This long delayed double issue is brimming with news of ill winds from Dixie and the Heartland. The Tenth Circuit, portending what will be a very lethal new year, is reporting three capital case losses (Smith v. Gibson, Trice v. Ward, and Clayton v. Gibson ), with a heavy examination of state statutory construction and an upholding of the pittance paid by Oklahoma in the three cases for the assistance of experts. Statutory construction remains an issue as the Seventh Circuit examines Illinois aggravating factors (previous killing & youth of victim) in Coleman v. Ryan. The Eleventh Circuit examines case specific claims in Glock v. Moore (failing to investigate mitigation) and Ford v. Haley (competency to volunteer to be executed) only to reach the same end results as the other cases covered this issue.

Despite the chill in the air good news is to be had. The Supreme Court in Ramdass v. Angeleone has issued a stay on what appears to be an issue relating to jury instructions in the penalty phase. In South Carolina (Warren Douglas Manning) and North Carolina (Alfred Rivera) were exonerated of the crimes that sent them to death row raising the total to eight this year of persons released from death row as innocent and the 84th since 1973.

In Depth this week examines some of what "due process" means in the context of a capital case.

Supreme Court

The Supreme Court has granted a stay in Ramdass v. Angeleone on the question of whether the jury should have been informed that life in this case meant life without parole. The district court had granted relief on the issue and the Fourth Circuit reversed. A decision whether to grant certiorari is expected by end of the calendar year. (AP Wire). Currently three of the four capital cert grants are out of the Fourth Circuit; all three grants are out of Virginia.

Tenth Circuit Capital Cases in Focus

Smith v. Gibson (10th Cir) Smith presents "seven grounds for relief: 1) prosecutorial misconduct; 2) an evidentiary harpoon resulting from a witness volunteering that petitioner had kidnaped his daughter; 3) the lack of a cautionary instruction regarding an informant's testimony; 4) ineffective representation at sentencing; 5) the trial court's failure to instruct the jury on lesser included offenses; 6) double counting of aggravating circumstances; and 7) the unconstitutionality of the continuing threat aggravating circumstance."

Petitioner asserts four ways in which his trial attorney was ineffective during sentencing. Respondents do not argue to this court that these claims are procedurally barred. SeeHooks, 184 F.3d at 1216 (State must raise affirmative defense of procedural bar or risk waiving it). . . .

A. Conceding Appropriateness of Death Penalty

Petitioner argues defense counsel, during his first-stage closing argument, conceded that this crime was "cruel," thus admitting the "especially heinous, atrocious or cruel" aggravating circumstance, and that the crime warranted the death penalty. Representative of the remarks petitioner challenges, defense counsel told jurors not to "kid yourselves, ladies and gentlemen. If you find that [petitioner] . . . brutally murdered [the victim] . . ., the penalty you're going to impose is going to be the very severe one." Trial tr. at 767. Defense counsel also suggested the murderer was an "animal" and he emphasized the gruesomeness of the crime scene. The uncontroverted evidence, however, including a number of gruesome photographs of the crime scene and the victim's body, established that the victim was brutally murdered. Defense counsel could not have argued otherwise credibly.

From the tenor of his entire argument, defense counsel made these remarks for two reasons supporting his contention that petitioner was innocent. First, counsel argued that, if petitioner had wanted to rob the victim, he would not have needed to kill him, in light of the victim's intoxicated state at the time of death. Further, even if the robber thought murdering the victim was necessary, there was no need to have committed such a brutal murder. This supported defense counsel's argument to the jury that robbery was not a sufficient explanation for such a brutal slaying and that there must have been something more going on than the purported robbery--perhaps the murderer was someone other than petitioner who had a score to settle with the victim or to whom the victim owed drug money.

Secondly, defense counsel emphasized the bloodiness of the crime scene, both in his cross-examination and closing argument, to support his contention that the murderer would have had to have had blood all over him after the killing. Only Hickman testified that petitioner had what appeared to be blood on him after returning from the victim's apartment, and that was only a single spot one to two inches in diameter.

Petitioner argues both that trial counsel's argument was per se ineffective and, alternatively, was deficient performance prejudicial to petitioner under Strickland. Considering the whole of his argument, however, counsel did not "abandon[] his duty of loyalty to his client and effectively join[] the state in an effort to attain a conviction or death sentence" such that counsel's performance could be deemed per se ineffective. Davis v. Executive Dir. of Dep't of Corrections, 100 F.3d 750, 756-57, & 757 n.3 (10th Cir. 1996) (further quotation omitted); see also Osborn v. Shillinger, 861 F.2d 612, 625-26, 629 (10th Cir. 1988). Rather, he made these challenged references in support of his argument to the jury, based upon the circumstantial nature of the evidence, that petitioner did not commit this crime. He, thus, remained petitioner's advocate. See United States v. Williamson, 53 F.3d 1500, 1511-12 (10th Cir. 1995).

Further, counsel's performance was not deficient under Strickland. These remarks were reasonable trial strategy in light of the circumstantial nature of the evidence against petitioner. See Moore v. Gibson, Nos. 98-6004, 98-6010, 1999 WL 765893, at *26 (10th Cir. Sept. 28, 1999). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690.

Petitioner also challenges defense counsel's second-stage closing argument, asserting counsel continued to argue in this same vein, targeting any residual doubt the jurors might have had concerning petitioner's guilt. But "residual doubt has been recognized as an extremely effective argument for defendants in capital cases." Lockhart v. McCree, 476 U.S. 162, 181 (1986) (further quotation omitted). Such strategy was reasonable under these circumstances. See, e.g., Tarver v. Hopper, 169 F.3d 710, 715-16, 715 n.7 (11th Cir. 1999); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir.), opinion supplemented on denial of reh'g on other grounds, 62 F.3d 342 (11th Cir. 1995).

B. Failure to Prepare Petitioner to Testify at Sentencing

Petitioner claims that his attorney failed to prepare petitioner to testify at sentencing. Petitioner told jurors at sentencing that he had not committed the crime and asked them not to sentence him to death so that he would have an opportunity to prove his innocence.

In the state post-conviction proceedings, petitioner testified that counsel did not ask him if he wanted to testify until immediately prior to sentencing and did not advise him of the questions the attorney intended to ask, but rather told petitioner just to tell the jurors what he wanted to tell them. On the other hand, defense counsel testified at the post-conviction hearing that petitioner did not decide to testify at sentencing until the last minute and that counsel did discuss petitioner's testimony with him, but would not tell him what to say. The state court did not make any factual findings or credibility determinations concerning this inconsistent testimony.

Nonetheless, even if we assume counsel's performance was deficient, petitioner has failed to establish any resulting prejudice. See Cooks, 165 F.3d at 1292-93 (court need not address both performance and prejudice if petitioner fails to make sufficient showing as to one). Petitioner fails to allege how further preparation would have enhanced his testimony. See United States v. Mealy, 851 F.3d 890, 909 (7th Cir. 1988).

Petitioner also argues that trial counsel should have used petitioner's testimony to explore the facts of his prior rape conviction. At the state post-conviction hearing, however, trial counsel testified that, as a matter of strategy, he did not go into the details of the prior conviction in order to prevent the prosecution from presenting the rebuttal testimony of the rape victim. Petitioner has failed to overcome the presumption that this was reasonable strategy under the circumstances. See Strickland, 466 U.S. at 689.

C. Failure to Request Mental Health Expert

Petitioner argues that trial counsel was ineffective for failing to request the assistance of a mental health expert, both to rebut the State's allegation of petitioner's future dangerousness and to assist in presenting mitigating evidence. Because the State presented evidence of petitioner's future dangerousness, petitioner would have been entitled to appointed psychiatric assistance for sentencing if he could have established the likelihood that his mental condition was a significant mitigating factor. See Rogers v. Gibson, 173 F.3d 1278, 1284 & n.2 (10th Cir. 1999), petition for cert. filed (U.S. Nov. 5, 1999) (No. 99-6954).

At the post-conviction hearing, trial counsel asserted that there was nothing that led him to believe petitioner was not competent. Further, the trial record does not contain any suggestion that petitioner's mental condition could have been a significant mitigating factor. Counsel's failure to request a psychiatric expert, therefore, was not deficient. See, e.g., Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999); cf. Roll v. Bowersox, 177 F.3d 697, 699, 701 (8th Cir. 1999) (addressing counsel's failure to investigate and establish petitioner's mental condition at time of crime), petition for cert. filed (U.S. Sept. 23, 1999) (No. 99-6356).

Even if counsel's performance was deficient, however, petitioner has not shown that this deficiency prejudiced him. A 1995 post-conviction psychological evaluation indicated only that petitioner possesses low average intelligence and suffers from organic brain damage which impairs his judgment and causes him to act impulsively. While this evaluation would have been proper mitigating evidence, this court has, "on numerous occasions determined that . . . evidence of low I.Q. and/or organic brain damage" "does not outweigh evidence supporting . . . multiple aggravating circumstances," Foster, 182 F.3d at 1189, citing cases. The same is true here, in light of the strength of the evidence supporting the aggravating circumstances, the nature of the crime and the limited mitigating effect of this psychiatric evidence.

D. Failure to Investigate Mitigating Evidence Adequately

Petitioner contends that defense counsel was ineffective for failing to investigate other possible mitigating evidence. Counsel has a duty to conduct reasonable investigation for mitigating evidence or to make a reasonable decision that particular investigation is unnecessary. See, e.g., Stouffer v. Reynolds, 168 F.3d 1155, 1167 (10th Cir. 1999). "In a capital case the attorney's duty to investigate all possible lines of defense is strictly observed." Id. (further quotation omitted); see also Boyd v. Ward, 179 F.3d 904, 915 (10th Cir. 1999). That duty includes investigating petitioner's background. See Duvall v. Reynolds, 139 F.3d 768, 778 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998).

Even assuming counsel's investigation and preparation of mitigating evidence was deficient, petitioner is unable to show prejudice. Petitioner submits the affidavits and deposition testimony of a number of people indicating that, had they been asked, they would have testified in petitioner's behalf at sentencing. Those witnesses include a number of family members, the mothers of petitioner's two children, friends, his childhood pastor, a coach and a former boss. These witnesses assert they could have offered testimony concerning petitioner's close family; the effect of his mother's death on him; his love and care for his children and his family; his reliability and good attitude at work; his easy going, likable personality; his school and athletic activities; his church attendance as a youth; his politeness and respect for others; and his history of nonviolence. Petitioner also asserts that the testimony of the mother of his child living in California could have ameliorated the earlier evidence concerning his kidnaping his daughter.

Petitioner, however, is unable to show that this mitigating evidence would have resulted in the jury sentencing him to life in prison, in light of the brutal and senseless nature of this crime and the strength of the State's evidence supporting the three aggravating circumstances, including evidence of a prior rape conviction, his threatening a cellmate, and his possession of a weapon in jail. See Boyd, 179 F.3d at 918. ("Even if we assume the failure to present mitigating evidence in the form of testimony from childhood acquaintances and family members is deficient performance," petitioner was unable to establish prejudice in light of existence of minimal other mitigating evidence and overall strength of State's case against petitioner, including facts of crime itself); see also Foster, 182 F.3d at 1189.

Trice v. Ward (10th Cir) Trice contends the district court erred by: [A]not conducting an evidentiary hearing on his ineffective assistance of counsel claims (lack of mental health expert, lack of adequate time to prepare, concession of guilt, & failure to investigate and present additional mitigating evidence); [B]Systematic exclusion of minorities from jury panel; [C] Prosecutorial misconduct; [D] Voluntariness of confession; [E] Court of Criminal Appeals' reweighing of aggravating circumstances; & [F] Use of unconstitutional aggravating factors (cntinuing threat, great risk of death & double counting of aggravating factors). Relief denied across the board.

Systematic exclusion of minorities from jury panel

At the time of Trice's trial, the names of potential jurors were, in accordance with Oklahoma law (see Okla. Stat. tit. 38, § 18 (Supp. 1985)), gathered from a list of the active registered voters in Oklahoma County. Prior to trial, Trice filed a motion challenging the composition of the jury pool. In particular, Trice argued the State's exclusive reliance on registered voters resulted in a systematic exclusion of African-Americans and other minorities from the jury pool in violation of his right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross-section of the community. After conducting an evidentiary hearing on Trice's motion, the trial court denied the motion and proceeded with the trial. Although Trice reasserted the issue in his direct appeal, it was rejected on the merits by the Court of Criminal Appeals. Trice I, 853 P.2d at 208.

The Sixth Amendment requires that petit juries in criminal trials be "drawn from a fair cross section of the community." Taylor v. Louisiana, 419 U.S. 522, 527 (1975). This does not guarantee that a petit jury will be "of any particular composition." Id. at 538. Instead, it requires only that the pools of names "from which [petit] juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Id. at 538. In order to establish a prima facie violation of the Sixth Amendment "fair cross-section" requirement, a criminal defendant must show:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

In addressing this claim in Trice's direct appeal, the Court of Criminal Appeals correctly identified the controlling standard outlined in Duren. Trice I, 853 P.2d at 208. Without discussing the first or third elements of the prima facie test, the Court of Criminal Appeals concluded, after reviewing the evidence presented by Trice in support of his motion, that he had "failed to establish the representation of non-whites on the jury panel was not fair and reasonable in relation to the number of such persons found in the community." Id.

The question for this court, then, is whether the Court of Criminal Appeals' opinion represents a reasonable application of Duren. For the reasons outlined below, we answer this question in the affirmative.

Trice attempted to satisfy the second prong of the Duren prima facie test in the following manner. As a point of reference, Trice presented 1980 census data establishing the racial composition of Oklahoma County in general. This data indicated that whites comprised 82.49% of the county population; African-Americans, 12.35%; American Indians, 2.51%; Asians, .99%; and other nonwhite categories, 1.66%. Transcript of 6/5/87 hearing, at 5. Trice then sought to contrast these figures with the racial composition of the existing jury pool. However, no official figures were maintained regarding the racial composition of the jury pool, and the trial court denied Trice's request to distribute a questionnaire to the jury pool members asking them to self-report their race.

In a fallback approach, Trice then attempted to contrast the racial composition of the general population with the racial composition of registered voters. Because no official figures were maintained regarding the racial composition of registered voters in Oklahoma County, Trice attempted to determine these figures by offering into evidence "a map showing the eight voting wards of Oklahoma City, a map showing the various Oklahoma City voting precincts, and a census table showing the various tracts of Oklahoma County, including racial composition of residents." District Court Opinion, at 11 n.7. According to Trice, this evidence, considered together, demonstrated (1) that 67% of Oklahoma County's African-American population lived in two different voting wards (Wards Two and Seven), and (2) that the percentages of registered voters found within these two wards were lower than other wards within Oklahoma County.

Although Trice made a substantial effort to determine the racial composition of registered voters in Oklahoma County, his evidence was ultimately insufficient to allow the trial court to conclude that African-Americans were underrepresented in the list of registered voters. Indeed, as the district court noted, Trice's evidence could be reasonably interpreted to mean that African-Americans were not underrepresented in the list of registered voters. Of the eight wards in Oklahoma County, the two wards with the highest population of African-American citizens (Wards Two and Seven) had, respectively, the second and fourth highest percentages of registered voters (72% and 57.4%). Based upon this evidence, we conclude the Court of Criminal Appeals' resolution of the issue is not unreasonable or contrary to established Supreme Court precedent.

Prosecutorial misconduct

Trice contends the lead prosecutor in his case, Robert Macy, made a number of improper comments during closing arguments in both stages of trial. In particular, Trice points to the following comments made by Macy:

* attempting to evoke sympathy for the victims by repeatedly referring to Ms. Jones as "little-bitty" and "little";

* emphasizing Emanuel Jones was mentally retarded and small in stature;

* referring to the day of the crime, February 14, as Valentine's Day;

* telling the jury: "He [Trice] asked for mercy, where was mercy on February 14th?";

* referring to Trice as a "vicious, calculated, cold-blooded killer who preys on little people";

* arguing that Trice was "vicious, cruel, [and] totally without compassion" because he, "in the face of blood, in the face of hysteria, in the face of pain and screaming can become sexually aroused and perform a sexual act";

* arguing: "At that point in her [Ms. Jones'] life, to be violated like that, beaten, and left to die there in her own blood, while he is out snorting cocaine, sleeping in a clean bed every night, three good meals a day, visits from your family; is that adequate punishment? Ain't no way. No way it is.";

* injecting his own personal opinion by saying: "I hate those pictures [i.e., the pictures of Ms. Jones], and I'm not going to show them to you because I don't want to look at them myself."; and "I think that is about as heinous ­ I think you know from this evidence that is about as heinous, and atrocious as a crime can be."; "Ladies and gentleman, I submit to you under the evidence, if ever a man needed to die, he is sitting right there.";

* suggesting the jury owed Trice the death penalty by saying: "follow your duty in this case, to make the punishment fit this crime by returning a verdict of death.";

* maligning the character of Trice by telling the jury: "This man is unique because he is without compassion; he is without human feelings; he is without love for his fellow human beings. Thank God he is different. Because he is different, he sits where he sits.";

* aligning himself with the victim by saying: "Ladies and Gentlemen, today, June 12, 1987, ought to be Earnestine Jones' day, because it ought to be the day that this man is brought before the bar of justice and justice is meted out."

Appellant's Opening Brief, at 44-50. Trice further contends that Macy violated his Fifth Amendment right to remain silent when he commented on Trice's failure to call certain witnesses to corroborate his story that he was intoxicated on the night of the crimes. Finally, Trice contends Macy misstated the law to the jury during the sentencing phase when he argued: "[I]f the aggravating circumstances outweigh the mitigating circumstances, then death is the only appropriate punishment." Trial Tr. at 1071. According to Trice, this latter comment violated his constitutional right to have the jury consider mitigating evidence.

Trice raised all of these issues in his direct appeal. The Court of Criminal Appeals, though concerned about some of Macy's comments, concluded the comments did not deprive Trice of any constitutional rights:

Many of the comments [Trice] cites as error were not objected to at trial. In such instances this Court will review only for fundamental error. We find no such error. Most of the comments which were objected to at trial were reasonable comments on the evidence and do not constitute error. We agree that the prosecutor improperly attempted to evoke sympathy for the victim during second stage argument when he stated, "[h]e asked you for mercy. Where was mercy on February the 14th?" Defense counsel's objection to this comment should have been sustained, and the jury admonished to disregard it. Nor was it proper for the prosecutor to state "[l]adies and gentlemen, today, June 12th, 1987, [the date of the trial] ought to be Ernestine (sic) Jones' day . . . ." While these comments are not to be condoned, we do not believe that they were so grossly improper that, in the absence of additional error, reversal or modification would be warranted. .

[Trice] contends it was improper for the prosecution to comment on the failure to call certain witnesses. During first stage closing argument the prosecutor, Mr. Macy, stated: "[B]oth Defense and the State have the power of subpoena. If Leroy Trice­if Eddie Leroy Trice was intoxicated that night, where are the witnesses that say he was intoxicated? Surely somebody saw him." This Court has held it is improper for the prosecution to insinuate that certain witnesses were not called by the defense because they would have proved damaging to the defendant's position. However, the general rule in Oklahoma is that where a person might be a material witness on a defendant's behalf and the accused neither places him on the stand nor accounts for his absence, failure to produce him as a witness is a legitimate matter for comment during the State's argument.. We do not find the above referenced comment to be improper.

Trice I, 853 P.2d at 214 (citations omitted).

Addressing Trice's arguments in reverse order, a review of the record does not support his contention that the prosecutor's comment about "death [being] the only appropriate punishment" violated his right to have the jury consider mitigating evidence. Although Trice cites Skipper v. South Carolina, 476 U.S. 1 (1986), that case holds only that a criminal defendant on trial for his life be "permitted to present any and all relevant mitigating evidence that is available." Id. at 8. Clearly, the prosecutor's comments in this case did not alter Trice's ability to present mitigating evidence to the jury. Moreover, it is not at all clear that the prosecutor was attempting to persuade the jury what the law was; rather, his comment appears to have been an attempt to persuade the jury not to be swayed by Trice's mitigating evidence. Finally, in view of the fact that the Court of Criminal Appeals engaged in a de novo reweighing of the aggravating factors and mitigating evidence on direct appeal, it is apparent that the prosecutor's comment was harmless.

Nor do we believe there is any constitutional error arising out of the prosecutor's comment regarding Trice's failure to call any witnesses to corroborate his claim of intoxication on the night of the crimes. Although a prosecutor may not comment on a defendant's decision to refrain from testifying, see Griffin v. California, 380 U.S. 609, 615 (1965), he is otherwise free to comment on a defendant's failure to call certain witnesses or present certain testimony.

See United States v. Gomez-Olivas, 897 F.2d 500, 503 (10th Cir. 1990) ("As long as evidence can be solicited other than from the mouth of the accused, it is proper to comment upon the failure of the defense to produce it."). Here, it appears the prosecutor's comment was nothing more than an argument regarding the lack of corroboration for Trice's alleged intoxication. Because the comment was not aimed at Trice's failure to testify, we conclude it did not violate Trice's constitutional rights.

As for the remaining prosecutorial comments challenged by Trice, we conclude they did not, when considered alone or collectively, deprive Trice of his constitutional rights. Barring violation of a specific constitutional right, a prosecutor's improper comments or argument will require reversal of a state conviction only where they sufficiently infect the trial so as to make it fundamentally unfair and, therefore, a denial of due process. SeeDonnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974); seealso Darden v. Wainwright, 477 U.S. 168, 181 (1986). Inquiry into the fundamental fairness of a trial can be made only after examining the entire proceedings. See Donnelly, 416 U.S. at 643. Although some of the comments made by the prosecutor were perhaps inappropriate, they did not render either stage of Trice's trial unfair. Additionally, we note that counsel's failure to object to many of the comments at trial, see Trice I, 853 P.2d at 214, while not dispositive, is relevant to our assessment of fundamental unfairness. SeeJohnson v. Gibson, 169 F.3d 1239, 1249 (10th Cir. 1999). In light of the overwhelming evidence of Trice's guilt and the weight of the aggravating circumstances, there is no reasonable probability that the outcome would have been different without the alleged misconduct. Further, we note there is no evidence that the prosecutor's comments had any effect on the Court of Criminal Appeals' decision to impose the death penalty after reweighing the aggravating and mitigating evidence on direct appeal. Our conclusion that the comments at issue did not render the trial fundamentally unfair does not, however, amount to an endorsement of the comments, nor to a holding that they could never rise to the level of a due process violation absent the overwhelming evidence of guilt and aggravating circumstances present in this case.

Clayton v. Gibson (10th Cir) Clayton contends [A] his due process rights were violated when his competency was retrospectively determined six years after his trial and under a burden of proof later found unconstitutional in Cooper v. Oklahoma, 517 U.S. 348 (1996); [B] he is entitled to habeas relief because his involuntary statement to police was admitted at trial; [C] prosecutorial misconduct deprived him of a fair tria ( he alleges the prosecutor informed the jury the district attorney's function was to "seek the truth," improperly characterized the burden of proof, purposefully aroused the passions and prejudices of the jury, shaded the truth during questioning and closing argument, and commented on Clayton's invocation of his rights to counsel and to remain silent.); [D] the prosecutor failed to disclose exculpatory evidence; [E] the State deprived him of due process by denying his request for expert psychiatric assistance at the penalty phase of his trial; [F] his death sentence must be vacated because the "especially heinous, atrocious or cruel" aggravating circumstance found by the jury was supported only by "bogus" expert testimony that was erroneously admitted at trial; [G] he was deprived of effective assistance of counsel at both phases of his trial (counsel was ineffective for not utilizing an alternative perpetrator defense strategy & failing to adequately investigate and present potentially mitigating evidence); [H] newly discovered evidence & [I] cumulative error.

Clayton contends his due process rights were violated when his competency was retrospectively determined six years after his trial and under a burden of proof later found unconstitutional in Cooper v. Oklahoma, 517 U.S. 348 (1996).

Before trial, the state court ordered that Clayton be examined to determine if he was competent to stand trial. Although Dr. Samuel Sherman examined Clayton and found him competent, the court apparently did not hold a post-examination competency hearing as required by then-existing state law. On direct appeal, the Oklahoma Court of Criminal Appeals remanded the case and directed the court either to forward proof that a hearing had been held or to conduct a retrospective hearing if feasible. The trial court first conducted a hearing to determine if a retrospective competency hearing was feasible. Based upon the availability of evidence pertaining to Clayton's pretrial competency, the court determined a retrospective competency hearing was feasible. On September 12, 1991, a jury found that Clayton was competent at the time of his trial on March 1, 1986. On appeal, the Oklahoma Court of Criminal Appeals found there was sufficient evidence of Clayton's competency to render a retrospective hearing meaningful. Clayton, 840 P.2d at 25. Clayton argues the six-year time lapse, the poor quality and lack of written records, and the sketchy memory of important witnesses precluded a fair retrospective determination of his competency at the time of trial.

Although retrospective competency hearings are disfavored, they are permissible "whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant." Moran v. Godinez, 57 F.3d 690, 696 (9th Cir. 1994); see Drope v. Missouri, 420 U.S. 162, 180-83 (1975). "A 'meaningful' determination is possible where the state of the record, together with such additional evidence as may be relevant and available, permits an accurate assessment of the defendant's condition at the time of the original state proceedings." Reynolds v. Norris, 896 F.3d 796, 802 (8th Cir. 1996). A court should consider (1) the passage of time, (2) the availability of contemporaneous medical evidence, including medical records and prior competency determinations, (3) any statements by the defendant in the trial record, and (4) the availability of individuals and trial witnesses, both experts and non-experts, who were in a position to interact with defendant before and during trial, including the trial judge, counsel for both the government and defendant, and jail officials. SeeReynolds, 86 F.3d at 802-03; Moran, 57 F.3d at 696.

Applying these factors, we find no constitutional error in the state court's determination that a retrospective competency hearing was feasible. While the time gap between Clayton's trial and the competency determination is troubling, "[t]he passage of time is not an insurmountable obstacle if sufficient contemporaneous information is available." Reynolds, 86 F.3d at 803; seeBruce v. Estelle, 536 F.2d 1051, 1057 (5th Cir. 1976) (determining nine-year gap between trial and competency hearing did not alone vitiate opportunity for meaningful hearing); Barefield v. New Mexico, 434 F.2d 307, 309 (10th Cir. 1970) (finding "mere lapse of time before a competency hearing" does not invalidate findings made as a result of that hearing).

The trial court had before it Dr. Sherman's pretrial report finding Clayton competent to stand trial. Although the report was admittedly brief, it nonetheless constituted a contemporaneous medical determination. "[M]edical reports contemporaneous to the time [of trial] greatly increase the chance for an accurate retrospective evaluation of a defendant's competence." Moran, 57 F.3d at 696; see United States v. Mason, 52 F.3d 1286, 1293 (4th Cir. 1995) (finding competency determination possible where "the defendant's treating physicians have already conducted an inquiry into the defendant's competence and formed an opinion as to his competence at the time of the first phase of his trial").

In addition, numerous witnesses who interacted with Clayton before and during trial were available to testify at the competency hearing, including the trial judge, clinical psychologists, the jail physician, and Clayton's trial counsel.(1) Clayton does not dispute the availability of these witnesses, but counters with the feasibility hearing testimony of Dr. Robert Nicholson, a clinical psychologist with significant experience in competency evaluations. Dr. Nicholson testified that the time gap and the poor quality of the contemporaneous written records made it impossible for him to evaluate Clayton's competency at the time of trial. While Dr. Nicholson's testimony has probative value, it is not sufficient to establish that a retrospective competency hearing was not feasible, particularly given the finding of competency prior to trial and the availability of numerous witnesses who were familiar with Clayton at the time of trial. We conclude Clayton was not deprived of due process by having his competency determined retrospectively. See Walker v. Attorney General, 167 F.3d 1339, 1347 n.4 (10th Cir. 1999).

Clayton also contends the trial court employed an unconstitutional burden of proof at his competency hearing by requiring him to prove his competence by clear and convincing evidence. In Cooper, the Supreme Court ruled that use of the clear and convincing evidence standard in a competency hearing violated due process. 517 U.S. at 369. Because Cooper was decided after Clayton's direct and post-conviction appeals, he presented this issue for the first time in his federal habeas petition.(2) The federal district court denied relief on the ground that Clayton had procedurally defaulted this claim by failing to raise it on direct appeal. Although the court acknowledged Cooper was decided after Clayton's state court proceedings were final, it reasoned that under the 1995 amendments to Oklahoma's post-conviction statute this fact did not excuse Clayton's failure to challenge the evidentiary standard on direct appeal.

Generally, it is a prerequisite to habeas relief that a petitioner exhaust his remedies in state court. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is not jurisdictional, however, and may be waived by the state or avoided by the petitioner if an attempt to exhaust would be futile. See Demarest v. Price, 130 F.3d 922, 933-34 (10th Cir. 1997). Both exceptions apply here. The state has expressly waived the exhaustion requirement by conceding Clayton has "exhausted his state remedies as to this factual claim." Record, Doc. 10 at 46. In addition, the Oklahoma Court of Criminal Appeals ruled unequivocally that a Cooper claim is barred if not presented on direct appeal or submitted in a first application for post-conviction relief, even if the direct appeal and post-conviction processes were final before Cooper was decided. See Walker v. State, 933 P.2d 327, 338-39 (Okla. Crim. App. 1997). Further presentation of the claim to the Oklahoma courts thus would be futile. See Wallace v. Cody, 951 F.2d 1170, 1171 (10th Cir. 1991).

Having deemed Clayton's claim exhausted, we next must consider if Clayton's claim is procedurally barred.(3) A claim that has been defaulted in state court on an adequate and independent state procedural ground will be considered on federal habeas review only if a petitioner can demonstrate cause and prejudice to excuse the default or establish failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Rogers v. Gibson, 173 F.3d 1278, 1290 (10th Cir. 1999). To be adequate, a state's procedural rule must have been firmly established and regularly followed when the purported default occurred. Walker, 167 F.3d at 1344.

Here, the 1995 amendments to Oklahoma's post-conviction statute supplied the basis for the procedural bar finding. The amendments sharply limit a petitioner's ability to bring claims in a new post-conviction application that were not raised on direct appeal or in a prior post-conviction application, including new claims based on an intervening change in law. Id. at 1345. We consistently have held, when considering Cooper claims, that the 1995 amendments do not constitute an "adequate" state law ground for procedural default purposes if they did not exist at the time of the default. See Rogers, 173 F.3d at 1290; Walker, 167 F.3d at 1345. In this case, the district court ruled Clayton's default occurred when his direct appeal became final in 1992, three years before the effective date of the 1995 amendments. "A defendant cannot be expected to comply with a procedural rule that does not exist at the time, and should not be deprived of a claim for failing to comply with a rule that only comes into being after the time for compliance has passed." Walker, 167 F.3d at 1345. In these circumstances, Clayton's procedural competency claim is not barred by his failure to raise it on direct review or in his post-conviction application. We therefore consider Clayton's claim on the merits.

Clayton is entitled to relief on his procedural competency claim only if "the state trial court ignored evidence that, viewed objectively, raised a bona fide doubt as to [Clayton's] competency to stand trial." Id. (citing Drope, 420 U.S. at 180-81). A defendant will be deemed competent to stand trial if at the time of trial he had "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and . . . a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960). Although not limited to these factors, a court conducting a competency inquiry should consider defendant's demeanor at trial, any evidence of irrational behavior by defendant, and perhaps most important, any prior medical opinions regarding competency. Walker, 167 F.3d at 1346. In addition, where, as here, defendant's competency was determined under an unconstitutional standard, the jury's finding of competency is not entitled to a presumption of correctness. Id. at 1345.

In arguing a bona fide doubt exists as to his competency at the time of trial, Clayton relies primarily on the competency hearing testimony of his trial counsel, Ronald Wallace, and of Dr. Nicholson. Wallace testified that before and during trial, he questioned Clayton's competency, specifically wondering if Clayton was capable of understanding the proceedings and assisting counsel. Although Wallace thought Clayton's comprehension was limited to understanding he was in an adversarial proceeding, Wallace declined to characterize his concerns as "serious." At the feasibility hearing, Dr. Nicholson, for the most part, reiterated his testimony that Clayton's competency at the time of trial could not be determined accurately given the dearth of contemporaneous records.

In contrast to the ambivalent testimony of Wallace and Dr. Nicholson is the unequivocal testimony of three doctors who either evaluated or observed Clayton at the time of trial. Dr. Goodman, who examined Clayton twice before trial, testified that Clayton was lucid and did not have difficulty recalling events or relating an account of the crime. Although he conceded Clayton might have an underlying personality disorder, he was satisfied that Clayton's sanity would not be an issue at trial. Dr. Barnes, the jail physician, examined Clayton physically and responded to Clayton's claims of illness. He testified that Clayton had no physiological problems that would have affected his competency at trial. Dr. Sherman performed the pretrial examination of Clayton and found him to be competent. Dr. Sherman described the procedures he typically performed in a competency evaluation and testified that in 1986 he had found after evaluation that Clayton was competent. He was unwilling to rule out the possibility that Clayton had a mental disorder, but testified an individual can have a mental disorder and be competent to stand trial.

Clayton points out that Dr. Sherman conceded at the hearing he had no independent recollection of Clayton, had no records or files regarding the pretrial examination, and could not identify the bases for his conclusion. Although troubling, these problems ultimately pose issues of credibility. The jury was free to discount or even ignore Dr. Sherman's testimony. It chose not to do so and we cannot second-guess this rational credibility determination on habeas review. The evidence in the record does not raise a bona fide doubt as to Clayton's competency at the time of trial.

*****

Newly discovered evidence

Clayton lists in his appellate brief several revelations discovered by his habeas counsel in interviews with trial witnesses ten years after his conviction. It is unclear whether Clayton is presenting this allegedly "newly discovered evidence" as an independent constitutional claim of actual innocence warranting habeas relief as a mechanism by which to bypass a procedural bar, or as evidence supporting his claim of ineffective assistance of counsel. Neither argument previously was presented in state court.

Clayton characterizes the following as newly discovered evidence: (1) Hartsfield confided to his sister that he may have killed a man in Texas; (2) Hartsfield's brother-in-law now denied being with Hartsfield on the morning of the murder; and (3) Hartsfield's sister contradicted her trial testimony by stating the blood on Clayton's clothing was dry when she saw it, that she witnessed Clayton hide the knife, that Hartsfield asked her to "cover" for him, and that she believed her husband was at work on the morning of the murder and not with Hartsfield. Clayton offers an affidavit from an attorney attesting to what Hartsfield's brother-in-law said in an interview but does not offer an affidavit from the brother-in-law. The transcript of a recorded conversation indicated that Hartsfield's sister could not fully recall if her husband was at work on the morning of the murder and she did not understand Hartsfield's request to "cover him" to be a request to lie on his behalf. She also stated unambiguously that Clayton's clothing was bloody. Bearing in mind the actual state of the record, we turn to Clayton's newly discovered evidence claim.

In Herrera, the Supreme Court intimated strongly that newly discovered evidence of actual innocence is not sufficient to warrant habeas relief absent an independent constitutional violation in the underlying state criminal proceeding. 506 U.S. at 400. The Court nonetheless declined to completely foreclose the possibility that a "truly persuasive demonstration of 'actual innocence' made after trial [would] . . . warrant federal habeas relief," instead cautioning that "the threshold showing for such an assumed right would necessarily be extraordinarily high." Id. at 417. Typically, however, newly discovered evidence of actual innocence may serve only to satisfy the fundamental miscarriage of justice exception that excuses a petitioner's procedural default and permits a court to address an otherwise barred constitutional claim. Id. at 404.

Clayton's newly discovered evidence claim does not satisfy the extraordinarily high threshold set forth in Herrera and he asserts no separate underlying constitutional violation. The evidence which he asserts as newly discovered evidence barely aids his case and is merely impeaching evidence that would not cause a rational person to doubt Clayton's guilt. See Stafford v. Saffle, 34 F.3d 1557, 1561 (10th Cir. 1994). Nor is Clayton's newly discovered evidence sufficient to invoke the fundamental miscarriage of justice exception, which excuses a petitioner's procedural default. Clayton has not made a colorable showing of factual innocence, see Herrera, 506 U.S. at 404, and has not identified an independent constitutional claim, other than ineffective assistance of counsel, that we could review even if we found the miscarriage of justice exception applicable. As for his vague and passing reference to ineffective assistance of counsel, Clayton fails to identify how his counsel was ineffective in failing to discover this evidence or how any deficient performance prejudiced him. It is a virtual certainty that disclosure of this newly discovered evidence would not have altered the outcome of Clayton's trial.

Capital Cases

Coleman v. Ryan (7th Cir) Coleman's challenges his convictionon on the the claim that one aggravator was unconstitutionally vague, another aggravator failed to provide notice, & that he was incompetent to waive counsel at the second stage of the capital sentencing hearing; he was represented by counsel only at the first stage of the sentencing hearing.

Coleman argues that the application of the second of the two capital-eligibility factors used in sentencing him to death contravenes the constitutional requirement of "fair notice." The eligibility factor in dispute here provides:

A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if . . .

. . .

. . . the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts . . . .

Ill. Rev. Stat. 1983, ch. 38, para. 9-1(b)(3). This factor was not applied to Coleman on the basis of a murder committed prior to the Vernita Wheat murder. Rather, it was applied on the basis of subsequent out-of-state murders for which Coleman was convicted prior to the Illinois trial.

Coleman argues that this application of the challenged eligibility factor did not provide constitutionally-required "fair notice." "[T]he notice requirements of the Due Process Clause" require that a criminal law "clearly define the conduct prohibited" as well as "the punishment authorized." United States v. Batchelder, 442 U.S. 114, 123 (1979). A statute is constitutionally defective if it "do[es] not state with sufficient clarity the consequences of violating a given criminal statute." Id. In other words, a criminal statute must be "'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.'" Bouie v. City of Columbia, 378 U.S. 347, 351 (1964) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).

Our inquiry is confined to whether the Illinois Supreme Court's decision on the notice issue involved an unreasonable application of clearly established Federal law as determined by the United States Supreme Court. 28 U.S.C. sec. 2254(d)(1). The Illinois Supreme Court has interpreted section (b)(3), consistent with its plain meaning, to refer to prior "convictions," not prior offenses. People v. Albanese, 473 N.E.2d 1246, 1259 (Ill. 1984). Although Albanese was decided after the offense for which the Illinois jury sentenced Coleman to death, the Illinois Supreme Court held in People v. Coleman, 660 N.E.2d 919, 939-40 (Ill. 1995) (Coleman II), that the statute was sufficiently explicit to have placed Coleman "on notice that after the murder of Vernita Wheat, the commission of additional murders in Illinois or another jurisdiction would make him eligible for the death penalty."

Coleman attacks this decision by the Illinois Supreme Court as unreasonable because it allows his death sentence to turn on after-the-fact decisions by out-of-state prosecutors in Indiana and Ohio to seek murder convictions against him. But such contingencies are not fatal to fair notice, nor are they unrelated to Coleman's own conduct. At the time Coleman murdered Vernita Wheat, he was on notice that by doing so, he would be eligible for the death penalty if the sentencer found that he had previously been convicted of murder. We cannot conclude that the Illinois Supreme Court's decision to that effect was unreasonable.

C.

While the Court assumes for the purposes of this appeal that the first capital-eligibility factor under which Coleman was found eligible for a death sentence is unconstitutionally vague, we conclude that the Illinois courts' application of the second capital-eligibility factor is constitutional. Having done so, we must now proceed to consider whether the jury's consideration of a presumed unconstitutional capital-eligibility factor so infected the sentencing process that the decision of the Illinois jury must be set aside. Our analysis depends in part on whether or not Illinois is, in capital punishment terminology, a "weighing" state.

The distinction between a "weighing" state and a "non-weighing" state is a functional one, and is best illustrated by the differences between the capital punishment sentencing schemes in Georgia and Mississippi. See Clemons v. Mississippi, 494 U.S. 738, 744-45 (1990). In Georgia, which is a non-weighing state, the jury is instructed not to give any particular weight to statutory aggravating factors once it has found the defendant eligible for the death penalty. See Zant v. Stephens, 462 U.S. 862, 872 (1983). Rather, the jury is told to "'take[ ] into consideration all circumstances before it from both the guilt-innocence and the sentence phases of trial.'" Id. (quoting the Georgia Supreme Court). By contrast, in a weighing state like Mississippi, once a defendant has been found eligible for the death penalty the jury is instructed to weigh only the statutory aggravating factors against the mitigating evidence in determining whether a death sentence is appropriate. See Clemons, 494 U.S. at 745. It is this exclusive focus on statutory aggravating factors that characterizes a weighing state, as opposed to the more sweeping evidentiary consideration undertaken by juries in non- weighing states. See id.; Williams v. Cain, 125 F.3d 269, 283 (5th Cir. 1997) (noting that a weighing state requires the jury "to focus only on the statutory aggravating factor[s]") (emphasis added). Whether Illinois is a weighing or non-weighing jurisdiction can only be determined by a careful consideration of the state's capital punishment sentencing scheme.

Illinois conducts its capital sentencing hearings in two stages: the capital-eligibility stage and the sentencing stage. In the first stage, the jury determines whether the defendant is eligible for the death penalty. In order to find that the defendant is eligible for a death sentence, the jury must unanimously determine that the defendant is over eighteen years of age, and that at least one of ten enumerated aggravating factors is present. Ill. Rev. Stat. 1983, ch. 38, para. 9-1(b). If an aggravating factor is deemed to apply, the jury then proceeds to "consider aggravating and mitigating factors as instructed by the court and . . . determine whether the sentence of death shall be imposed." Ill. Rev. Stat. 1983, ch. 38, para. 9-1(g). In making its determination as to the death sentence, the jury considers, but is not limited to, aggravating and mitigating factors enumerated by statute. Ill. Rev. Stat. 1983, ch. 38, para. 9-1(c). "If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death." Ill. Rev. Stat. 1983, ch. 38, para. 9-1(g).

Coleman argues that the jury's balancing of aggravating and mitigating factors, as described above, makes Illinois a weighing state. See Morgan v. Illinois, 504 U.S. 719, 721-22 (1992) (describing the "balance" of aggravating and mitigating factors that occurs at the second stage of an Illinois capital sentencing hearing). We cannot accept this analysis. The distinction between a weighing and non-weighing state in capital punishment terms is a functional one, and the mere use of the word "weighing" to describe the process of balancing aggravating and mitigating factors is not sufficient to make Illinois a weighing state. See Williams v. Calderon, 52 F.3d 1465, 1477 (9th Cir. 1995) (explaining that the distinction between weighing and non-weighing states does not turn on the use of the word "weighing" to describe a state's capital punishment sentencing scheme); see also Stringer v. Black, 503 U.S. 222, 231 (1992) ("[T]he difference between a weighing State and a nonweighing State is not one of 'semantics.'"). As we noted above, the key element of a capital punishment scheme in a weighing state is the exclusive use of statutory aggravating factors when balancing against mitigating considerations during the second stage of the capital sentencing hearing, as distinct from the more general balance of aggravating and mitigating factors that occurs in non-weighing states. See Cain, 125 F.3d at 283.

The definitive classification of Illinois as a weighing or non-weighing state is a question for Illinois courts. Hampton v. Page, 103 F.3d 1338, 1342 (7th Cir. 1997). While in the past we noted that Illinois had yet to attach "a label--in bold letters--to its capital sentencing scheme," we also stated that the Illinois Supreme Court had not remained entirely silent on the matter. Id. Even at that time, the Illinois Supreme Court had stated that "Illinois has a non-weighing statutory scheme to determine if someone is eligible for the death penalty." People v. Todd, 607 N.E.2d 1189, 1198 (1992). Recently, the Illinois Supreme Court confirmed this conclusion by unequivocally declaring that "Illinois is a non-weighing state." People v. Shaw, 713 N.E.2d 1161, 1182 (Ill. 1998) (citing 720 ILCS sec. 5/9- 1(c) (West 1996)). We are not free to ignore the Illinois Supreme Court's interpretation of Illinois law, and we therefore proceed to analyze Coleman's claim in light of our understanding that Illinois is a non-weighing state. See Stringer, 503 U.S. at 235.

The determination that Illinois is a non- weighing state has significant implications for our review of this case. As opposed to the situation in a weighing state, where invalid statutory aggravating factors serve to allow additional evidence to erroneously come before the jury, the jury in this case properly considered the way in which Vernita Wheat was killed. Even if the manner in which Vernita Wheat was killed should not have come before the jury as a statutory aggravating factor, the circumstances surrounding her death could have been introduced by the prosecution as additional aggravating evidence. In such a circumstance there is no constitutional violation "[a]ssuming a determination by the state appellate court that the invalid factor would not have made a difference as to the jury's determination." Stringer v. Black, 503 U.S. 222, 232 (1992). The Illinois Supreme Court made precisely that determination when it found that the jury's reliance on the first capital-eligibility factor, "even if [it] was improper, did not affect its finding that the defendant was eligible for the death penalty." People v. Coleman, 540 N.E.2d 330, 342 (Ill. 1989). In light of this conclusion by the Illinois Supreme Court, we find no constitutional violation in the jury's consideration of an assumed invalid statutory aggravating factor, nor do we find any error in the district court's adjudication of the issue.

Glock v. Moore (11th Cir) "Petitioner argues that he was denied constitutionally effective assistance during the penalty phase of his trial because his counsel failed to discover, through routine investigation, evidence of petitioner's childhood abuse, mental disturbance, and domination by his codefendant. . . . . Because we find that petitioner has not satisfied the prejudice prong of the Strickland analysis, we do not address whether counsel's performance was deficient.".

The substance of much of the evidence that Glock produced during the evidentiary hearing was before the trial court at the penalty phase. The additional evidence of Glock's supposed domination by his codefendant, Puiatti, is the least persuasive evidence of prejudice that petitioner offers. The record reveals that Glock's stepmother, Willie Mae Glock, testified at trial that she doubted whether petitioner's participation in the murder was voluntary, and that Dr. Mussenden told the jury that Glock was easily led by people who could make him feel comfortable. . . .

Glock also offers anecdotal evidence from a variety of sources who corroborate his claim that he suffered from extensive physical and emotional abuse at the hands of his biological mother, Carol Harmon. Additionally, Glock presents evidence that as a result of his lifetime of abuse, he has a poor self-concept, distances himself from others, has inadequate personal relationships, suffers from dependency, and has self-defeating traits. Petitioner argues that had the court had this evidence before it at sentencing, the statutory mitigating circumstance that "the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance," Fla. Stat. Ann. § 921.141(6)(b), as well as numerous nonstatutory mitigators, would have been established. The problem with this argument is that though the trial court did not have before it all of the abuse evidence that petitioner now offers, the substance of the evidence was presented at sentencing. At trial, petitioner's sister testified in some detail about Glock's early childhood abuse ("If we were ten minutes late coming home from school, we were beat. If there was dirty dishes in the house, we were beat."); and this testimony was corroborated by Willie Mae Glock. The "additional" evidence of Glock's mental disturbance is repetitive of what was presented to the jury by Dr. Mussenden. Despite petitioner's presentation of abuse evidence and psychological testimony, the sentencing court specifically rejected the contention that Glock was under the influence of extreme mental or emotional disturbance when he committed the crime. Therefore, "in light of the fact that the substance of [Glock's] mental deficiencies and abusive childhood were presented to the jury, and in light of the [three] strong aggravating circumstances found by the sentencing judge ..., we conclude that there is no reasonable probability that the jury would have returned a life sentence." Oats v. Singletary, 141 F.3d 1018, 1029 (11th Cir.1998); see also Marek v. Singletary, 62 F.3d 1295, 1300-01 (11th Cir.1995) (given the overwhelming evidence against the petitioner, "evidence of an abusive and difficult childhood would have been entitled to little, if any, mitigating weight").

It is true that we have sometimes found that trial counsel's failure to present evidence of a defendant's personal history or good character is enough to demonstrate prejudice to the defendant at the penalty phase. See Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir.1998); Jackson v. Herring, 42 F.3d 1350, 1368-69 (11th Cir.1995); Harris v. Dugger, 874 F.2d 756, 763-64 (11th Cir.1989); Blake v. Kemp, 758 F.2d 523, 534 (11th Cir.1985). But in those cases, we found prejudice because of counsel's almost complete failure to present any mitigating evidence of significance. See Dobbs, 142 F.3d at 1390 (no evidence of an unfortunate upbringing presented to the court); Jackson, 42 F.3d at 1363 ("Neither lawyer offered any evidence regarding Jackson's personal history or background. Counsel were virtually silent during two subsequent sentencing hearings before the trial judge...."); Harris, 874 F.2d at 763 (trial counsel had a "total--and admitted--ignorance about the type of mitigation evidence available to them"); Blake, 758 F.2d at 533 (counsel "made no preparations whatsoever for the penalty phase" of defendant's trial). Those cases are a far cry from the instant case, where much of the new evidence that Glock presents is merely repetitive and cumulative to that which was presented at trial.

ii.

This brings us to the evidence introduced at the evidentiary hearing that cannot reasonably be classified as cumulative. This includes the evidence of physical and emotional abuse that petitioner suffered at the hands of his stepmother, Willie Mae Glock, from age fourteen to eighteen, and Dr. Larson's opinion that as a result of a lifetime of abuse and neglect, petitioner suffers from post-traumatic stress disorder. Glock again argues that had the trial court had this evidence before it, the statutory mitigating circumstance of extreme mental or emotional disturbance, and numerous nonstatutory mitigators would have been established; the argument then goes that given these additional factors, there is a reasonable probability that the court would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

In addressing petitioner's argument, it is helpful to understand the rationale animating Florida's scheme of statutory mitigating circumstances. In determining whether sufficient mitigating circumstances exist to warrant the imposition of a life sentence in a capital case, the Florida legislature has found it useful to look to two kinds of evidence: (1) defendant-specific mitigators; and (2) offense-specific mitigators.(20) Defendant-specific mitigators are those factors that indicate that, regardless of the circumstances surrounding the commission of the crime, the defendant is a good candidate for rehabilitation. Of the seven listed statutory mitigating circumstances, two are indicators of the defendant's rehabilitative potential. These are: "(a) [t]he defendant has no significant history of prior criminal activity;" and "(g) [t]he age of the defendant at the time of the crime." Fla. Stat. Ann. § 921.141(6)(a), (g). That the defendant has no significant history of prior criminal activity indicates that the criminal justice system may be able to intervene at an early stage, and prevent the defendant from becoming a recidivist offender. Likewise, the younger the defendant, the more likely it is that society will be able to step in and impress upon the defendant the counterproductive and antisocial nature of his act. . . .

When Glock's attorney, Trogolo, assisted Glock during the penalty phase of the trial, his strategy was to present both kinds of evidence. The gist of his argument was that (1) Glock cannot be held fully responsible for his crime because his early childhood abuse caused some degree of mental disorder during his adult years, and because he was dominated by his codefendant; and (2) Glock was a good candidate for rehabilitation because his past behavior indicated that he was not a likely recidivist, and because he had a loving and supportive family who could assist him in adjusting to law-abiding behavior. A key component of petitioner's rehabilitation argument was the presentation of Glock's stepmother, Willie Mae Glock. She was the cornerstone of Glock's loving and supportive family scenario, and thus provided the critical testimony relevant to whether Glock had a family network who could help prevent his commission of crimes in the future.(21)

Petitioner now argues that his attorney should have presented evidence of physical and emotional abuse at the hands of Willie Mae Glock, and evidence of petitioner's resulting post-traumatic stress disorder. Had Glock's attorney presented such evidence, however, his argument that Glock was a good candidate for rehabilitation would have been thrown out. The argument that Glock had a loving and supportive family who could help rehabilitate him (as evidenced by the testimony of Willie Mae Glock) is fundamentally inconsistent with the idea that Willie Mae was so abusive towards Glock that he developed a mental disorder at her hands. At trial, Glock was able to play both sides of the coin. He presented just enough offense-specific evidence to allow a jury to conclude that he could not be held fully responsible (e.g., a tormented childhood, and domination by his codefendant); at the same time, Glock presented enough defendant-specific evidence of his past record of lawful behavior and a loving family network to give the impression that he was not a likely recidivist. But Glock was walking a thin line because the more evidence of mental disturbance and abuse that he presented, the less likely it is that the court would have found he was a good candidate for rehabilitation. If Glock was so out of control at the time of the criminal event that he could not be held fully responsible, then what could possibly lead a court to believe that he would suddenly gain sufficient control of his faculties to prevent him from committing criminal acts in the future?(22) Throw out Willie Mae Glock's testimony and the loving family scenario, increase the evidence of mental disturbance and abuse, and Glock would have had no hope of a finding of rehabilitative potential.(23)

Petitioner argues that the jettisoning of the rehabilitation argument is of no moment, because with the additional evidence of abuse and mental disorder, the court would have found the statutory mitigating circumstance of "extreme mental or emotional disturbance," Fla. Stat. Ann. § 921.141(6)(b), and numerous nonstatutory mitigators. But again, when we examine the likelihood that petitioner's new evidence would have had the desired effect, we find that there is no reasonable probability that he would have established additional mitigating circumstances. Glock's argument that he was suffering from post-traumatic stress disorder as a result of a lifetime of physical and emotional abuse would have been greatly undermined by three pieces of evidence that the state would have presented to the court. First, Glock's theory of a continuing mental disorder that stemmed from childhood abuse is inconsistent with the fact that he had a moderately successful career in the military from the age of eighteen until he was honorably discharged at age twenty. The murder of Sharilyn Ritchie was committed when Glock was twenty-two years old, fours years after he had left Willie Mae Glock's abusive home, and two years after he was able to pull himself together enough to serve in the military. It seems unlikely that the trial court would have found that Glock was suffering from some extreme mental or emotional disturbance at the time of the crime, when the murder took place so long after Glock left the abusive environment and then was able to serve in the army.(24) Second, the court would have wondered why Glock emerged from his stepmother's home as such a violent criminal, when both of his stepsisters who endured abuse that was at least as traumatic as that which Glock experienced, including sexual assault by their stepfather, did not engage in criminal activity. Finally, the state would have had access to conflicting psychiatric expert testimony that would have counteracted testimony from Dr. Larson concerning Glock's post-traumatic stress disorder. During the evidentiary hearing, the state called Dr. Sidney Merin, who testified that his review of the record indicated that there was no evidence to support petitioner's post-traumatic stress disorder claim.(25) During the penalty phase, the state would have had the further advantage of subjecting petitioner to examination by its own expert psychologist, see Fla. R.Crim. P. 3.202(d) (1996 & Supp.1999),(26) making it even more likely that the court would find the state's psychologist to be a credible witness. This would have diminished petitioner's psychological evidence even further.

Of course, we do not find that trial counsel made a "tactical" or "strategic" decision not to present the abuse evidence, and evidence of his resulting post-traumatic stress disorder, in the sense that Trogolo actually considered and rejected such a strategy. There is no indication that Trogolo was aware of any of this evidence. Instead, we find that in light of trial counsel's bifurcated strategy of presenting both offense-specific and defendant-specific mitigating evidence, in light of the strength of the defendant-specific rehabilitation evidence, in light of the weakness of the continuing mental disturbance theory that petitioner now proffers, and in light of the fact that the introduction of the further abuse evidence would have meant the exclusion of the supportive family evidence, Trogolo's tack during the penalty phase "would continue to be a reasonable strategy." Bertolotti v. Dugger, 883 F.2d 1503, 1519 (11th Cir.1989) (finding that even if trial counsel had been aware of evidence of petitioner's psychological impairment, omitting this evidence during the penalty phase in favor of depicting petitioner "as a normal man from a happy and loving family, whose life deserved to be spared" would continue to be a reasonable strategy). We find further that even if petitioner had been able to present his new evidence to the sentencing court, there is no "reasonable probability" that the court would have returned anything other than a sentence of death. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Petitioner likely would have fared worse at trial if he had been able to pursue the strategy for which he now argues.

Ford v. Haley (11th Cir)

Ford v. Haley (11th Cir) Having previuosly entered a stay to determnine competency for this Alabama death row inmate to be exeucted, the panel concludes that "the district court did not clearly err in its findings that Ford is competent to dismiss his § 2254 habeas petition and Davis as his counsel."

In Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), the United States Supreme Court established the test for determining competency to waive post conviction review in a capital case. The test is whether a defendant has the "capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises." Rees, 384 U.S. at 314, 86 S.Ct. 1505. This Circuit explained in Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir.1993), that applying the Rees test "involves a determination of (1) whether that person suffers from a mental disease, disorder, or defect; (2) whether a mental disease, disorder, or defect prevents that person from understanding his legal position and the options available to him; and (3) whether a mental disease, disorder, or defect prevents that person from making a rational choice among his options." Lonchar, 978 F.2d at 641-42 (citing Rumbaugh v. Procunier, 753 F.2d 395, 398 (5th Cir.), cert. denied, 473 U.S. 919, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985)).

The district court applied the Rees test in the precise manner instructed in Lonchar. At the outset, the district court found that Ford suffered from depression and a personality disorder, both of which are mental disorders. Thus, the district court correctly assumed that the first prong of Lonchar was met. However, the district court then found that neither of Lonchar 's other two prongs was met and that Ford was competent to dismiss his habeas petition and his counsel. We hold that the district court's findings are not clearly erroneous for the reasons outlined below.

B. Lonchar 's Second Prong

Under Lonchar 's second prong, this Court requires that the defendant's mental disorders must impair his ability to understand his legal position and the options available to him before a finding of incompetency can be made. Lonchar, 978 F.2d at 641-42. Here, the district court expressly found that Ford clearly understood that the state of Alabama would move the Alabama Supreme Court to set an execution date as soon as the habeas petition was dismissed and understood that he would not be able to file any further pleadings in federal district court. The district court determined that Ford's mental disorders did not prevent him from understanding his legal position and the options available to him. This finding is supported by substantial evidence in this record.. . . . In this case, Ford recognizes that the crime he was convicted of is murder; the penalty that has been handed down is execution; and the ultimate outcome of the penalty will be death. As outlined in Dr. Rollins's report, Ford understands that if he withdraws his appeal, he will be executed. The report also discusses Ford's understanding of the habeas procedure and his assessment that, "at best, a new trial would lead to life without parole." Ford admits that he killed the two victims and the trial evidence that Ford committed these capital crimes was overwhelming. See Ex parte Ford, 515 So.2d 48 (Ala.1987), aff'g, Ford v. State, 515 So.2d 34 (Ala.Crim.App.1986). Thus, Ford fully understands that, at best, his habeas petition will lead to a new trial and a new trial, at best, will lead to life without parole. Dr. Rollins's reports and testimony, Ford's testimony, and Ford's extensive correspondence all demonstrate that Ford exhibits a basic and clear understanding of the habeas proceedings, that Ford has persisted in his opposition to further review of his conviction and death sentence, and that Ford understands without further collateral review he will be executed.

In sum, the district court correctly concluded that under Lonchar, Ford need not understand the particulars of each legal issue framed into the petition or the likelihood of prevailing on any or all of them. The district court's finding that Ford understands his legal position and the options available to him is supported by substantial evidence in this record and is not clearly erroneous. Thus, the district court did not err in finding that Ford does not meet Lonchar 's second requirement for incompetency.

C. Lonchar 's Third Prong

Likewise, we conclude that the district court did not err in finding that Ford also did not meet Lonchar 's third requirement. Again, Ford's own testimony and Dr. Rollins's reports and testimony support the district court's findings that Ford has the ability to make a rational choice among his options and has done so. Specifically, there is substantial evidence in the record that Ford desires to dismiss his petition because he is weary of languishing in prison, he believes a new trial will only result at best in a conviction and life in prison, he is justly pessimistic that he will ever get out of prison, and he believes he will be happier "in his afterlife in Heaven."

Ford's testimony demonstrates how he recognizes his options and how he has rational reasons for choosing the option of execution. At the June 10, 1998 hearing, Ford stated that "he was tired of being on death row" and was ready to "be with his Creator if I can get that." . . .. . . .

Dr. Rollins further found that Ford's statements about his translation ability and experiences also represent "fantasy or wish fulfillment" on Ford's part. Alternatively, Dr. Rollins determined that even if Ford's "translation represents impaired reality testing (i.e., psychoses), it is an isolated delusional disorder and does not impair Mr. Ford's daily functioning." Dr. Rollins expressly found that Ford's "ability to make decisions is not impaired by translation." . . .

Because there was significant evidence of other rational reasons behind Ford's decision to dismiss his habeas petition, this Court also finds that Ford's statements regarding translation and the "Holy Trinity" do not demonstrate, per se, that he is incompetent as Ford's counsel, in effect, contends, but were correctly considered and weighed with all of the other evidence by both Dr. Rollins and the district court. The arguments of Ford's counsel relate at best to the weight to be given to Dr. Rollins's competency opinions but do not show that his mental evaluations were inadequate or that his opinions are unreliable.

It is also significant that Dr. Rollins was not hired by the prosecutor, but was the court's neutral psychiatric witness selected from a list of names provided by Ford's counsel. More importantly, Dr. Rollins has extensive experience in competency evaluations, having conducted approximately 200 mental evaluations in criminal cases each year since 1972. . . . .

Ford's counsel also asserts that Dr. Rollins allowed racial stereotypes to infect his evaluation of Ford and improperly attributed certain of Ford's religious beliefs to his cultural background as an African-American rather than appropriately to mental illness. The district court accurately details Dr. Rollins's explanation about how he attempts to discern whether a stated religious belief is part of a cultural background or a mental disorder. The district court correctly observed that Dr. Rollins's comments arose only in an attempt to explain how different cultural backgrounds might affect evaluations of mental health and how those differences can be obstacles in performing an effective evaluation. The district court noted that Dr. Rollins indicated that certain of Ford's religious beliefs were held not only by African-Americans but also by Caucasians, particularly in the southeastern area of the United States. . . .

Lastly, Ford's counsel complains that Dr. Rollins gave "short shrift" to the full picture of Ford's mental health by failing to review all available mental health records and to interview persons other than Ford. We again disagree.

Habeas Cases

Armstong v. Gammon (8th Cir) Evidence of serious physical injury was sufficient to support conviction for first degree assault, and counsel was not ineffective for failing to raise a challenge to the sufficiency of the evidence; claim that photo arrays were impermissibly suggestive rejected.

Thiel v. Schuelzle (8th Cir) Evidence was sufficient to support murder conviction.

Lingle v. Iowa (8th Cir) Prosecutor's failure to provide Lingle with doctor's report indicating sexual abuse victim's hymen was intact did not affect outcome of trial as penetration is not an element of the offense of second degree sexual abuse under Iowa law, and the report did not necessarily contradict the victim's testimony.

Prisoner's Rights/Governmental Misconduct Cases

Britton v. Maloney (1st Cir) District court's instruction that if damages were returned on the federal constitutional law issues plaintiff would not be entitled to state law damages ("double recovery") was improper as a matter of law. New damages trial ordered.

Mann v. Jackson (2nd Cir) New York state only provides kosher meals for Jews. Where a prisoner claims to be Jewish the question, under the Free Exercise clause is one of whether they are "sincerely held," not on the "ecclesiastical question" whether he is in fact a Jew under Judaic law.

Henderson v. Sheahan (7th Cir) Inmate loses as a matter of law on future and present injury damages for second hand smoke exposure.

Reed v. Norris (8th Cir) Given the overwhelming evidence of Reed's guilt, he could not establish prejudice from counsel's alleged ineffective assistance with respect to a Batson issue.

Froehlich v. Wisconsin (7th Cir) Prisoner transfer to West Virginia from Wisconsin was at "worst not of hostility to the family but of insensitivity, and we do not think that accommodation of family needs is a duty that the U.S. Constitution imposes on state prison officials, though it may be a moral duty."

California Attorneys for Criminal Justice v. Butts (9th Cir) "Officers who intentionally violate the rights protected by Miranda must expect to have to defend themselves in civil actions."

Kirby v. James & Edmond v. Hopper (11th Cir) Two cases are joined here. In the first where sex offender status attaches upon release, suit by an in custody prisoner not ripe until released as to the constitutionality of the status legislation. In the other, the panel holds there is a "protected liberty interest in not being classified as a sex offender, the question becomes whether he received due process in conjunction with the deprivation of that interest."

Miller v. Poole (11th Cir) Administrative remedies deemed exhausted where prison's standard operating procedures met, even though the SOP left out some "common sense" measures the state argued that plaintiff failed to follow.

Shehee v. Luttrell (6th Cir) Qualified immunity had where inmate can not show deprivation of clearly established rights.

Hawkins v. Freeman (4th Cir) Premature release of inmate and subsequent reincarceration when error was discovered does not represent a cognizable constitutional tort.

Cosco v. Uphoff (10th Cir) Shakedown and confiscation following stabbing of guard upheld where prisoners were given opportunity to mail disputed materials to others outside the facility and no legal injury claimed as to denial of access to the courts.

Aycox v. Lytle (10th Cir) "An escapee from a New Mexico prison who is incarcerated elsewhere on an unrelated charge is not entitled to earn actual or good time credit on his New Mexico sentence. Moreover, Aycox has not shown, by clearly established Supreme Court precedent, that New Mexico's decision to deny him credit resulted in any fundamental unfairness or otherwise denied him due process of law."

In Depth

This week continues the series on Eighth Amendment law. In this edition the focus is on nature of process due in a capital case. (from various sources at http://capdefnet.org).

II. DUE PROCESS

A. The Right to Fair Rebuttal

The Court has consistently maintained that a capital defendant must be given a fair opportunity to meet, rebut or explain any evidence which the state offers as a reason the defendant should be sentenced to death. In the lead case establishing the "fair rebuttal" principle, Gardner v. Florida, 430 U.S. 349 (1977), the Court invalidated the death sentence because the judge who imposed the death sentence relied upon a confidential pre-sentence report not disclosed to defense counsel. The Court reasoned:

Our belief that that debate between adversaries is often essential to the truth seeking function of trials requires us also to recognize the importance of giving counsel an opportunity to comment on facts which may influence the sentencing decision in capital cases. 430 U.S. at 360.

Over the years, the Court has reaffirmed this "basic due process right" in a variety of contexts.11 A somewhat recent affirmation of this principle was in Simmons v. South Carolina, 512 U.S.154 (1994). In a plurality opinion, the Court reversed the defendant's death sentence on due process grounds, holding that the trial court's failure to tell the jury the truth regarding a capital defendant's parole ineligibility if sentenced to life imprisonment, transgressed Simmons' right of fair rebuttal, especially in light of fact that prosecutor stressed the defendant's future dangerousness in his sentencing phase argument. Id., 512 U.S. at 171.

B. Lesser Included Offenses

The Supreme Court has made clear that, in capital cases, the Due Process Clause of the Fourteenth Amendment is violated when a refused jury instruction, amply supported by the evidence presented at trial, results in a substantially increased risk of error in the fact-finding process. Beck v. Alabama, 447 U.S. 625, 637 (1980).12 When a jury is faced with the choice of either convicting or acquitting a defendant of capital murder and when the evidence tends to show the defendant committed some violent crime, irrelevant considerations are interjected into the fact-finding process. Id. The possibility arises that the jury may convict the defendant due to its belief that the defendant committed some crime, and should not, therefore, be allowed to go unpunished. Id. at 642. The Beck Court found this possibility constitutionally unpalatable, and mandated that the jury be given a "non-capital, third option," rather than simply guilt or acquittal of a capital crime, when the evidence supported it. Id. at 637, 641.13

DISCLAIMER & CREDITS -- Anti-copyrite 1999. ISSN: 1523-6684. Written with the legal professional in mind. Use does not constitute creation of an attorneyclient relationship. If you have a legal question contact a lawyer authorized to practice in your state. Complete disclaimer located at http://capitaldefenseweekly.com/disclaimer.html.