Capital Defense Weekly, November 29, 1999

By Capital Defense Newsletter
Nov 29, 1999

This edition brings but a single capital case, a loss. The Fifth Circuit in Fierro v. Johnson holds, in a case to watch for certiorari review, that even fraud on the court may not suffice to forgive abuse of the writ. "In Depth" this week provides a plenary overview & checklist for AEDPA litigation.

On another note, effectively immediately, a text only version of the e-zine will no longer be provided unless specifically requested do to a large number of subscribers in the last month specifically requesting that it be dropped.

[Last week's edition is available & archived at]

Supreme Court

The Supreme Court this week, looking to dodge a potentially landmark decision in Fiore v. White, certified to the Pennsylvania Supreme Court a state law question that would effectively moot the case concerning retroactivity. From the syllabus:

Petitioner Fiore and his codefendant Scarpone were convicted of “operat[ing] a hazardous waste” facility without a “permit,” Pa. Stat. Ann., Tit. 35, §6018.401(a), because their operation deviated significantly from the terms of the permit they possessed. Fiore appealed his conviction to the Pennsylvania Superior Court, which affirmed; but Scarpone appealed his conviction to the Pennsylvania Commonwealth Court, which reversed. The Pennsylvania Supreme Court denied further review of Fiore’s case, and his conviction became final. However, it subsequently affirmed the Commonwealth Court’s decision in Scarpone’s case, finding that §6018.401(a) does not apply to those who posses a permit but deviate radically from the permit’s terms. After the Pennsylvania courts refused to reconsider Fiore’s identical conviction, he sought federal habeas relief, arguing, inter alia, that the Federal Constitution required that his conviction be set aside because his conduct was not criminal under §6018.401(a). The District Court granted his petition, but the Third Circuit reversed, primarily because it believed that state courts have no obligation to apply their decisions retroactively.
Held: To help determine the proper state-law predicate for this Court’s determination of the federal constitutional questions raised here, the Court certifies to the Pennsylvania Supreme Court the question whether the interpretation of §6018.401(a) set forth in Scarpone v. Commonwealth, 535 Pa. 273, 279, 634 A. 2d 1109, 1112, states the correct interpretation of Pennsylvania law at the date Fiore’s conviction became final. Scarpone marked the first time that the Pennsylvania Supreme Court had interpreted the statute. Because that authoritative interpretation came only after Fiore’s conviction became final, this Court must know whether the Scarpone construction stated the statute’s correct understanding at the time Fiore’s conviction became final, or whether it changed the interpretation then applicable. Judgment and further proceedings in this case are reserved pending receipt of the Pennsylvania Supreme Court’s response. Pp. 5—7.

Capital Cases

Fierro v. Johnson (5th Cir) Rule 60(b) motion denied as successive. Panel holds:

Our own court and other circuit courts have decided that Rule 60(b) motions should be construed as successive habeas petitions governed by the AEDPA's provisions. See, e.g., United States v. Rich, 141 F.3d 550, 551-52 (5th Cir. 1998), cert. denied, 119 S.Ct. 1156 (1999); see also Burris v. Parke, 130 F.3d 782, 783 (7th Cir. 1997) (Easterbrook, J.) ("Appellate courts agree that a post-judgment motion under Fed. R. Civ. P. 60(b) in the district court, or the equivalent motion in the court of appeals--which is to say, a motion to recall the mandate--is a `second or successive' application for purposes of § 2244(b)."). In Burris v. Parke, 130 F.3d 782 (7th Cir. 1997), the habeas petitioner asked the Seventh Circuit to recall its mandate based on new testimonial evidence from a neuropsychologist. The court rejected the request:
Burris wants us to recall our mandate to take a step that every court of appeals that has addressed the subject believes forbidden by § 2244(b): reassessing old theories in light of new evidence. A state governor or clemency board may receive and act on such evidence; under § 2244(b), a federal court may not.
Id. at 785.
Fierro argues, however, that his "new" evidence attacks the very integrity of the proceedings, both in the district court and this court.(5) Thus, the question becomes whether we treat a Rule 60(b) motion as a successive habeas petition even when the arguments allege that fraud on the court has occurred. Stated differently, can the court's inherent powers save Fierro's Rule 60(b) motion from a quick dismissal under § 2244(b)(1)?(6)
It is exceedingly difficult to answer this question because the search for an answer pits the clear statutory language (of § 2244(b)(1)) against long-established "inherent" powers of the judiciary.(7) The Supreme Court has repeatedly held that federal courts possess the inherent power "to vacate [their] own judgment[s] upon proof that a fraud has been perpetrated upon the court." Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citingHazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)).(8) The power to grant "[e]quitable relief against fraudulent judgments is not of statutory creation." Hazel-Atlas, 322 U.S. at 248. This equitable power was "firmly established in English practice long before the foundation of our Republic," id. at 244, and the power is vested in courts by their very creation. See Chambers, 501 U.S. at 43-44. Cf. id. at 58 (Scalia, J., dissenting) ("Some elements of th[e] inherent authority are so essential to '[t]he judicial Power,' U.S. Const., art. III, § 1, that they are indefeasible . . .").(9)
Nevertheless, the Supreme Court's review of an appellate court's use of its inherent powers in habeas cases is influenced by "the statutory and jurisprudential limits applicable in habeas corpus cases." Calderon v. Thompson, 118 S.Ct. 1489, 1499 (1998). "In light of 'the profound societal costs that attend the exercise of habeas jurisdiction,' we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief." Id. (citing Smith v. Murry, 477 U.S. 527, 539, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1996)). "These limits reflect our enduring respect for the State's interest in the finality of convictions that have survived direct review within the state court system. . . . Finality is essential to both the retributive and the deterrent function of criminal law." Thompson, 118 S.Ct. at 1500-01.
In Thompson, the Supreme Court held that the Ninth Circuit abused its discretion in recalling its own mandate in a habeas case. Id. at 1494. The case involved the appellate court's inherent power to recall its own mandate, a power specifically recognized by the Supreme Court. Id. at 1498. It is important to note, however, that in discussing Thompson in the context of today's case, Thompson did not concern the use of inherent powers to correct a fraud upon the court. Instead, an en banc panel of the Ninth Circuit recalled its mandate sua sponte because "the decision of the original panel 'would [have led] to a miscarriage of justice.'" Id. at 1497 (quoting Thompson v. Calderon, 120 F.3d 1045, 1048 (9th Cir. 1997)).(10) The Ninth Circuit exercised its inherent power to recall the mandate so that it could reconsider the merits of the petitioner's first habeas petition. Thompson, 118 S.Ct. at 1500. The court did not consider any evidence presented in subsequent motions and petitions. Id.
In contrast to the situation faced by the Ninth Circuit, we confront a case involving a prisoner's motion to vacate a judgment. With respect to such a motion, the Thompson Court stated:
In a § 2254 case, a prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, § 2244(b)(1), or the bar against litigation of claims not presented in a prior application, § 2244(b)(2). If the court grants such a motion, its action is subject to AEDPA irrespective of whether the motion is based on old claims (in which case § 2244(b)(1) would apply) or new ones (in which case § 2244(b)(2) would apply).
Thompson, 118 S.Ct. at 1500. This language suggests that a court's recall of its mandate in this case would be governed by § 2244(b) because the evidence supporting any relief would be "new . . . evidence presented in [Fierro's] successive application for habeas relief."(11) A straightforward application of the Thompson rule, combined with a literal application 2244(b)(1), appears to leave the court powerless to correct any ruling when (1) fraud on the court is subsequently uncovered and (2) that fraud somehow interrelates with a habeas claim previously presented.
On the other hand, perhaps the Supreme Court would not apply the above general principles to Fierro's case. The Court qualified its Thompson opinion with the following language:
We should be clear about the circumstances we address in this case. . . . This [] is not a case of fraud upon the court, calling into question the very legitimacy of the judgment. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).
Thompson, 118 S.Ct. at 1501-02. The Court thus suggests that cases involving claims of fraud on the court may warrant different treatment.
After reviewing the parties' arguments, we conclude that we need not decide whether the provisions of AEDPA preempt, or otherwise modify, courts' use of their inherent powers in habeas cases involving claims of fraud on the court.
Even if an inherent power gives life to a challenge that § 2244(b)(1) would otherwise forbid, Fierro's allegations do not support the use of such an inherent power because he has failed to allege any facts that would constitute a fraud on the federal courts.
A. Before analyzing Fierro's "fraud on the court" argument as it applies to the federal district court and to this court, it is important to state clearly the evidence that Fierro does, and does not, allege. Consistent with the findings of the state courts, Fierro alleges that Officer Medrano testified falsely at the suppression hearing in state court. Fierro does not, however, allege that the prosecuting attorney knew that Medrano's testimony was false. Most important to this appeal, Fierro does not allege that the attorneys representing the Director of the Texas Department of Corrections in these federal habeas proceedings had any knowledge that the subject testimony was false. Furthermore, it is important to keep in mind that in reviewing the district court's denial of the motion to vacate, we deal only with allegations of fraud on the federal courts, not any fraud that may have been perpetrated upon the state courts.(12) Thus we will consider only the conduct of the relevant parties during the federal habeas proceedings.
Both parties cite our precedent in which we stated the black letter law for finding a fraud on the court:
To establish fraud on the court, it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its discretion. Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court.
First Nat'l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th Cir. 1996) (quotation marks and citations omitted).(13)
After noting this language, the arguments in the state's and Fierro's briefs take predictable paths. The state essentially argues that false testimony by a police officer (when the state's attorneys in federal habeas proceedings are not aware of its false nature) amounts to "nondisclosure to the court of facts allegedly pertinent to the matter before it." As a result, such nondisclosure would not establish fraud on the court. Fierro argues that the false testimony constitutes "fabrication of evidence by a party in which an attorney is implicated." Although Fierro does not argue that the state's attorneys knew about Officer Medrano's false testimony, Fierro maintains that the state's attorneys--both the prosecuting attorneys and the attorneys representing the Director of the Texas Department of Corrections--are implicated because testifying officers and the state's attorneys constitute the "prosecution team."
Our decision in Browning v. Navarro, 826 F.2d 335 (5th Cir. 1987), provides further guidance on the standard for considering fraud upon the court. In Browning, this court analyzed two Supreme Court cases dealing with "fraud on the court" actions: United States v. Throckmorton, 98 U.S. 61 (1878), and Hazel-Atlas. The court summarized the lessons of these two cases:
Throckmorton stands clearly for the proposition that intrinsic fraud, that is, fraudulent evidence upon which a judgment is based, is not grounds to set aside a judgment. It also makes clear that extrinsic fraud, that is, fraud that was not the subject of the litigation, that infects the actual judicial process, is grounds to set aside a judgment as procured by fraud.(14) . . . Hazel-Atlas is to be read as an expansion of the limits set by Throckmorton in attacking judgments generally . . . Hazel-Atlas allows a judgment to be attacked on the basis of intrinsic fraud that results from corrupt conduct by officers of the court.
Browning, 826 F.2d at 344 (footnotes omitted).
The allegedly false testimony of Officer Medrano standing alone clearly constitutes intrinsic fraud and will be insufficient to set the judgment aside.(15) Fierro's only hope to prove fraud sufficient to set aside the federal judgment is to show that the unknowing reliance on Officer Medrano's false testimony by the state's habeas attorney constitutes "corrupt conduct by officers of the court."(16) Fierro notes that our court recently stated that government prosecutors have constructive notice of a police report that contradict the elicited testimony of a government witness. Creel v. Johnson, 162 F.3d 385, 391 (5th Cir. 1998). Applying the rule in Creel to his own case, Fierro argues that the state attorneys' conduct in the state trial (and on appeal) was corrupt because of their constructive knowledge of a police report that contradicted Medrano's testimony. This is only the first step, however. To succeed in the federal court, Fierro asks us to extend the rule in Creel to hold that attorneys representing the State Department of Corrections in a federal habeas case have constructive notice of police reports that contradict the elicited testimony of government witnesses at the trial.
Even if we accepted Fierro's argument that prosecuting attorneys constructive knowledge of false testimony could satisfy the requirement for a showing of fraud upon the court, we have no basis in law or fact to extend such a theory to the state's habeas attorneys. Although the prosecuting attorney and Officer Medrano might arguably be considered a solitary prosecution unit, the relationship between Officer Medrano and the state's attorneys in a federal habeas proceedings is too attenuated to allow the necessary imputation.
The attorneys for the Texas Department of Corrections in a federal habeas case do not act as prosecutors of the crime investigated by the law enforcement officers. Prosecutors are actively involved in trial preparation, production of evidence, examination of witnesses, and evaluating the credibility of prosecution witnesses. Thus prosecutors work hand in hand with the police in presenting the case before the courts. The attorneys for the Director of Corrections, however, act in response to a petitioner's charge of unlawful detention that usually centers around the larger questions of the constitutionality of the judgments of the criminal courts. Although these attorneys will undoubtedly point to the work of the prosecuting attorneys to defend the petitioner's continuing detention, the Director's attorneys neither work with the police in a common enterprise, nor are they in the business of prosecuting crime. Lacking such a connection as part of a prosecution team, any constructive knowledge of police reports that might be imputed to the prosecutors cannot be imputed to the state's attorneys in a federal habeas case.
B. Finally, we do recognize that Fierro argues that the Texas Court of Criminal Appeals seriously erred in its ruling related to the state trial court's finding that Officer Medrano gave false testimony. For example, Fierro argues that the Texas court erred in its application of the harmless error standard. For the federal courts to provide any relief based on these arguments, however, Fierro must allege some violation of a federal right. Any petition based on federal law will be governed by § 2244(b) as a successive habeas petition. It is not appropriate for us to address these arguments in an appeal from the denial of a motion to vacate an earlier judgment. We therefore state no opinion as to the validity of any potential constitutional challenges to his continued detention.

Habeas Cases

Weaver v. Thompson (9th Cir.) "Bailiff's comments to the jury amounted to an improper de facto Allen charge, volitive of Weaver's due process rights, and that the error had a substantial and injurious effect on the jury's verdict."

Horsley v. Johnson (5th Cir.) In what appears to be a new incredibly draconian measure, a panel holds that even where a district court has found a state law remedy through which a petitioner may exhaust unexhausted claims, a claim may nonetheless be procedurally defaulted for failure to present a claim to the state court system.

This case raises the issue whether a district court abuses its discretion by dismissing a non-exhausted habeas corpus claim without prejudice where: (1) the failure to exhaust petitioner's new claims in prior petitions constitutes a state procedural bar against subsequent application, and (2) nothing suggests that the state court would apply an exception to the abuse-of-the-writ doctrine to address petitioner's claims on the merits. This court "review[s] the district court's factual findings for clear error, but review[s] issues of law de novo." Dyer v. Johnson, 108 F.3d 607, 609 (5th Cir. 1997) (citation omitted). Moreover, courts are expected "to exercise discretion in each case to decide whether the administration of justice would be better served by insisting on exhaustion or by reaching the merits of the petition forthwith." Granberry v. Greer, 481 U.S. 129, 131 (1987). Thus, this court will review the district court's dismissal of Horsley's petition without prejudice for abuse of discretion.
We find that the district court did abuse its discretion. We hereby dismiss Horsley's successive petition with prejudice because that petition was an abuse of the writ. The abuse of the writ doctrine of Section 4 prohibits consideration of a subsequent application for a writ of habeas corpus unless the application contains specific facts establishing that (1) the current claims have not or could not have been presented in the previous application, or (2) by a preponderance of the evidence, but for a violation of the United States Constitution, no rational juror could have found the applicant guilty beyond a rational doubt.
However, it is clear that Horsley's petition is an abuse of the writ and nothing suggests that the Texas Court of Criminal Claims would consider Horsley's petition on the merits. That court has already denied Horsley's second petition for abuse of the writ and there is no reason to think his third writ will be treated any differently. Horsley failed to argue cause for his failure to present his new claims within his original petition and makes no showing of actual innocence. The district court cites no factual basis or previous Texas Court of Criminal Appeals decisions through which Horsley could argue that his successive petition is not barred. Thus, there is no evidence of the kind of "unusual and compelling circumstances" absolving petitioner of blame for the delay in bringing his successive claims. See Ex Parte Barber, 879 S.W.2d 889 (Tex.Crim.App.1994) (finding such unusual circumstances where the Court of Criminal Appeals had authority to consider the original writ but elected to consider the direct appeal first). Indeed, Horsley's failure to argue cause or innocence would doom his third petition given that the abuse-of-the-writ doctrine is applied strictly and consistently. See Barber at 891 (announcing that the abuse-of-the-writ doctrine will be strictly applied).
When seen in the light of the discussion thus far, the district court's explanation of why it dismissed Horsley's claims without prejudice is not firmly based in fact or law. The district court held that the administration of justice would be better served if Horsley were allowed to present his unexhausted claims to the Texas Court of Criminal appeals and argue that an exception to the abuse-or-the-writ doctrine is applicable. In reaching this conclusion the district court held that: (1) a district court "should not speculate as to whether the Court of Criminal Appeals will hold that an exception is applicable," but should give the state court the chance to apply state law, and (2) holding otherwise is contrary to the "federal mandate that all grounds of relief should be exhausted before being considered by federal courts and likewise contrary to the state mandate that prisoners should be provided an opportunity to present an exception to the abuse of the writ doctrine." . . .
The district court's reasoning is also contrary to the law of this Circuit. A claim may be procedurally barred even though that claim has not been reviewed by the state court. Horsley's claim is precluded because he failed to exhaust his state court remedies and the state court to which he would be required to present his unexhausted claims would now find those claims to be procedurally barred. In Emery v. Johnson, 139 F.3d 191, 194-96 (5th Cir. 1997), we reviewed a final order by a federal district court denying a habeas petition in a capital murder case. We held that the claims at issue were procedurally barred because if the petitioner tried to exhaust them in state court they would be barred by the abuse-of-the-writ doctrine of Article 11.071 of the Texas Code of Criminal Procedure. Id. See also Nobles v. Johnson, 127 F.3d 409, 423 (5th Circuit 1997) (in accord). We further noted that Section 4, the provision at issue here, adopts the same rule for non-capital felony cases(2). Emery, 139 F.3d at 195 n.3. Thus, speculating as to whether the Texas court will consider a petition procedurally barred is not contrary to the federal mandate in favor of exhaustion. Moreover, a claim is exhausted if "it is clear that [petitioner's] claims are now procedurally barred under [state] law." Gray v. Netherland, 518 U.S. 152, 161 (1991). See also Coleman v. Thompson, 501 U.S. 722, 735 (1991); Nobles, 127 F.3d at 420.
Thus it was an abuse of discretion to dismiss Horsley's petition without prejudice when his successive writ would be barred by the Texas court under the abuse-of-the-writ doctrine. Accordingly, we dismiss Horsley's successive petition with prejudice.

Prisoner's Rights/Governmental Misconduct Cases

Frost v. Symington (9th Cir) Frost had a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail was being withheld by prison authorities, however, claims about corrections seizing pornography and music club memberships held to be without merit.

Atwater v. City of Lago (5th Cir) (en banc) Arrest of a person for not wearing a seat belt and not having their child in a seat belt does not violate the Fourth Amendment sufficiently to permit an action under § 1983 to go forward.

Cerda v. Joliet Police Department (7th Cir) Upholding qualified immunity in this malicious prosecution action the panel also upholds the giant stick the district court took to counsel:

The trial court imposed Rule 11 sanctions on Cerda after finding that Hernandez' complaint against the Will County State's Attorney's Office was frivolous and that basic research into suits against an Illinois state's attorney's office would have revealed that such actions are barred by the Eleventh Amendment. Furthermore, the judge found that in the very least, Hernandez should have dismissed the State's Attorney's Office after having been made aware of their immunity argument and after receiving the Office's proposed motion for sanctions (which it served on Hernandez more than 21 days prior to filing the motion, as required under Fed. R. Civ. P. 11(c)(1)(A)). Instead, Hernandez took no action, but sat back and improperly waited for the court to rule on the defendants' motion to dismiss. After reviewing the record, the district court determined that Rule 11 sanctions were appropriate because Hernandez should have known both through a reasonable inquiry before filing his complaint and through the notice provided in the State's Attorney's Office's motion to dismiss and motion for sanctions that Hernandez' claims were meritless. Finally, the court awarded the full amount of the Office's fee petition, finding that the $4,226.64 amount would serve to deter future violations by Hernandez' counsel, Attorney Cerda.

In Depth

This week's in depth is provided by one the Northwest's best known & effective criminal defense attorneys, Todd Maybrown of the firm Allen, Hansen & Maybrown, P.S., and is a checklist for AEDPA litigation. The checklist just part of the comprehensive treatise put together by Mr. Maybrown at As this September 1999 work makes clear, the law in this area is unsettled and changing quickly (indeed some of the cited cases are already outdated or likely will be within a matter of weeks).


  • Pub. L. 104-32, 110 Stat. 1214 (effective April 24, 1996).
  • 28 U.S.C. §§ 2244-66.
  • The AEDPA sets a one-year limitation period in all non-capital cases. See 28 U.S.C. § 2244(d)(1).
  • The period runs from the latest of several events, typically the end of direct review.
  • The limitations period is tolled when person is pursuing "properly filed" post-conviction relief. See generally Lovasz v. Vaughn, 134 F.3d 146, 147 (3rd Cir. 1998); Tinker v. Hanks, 172 F.3d 990 (7th Cir. 1999); Dictado v. DuCharme, --- F.3d ---, 1999 WL 646953 (9th Cir., August 26, 1999).
  • These provisions raise interesting issues regarding equitable tolling and due process. See, e.g., Calderon v. United States District Court, 163 F.3d 530 (9th Cir. 1998) (en banc) ("Kelly"); Calderon v. U.S. Dist. Court for Eastern Dist. of California, 112 F.3d 386, 390-91 (9th Cir. 1997) ("Beeler").
  • The exhaustion requirement is now codified in 28 U.S.C. § 2254(b)(1).
  • The federal court may deny relief on the merits, despite the petitioner's failure to exhaust. See 28 U.S.C. § 2254(b)(1).
  • The state may waive the exhaustion requirement -- but only expressly. See 28 U.S.C. § 2254(b)(1).
  • 28 U.S.C. § 2254(e) provides:
  • In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
  • If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that --
  • the claim relies on --
  • a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
  • a factual predicate that could not have been previously discovered through the exercise of due diligence; and
  • the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
  • Few courts have interpreted these provisions.
  • Perhaps the most important question will be: What does it mean to say that an "applicant failed to develop" a claim in the state court? The federal courts have uniformly held that a petitioner cannot be said to have "failed to develop" the factual bases for a claim unless the undeveloped record is a result of his own decision or omission. See, e.g., Cardwell v. Greene, 152 F.3d 331, 337-38 (4th Cir. 1998), cert. denied, --- U.S. ---, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); McDonald v. Johnson, 139 F.3d 1056 (5th Cir. 1998); Love v. Morton, 112 F.3d 131 (3rd Cir. 1997). As a general proposition, section 2254(e)(2) should not preclude an evidentiary hearing in federal court where an applicant has diligently sought to develop the factual basis of a claim for habeas relief, but has been denied the opportunity to do so by the state court. See generally Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1998) (applicant did not fail to develop the claim); Baja v. DuCharme, --- F.3d ---, 1999 WL 591824 (9th Cir., August 9, 1999) (applicant did fail to develop the claim).
  • 28 U.S.C. § 2254(d) provides:
  • An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
  • resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
  • resulted in a decision that was based on an unreasonable determination of the facts In light of the evidence presented in the State court proceeding.
  • Although the relevant provision is sometimes said to require "deference" to even erroneous state court determinations of law and of mixed questions of law and fact, the relevant provision of the statute does not contain the word "deference," does not appear to require substantive deference, and might be unconstitutional if it did.
  • The circuit courts have reached varied, and somewhat conflicting, results when interpreting these provisions. See, e.g., O'Brien v. Dubois, 145 F.3d 16, 21-23 (1st Cir. 1998); Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.), cert. denied, --- U.S. ---, 119 S.Ct. 587, 142 L.Ed.2d 491 (1998); Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir. 1996), cert. denied, 520 U.S. 1107, 137 L. Ed. 2d 315, 117 S.Ct. 1114 (1997); Lindh v. Murphy, 96 F.3d 856, 869, 887 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 138 L.Ed.2d 481, 117 S.Ct. 2059 (1997); Delgado v. Lewis, 181 F.3d 1087 (9th Cir. 1999); Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir. 1998). The Supreme Court is likely to weigh in on the subject in Williams v. Taylor, Case No. 98-8384.
  • RETROACTIVITY OF THE AEDPA (and its draconian provisions)
  • The AEDPA does not apply retroactively to habeas cases that were pending before April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
  • A "certificate of appealability" must be obtained to pursue an appeal.
  • The standard is almost identical as standard for a "certificate of probable cause." But see Williams v. Calderon, 83 F.3d 281, 286 (9th Cir. 1996) ("The standard for obtaining a certificate of appealability under the Act is more demanding than the standard for obtaining a certificate of probable cause under the law as it existed prior to enactment of the Act.")
  • The AEDPA seems to say that only the Supreme Court or a circuit judge may issue the certificate, although most courts have ruled that a district judge may issue a certificate in the first instance. See generally United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).
  • The certificate must list specific issues to be raised on appeal. See Hiivala v. Wood, --- F.3d ---, 1999 WL 705101 (9th Cir., Sept. 13, 1999); Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
  • The AEDPA establishes very strict limitations on the filing and consideration of abusive and successive petitions. See Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997) (discussing 28 U.S.C. § 2244(b)).
  • The "gatekeeping" provision is constitutional, largely because an original successor can be filed in the Supreme Court. See Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).
  • Chapter 154 includes special rules for death penalty cases.
  • The State must "opt in" to obtain benefit of the provisions under 28 U.S.C. §§ 2261-66. These provisions set forth a very short limitation period (six months) and a very short timetable for court action.
  • As of today, no court has held that any state has satisfied the "opt-in" provisions to obtain the benefits under Chapter 154. See generally Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir. 1997) (Texas); Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35 (3d Cir. 1997) (Pennsylvania); Scott v. Anderson, 958 F.Supp. 330, 332-33 (N.D. Ohio 1998) (Ohio); Booth v. Maryland, 940 F.Supp. 849, 853-53 (D.Md. 1996) (Maryland); Austin v. Bell, 927 F.Supp. 1058, 1061-62 (M.D. Tenn. 1996) (Tennessee).
  • During 1998, the Supreme Court reversed as non-justiciable a district court's ruling preliminarily enjoined California from attempting to invoke any of AEDPA's benefits in death penalty cases. See Calderon v. Ashmus, --- U.S. ---, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998) (reversing Ashmus v. California, 935 F.Supp. 1048 (N.D.Cal. 1996), aff'd, 123 F.3d 1199 (9th Cir. 1997)).

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