sclaim that he was denied his right to represent himself under Faretta v.California, 422 U.S. 806 (1975). The trial court did not err in accepting defense counsel's representation that Sandoval would accept library privilegesin lieu of representing himself at trial. Although we find Sandoval's challengesto his convictions to be without merit, we do hold that Sandoval is entitledto habeas relief from his death sentence. Sandoval was denied a fair penaltyphase trial by the prosecutor's closing argument that invoked divine authorityand paraphrased a well known Biblical passage as support for impositionof the death penalty."

At the close of the penalty phase trial, the prosecutor arguedto the jury that the death penalty was sanctioned by God.

His argument paraphrased Romans 13:1-5, a passage from the Bible's NewTestament commonly understood as providing justification for the impositionof the death penalty. See Robert Parham, Please Stop Using the Scripturesas Rationale for Capital Punishment, The Tennessean, Apr. 13, 2000; LarrySwindell, Capital Idea: A Persuasive Examination--and Denunciation--onthe Death Penalty, Fort Worth StarTelegram, Nov. 23, 1997; Robert Marquand,Death Penalty Issue Stirs Divergent Religious Views, McVeigh Case InspiresDebate on Moral Aspects of Society's Ultimate Sanction, Christian ScienceMonitor, June 12, 1997. The prosecutor told the jurors that God sanctionedthe death penalty for people like Sandoval who were evil and have defiedthe authority of the State. He explained that by sentencing Sandoval todeath, the jury would be "doing what God says. " The prosecutor added thatimposing the death penalty and destroying Sandoval' s mortal body mightbe the only way to save Sandoval's eternal soul.

Sandoval claims that the prosecutor's use of this argument denied hima fair penalty phase trial. We agree with Sandoval that the argument wasboth improper and highly prejudicial.

The prosecutor's argument frustrated the purpose of closing argument,which is to explain to the jury what it has to decide and what evidenceis relevant to its decision. See United States v. Iglesias, 915 F.2d 1524,1529 (11th Cir. 1990). The jury's decision is to be based upon the evidencepresented at trial and the legal instructions given by the court. See Chandlerv. Florida, 449 U.S. 560, 574 (1981) ("Trial courts must be especiallyvigilant to guard against any impairment of the defendant's right to averdict based solely upon the evidence and the relevant law."). Argumenturging the jury to decide the matter based upon factors other than thoseit is instructed to consider is improper. We have therefore condemned argumentthat is inflammatory or appeals to bias or prejudice. See e.g., Bains v.Cambra , 204 F.3d 964, 974-75 (9th Cir. 2000) (finding that the prosecutor'sinflammatory argument invited the jurors "to give into their prejudicesand to buy into the various stereotypes that the prosecutor was promoting");see also Cunningham v. Zant, 928 F.2d 1006, 1020 (11th Cir. 1991) (notingthat the prosecutor's comparison of the defendant to Judas Iscariot andother comments improperly appealed to the jury's passions and prejudices and sought to inflame and misinform the jury); ABA Standards for Criminal Justice S 3-5.8(c)-(d) (3d ed. 1993) ("The prosecutor should not make arguments calculated to appeal to the prejudices of the jury . . . [and] should refrain from argument which would divert the jury from its duty to decide the case on the evidence."). Similarly, any suggestion that the jury may base itsdecision on a "higher law" than that of the court in which it sits is forbidden.See Jones v. Kemp , 706 F. Supp. 1534, 1558-59 (N.D. Ga. 1989); Commonwealthv. Chambers, 599 A.2d 630, 644 (Pa. 1991). The obvious danger of such asuggestion is that the jury will give less weight to, or perhaps even disregard,the legal instructions given it by the trial judge in favor of the assertedhigher law.

In a capital case like this one, the prosecution's invocationof higher law or extra-judicial authority violates the Eighth Amendmentprinciple that the death penalty may be constitutionally imposed only whenthe jury makes findings under a sentencing scheme that carefully focusesthe jury on the specific factors it is to consider in reaching a verdict.See Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (holding that capitalsentencing statutes must "channel the sentencer's discretion by clear andobjective standards that provide specific and detailed guidance, and thatmake rationally reviewable the process for imposing a sentence of death")(internal citations and quotation marks omitted). The Biblical concepts of vengeance invoked by the prosecution here do not recognize such a refined approach. See Jones, 706 F. Supp. at 1559-60; cf. Tison v. Arizona, 481U.S. 137, 180-81 (1987) (Brennan, J., dissenting) (noting the "crude proportionality of `an eye for an eye' "); Coker v. Georgia, 433 U.S. 584, 620 (1977) (Burger, C.J., dissenting) ("As a matter of constitutional principle, [the EighthAmendment proportionality] test cannot have the primitive simplicity of`life for life, eye for eye, tooth for tooth.' ").

Argument involving religious authority also undercuts the jury's ownsense of responsibility for imposing the death penalty. The Supreme Courthas disapproved of an argument tending to transfer the jury's sense ofsentencing responsibility to a higher court. See Caldwell v. Mississippi,472 U.S. 320, 330-34 (1985) (holding that a prosecutor's argument thatthe jury's capital sentencing decision was not final because it would bereviewed by an appellate court unconstitutionally encouraged the jury todelegate its feeling of responsibility for the defendant's sentence tothe appellate court). A fortiori, delegation of the ultimate responsibility for imposing a sentence to divine authority undermines the jury's rolein the sentencing process.

The Establishment Clause of the First Amendment also requires us tobe especially vigilant in guarding against religious argument. When theState invokes Biblical teachings to persuade a jury, there is, at the veryleast, the appearance of state endorsement of those teachings. Cf. Lynchv. Donnelly, 465 U.S. 687-88 (1984) (O'Connor, J., concurring). SimilarEstablishment Clause concerns are present in the Supreme Court's decisionsfinding public school prayer unconstitutional. See Santa Fe Indep. Sch.Dist. v. Doe , 120 S. Ct. 2266, 2280-81 (2000); Lee v. Weisman, 505 U.S.577, 593-97 (1992).

For these reasons, religious arguments have been condemned by virtuallyevery federal and state court to consider their challenge. See Coe v. Bell,161 F.3d 320, 351 (6th Cir. 1998); Bennett v. Angelone, 92 F.3d 1336, 1346(4th Cir. 1996); Cunningham, 928 F.2d at 1019-20; United States v. Giry,818 F.2d 120, 133 (1st Cir. 1987); Chambers, 599 A.2d at 644; People v.Eckles, 404 N.E.2d 358, 365 (Ill. App. 1980); State v. Wangberg, 136 N.W.2d853, 854-55 (Minn. 1965).

Our nation's courts are not alone in rejecting religious argument. TheOntario Court of Appeal has as well. The Canadian Constitution does notrecognize the separation of church and state. See e.g. Canadian ConstitutionAct of 1982, Part 1, Canadian Charter of Rights and Freedoms ("WhereasCanada is founded upon principles that recognize the supremacy of God andthe rule of law . . . ." ). Yet the Canadian court found counsel's referencesto Biblical stories to be "inappropriate in the extreme." R. v. Finta,[1992]53 O.A.C. 1, 1992 Carswell Ont. 96 at P 250.

We thus agree with the Supreme Court of California's own conclusionthat the prosecutor's argument in this case was improper and was not merelyfair response to comments in defense counsel's closing argument. Defensecounsel used the phrase "playing God" and referred to "an eye for an eye"in the context of a secular argument against vengeance.*fn2

Defense counsel did not invoke religious authority to support the resulthe advocated.

Our finding of constitutional error does not end the inquiry, however.To warrant habeas relief, Sandoval must show that the prosecutor's improperargument " `had [a] substantial and injurious effect or influence in determiningthe jury's verdict.' " Brecht v. Abrahamson , 507 U.S. 619, 638 (1993)(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The prosecutor'sallusion to Scripture must have prejudiced Sandoval's chances of receivinglife without possibility of parole instead of the death penalty.

While we agree with the California Supreme Court that the prosecutor'sargument was improper, we disagree with the majority's conclusion thatthe argument was harmless. We need not decide whether a prosecutor's invocationof religious authority during the penalty phase of a capital case is prejudicialper se, as at least one state court has held. See Chambers, 599 A.2d at644; see also Brian C. Duffy, Note, Barring Foul Blows: An Argument fora Per Se Reversible-Error Rule for Prosecutors' Use of Religious Argumentsin the Sentencing Phase of Capital Cases, 50 Vand. L. Rev. 1335 (1997)(arguing that a per se reversible error rule is required when prosecutorsinvoke religious authority to a jury in support of the death penalty becausethe traditional contextual analysis underestimates the prejudicial effectand discounts the constitutional nature of the misconduct). But see ElizabethA. Brooks, Note, Thou Shalt Not Quote the Bible: Determining the Proprietyof Attorney Use of Religious Philosophy and Themes in Oral Arguments, 33Ga. L. Rev. 1113 (1999) (claiming that a per se prejudice rule is unworkableand undesirable ). We conclude that the prosecutor's remarks actually prejudicedSandoval.

We examine the likely effect of the statements in the context in whichthey were made. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);Bennett, 92 F.3d at 1346-47.

The prosecutor's language in this case was eloquent, powerful, and unmistakablyBiblical in style. The core of his remarks bears repeating here:

Let every person be in subjection to the governing authoritiesfor there is no authority except from God and those which are establishedby God. Therefore, he who resists authority has opposed the ordinance ofGod, and they who have opposed will receive condemnations upon themselvesfor rulers are not a cause of fear for good behavior, but for evil. Doyou want to have no fear of authority? Do what is good and you will havepraise for the same for it is a minister of God to you for good. But ifyou do what is evil, be afraid for it does not bear the sword for nothingfor it is a minister of God an avenger who brings wrath upon one who practicesevil.

This was strong medicine. The lay juror would readily understand thewords as referring to Scripture. The message was clear: those who haveopposed the ordinance of God should fear the sword-bearing state, whosetask, as an avenging minister of God, is to bring wrath upon those who,like Sandoval, practice evil.

Those learned in the New Testament would recognize the argument as closelyfollowing the thirteenth chapter of the Book of Romans. The chapter readsin relevant part:

Submission to the Authorities

1 Everyone must submit himself to the governing authorities,for there is no authority except that which God has established. The authoritiesthat exist have been established by God.

2 Consequently, he who rebels against the authority isrebelling against what God has instituted, and those who do so will bringjudgment on themselves.

3 For rulers hold no terror for those who do right, butfor those who do wrong. Do you want to be free from fear of the one inauthority? Then do what is right and he will commend you.

4 For he is God's servant to do you good. But if you dowrong, be afraid, for he does not bear the sword for nothing. He is God'sservant, an agent of wrath to bring punishment on the wrongdoer.

5 Therefore, it is necessary to submit to the authorities,not only because of possible punishment but also because of conscience.13 Romans 1-5 (NIV Study Bible 10th Anniversary Ed.).

Having thus cloaked the State with God's authority, the prosecutorthen referenced the words used by defense counsel and refuted them by furtherinvocation of religious command: "You are not playing God. You are doingwhat God says. This might be the only opportunity to wake him up. God willdestroy the body to save the soul. Make him get himself right. . . . Lethim have the opportunity to get his soul right. That's the only way toget his attention. You are not playing God. God ordains authority."

There could be no clearer an invocation of divine authority todirect a jury's verdict. Defense counsel objected to the argument, butthe objection was overruled and no curative instruction given.

This is not a case where the evidence overwhelmingly supported the jury'sverdict. The issue was life or death and the jury was sharply divided.After over three days of deliberations, the jury informed the trial judgethat it was hopelessly deadlocked. It was divided 6-6 on two of the countsand 7-5 on the other two. In response to the judge's question whether thejury could possibly reach a result if it deliberated further or perhapshad portions of the transcript read back to it, each juror individuallyanswered `no.' Upon being returned to its deliberations, the jury tookonly an hour and forty minutes to go from a deadlock to four unanimousverdicts.

We do not know what actually happened in the jury room, but we cannotassume that the prosecutor's religious argument did not persuade at leastone of the jurors to change a vote for life to death on the Marlene Wellscount. The evidence in aggravation was countered with considerable mitigatingevidence. That the jury deadlocked evenly after deliberating over threedays exemplifies the difficulty of the sentencing decision.

The State argues that a finding of prejudice here would be outof step with cases from our sister circuits that have considered similarprosecutorial argument to be harmless error. There is no discord, for thecases are very record-specific.

In Bennett v. Angelone, for example, the Fourth Circuit held thata prosecutor's religious argument was error, but that, in light of thetotal context of the trial, the error did not render the defendant's trialunfair. 92 F.3d at 1346. In that case, the prosecutor told the jury that" `Thou shall[sic] not kill' is a proscription against an individual; itis not against Government. Because Government has a duty to protect itscitizens." Id. (sic in original). The court found that religious argumentswere improper but held that the prosecutor's comments did not deny thedefendant due process because there was strong evidence of the defendant'sguilt and eligibility for the death penalty. See id. In that case the defendant'sguilt trial lasted one day and defense counsel put on no evidence. Seeid. at 1341. After the penalty phase, the jury took less than an hour toreturn a death sentence. See id. Sandoval's trial was considerably longerand more complex, with the jury deliberating for over three days before reaching a verdict.

In Coe v. Bell, the Sixth Circuit held that argument that the Biblecondones capital punishment was inappropriate, but that it did not in andof itself constitute reversible error. 161 F.3d at 351. The court did notexplain why, but we observe that the prosecutor in that case did not arguethat the Bible commanded capital punishment for the defendant. See id.

The First Circuit in United States v. Giry, held that the prosecutor'scomparison of the defendant's testimony to "Peter who for the third timedenied Christ" was improper, but that its prejudicial impact was significantlyreduced by the trial judge's instructions and the strength of the evidenceagainst the defendant. 818 F.2d at 132-34. Giry was not a capital caseand defense counsel did not contemporaneously object to the prosecutor'sstatements. Id. at 122-23, 133.

The prosecutor in this case, although reminding the jury on variousoccasions that its duty was to determine whether the evidence in aggravationsubstantially outweighed the mitigating evidence and to follow the trialcourt's instructions, clearly intended to appeal to religious authorityand did so repeatedly. The prosecutor meant this argument to have an effecton the jury. We think it did. At a minimum, we have grave doubts aboutthe harmlessness of the error and therefore grant relief. See Jeffriesv. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc) ("Where the recordis so evenly balanced that a conscientious judge is in grave doubt as tothe harmlessness of an error, the error is not harmless and relief shouldbe granted.").

United States v. Fernandez (9th Cir. 11/07/2000 - No. 99-50738) "The question before us is whether the district court properly sanctioned the United States for violating a discovery order by precluding the governmentfrom seeking the death penalty against Fernando Alvidrez, Marcel Arevalo,Daniel Bravo, Javier Alvidrez Duarte, Gerardo Jacobo, and Robert Mercado(collectively "Defendants"). The district court's decision to impose thissanction was based on the government's refusal to turn over its confidentialpredecisional death penalty evaluation form and prosecution memorandum,which contained information concerning the Attorney General's pending decisionwhether to seek the death penalty against Defendants. On appeal, the UnitedStates argues that the district court's discovery order is clearly erroneousbecause (1) Defendants have no right to discover these documents, and because(2) the documents are protected by the deliberative process and work productprivileges. For the reasons discussed below, we agree with the government.We therefore reverse and remand to the district court."

The USAM provides the defendant with an opportunity to appearbefore the Committee and present reasons why the government should notseek the death penalty. See USAM S 9-10.050. Defendants argued to the districtcourt that once the government decides to establish such a procedure, theSixth Amendment and due process require the government to turn over allmitigating information to Defendants' attorneys so that they might effectivelyadvocate on their clients' behalf. The district court agreed with Defendantsand ordered the government to produce the death penalty evaluation formand prosecution memorandum, notwithstanding that Defendants did not requestthe production of these particular documents. The source of the districtcourt's order was speculation that without the disclosure, the processwould somehow be "unfair:"

I would think that if I was defense counsel in this case andI'm going to be . . . presenting all this[mitigating evidence] . . . andthen you have so called information that you are going to be feeding theAttorney General and I don't know anything about it I am going to say wellthat is unfair. That is totally unfair. At least [let] me . . . see someof that information because that information you might be spoon feedingthe Attorney General is made up.

Because we find that the death penalty evaluation form and prosecutionmemorandum are privileged documents and find no legal basis for overridingthe privilege, we vacate the district court's order requiring productionof those materials.

1. USAM Guidelines

To begin, it is clear that the USAM does not create any substantiveor procedural rights, including discovery rights. The USAM explicitly statesthat

[t]he Manual provides only internal Department of Justiceguidance. It is not intended to, does not, and may not be relied upon tocreate any rights, substantive or procedural, enforceable at law by anyparty in any manner civil or criminal. Id. S 1-1.100.

In addition, several courts, including this circuit, have consistentlyheld that these guidelines do not create any rights in criminal defendants.See, e.g., United States v. Montoya, 45 F.3d 1286, 1295 (9th Cir. 1995);United States v. Piervinanzi, 23 F.3d 670, 682 (2d Cir. 1994); United Statesv. Lorenzo, 995 F.2d 1448, 1453 (9th Cir. 1993); United States v. Busher,817 F.2d 1409, 1411 (9th Cir. 1987). Thus, the USAM guidelines cannot serveas a legal basis for the district court's discovery order.

2. Deliberative Process and Work Product Privileges

In addition, the district court's discovery order reached too far becausethe death penalty evaluation form and prosecution memorandum are protectedby the deliberative process and work product privileges.

In order to be protected by the deliberative process privilege, "a documentmust be both (1) `predecisional' or `antecedent to the adoption of agencypolicy' and (2) `deliberative,' meaning `it must actually be related tothe process by which polices are formulated.' " National Wildlife Fed'nv. United States Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (quotingJordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir.1978)). By shielding such documents from discovery, the deliberative processprivilege encourages forthright and candid discussions of ideas and, therefore,improves the decisionmaking process. Assembly of the State of Cal. v. UnitedStates Dep't of Commerce , 968 F.2d 916, 920 (9th Cir. 1992). "It wouldbe impossible to have any frank discussions of legal or policy mattersin writing if all such writings were to be subjected to public scrutiny." National Wildlife, 861 F.2d at 1117 (internal quotation marks omitted).

Here, the death penalty evaluation form and the prosecution memorandumare both "predecisional" and "deliberative. " First, the documents are"predecisional " because the U.S. Attorney submits these documents to theCommittee before the Attorney General makes the final decision whetherto seek the death penalty. See USAM SS 9-10.040, 9-10.050; see also FederalTrade Comm'n v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir.1984) (holding that for a document to be "predecisional" it must have beengenerated before the adoption of an agency's policy or decision).

Second, the death penalty evaluation form and prosecution memorandumare "deliberative" in that they "contain[ ] opinions, recommendations,or advice about agency policies." Id. Specifically, the USAM requires thatthe documents contain the following information:

Following (i) an introduction, the prosecution memorandum should includea comprehensive discussion of (ii) the theory of liability, (iii) the factsand evidence, including evidence relating to any aggravating or mitigatingfactors, (iv) the defendant's background and criminal history, (v) thebasis for Federal prosecution, and (vi) any other relevant information.The Death Penalty Evaluation form is intended primarily to be used as aguideline and work sheet for the internal decision making process, andmay be hand written. USAM S 9-10.040.

Although the documents at issue include "facts and evidence," whichare not protected by the deliberative process privilege, see Warner Communications,742 F.2d at 1161, that factual material is so interwoven with the deliberativematerial that it is not severable. See Binion v. Department of Justice,695 F.2d 1189, 1193 (9th Cir. 1983).

"The evaluation form and memorandum are designed to help the AttorneyGeneral decide whether the death penalty is appropriate in any case inwhich the death penalty is a potential sentence." Furrow, 100 F. Supp.2d at 1174. As such, these documents clearly play an integral role in thegovernment' s deliberative and policy-making processes and, thus, are protectedby the deliberative process privilege. See id.; see also United Statesv. Frank, 8 F. Supp. 2d 253, 284 (S.D.N.Y. 1998) ("Discovery of the deliberativematerials would have a chilling effect on the thorough evaluation of theseissues and hinder the just, frank, and fair review of the decision forevery individual defendant who faces the prospect of receiving a Noticeof Intent to Seek the Death Penalty.").

Likewise, the more general work product privilege applies to the deathpenalty evaluation form and prosecution memorandum. In Hickman v. Taylor,329 U.S. 495 (1947), the Supreme Court first acknowledged the work productprivilege, whose primary purpose is to "prevent exploitation of a party'sefforts in preparing for litigation." Admiral Ins. Co. v. United StatesDist. Court, 881 F.2d 1486, 1494 (9th Cir. 1989); see also United Statesv. Nobles, 422 U.S. 225, 238-39 (1975) (noting that the work product privilegealso applies in criminal cases). Additionally, Rule 16 of the Federal Rulesof Criminal Procedure recognizes the work product privilege and exemptsfrom production "reports, memoranda, or other internal government documentsmade by the attorney for the government or any other government agent investigatingor prosecuting the case." Fed. R. Crim. P. 16(a)(2). Thus, the documentsin question here fall squarely within the ambit of the work product privilegeas they both are internal government documents prepared by the U.S. Attorneyin anticipation of litigation. See Furrow, 100 F. Supp. 2d at 1175; UnitedStates v. Nguyen, 928 F. Supp. 1525, 1552 (D. Kan. 1996).

We therefore conclude that the specific documents at issue in this case-- the death penalty evaluation form and the prosecution memorandum --are not subject to discovery because they are protected by the deliberativeprocess and work product privileges.

3. Sixth Amendment Right to Counsel

Defendants suggest that the Sixth Amendment right to counsel providessome right to discovery so as to assure effective representation, and suggestthat that right could override the usual work product and deliberativeprivileges if those privileges precluded effective representation. We neednot decide whether the Sixth Amendment-based discovery premise of Defendants'argument is correct, because the privileged documents the district courtordered the government to disclosed would not be discoverable in any event.

The Sixth Amendment guarantees a defendant the right to effective assistanceof counsel at all critical stages of a criminal proceeding. United Statesv. Gonzalez , 113 F.3d 1026, 1029 (9th Cir. 1997). Critical stages includethose in which "potential substantial prejudice to defendant's rights inheresin the particular confrontation and . . .[counsel may] help avoid thatprejudice." Schantz v. Eyman , 418 F.2d 11, 13 (9th Cir. 1969) (internalquotation marks omitted). The Supreme Court has further defined a "criticalstage" in criminal proceedings as one which affects the defendant's rightto a fair trial. United States v. Wade, 388 U.S. 218, 226 (1967).

We need not decide whether the death penalty authorization process createdby the USAM is a "critical stage" of the proceedings. Assuming, withoutdeciding, that the death penalty authorization process is a "critical stage,"Defendants still would not be entitled to the death penalty evaluationform and prosecution memorandum because these documents are protected bythe deliberative process and work product privileges, and these privilegesapply during "critical stages." See, e.g., Nobles, 422 U.S. at 239-40 (recognizingthat the work product privilege applies during a criminal trial, as longas the privilege is not waived by its holder); United States v. Salsedo,607 F.2d 318, 320-21 (9th Cir. 1979) (holding that criminal defendant'scounsel waived work product privilege by referencing the privileged documentduring crossexamination ). We therefore conclude that defendants do nothave a right to discover the death penalty evaluation form and prosecutionmemorandum pursuant to the Sixth Amendment.

ANDERSON v. CALDERON (9th Cir 11/17/00 - No. 98-99024) 72-hour delay in arraigning defendantc aused by holiday weekend violated defendant's 4th Amendment rights, but did not merit suppressing his murder confession during that period becausehe waived his rights voluntarily.

Anderson's next claim is that, under Caldwell v. Mississippi, 472 U.S. 320, 339-40 (1985), the trial judge violated his constitutional rights during the second trial by commenting on the procedural history of the case in a way that diminishes the jurors' responsibility for the sentencing decision. The State maintains, however, that because the California Supreme Court already denied this claim on procedural grounds, this court should not consider it. Although we ultimately conclude that Anderson's Caldwell claim fails, we believe that the claim is not procedurally defaulted, and that we must address the merits.

1. Procedural Default

"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991) (emphasis added). In this case, the California Supreme Court denied Anderson's Caldwell claim on the ground that Anderson's counsel failed to object to the trial judge's comments, thereby waiving this claim. People v. Anderson, 52 Cal. 3d 453, 468 (1990). Thus, if this waiver rule invoked by the Anderson court is "an independent and adequate state procedural rule," then the Caldwell claim is procedurally defaulted.

In order for a state procedural rule to be "adequate," it "must have been `firmly established and regularly followed' by the time as of which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). This means that the question is whether the state courts were regularly and consistently applying the relevant procedural default rule "at the time the claim should have been raised." Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997).

Here, the allegedly improper comments were made during Anderson's second trial, which took place in late 1985 and early 1986, only about six months after the Supreme Court rendered its decision in Caldwell. Not surprisingly, then, the "rule" that a defendant waives a Caldwell claim by failing to object when the comments are made was not "firmly established and regularly followed" at the time of Anderson's second trial. In fact, it appears that this rule still is not consistently applied. See People v. Jackson, 13 Cal. 4th 1164, 1238 (1996) ("The fact that defendant did not make a contemporaneous objection to the prosecution's remarks does not bar him from raising a claim of Caldwell error on appeal."); People v. Clark, 5 Cal. 4th 950, 1035 (1993) ("We have never required an objection to raise claims of error based upon Caldwell v. Mississippi.") (internal citations and quotation marks omitted); People v. Bittaker, 48 Cal. 3d 1046, 1103 (1989) (same). But see People v. Freeman, 8 Cal. 4th 450, 523 (1994) (holding Caldwell claim waived because there was no objection); People v. Poggi, 45 Cal. 3d 306, 340 (1988) (same). Accordingly, we conclude that the waiver rule is not an adequate state ground to bar federal review of Anderson's Caldwell claim.

2. Caldwell Claim

In Caldwell, the Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell , 472 U.S. at 328-29. More recently, the Court has said that it "read[s] Caldwell as `relevant only to certain types of comment[s] -those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.' " Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (quoting Darden v. Wainwright, 477 U.S. 168, 184 n.15 (1986)). Thus, to establish a Caldwell violation, a defendant must show that the remarks to the jury "improperly described the role assigned to the jury by local law." Dugger v. Adams, 489 U.S. 401, 407 (1989); see also Hendricks v. Vasquez, 974 F.2d 1099, 1108 (9th Cir. 1992).

Here, Anderson's Caldwell claim is based on the judge's comments during voir dire at the beginning of Anderson's second penalty phase trial (1) that Anderson's prior death sentence was reversed because of "technical questions in connection of [sic] the penalty," and (2) that the prior death sentence "went up automatically on appeal to the California Supreme Court, as all such cases do." According to Anderson, these comments "misled the jury to believe that Anderson's sentence would ultimately be decided by the same appeals court that had reversed the prior death sentence and with which the ultimate responsibility for sentencing lay." This argument is unpersuasive.

While it is true that the judge made the comments Anderson complains about, such comments are insufficient to establish a Caldwell claim, particularly when viewed within the context of the entire trial. See Sawyer v. Butler, 881 F.2d 1273, 1286 (5th Cir. 1989). On the first day of jury selection in Anderson's retrial, the judge addressed the jury and said the following:

[198] There has been a previous trial of this matter and he has been convicted of first degree murder. But the matter has to be retried on the question of -- on the technical questions in connection of [sic ] the penalty. ER at 1436 (emphasis added). However, the court then went on to explain in great detail why the California Supreme Court reversed Anderson's death sentence.

In this particular case, in the first trial, the jury found the defendant guilty of first degree murder. . . . They found true the allegation of special circumstances, and that allegation was that the killing was committed in the course of a first degree burglary. It's what they called a felony murder rule, where if you kill somebody in the course of certain crimes, including first degree burglary, it's automatically first degree murder. And that was also a special circumstance which brought into play the death penalty.

The jury then tried the penalty phase and they returned a verdict of death and the defendant was sentenced to death. However, about that time some of the rules applying to felony murder were changed. And so the Supreme Court sent it back for directions for us to retry the special circumstance issue and the penalty phase issue in light of the new rules. The new rules require that before a special circumstance of felony murder can be found true, the district attorney must prove and the jury must specifically find that the killing was done intentionally.

You see, under the old felony murder rule, even an accidental killing would bring into play the felony murder rule and the death penalty. But the Supreme Court said that no, in order for the death penalty to come into play -- in other words, the special circumstance to be found to be true -- the jury must have proof before them and they must be satisfied beyond a reasonable doubt that the killing was intentional. ER at 1442-43. In light of this careful and deliberate explanation of the state supreme court's legal reasoning, we conclude that the judge's one-time use of the word "technical" in no way misled the jury, much less "in a way that allows the jury to feel less responsible than it should for the sentencing decision. " Romano, 512 U.S. at 9 (internal quotation marks omitted).

Anderson argues also that the trial judge violated his Eighth Amendment rights when he told the jurors:

So they had a penalty trial, penalty phase of trial. And the jury returned a verdict indicating that the defendant should suffer the death penalty. That went up automatically on appeal to the California Supreme Court, as all such cases do. ER at 1474 (emphasis added).

In making this argument, Anderson relies heavily on Justice O'Connor's concurring opinion in Caldwell, where she said that"[l]aypersons cannot be expected to appreciate without explanation the limited nature of appellate review, especially in light of the reassuring picture of `automatic' review evoked by the sentencing court and prosecutor in this case." Caldwell, 472 U.S. at 343. Furthermore, Justice O'Connor warned that "[j]urors may harbor misconceptions about the power of state appellate courts or, for that matter, this Court to override a jury's sentence of death." Id. at 342.

The relevant facts of Caldwell, however, differ markedly from the facts of this case. In Caldwell, the prosecutor argued the following during his closing:

Ladies and gentlemen . . . I'm in complete disagreement with the approach the defense has taken. I don't think it's fair . . . . I think the lawyers know better. Now, they would have you believe that you're going to kill this man and they know -- they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it . . . . For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it's unfair and I don't mind telling them so. Id. at 325-26.

Unlike in Caldwell, here, the judge's comments about automatic appeal did not lead the jury "to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 329. Quite to the contrary, the judge made it clear that the jurors must decide whether the special circumstance is true and, if so, whether Anderson deserved life imprisonment or death. For example, with regard to the special circumstance, the judge said:

So we're going to have a trial on the limited issue of whether or not at the time the defendant killed the elderly woman, shot and killed her, whether he intended to kill her. And there are a lot o[f ] explanations, potential theoretical explanations other than intent to kill. For instance, accidental. Or maybe he was just shooting to scare her or something of this sort with no intent to kill her at all.

So the jury will hear all the evidence, what happened exactly in detail, and will have to make up their mind whether they are all twelve satisfied beyond a reasonable doubt that at the time of this shooting he intended to kill her. ER at 1475; 2RT at 950.

Similarly, the court explicated that it was the jury's responsibility to determine the appropriate penalty for Anderson.

[I]f the jury finds he did intend to kill the woman he shot, then that makes him eligible for the two most severe penalties we have. Either he can be imprisoned in State Prison for the rest of his natural life with no possibility of parole ever. Just he'll die in prison. Or he can be put to death in the gas chamber. Those are the only two choices we have once we get to that point.

The law requires, rather unusually, that a jury select the penalty. Ordinarily the jury is told not to even consider penalty . . . . So the jury, then, will be expected to make a decision between those two penalties based upon the evidence you've heard in both phases of the trial; that is, the circumstances of the killing and the background information about the Defendant himself. 2RT at 950-52.

Thus, considering the judge's comment about automatic appeal in the context of the entire trial, it is clear that the remark did not "improperly describe[ ] the role assigned to the jury . . . ." Dugger, 489 U.S. at 407.

Finally, we conclude that Anderson suffered no prejudice from the trial judge's remarks because he himself intended to tell the jury of his death row incarceration and experiences as part of what is known in California as a "Death Row redemption" defense. This defense presents the defendant to the jury as a different person, a person rehabilitated by death row and thus no longer a candidate for death. As the California Supreme Court observed in deciphering Ames's failure to object to the trial judge's remarks,

[I]t seems apparent that defense counsel herein had a tactical purpose for declining to object to the court's disclosures regarding defendant's death sentence and subsequent reversal on automatic appeal. During the course of trial and in argument, counsel frequently referred to the prior death sentence and. . . presented a `Death Row redemption' defense stressing defendant's changed attitude, reformed character and his many useful, redeemable skills. For example, counsel asked defendant whether his `thinking' had changed during the five years since he was sentenced to death. Defendant replied that `the experience of being condemned to die made me grow up and realize that it was a serious matter. And I matured. And I realized there's more to life than living and the life that I had lived. And maybe I had a chance to change.'

Regarding the reference to the automatic appeal, it is true that `[a]s a general rule, the jury should not be advised regarding the availability of an appeal in death cases, because such information may dilute the jury's sense of responsibility in fixing the penalty.' But any reasonable juror, knowing that defendant was once sentenced to death and was now being retried for the same crimes, could easily infer that an appeal was available to him.

We conclude that any error in the court's pretrial disclosures was waived by counsel's apparently tactical failure to object. We further conclude that it is not reasonably possible defendant was prejudiced by those disclosures. People v. Anderson, 52 Cal. 3d 453 at 468 (1990) (citations ommitted). Accordingly, we reject Anderson's Caldwell claim.

KREUTZER v. BOWERSOX (8th Cir11/15/00 - No. 99-3073) When petitioner's judgment became final under 28 USC 2244(d)(1), the one year statute of limitation for filing ahabeas action began running. Counsel's failure to recognize the importanceof the deadline does not equitably toll the running of the statute. This appears to be the first case in the country, should it stand, where all federal habeas review has been denied due to timeliness. (In fairness it should be noted that in two earlier Fifth Circuit capital cases Petitioners had dismissed without prejudice their petitions only to subsequently bring a federal petition later held out of time.)

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposed a one-year statute of limitations to applications for a writ of habeas corpus by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute begins running on the date when the state judgment became final through the completion of direct review or the expiration of time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). Kreutzer's one-year time limit began to run on January 13, 1997, when his petition for writ of certiorari was denied by the United States Supreme Court. See Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998). Kreutzer's habeas petition, filed on January 27, 1998, clearly fell outside of this limitation period.

However, this seemingly clear analysis is confused in this case by the operation of another possible statute of limitations. AEDPA also provides for an expedited 180-day statute of limitations, found in chapter 154, 28 U.S.C. §§ 2261- 2266, for qualifying states in capital habeas proceedings. See Calderon v. Ashmus, 523 U.S. 740, 742 (1998). A state may only "opt-in" to the 180-day statute of limitations if it provides a mechanism for the appointment and compensation of competent counsel in state post-conviction proceedings. See 28 U.S.C. §§ 2261(b), 2265(b). If a state meets these criteria, chapter 154 is applicable and the state may seek to apply the expedited 180-day statute of limitations. See Calderon, 523 U.S. at 743. If the state does not meet these criteria, however, chapter 154 may not be invoked by the state. See id.

Chapter 154 contains a tolling provision of the 180-day requirement because the 180-day limit begins to run from final state court affirmance of the conviction, and thus before state post-conviction procedures are complete and before a petition for writ of certiorari can be filed. See 28 U.S.C. § 2263(a). Kreutzer moved for an extension of time under this tolling section, 28 U.S.C. § 2263(b)(3), on December 29, 1997, and the extension was granted on January 15, 1998. In its order granting the extension under section 2263(b), the district court "procee[ded] on the assumption" that Missouri Supreme Court Rule 29.16 was sufficient to qualify Missouri for the expedited review provisions of chapter 154, and noted that if Missouri did qualify, the 180-day limit would have expired on December 29, 1997. *fn1 The court further stated that in granting the extension, it was acting "provisionally, preserving the option to reconsider the timeliness of Petitioner's filing under the general statute of limitations for filing a petition for writ of habeas corpus found in 28 U.S.C. § 2244(d)."

Chapter 154 is not applicable in this case, and thus Kreutzer's invocation of tolling provisions in section 2263(b) does not toll the one-year time limit established by section 2244(d)(1). This court has previously noted that Missouri, at least as of 1999, did not have appointed counsel mechanisms in place in order for it to qualify for the expedited review provisions of chapter 154. See Harris v. Bowersox, 184 F.3d 744, 748 (8th Cir. 1999) ("to our knowledge Missouri has not yet qualified under 28 U.S.C. § 2261"); Hunter v. Bowersox, 172 F.3d 1016, 1021 n.3 (8th Cir. 1999) (chapter 154 did not apply because Missouri had not met the requirements of 28 U.S.C. § 2261). The federal district courts of Missouri have had similar doubts about Missouri's qualification under chapter 154. See Roll v. Bowersox, 16 F. Supp. 2d 1066, 1071-72 & n.2 (W. D. Mo. 1998) (although state contended Missouri qualified for chapter 154 in the summer of 1997, district court disagreed and noted "there are . . . serious questions about Missouri's compliance with the opt-in procedures"); Schlup v. Bowersox, No. 4:92CV443, 1996 WL 1570463 at *10 (E.D. Mo. May 2, 1996) ("Currently Missouri does not have in place such a mechanism for the compensation and appointment of post conviction counsel and does not have standards of competency for the appointment of such counsel. In absence of such procedures, chapter 154 does not apply to this matter.").

Certainly then, in January 1998 when the extension was granted, Missouri had not met the requirements to make either the 180-day statute of limitations in section 2263(a) or its tolling provisions applicable. Thus, the district court's grant of the extension pursuant to 28 U.S.C. § 2263 was a nullity. Further, there is no tolling provision for section 2244(d)(1).

However, because the one-year time limit contained in section 2244(d)(1) is a statute of limitation rather than a jurisdictional bar, equitable tolling, if applicable, may apply. See Moore v. United States, 173 F.3d 1131, 1134 (8th Cir. 1999). Equitable tolling is proper only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time. See Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999). Further, equitable tolling may be appropriate when conduct of the defendant has lulled the plaintiff into inaction. See Niccolai v. United States Bureau of Prisons, 4 F.3d 691, 693 (8th Cir. 1993). Neither circumstance is present here and we find that equitable tolling is not appropriate in this case. The record shows that Kreutzer was represented by counsel throughout these proceedings. Even in the case of an unrepresented prisoner alleging a lack of legal knowledge or legal resources, equitable tolling has not been warranted. See Preston v. State of Iowa, No. 99-3261, 2000 WL 995013 at *1 (8th Cir. July 20, 2000) (per curiam); Paige, 171 F.3d at 561. See also, Collins v. Scurr, No. 99-3775, 2000 WL 1341544 at *1 (8th Cir. Sept. 19, 2000) (per curiam) (alleged mental incompetence at the time of the guilty plea was not an adequate showing to justify equitable tolling). Thus, tolling is even less appropriate in a case where the petitioner is represented by counsel.

Further, counsel's failure to recognize the importance of the one-year statute of limitations in section 2244(d)(1) does not necessarily invoke the equitable tolling doctrine. We agree with those courts that have found that counsel's confusion about the applicable statute of limitations does not warrant equitable tolling. See, e.g., Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (lawyer's innocent mistake in interpreting AEDPA's statutory provisions does not constitute extraordinary circumstances external to petitioner justifying equitable tolling); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (attorney's miscalculation of limitations period not a valid basis for equitable tolling). See also Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999) (per curiam) (no equitable tolling where delay was allegedly due to lawyer's decision to use regular mail, rather than expedited delivery).

Finally, there is nothing in the record which suggests the respondent has lulled Kreutzer into inaction. In fact, in responding to the motion for extension filed on December 29, 1997, the State filed a supplemental response, stating in part:

Respondent wishes to make it clear that by responding to petitioner's motion for extension respondent in no way is waiving [the section 2244(d)] one year statute of limitations nor does he accept the proposition that the one year statute of limitations is not applicable to this case, regardless of whether the 180 day statute also applies.

This supplemental response was filed January 2, 1998, eleven days before the one-year statute of limitations ran. If anything, this should have put Kreutzer's counsel on notice to ascertain what the correct statute of limitations was. Thus, Kreutzer's failure to file within the one-year statutory period cannot be attributed to the respondent. Nor was Kreutzer lulled by the district court's erroneous grant of the extension under section 2263(b). The district court entered an order granting this extension on January 15, 1998, two days after the expiration of the one-year statute of limitations referenced by respondent in the supplemental response. *fn2

We may affirm the district court's denial of habeas corpus relief on any ground supported by the record, regardless of whether the district court considered it. See Auman v. United States, 67 F.3d 157, 161-62 (8th Cir. 1995). Because we conclude

Kreutzer's habeas petition was not timely, we affirm the district court's denial of habeas relief and the dismissal of Kreutzer's petition for habeas corpus relief.

HabeasCases

King v. Morrison (8th Cir. 11/07/2000 - No. 00-1533 ) In Bellis, the B.O.P. determined that ten federal prisoners were ineligible for the early-release incentive, some of whom had been convicted of being a felon in possession of a firearm under § 922(g). Bellis, 186 F.3d at 1094. The court granted deference to the B.O.P.'s determination under Program Statement 5162.04,codified at 28 C.F.R. § 550.58, in holding that the appellees werenot eligible for early release under § 3621(e)(2)(B). See id. at 1094-95.That regulation, which was subjected to the notice and comment procedure,was not in effect at the time that King began the drug abuse treatmentprogram, nor when he successfully completed the program in April 1997.

MASK v. MCGINNIS (2nd Cir 11/15/00 - No. 99-2071) State court's conclusion that plaintifffailed to show how his counsel's error could have affected the outcome ofhis plea agreement is not entitled to deferential review when court failsto use correct standard of review for ineffective assistance of counsel.

WARREN v. BASKERVILLE (4th Cir 11/13/00 - No. 99-7230) Because Virginia law bestowed the Parole Board with authority to revoke good time credits before defendant committedhis original offenses,Virginia Parole Board did not violate the ex post factoclause when, upon revoking his parole, it also revoked his previously earnedgood time credits.

WOLFE v. BRIGANO (6th Cir 11/17/00 - No. 99-3596)Trial court unreasonably denied petitioner's for-cause juror challenges where two jurors had continuous contact with the victim's family and declined to set aside these relationships, one jurorcould not ignore news reports, and the last juror would not require prosecutorto provethe case beyond a reasonable doubt.

MORGAN v. KRENKE (7th Cir 11/13/00 - No. 99-4160)Wisconsin's exclusion of psychiatric evidenceduring the guilt phase of a bifurcated trial does not violate a defendant's due process right to present a defense to support her defense of not guilty by reason of mental disease or defect.

NEIMAN v. KEANE (7th Cir 11/13/00 - No. 99-3286) Police had probable cause to apply for a warrant and arrest plaintiff on charges of theft of services by deception,when an investigation revealed that plaintiff repeatedly contacted businessesto perform work on his house, and appeared to fabricate reasons to avoidpayment for services rendered.

SCHAAL v. GAMMON (8th Cir 11/14/00 - No. 99-3208) Out-of-court videotaped interview between a psychologist and seven-year-old victim lacks "reliability" for admissionas hearsay exception where relationship between child, her mother, and psychologist- and mother's disdain for petitioner - show an improperly suggestive environment.

POWELL v. US (8th Cir 11/17/00 - No. 99-3048) Although petitioner did not "use" a firearm, his possession of the gun was in relation to the crime of drug traficking,because he carried it to protect his drug proceeds and it thus had a strongnexus to seized drugs.

GREEN v. WHITE (9th Cir 11/13/00 - No. 99-17124) Jury foreman's concealment of his crimina lrecord violated defendant's Sixth Amendment right to fair and impartial jury.

LYONS v. CRAWFORD (9th Cir 11/13/00 - No. 99-17351) A federal claim is not exhausted in statecourt unless the petitioner both raised the claim in state court and explicitlyindicated then that the claim was a federal one -- regardless of whetherthe petitioner was proceeding pro se.

DRAYDEN v. WHITE (9th Cir11/14/00 - No. 99-15184) Prosecutor's soliloquy in the victim'svoice during closing argument, while inappropriate, does not automaticallyviolate a defendant's due process rights.

DOWNS v. HOYT (9th Cir 11/15/00 - No. 99-35266) Failure to disclose evidence of some investigatory leads is not prejudicial when the leads merely indicated whether shootingvictim knew she was hurt, and not how she was hurt.

RICHARDS-DIAZ v. FASANO (9th Cir 11/17/00 - No. 99-56530) Illegal Immigration Reform and ImmigrantResponsibility Act of 1996 applies retroactively to all aliens against whomremoval proceeding were not yet pending as of April 1, 1997.

GIBSON v. KLINGER (10th Cir 11/14/00 - No. 99-5071) Regardless of whether a petitioner actually appeals a denial of a post- conviction application, the limitations period,under 28 USC 2244(d)(1), is tolled during the period in which the petitionercould have sought an appeal under state law.

PEOPLE v. HARRIS (NY 11/16/00 - No. 2 No. 127) Defendant who decapitated and dismemberedhis long-time friend with a machete presented sufficient evidence of elementsof the defense of extreme emotional disturbance so as to be entitled to theaaplicable jury instruction.

Jones v. Smith (9th Cir. 11/07/2000 - No. 99-56405) "In this habeascorpus case we confront the question of whether, as of August 22, 1995,the omission of a premeditation charge from a state court attempted murderinformation combined with its inclusion in the jury instructions constituteda variance or an amendment to the information. We hold that because premeditationwas a sentence enhancing provision under California law on the date Petitioner's conviction became final, the discrepancy between the information and jury instructions was a variance subject to harmless error review. Since Petitioner had actual notice that he was being charged with premeditated attemptedmurder, we find the error in the case at bar to be harmless, and deny the petition."

Barnes v. Elo (6th Cir. 11/09/2000 - No. 99-1784) "Because Barnes never received an evidentiary hearing and consequently the record before us fails to clarifyfacts central to the determination of whether the adjudication of Barnes'sclaim by the Michigan state courts "resulted in a decision that was contraryto, or involved an unreasonable application of, clearly established federallaw, as determined by the Supreme Court," we vacate the ruling of the districtcourt and remnand for a hearing on the competency of Barnes's trial counsel."

Donahue v. Cain (5th Cir. 11/13/2000 - No. 99-30072 ) "We affirm the grant of the writ of habeas corpus, modifying same to provide that his conviction of attempted murder of a peace officer is to be nullified for failure of evidence. On remand the district court is to enter an appropriate order of nullification"

Section1983 & Related Filings

Ellis v. Norris (8th Cir. 11/09/2000 - No. 99-3850)"We conclude that the Arkansas Supreme Court's decision is not "contrary to . . . clearly established Federal law" because the discretionary natureof the repealed extra good-time credit materially distinguishes it fromany relevant Supreme Court precedent. 28 U.S.C. § 2254(d)(1); seealso Williams, 120 S. Ct. at 1523 ("Under the 'contrary to' clause, a federalhabeas court may grant the writ if the state court arrives at a conclusionopposite to that reached by this Court on a question of law or . . . decidesa case differently than this Court has on a set of materially indistinguishablefacts."). The Arkansas Supreme Court also identified the proper legal standardand applied it in a reasonable fashion. See id. ("Under the 'unreasonableapplication' clause, a federal habeas court may grant the writ if the statecourt identifies the correct governing legal principle from this Court'sdecisions but unreasonably applies that principle to the facts of the prisoner'scase."). Accordingly, the judgment of the District Court denying Ellis'spetition for a writ of habeas corpus is affirmed."

Razzoli v. Federal Bureau of Prisons (D.C.Cir. 11/07/2000 - No. 99-5289) "This appeal puts in question the relationship betweenan en banc decision of this court and two recent Supreme Court cases. Thelatter require a prisoner to succeed in a habeas action before bringinga claim that challenges, even indirectly, the duration of his custody-forexample a damages claim for due process violations made in the course ofa decision revoking good time credit. See Edwards v. Balisok, 520 U.S.641 (1997). Balisok has been read as mandating the use of habeas only whenthe claim, if successful, will inevitably necessitate invalidation of adecision creating, extending, or refusing to curtail custody. But in Chatman-Beyv. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988), we found that habeas wasthe exclusive remedy even where a claim's impact on custody was only probabilistic. Chatman-Bey itself involved a decision on parole eligibility, a necessary but not sufficient step toward the actual grant of parole. Concluding that there is no inescapable conflict between Chatman-Bey and the later Supreme Court decisions, we adhere to Chatman-Bey: for a federal prisoner, habeas is indeed exclusive even when a non-habeas claim would have a merely probabilistic impact on the duration of custody."

DOE v. GLANZER (9th Cir 11/17/00 - No. 98-36213) In civil case alleging defendant molested plaintiff's child, court may not draw an adverse inference from defendant'srefusal to answer question at deposition, invoking Fifth Amendment privilege,over whether he took a penile plethysmograph test.

Fisher v. King, No. 99-6837 (4th Cir. 11/14/2000) Burford abstention is inappropriate. The VFOIA's Prisoner Exclusion Provision is not susceptible to a limiting construction avoiding Fisher's constitutional challenges. The provision is a straightforward blanket exclusion. Moreover, the provision is not affected for purposes of Fisher's § 1983 action by its attendant savings clause for constitutionally protected rights because the language of the savings clause is repugnant to the previous exclusionary language. See Looney v. Commonwealth, 133 S.E. 753, 755 (Va. 1926) ("It is well settled that saving clauses which are inconsistent with the body of an act are rejected and disregarded as ineffective and void."); see also 2A Norman J. Singer, Sutherland on Statutory Construction § 47:12 (6th ed. 2000). In sum, the district court correctly determined that abstention under Burford was not appropriate.

InDepth Feature

In light of the apparent victory of George Bush in the recent American Presidential elections, this week's installment examines two possible nominees for the American Supreme Court.

The Voodoo Court All that the 4th Circuit expects of appointed lawyers in capital cases is that they be clairvoyant Roger Parloff The American Lawyer June 2, 2000

Can you imagine a case in which Justices Antonin Scaliaand Clarence Thomas would both rule for a condemned state prisoner, overturninga federal appeals court that was prepared to send him to his death withoutfurther ado?

The case, that of Michael Wayne Williams, materializedon April 18. It was one of the two habeas corpus cases that the U.S. SupremeCourt overturned that day, each of which arose from the 4th U.S. CircuitCourt of Appeals, each involving an inmate on Virginia's death row. The casessignaled, as the media reported, that the Supreme Court still plans to exercisemeaningful scrutiny in habeas appeals, notwithstanding the limits placedon their power to do so by the Antiterrorism and Effective Death PenaltyAct of 1996.

On the most important abstract legal issue decided thatday -- the standard of review in death cases after the 1996 act -- the 4thCircuit had actually ruled the same way as every other circuit court had,and the same way the Supreme Court ultimately did. The high court only reversedthe 4th Circuit over the manner in which it applied that standard of review.Yet when you examine the details of Michael Williams's case, which the Courtdecided by a 9-to-0 vote, you begin to appreciate the story within the storyhere. That story is this: When it comes to death penalty jurisprudence, theFourth Circuit has quietly seceded from the Union.

Having overturned Miranda v. Arizona in February 1999, the 4th Circuit is well known, of course, to be a conservativecourt. (The Supreme Court heard arguments in that Miranda-related case onApril 19.) But in the realm of death penalty review, the adjective "conservative"does not account for what has been happening. While condemned inmates' ratesof at least partial success in federal habeas corpus actions run at closeto 40 percent nationally, the rate in the 4th Circuit since October 1995has been a cool 0 percent, with more than 80 consecutive convictions havingbeen upheld, according to statistics kept by Cornell Law School professorJohn Blume.

How has this court maintained this perfect record, notwithstandingthe inevitable instances of outrageous prosecutorial misconduct that areperiodically brought to its attention? In part, it has done so by alwaysassuming a clairvoyance on the part of the appointed defense counsel thatcould have negated the impact of the misconduct.

Lest the reader dismissme as just another liberal journalist off on a rant, let's focus on the factsof Michael Williams's case. In 1994 he was convicted of a horrible doublehomicide. His conviction was upheld, his state habeas corpus petition wasdenied, and he then filed his last-chance federal habeas petition. At hisappointed counsel's request, the federal district judge appointed an investigator-- a request that had been denied during his state habeas. The investigatorinterviewed the original jurors and discovered something odd. Unbeknownstto Williams or his trial lawyer, the jury forelady, Bonnie Stinnett, hadformerly been married to the lead detective on Williams's case, deputy sheriffClaude Meinhard, who had also been the state's first witness against Williams.Prior to their 1979 divorce, Stinnett and Meinhard had been married 17 years,and had had four children. But that's not all. Stinnett's divorce from Meinhardhad been handled by Robert Woodson, Jr., who was Williams's prosecutor.

During jury selection, when the panelists had been routinely asked if they were "related" to deputy sheriff Meinhard, both forelady Stinnett and prosecutor Woodson had stood silent. Similarly, when the panelists were asked whether they had ever been represented by prosecutor Woodson, both Stinnett and Woodson had again remained mute. (In affidavits filed in the federal district court, Stinnett and Woodson maintained that, after the divorce, neither of themhad considered Stinnett to be "related" to Meinhard any longer. In addition,Stinnett said that she did not think Woodson had "represented" her, sincethe divorce was uncontested, and Woodson only "drew up the papers." Woodsonsaid that, while he knew Stinnett had been divorced from Meinhard, he hadnot remembered handling their divorce.)

Though the district courtordered a hearing to investigate further, the 4th Circuit intervened and,ultimately, decided that there was no need. Chief Judge J. Harvie WilkinsonIII ruled that the whole issue had been waived. Williams's appointed lawyershould have raised these claims at the state habeas, and could have doneso had he only exercised more "diligence," Wilkinson ruled.

Well,statutes and precedents do require that the lawyer use "due diligence" --the 4th Circuit didn't make that up. But in what sense had Williams's lawyers failed to act with due diligence? Williams's state habeas counsel had actually requested appointment of an investigator -- in order to look into an entirely different allegation of juror misconduct -- and the request had been denied. Only after the federal court appointed an investigator for that purpose did Williams inadvertently stumble upon the information that had been improperly withheld from him by the forelady and the prosecutor throughout his trial.

You won't believe me if I paraphrase Wilkinson's reasoning, so I'llquote verbatim: "The documents supporting Williams's ... claims have beena matter of public record since Stinnett's divorce became final in 1979.Indeed, because Williams's federal habeas counsel located those documents,there is little reason to think that his state habeas counsel could not havedone so as well."

Wilkinson was evidently saying that Williams's appointedcounsel in the state habeas, in addition to poring over the record and compilingall the legal arguments for a capital appeal within the 120-day period allottedunder Virginia law, should also have been combing through 20 years' worthof court records on the off chance that they might reveal that one of the12 jurors had failed to mention during jury selection that she had been marriedto a witness. (Wilkinson declines to comment on his ruling or on the SupremeCourt's unanimous reversal.)

Before his appointment to the appellatebench, Wilkinson had been a law professor at the University of Virginia anda deputy assistant attorney general in the Reagan Justice Department, wherehe was, among other things, a judge-picker. Accordingly, like many appellatejudges, Wilkinson does not appear to have ever tried a criminal case as anattorney, nor has he ever presided over one as a trial judge. So it's atleast conceivable that his ruling reflected mere ignorance, rather than intellectualdishonesty.

On the other hand, the Williams decision did not comeout of the blue. In an unsigned ruling in the case of Tommy David Stricklerin 1998, the 4th Circuit employed a very similar maneuver. There, it imaginedan improbable series of actions that an appointed counsel could have takenwhereby he might have unearthed exculpatory evidence that prosecutors hadindisputably failed to provide in violation of their constitutional obligationsunder the Supreme Court's landmark 1963 opinion in Brady v. Maryland. Though the Supreme Court affirmed Strickler's conviction for other reasons,eight justices joined the portion of the opinion that rejected the 4th Circuit'sattempt to excuse the Brady violation by faulting Strickler's counsel. (Justice Clarence Thomas did not express an opinion on that aspect of the ruling.)

The 4th Circuit's penchant for excusing Brady violationsby positing that a clairvoyant appointed counsel could have discovered theconcealed evidence himself -- an approach with no parallel in any other circuit-- evolved gradually. It is, therefore, hard to credit the doctrine to asingle author. But one important practitioner has been Judge J. Michael Luttig,who served on the panel that issued the unsigned ruling in Strickler and who also wrote the 1996 ruling in the case of Ronald Lee Hoke, Sr. --one of the most dramatic early applications of what I'll call the "due clairvoyance"doctrine. A former law clerk to then-circuit judge Antonin Scalia and then-chiefjustice Warren Burger, Luttig, 45, is often mentioned as a potential RepublicanSupreme Court nominee. Before assuming the appellate bench, Luttig was anassistant counsel in the Reagan White House, and a high-level Justice Departmentofficial and judge-picker under President George Bush. Like Wilkinson, hehas never tried anything resembling a capital case, nor has he ever presidedover any criminal case as a trial judge.

Shortly after Hoke's releasefrom a mental hospital, Hoke murdered Virginia Stell in Petersburg, Virginia.About ten days later he flagged down a police cruiser and confessed. He saidhe had met Stell at a bar called the European Restaurant. They had gone toher place, according to Hoke's confession, had had vaginal sex, and then,at Stell's suggestion, anal sex as well. After Stell slapped him over sometransgression, he flew into a rage, tied her up, and stabbed her to death.

As horrible as that confession was, such a crime would probably nothave been punishable by death under Virginia law because it did not seemto implicate any of the requisite statutory triggers. Indeed, the first prosecutordid not charge the case as a capital crime. But after an election, a newprosecutor was assigned to the case. He did demand the death penalty. Indeed,he refused to plea-bargain for anything less, explaining to Hoke's triallawyer that "he wanted to be the first black man to put a white man in theelectric chair," according to testimony later credited by the federal districtjudge. (The prosecutor, Joseph Preston, was black; Hoke and Stell were white.)Preston theorized that Hoke had actually raped and sodomized Stell whileshe was tied up, which would clearly elevate the murder to the capital levelunder Virginia law.

Indeed, Stell's body was found in a position consistentwith having been sodomized. On the other hand, almost no medical evidenceof rape or forcible sodomy was presented at trial. (Later, at the federalhabeas corpus proceeding, each side called a pathologist who offered conflictingopinions on the issue of consent.) At trial the prosecutor argued to thejury that Stell was a "kind" lady who "opened up her heart" to Hoke, andwho had, therefore, welcomed him into her "sacred home." The implicationwas that the 56-year-old Stell would never have consented to have sex withHoke, let alone asked for anal sex.

Suspecting that Stell was lessprudish than the prosecution maintained, Hoke's lawyer had visited the EuropeanRestaurant two to four times before the trial, and had interviewed five toseven witnesses. But he obtained little cooperation and, indeed, met withoutright hostility, including at least one physical threat.

Hoke wasconvicted, his conviction was affirmed, and his state habeas was denied.At a federal habeas corpus proceeding, examining, among other things, theprosecutor's alleged racial remark about why he wouldn't plea-bargain, theprosecutor continued to describe Stell as "one of the nicest little ladies in the community." But then, at the federal district judge's order, the state turned over its police files in the case. Among them were numerous witness statements that had never been provided to Hoke's trial counsel. One witness had commented that Stell took lots of men home where she "fucked them and let them have a bath." Three other witnesses, when pressed by police, had admitted that they themselves had had sex with Stell -- one of them on 15-20 occasions. This last witness said that he had had oral, vaginal, and anal sex with Stell; Stell had suggested the anal sex, he said, and had brought along a jar of Vaseline for the purpose. Finally, yet another witness said she had actually seen Stell and Hoke "hugging and kissing" as they left the bar a day or two before Stell's body was discovered.

The district judge ordered a new trial for Hoke, due to the concealment of these textbook examples of Brady material, but the 4th Circuit, by a 2-to-1 vote, reversed. Judge Luttigfound that the state's failure to provide those statements didn't matter,because the evidence had always been "available" to Hoke in the sense that"Hoke likely would have discovered [it] if he had undertaken a reasonableand diligent investigation." Luttig also expressed the view that the withheldinformation was of doubtful relevance in any event, noting that the onlywitness who claimed to have had anal sex with Stell had used Vaseline asa lubricant, whereas Hoke and Stell had used margarine. Hoke was executedin 1996.

Like Wilkinson, Luttig declines to discuss particular cases.Luttig protests, however, the notion that he or any other 4th Circuit judgemight have any sort of hidden agenda in capital cases generally. "This isall governed by Supreme Court precedent and federal statute," he said inan interview. "You may have a difference of opinion over the particular resolutionof a particular case, but for the most part the standards are in place."Luttig also emphasizes that appellate judges know that capital cases arefrequently reviewed by the Supreme Court, which is "a huge deal to a federaljudge." Nevertheless, Luttig professes no memory of the Court's 8-to-0 rebukeregarding his reasoning in the Strickler case. "Strickler was affirmed,"he says, "by a 7-to-2 vote, wasn't it?"

Strickler's lawyers had actuallyasked Luttig to recuse himself from Strickler's case, arguing that Luttigmay have been biased because of his own tragic personal experiences. In 1994Luttig's father was shot to death in his own driveway in Tyler, Texas, duringa carjacking. (The Strickler case also involved a carjacking.)

Luttigrebuffed the request and, I think, properly so. Luttig's personal appreciation of the full horrors of murder should not disqualify him from hearing capital cases any more than it should have disqualified Chief Justice Earl Warren, who was among those who established the Brady precedent in 1963. In 1938, when Warren was the Alameda County district attorney in Oakland, Calif., a burglar stole into his father's kitchen and crushed his skull with a lead pipe. The murderer was never caught. The incident does not appear ever to have clouded Warren's judgment.

No, what should disqualify Luttigand Wilkinson from capital cases is that they have a proven track recordfor intellectual dishonesty in such cases -- whatever the cause.

Enough is enough.

Errata

From the DeathPenalty Information Center reports:

Prominent Leaders Urge President Clinton to Halt Federal Executions

In a letter delivered to the White House on November 20th, religious, civil rights, and political leaders urged President Clinton to declare a moratorium on federal executions. The letter was signed by 40 people, including several former members of the Clinton administration, Nobel laureate Elie Wiesel, philanthropist George Soros, three Roman Catholic bishops, and members of the committee established by the president to study race relations in America. Organized by Citizens for a Moratorium on Federal Executions, the letter cites the recent Department of Justice study that shows racial and geographic disparities in the federal death penalty, and calls upon President Clinton to declare a moratorium on federal executions until a further review of the fairness of the federal death penalty process is complete. (New York Times, 11/20/00) Visit Citizens for a Moratorium on Federal Executions's Web site to read the letter to President Clinton, the related press release, and the biographies of those who signed the letter.

U.S. Catholic Bishops Reiterate Opposition to the death penalty

"[W]e join with those who are working to end the death penalty - in their witness at prisons as people are executed, in state capitals across our land, in courtrooms and prisons around the nation, and in Congress, where efforts to abolish or limit the death penalty are being debated. We support calls for a moratorium on executions and welcome the courage of leaders who have implemented or are working to address the clear failings of the death penalty."

- Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice, United States Catholic Conference, November, 2000. Read the entire statement. See also, New Voices, Articles, and Statements on the Death Penalty

Texas Execution of Mentally Retarded Man Stayed by US Supreme Court; Delaware Execution Goes Forward

Johnny Paul Penry, whose case is synonymous with the debate about executing defendants with mental retardation, had his execution stayed indefinitely by the U.S. Supreme Court on Thursday, November 16. Apparently, the Court is still concerned about whether the Texas sentencing jury adequately considered the mitigating evidence in Penry's case, even after the high court instructed them to do so. Penry's I.Q. has been tested between 50 and 63, and he has the mental abilities of a six-year old. A bill introduced in the last legislative session to bar the execution of the mentally retarded in Texas was defeated, despite the fact that a large majority of Texans disagree with such executions. The execution is opposed by the leading national associations on mental retardation and by the American Bar Association. The U.S. Supreme Court overturned PenryÕs sentence once before, but he was given the death penalty again in Texas. Penry's execution would be the third of three executions this week in Texas. (See Press Release, Nov. 13, 2000; media only, contact Laura Burstein, 202-822-5200 FREE, ext.222 or Marci Brandsdorf, ext. 253 - Fenton Communications) See also, Human Rights Watch, for more information about Penry's case and about executing those with mentally retardation.

Dwayne Weeks was executed in Delaware on Nov. 17, after his temporary stay was lifted. Delaware leads the country in the number of executions since 1976 as a percentage of the state's population.

Amnesty International Releases Federal Death Penalty Report; Urges President Clinton to Declare Moratorium on Federal Executions

After reviewing the U.S. Justice Department's findings on the federal death penalty, Amnesty International sent President Clinton a 43-page memorandum urging him to declare a moratorium on all federal executions. "The government's own statistics provide yet more evidence that the federal death penalty suffers the same lottery-like qualities that plague capital justice at the state level," said Amnesty International. "To allow federal executions to proceed in the knowledge that the system may be tainted by arbitrariness and discrimination would be an unconscionable act." (Amnesty International, AI Index: AMR 51/162/2000, November 14, 2000) See also, the full text of the memorandum, a summary of the memorandum, and Amnesty International's open letter to President Clinton.

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