The current edition brings tidings of good news. In Moore v. Johnson the Fifth Circuit, having originally denied relief under its prior interpretation that the AEDPA applied retroactively, on remand from the United States Supreme Court holds that five separate grounds exists to vacate the sentence of death. In Chandler v. United States the Eleventh Circuit has reversed the first ever conviction under the 1988 federal death penalty statute due to ineffective assistance of counsel during the penalty phase. Two last minute stays have also been had (Bryan v. Moore 99-6723 & Williams (Michael) v. Taylor, 99-6615) regarding whether Florida's electric chair presents a risk of "physical violence, disfigurement and torment" as to amount to cruel and unusual punishment under the Eighth Amendment and whether the state's failure to disclose information would excuse the defendant's failure to develop those issues in light of the AEDPA's factual development requirements, respectively.

On less joyful news the Eighth Circuit in a split panel decision has denied relief in Ervin v. Bowersox. on chiefly ineffective assistance of counsel grounds. The Eleventh Circuit likewise has turned away evidence of innocence inTompkins v. Moore and upheld the death sentence of a mentally impaired Florida death row inmate. The Fifth Circuit similarly in Jackson v. Johnson roundly rejected claims relating to prosecutorial abuses in the penalty phase of the proceedings.

Two AEDPA cases also deserve some note. In Jones v. Morton a Third Circuit panel, in what appears to be a question of first impression, has held that a prior petition does not toll the statute of limitations either by operation of statute or by operation of equity. In similar AEDPA "counting" news the Fifth Circuit has held the time between denial by the state's highest court and certiorari denial does not toll the statute of limitations for the purposes of the AEDPA in Ott v. Johnson.

Supreme Court

Several breaking Supreme Court developments have occurred since the last edition. As always as soon as the cert petitions are available links, abstracts or a notice that it is "email available" will be provided.

The SCOTUS granted a stay and cert in on October 28, 1999 on the following AEDPA question:

Whether 28 U.S.C. § 2254(e)(2), which prohibits a federal habeas court from holding an evidentiary hearing only "if the applicant has failed to develop the factual basis of a claim in state court proceedings," governs petitioner's claim where throughout state proceedings, the state suppressed the relevant facts, denied petitioner's discovery requests, denied all investigative and expert resources to investigate, develop, and discover claims, and denied an evidentiary hearing.

The Supremes have also granted a stay and cert in Bryan v. Moore, 99-6723, on whether Florida's electric chair, "old sparky," violates the norms of a civilized society. The Florida legislature is expected to moot the question in a special legislative session, however, with at least other state believed ready to schedule an execution by electrocution in the coming months (Alabama) the issue is ripe. A brief background on electrocution may be found at http://members.aol.com/karlkeys/chair.htm. The actual cert question is unavailable however the cert petition is available from any member of the HAT list.

The Supreme Court has denied the certiorari petition in Domingues v. Nevada relating to the application of international norms (jus cogens) and the United States exceptions and reservations to various United States treaty law. This does not mean the issue shouldn't still be pursued in light of the split in the Nevada Supreme Court. The cert petition in Domingues is now floating around the web, if you need a copy please email or call for the URL.

Capital Cases

Moore v. Johnson (5th Cir) After having originally denied relief under its prior interpretation that the AEDPA applied retroactively, on remand from the United States Supreme Court, the Fifth Circuit grants relief as to the sentence of death. A small portion of the grounds for relief are restated as five separate grounds (subornation of perjury guilt phase, selection of defense guilt phase, inadequate pretrial investigation guilt phase, exclusion of exculpatory language in Moore's confession guilt phase, and damaging cross examination of police witness guilt phase). The original opinion is at Moore v. Johnson

E. Failure to Investigate, Develop, or Present

Mitigating Evidence Moore claims that trial counsel were ineffective for failing to investigate, develop, or present available and availing mitigating evidence during the punishment phase of his trial. Moore's claim encompasses counsel's: (1) failure to investigate and failure to present any mitigating background evidence, despite knowledge that should have given rise to such a duty; (2) failure to present previously redacted and exculpatory evidence that the shooting was accidental, despite counsel's abandonment of the alibi defense during closing argument at the guilt phase, and despite counsel's decision to argue accidental shooting as a plausible alternative defensive theory at the punishment phase of Moore's trial; and (3) counsel's insufficient, internally inconsistent, and incompetent argument at the punishment phase of Moore's trial.

Mitigating evidence concerning a particular defendant's character or background plays a constitutionally important role in producing an individualized sentencing determination that the death penalty is appropriate in a given case. See Woodson v. North Carolina, 96 S. Ct. 2978, 2991 (1976); see also Eddings v. Oklahoma, 102 S. Ct. 869, 875 (1982). At the state court evidentiary hearing, Moore presented substantial evidence that could have been offered as mitigating evidence during the punishment phase of his trial. Moore produced substantial evidence from several sources that his childhood was marked by physical and emotional deprivation and abuse. See Penry v. Lynaugh, 109 S. Ct. 2934, 2947 (1989) (quoting California v. Brown, 107 S. Ct. 837, 841 (1987) (O'Connor, J. concurring) for proposition that "evidence about the defendant's background is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse"); id. at 2948-52 (discussing the significance that mitigating evidence of childhood abuse and mental retardation have with respect to the individualized sentencing determination required by the Eighth Amendment for imposition of the death penalty);(7) Eddings, 102 S. Ct. at 877 ("evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant" to an individualized sentencing determination). Specifically, Moore offered evidence from several sources that his father, Ernest Moore, Jr., was an abusive alcoholic who was often absent and rarely provided his family with financial support, even when present. The evidence further established that Ernest Moore, Jr. routinely beat his children with his hands, and with whatever other household effects or furniture happened to be close at hand. The evidence established that Ernest Moore, Jr. targeted petitioner Moore more often than Moore's other siblings because Moore attempted to intervene in physical altercations between his parents to protect his mother. Moore's mother was likewise an absent parent, being forced to hold down two jobs to support Moore and his brothers and sisters. After one particularly violent altercation, Moore was forced to leave the house for good when he was fourteen years of age. After that, family members sometimes defied the father by permitting Moore to slip into the house late at night or by sneaking him food, but Moore largely survived by sleeping on the street and stealing food to survive.

Moore's school records corroborate the neglect, deprivation, and physical abuse that characterized Moore's early childhood. School records describe a morose and withdrawn child who rarely participated in classroom activities. School records likewise describe Moore as suffering from severe developmental delays, perhaps resulting from poor nutrition and inadequate parenting. Moore never passed any year and was granted only social promotions until he dropped out altogether shortly after he was kicked out of the house at age fourteen.

Moore also produced substantial evidence of impaired mental development and functioning, and some evidence of organic brain damage resulting from severe trauma. See Zant v. Stephens, 103 S. Ct. 2733, 2747 (1983) (mental illness militates in favor of a lesser penalty); Whitley, 977 F.2d at 157 (granting relief where counsel failed to develop independent evidence of mental disease or defect). Moore offered the testimony of Dr. Robert Borda, who holds a Ph.D. in psychology and a Ph.D. in physiology. Borda reviewed Moore's school records, as well as psychological testing performed when Moore was in school, and psychological testing conducted while Moore was incarcerated for this offense in 1989. Both sets of tests indicate that Moore's intelligence is in the borderline retarded range. Borda testified that Moore's performance on other tests, such as the Bender-Gestalt, indicate that Moore's ability to perform in an uncontrolled environment is actually lower than indicated by his borderline IQ, and would very likely fall squarely within the retarded range. Borda also testified that the psychological testing performed when Moore was in school suggested that Moore suffered a severe trauma to the head or brain. Borda testified that such an injury would have impaired Moore's ability to function beyond the limitations reflected in the intelligence testing alone. Based upon the materials reviewed, Dr. Borda testified that Moore's mental age at the time of the offense was estimated to be fourteen, as compared to his still relatively youthful biological age of nineteen. In addition to the school records and psychological testing described, Moore also offered evidence that the Texas Rehabilitation Commission conducted a psychological evaluation on Moore when he was released from prison in 1979. Although the records of that psychological evaluation were destroyed in 1984, they would have been available for counsel's review at the time of Moore's 1980 capital trial.

Moore also maintained in the state evidentiary hearing that counsel could have relied upon his prison record and early release, as evidence tending to negate the state's burden on the future dangerousness issue. Skipper v. South Carolina, 106 S. Ct. 1669 (1986) (evidence that a prisoner would not pose a future danger in the prison community if spared the death penalty and imprisoned for life must be considered potentially mitigating in a capital case). The penitentiary package introduced by the state demonstrated that Moore was first arrested three years after he left home, at age seventeen. Moore was convicted and sentenced to eight years. Moore was nonetheless released after only two years. The state was permitted to interpret Moore's record for the jury, and relied upon that interpretation in closing argument. Specifically, the state noted that Moore had four separate convictions, and argued that Moore's prior record demonstrated a pattern that required an affirmative finding on the special issue of future dangerousness. As noted above, Moore's counsel did not respond with their own interpretation of the penitentiary package. Neither did counsel clarify that Moore was sentenced for each of the four offenses on the same day, that Moore began serving his sentence for each of the four convictions on the same day, or that Moore was released from serving the balance of the four concurrently imposed sentences after only two years. In fact, Moore's counsel simply stipulated that the documents comprising the penitentiary package, and by inference the state's interpretation of those documents, was correct.

In the state hearing, Bonner admitted that he was aware of some aspects of Moore's troubled childhood. Bonner conceded that, despite this knowledge, he did not conduct any investigation for the purpose of developing mitigating evidence. Bonner justified this failure to investigate with his view that mitigating evidence of a troubled family background or impaired mental functioning is per se inconsistent with an alibi defense. Bonner also suggested that this was a "guilt/innocence" case rather than a "punishment" case. Somewhat inconsistently, Bonner also testified that there was no reason not to offer the previously redacted and exculpatory portions of Moore's confession once the jury had rejected Moore's alibi defense with the guilty verdict. Indeed, Bonner testified that the jury's rejection of Moore's alibi defense made the exculpatory portions of Moore's unredacted confession admissible and relevant on the issue of punishment. Based upon this evidence, the state habeas court found that counsel made a strategic decision not to present mitigating background evidence at the punishment phase of Moore's trial. The state habeas court did not make any fact finding with respect to counsel's failure to offer Moore's unredacted confession during the punishment phase of the trial.

The district court considered and rejected the state court's fact finding that trial counsel made an informed strategic decision not to present mitigating evidence. The district court noted that counsel's purported decision was neither informed by an adequate investigation nor undergirded by any logical strategic purpose. For the reasons that follow, we affirm the district court.

Notwithstanding the constitutional stature of appropriate mitigating evidence in a capital case, counsel's failure to develop or present mitigating background evidence is not per se deficient performance. See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir.), cert. denied, 118 S. Ct. 361 (1997); West, 92 F.3d at 1408; King v. Puckett, 1 F.3d 280, 284 (5th Cir. 1993). To the contrary, a considered strategic or tactical decision not to present mitigating evidence that is made after a thorough investigation of the law and facts relevant to all plausible lines of defense is presumed to be within the wide range of professionally reasonable assistance defined by Strickland. Strickland, 104 S. Ct. at 2066; Whitley, 977 F.2d at 158; Drew v. Collins, 964 F.2d 411, 422 (5th Cir. 1992); Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992); McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989) (counsel's decision not to present mitigating evidence is entitled to deference when based upon an informed and reasoned practical judgment). Stated differently, Strickland requires that we defer to counsel's decision not to present mitigating evidence or not to present a certain line of mitigating evidence when that decision is both fully informed and strategic, in the sense that it is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense. Strickland does not, however, require deference to decisions that are not informed by an adequate investigation into the controlling facts and law. Whitley, 977 F.2d at 157-58; see also Andrews v. Collins, 21 F.3d 612, 623 (5th Cir. 1994) (counsel's strategic decision entitled to deference because supported by an adequate investigation which included contact with at least 27 people); Whitley, 977 F.2d at 157 (counsel's failure to pursue crucial line of defense held to be professionally unreasonable); Drew, 964 F.2d at 423 (counsel's strategic decision entitled to deference because counsel made "reasonable inquiries" into Drew's mental state); Wilkerson, 950 F.2d at 1064-65 (affording strategic decision deference where record established the counsel retained an investigator to explore whether mitigating evidence relating to defendant's background or mental ability was available); Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) ("Tactical decisions must be made in the context of a reasonable amount of investigation, not in a vacuum."); McCoy, 874 F.2d at 964 (finding scope of investigation reasonable where counsel investigated possibility of mitigating evidence by interviewing everyone on a list provided by the capital defendant and determined none of them had anything good to say about the defendant); Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir. 1986) ("counsel either neglected or ignored critical matters of mitigation"). Similarly, Strickland does not require deference to those decisions of counsel that, viewed in light of the facts known at the time of the purported decision, do not serve any conceivable strategic purpose. See Strickland, 104 S. Ct. at 2061 ("Counsel may not exclude certain lines of defense for other than strategic reasons."); Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996) (explaining basis for counsel's strategic decision not to offer mitigating evidence identified by the defendant), cert. denied, 117 S. Ct. 968 (1997); Whitley, 977 F.2d at 158 ("Whether counsel's omission served a strategic purpose is a pivotal point in Strickland and its progeny. The crucial distinction between strategic judgment calls and just plain omissions has echoed in the judgments of this court.") (footnote omitted); Profitt, 831 F.2d at 1249 (Strickland does not require deference to decisions which do not yield any conceivable benefit to the defense); Bell v. Lynaugh, 828 F.2d 1085, 1090 (5th Cir. 1987) (when counsel makes an informed and considered decision not to present mitigating evidence, the issue becomes whether the decision was reasonable ); Wilson, 813 F.2d at 672 (remanding for evidentiary hearing because record did not reflect whether counsel made a sound strategic decision not to present mitigating evidence of troubled background and mental impairment); Lyons, 770 F.2d at 534-35 (finding deficient performance because there was no sound strategic basis for counsel's failure to object to evidence of prior offenses); Mattheson, 751 F.2d at 1439-40 (explaining strategic purpose motivating counsel's decision to exclude evidence of mental impairment from sentencing phase); Moore v. Maggio, 740 F.2d 308, 315-19 (5th Cir. 1984) (explaining basis of counsel's considered decision to limit investigation by excluding implausible lines of mitigating evidence).(8)

Moore maintains that counsel's failure to present mitigating evidence is not entitled to a presumption of reasonableness because it was neither informed by a reasonable investigation nor supported by any logical position that such failure would benefit Moore's defense. We agree. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 104 S. Ct. at 2066; Mattheson, 751 F.2d at 1439-40; Bell, 828 F.2d at 1088. Counsel is "not required to pursue every path until it bears fruit or until all conceivable hope withers." Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). But strategic decisions made without an adequate investigation into the facts and law controlling plausible defensive theories are reasonable only to the extent that reasonable professional judgment supports counsel's limitation on the investigation. Strickland, 104 S. Ct. at 2066; Ransom, 126 F.3d at 723; Whitley, 977 F.2d at 157-58; Bouchillon, 907 F.2d at 597; Bell, 828 F.2d at 1088. With those principles in mind, we note at the outset that this is not a case in which counsel had no notice and no reason to suspect that a background investigation would produce potentially valuable mitigating evidence. Compare Bouchillon, 907 F.2d at 597-98 (counsel's failure to investigate despite knowledge that further investigation might be fruitful constituted deficient performance), with Ransom, 126 F.3d at 723; West, 92 F.3d at 1408; Andrews, 21 F.3d at 623-24 (failure to investigate not deficient performance where counsel had no reason to believe that further investigation might be fruitful). Bonner testified that he was aware of Moore's troubled background at trial. That awareness, which included knowledge that Moore's family was physically abusive, should have triggered some sort of inquiry into Moore's background. See Motley, 18 F.3d at 1228 (counsel's awareness of and decision to present evidence of child abuse while failing to investigate "neurological damage and other evidence that would have been in the same vein" as the child abuse evidence actually presented may have been unreasonable). Moreover, this is not a case in which counsel made some limited inquiry, and the defendant is alleging that counsel should have focused upon additional areas of inquiry or unearthed some obscure or tangentially relevant evidence. Compare Whitley, 977 F.2d at 159 (granting relief based upon counsel's complete and total failure to investigate a critical issue), and Jones, 788 F.2d at 1103 (granting relief where counsel completely abdicated the responsibility to investigate the availability of mitigating evidence), with Bell, 828 F.2d at 1088 (denying relief where counsel conducted a thorough independent investigation into defendant's mental state because, notwithstanding the additional evidence offered by the defendant on collateral review, there was no evidence counsel neglected or ignored the defendant's mental state), and Thompson v. Cain, 161 F.3d 802, 813 (5th Cir. 1998) (rejecting petitioner's contention that counsel should have delved further into his mental state in case where sociologist testified regarding the petitioner's background and relationships). To the contrary, Bonner conceded in the state evidentiary hearing that he made no inquiry into Moore's background for the purpose of developing mitigating background evidence of any sort. Likewise, although Moore's confession made accidental shooting a plausible alternative defensive theory at both the guilt and punishment phases of Moore's trial, counsel never made any investigation intended to test that theory. To be clear, we are dealing here with counsel's complete, rather than partial, failure to investigate whether there was potentially mitigating evidence that could be presented during the punishment phase of Moore's trial. That fact distinguishes this case from those cases in which we have rejected similar claims because the record established counsel conducted an adequate investigation, but made an informed trial decision not to use the potentially mitigating evidence because it could have a prejudicial backlash effect on the defense. See,e.g., Darden v. Wainwright, 106 S. Ct. 2464, 2474 (1986) (counsel's failure to present mitigating evidence relating to defendant's character, psychiatric evaluation and history as a family man did not constitute deficient performance where such evidence would have opened the door to otherwise excluded evidence that defendant had prior criminal convictions, was diagnosed as a sociopathic personality, and had in fact abandoned his family); Mattheson, 751 F.2d at 1439-40 (counsel made reasonable strategic decision to omit presentation of mitigating evidence of mental impairment where such evidence would have opened door to known evidence that defendant was a violent sociopath). Given that counsel's conduct in failing to develop or present mitigating evidence was not informed by any investigation and not supported by reasonably professional limits upon investigation, we find that there is no decision entitled to a presumption of reasonableness under Strickland. Moreover, the record does not otherwise contain any justification for limiting, or in this case, completely omitting, any investigation into Moore's background or the facts that might support counsel's accidental shooting argument during the punishment phase of the trial.(9) We therefore find counsel's complete failure to investigate Moore's background and the facts underlying the accidental shooting theory argued during the punishment phase to be professionally unreasonable and deficient performance in the context of this case.

Of equal importance, we agree with the district court that counsel's decision not to present any mitigating evidence was not motivated or justified by any strategic or tactical rationale. SeeWhitley, 977 F.2d at 158-59 & nn. 21-22; Profitt, 831 F.2d at 1249; Lyons, 770 F.2d at 534-35 (Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct). The state habeas court's fact finding, to the extent it is contrary, finds no support in the record and was properly rejected by the district court. See 28 U.S.C. § 2254(d) (1994).

Bonner's only justification for completely failing to develop or offer available mitigating evidence was that mitigating evidence of any type or quantity is per se inconsistent with an alibi defense. Bonner's view is overbroad and insufficient alone, without any reference to why that justification would apply in this case, to justify counsel's complete failure to investigate for the purpose of making an informed decision and failure to offer any mitigating evidence. See Stafford v. Saffle, 34 F.3d 1557 (10th Cir. 1994) (finding deficient performance and rejecting argument that an alibi defense during the guilt phase is per se inconsistent with mitigating evidence relating to the defendant's personal background); Brewer, 935 F.2d 850 (granting relief on claim that counsel failed to offer mitigating evidence during the sentencing phase in case involving an alibi defense at the guilt phase).

On appeal, the Director tries to put the best face on Bonner's justification by arguing that counsel made a strategic decision not to present mitigating evidence based upon the possibility that the jury entertained a "residual doubt" about Moore's alibi defense. This Court has recognized that, in an appropriate capital case, counsel's decision to rely upon the jury's residual doubt about the defendant's guilt may be not only reasonable, but highly beneficial, to a capital defendant. See, e.g., Andrews, 21 F.3d at 623 n.21.

This is not a residual doubt case. Moore's alibi defense failed miserably. The testimony in support of that defense was internally inconsistent and failed for the most part to place Moore in Louisiana at the time the offense was committed. The state responded with overwhelming evidence of Moore's involvement in similar extraneous offenses as well as narrowly tailored rebuttal evidence refuting Moore's alibi. In what was undoubtedly one of his most reasonable decisions as trial counsel, Bonner himself essentially abandoned the alibi defense during closing argument at the guilt phase by telling the jury that it did not matter whether Moore and his sister testified truthfully. The jury deliberated briefly, asking only for copies of Moore's "confessions," then rejected Moore's alibi defense by returning a verdict of guilty.

More importantly, Moore's counsel did not adhere to the alibi defense during the punishment phase of Moore's trial. Although Bonner challenged the quantum of the state's proof, neither Bonner nor Devine attempted to resurrect the defeated alibi defense. To the contrary, counsel Devine earnestly argued that the shooting was accidental. Thus, counsel made an entirely reasonable decision to pursue the accidental shooting theory as a plausible alternative to alibi during the punishment phase of Moore's trial. Given these facts, there was no logical or factual support for and no conceivable strategic purpose to be achieved by excluding the potentially mitigating background evidence identified by Moore. Furthermore, there is more in this case than simply a general failure to conduct an investigation or to present mitigating evidence of the type traditionally found in capital cases. In this case, counsel also failed to make use of readily available evidence. Specifically, counsel failed to support their punishment phase jury argument that the shooting was accidental with the best evidence of that theory, Moore's own statements that the shooting was accidental. Counsel also failed to capitalize on the opportunity to argue Moore's early release from prison as a factor mitigating against an affirmative response on the special issue of future dangerousness. Finally, the effect of counsel's deficient performance is not reduced by any guilt phase or punishment phase evidence that can be construed as potentially mitigating. CompareJones, 788 F.2d at 1103 (finding ineffective assistance where counsel presented no mitigating evidence at all), with Motley, 18 F.3d at 1228 (refusing to find deficient performance where proposed mitigating evidence is cumulative of other testimony offered during guilt phase of capital trial). As with counsel's failure to investigate, we are dealing here with a complete, rather than partial, failure to offer any mitigating evidence on Moore's behalf. Our decision that counsel failed to make a strategic decision entitled to deference under Strickland, and that counsel's conduct was in this case professionally unreasonable, is heavily influenced by these additional omissions, for which neither the record nor common sense can provide any answer.

For the foregoing reasons, we affirm the district court's holding that counsel did not make an informed or strategic decision not to investigate, develop or present mitigating evidence that is entitled to deference under Strickland. We likewise affirm the district court's holding that counsel's failure to investigate or offer available mitigating evidence was professionally unreasonable and constituted deficient performance within the meaning of Strickland.

Chandler v. United States (11th Cir) Panel reverses the first ever conviction under the 1988 federal death penalty statute. In light of a rather lengthy examination of ineffective assistance during the penalty phase, just the prejudice analysis is repeated here.

We next consider whether counsel's deficient performance prejudiced Chandler such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different. We conclude that Chandler was prejudiced by his lawyer's deficient performance.

First, the quality of the testimony proffered at Chandler's post-conviction hearing was impressive. Although forty witnesses were available to testify at the hearing, the district court took the testimony of only twenty-seven of these witnesses. These witnesses, working and contributing members of the Piedmont community, not only offered general opinion testimony as to Chandler's good character traits, but they backed up their opinions with specific examples of compassionate acts by Chandler. Numerous witnesses testified about frequent instances of Chandler's generosity. See, e.g., Exh. 12 at 55 ("[M]y son [Tony] didn't have any shoes and Ronnie was out at a neighbor's behind us and he saw Tony and he made a statement to Tony . . . about [his] shoes and, Tony said I don't have any. It wasn't long after that the neighbors that was there that Ronnie was visiting that day brought Tony two pair of shoes, instead of one it was two."); id. at 68 ("I remember several occasions and he would bring vegetables by the house and leave them and I remember a time or two . . . [when] Ronnie wouldn't hesitate to leave three or four, five dollars, whatever he had, there for to see the kids got their lunch."); id. at 73 ("If there was somebody on . . . [Chandler's construction] crew right there that was a working man and he came up there and tell him he didn't have dinner, money would buy his dinner with, Ronnie would see that that man ate if he worked."); id. at 124 ("I've known of him buying groceries for folks who he thought needed it . . . [Once he] [s]topped on the way home from Georgia one night and he knew of some folks that needed some groceries and stopped in and bought a couple of bags of groceries."); id. at 179 ("He's the type of person that he if knew you needed something he would give it to you. I've known him to give work to people that were in need of work, to give people money when they needed it.")

Many testified as to Chandler's altruistic, benevolent nature. One man who had known Chandler "all his life" offered the following anecdote:

I know Ronnie was a mason, a carpenter, and he know people that had lost their jobs before, when he found out about it, he would make sure they got some work. And I know one occasion personally that he took money out of his own pocket and gave it to a guy that had just lost his job had three or four kids and I personally know that Ronnie didn't have the money to give away but he did any way.

Id. at 99, 100-01. Another testified that, when one of Chandler's neighbors lost a son in a car accident, "Ronnie took money and gave to them because they didn't have insurance to bury the boy and took money to them to help them bury him." Id. at 113. Two other witnesses confirmed this anecdote, and noted that, at the time this incident occurred, Chandler could ill afford to pay for the boy's burial. See id. at 225, 250. Another witness testified that when her husband died, Chandler offered to let her "stay in [his] house as long as I wanted to. It was mine to do with and just as long as I always had a place to stay, not to worry about it." Id. at 112.

Several witnesses testified that Chandler had a particular affinity with children. See, e.g., id. at 68 ("[Children] loved Ronnie. I mean, he'd play with them and, I mean, I'm not talking about five minutes. I mean he would spend 30, 45 minutes there just on the spur of the moment kind of playing. And you could tell he really enjoyed it."); id. at 92 ("Ronnie was a very caring person, a very giving person . . . . [M]y dad worked all his life, didn't have time to spend with us, so Ronnie kind of took us in and taught me the sport of hunting and fishing."); id. at 102 ("He was fantastic [with children]. He took his children and several other children that couldn't get out, take them riding, would introduce them to sports, shooting a bow, things of that nature.").

As the foregoing lengthy (though not exhaustive) description of the testimony presented at the post-conviction hearing indicates, this is not a case in which only marginal mitigating evidence existed. Rather, the quality and quantity of this evidence, almost all of which was available at the time of trial had Redden inquired in a timely fashion as to who in Piedmont might be willing to testify on Chandler's behalf at the sentencing hearing, creates a reasonable probability that, but for counsel's failure to present even a small portion of this evidence, Chandler would not have received the death sentence.

Our conclusion is further strengthened when we consider the balance of aggravating and mitigating factors that would have been before the jury but for counsel's errors. As noted earlier, the three aggravating factors presented to the jury were that Chandler (1) intentionally engaged in conduct intending that Shuler be killed and resulting in Shuler's death, (2) procured Shuler's killing by promising to pay something of pecuniary value, and (3) committed the murder after substantial planning and premeditation. The jury, however, rejected the "substantial planning and premeditation" factor and, thus, weighed in the balance two aggravating factors. Set against this were two statutory mitigating factors introduced by stipulation: that Chandler had no prior criminal record and that the actual killer, Jarrell, would not be punished by death. See 28 U.S.C. § 848(m)(6) and (8). Given this essential equipoise of statutory factors, it is reasonably probable that the non-statutory mitigating factor of character evidence - particularly given the extensive, detailed, and eloquent testimony that was available at the time of the hearing - would have led the jury to a different result.

Moreover, we note that, notwithstanding the district court's characterization to the contrary, the murder of which Chandler was convicted was not "particularly egregious," R7-457 at 64, when viewed against the backdrop of our circuit precedent. We previously have observed that "[m]any death penalty cases involve murders that are carefully planned, or accompanied by torture, rape or kidnaping . . . . In these types of cases, this court has found that the aggravating circumstances of the crime outweigh any prejudice caused when a lawyer fails to present mitigating evidence." Dobbs, 142 F.3d at 1390 (citations omitted). Here, however, Shuler was shot in a murder that the jury found was not the result of substantial planning or premeditation. While horrible, the nature of this offense does not rise to the level of particularly cruel or heinous violent conduct that we previously have found to outweigh the prejudice caused by the omission of mitigating testimony during the penalty phase. See id. (where defendant, who had been previously convicted of three non-violent crimes, shot and killed two people during a robbery and struck another individual on the head with a gun, court found that "[t]he aggravating circumstances surrounding Dobbs's case, while deplorable, do not rise to such a level as to overshadow the significant mitigating evidence that Dobbs's jury had no occasion to consider."); Baxter, 45 F.3d at 1515 (ineffective assistance of counsel for failure to present psychiatric history at sentencing, where only one aggravating circumstance was present, record was "virtually devoid of mitigating evidence" and "th[e] murder was committed by strangulation - it did not involve the sexual abuse or kidnaping common to other death penalty cases.").

Ervin v. Bowersox (8th Cir) In this split panel decision relief is not to be had. Petition denied on cliamsof ineffective assistance of counsel based on counsel's decision not to play videotaped confession contradicting witness's trial testimony rejected; failure to develop record on whether juror should have been stricken for cause precluded federal review; admission of testimony concerning possession of a firearm and planning other unrelated crimes was not plain error; claim he was incompetent during post-conviction proceedings rejected.

Ervin first contends his right to effective assistance of trial counsel was violated when his attorney failed to play the videotape of Hunter’s guilty plea during trial. Although Hunter implicated Ervin in his trial testimony and in one police interview, Hunter had exonerated Ervin during his guilty plea and on other occasions. On the videotape, Hunter repeatedly said Ervin was innocent of the murders. Ervin asserts his attorney should have played the tape to impeach Hunter’s trial testimony.

To prevail on his ineffective assistance of counsel claim, Ervin must show his attorney’s performance fell below an objective standard of reasonableness and the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish his attorney’s performance was objectively unreasonable, Ervin “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). To show prejudice, Ervin must establish a reasonable probability that he would have been acquitted absent the allegedly unprofessional error. See id. at 694.

During an evidentiary hearing, defense counsel testified he knew Hunter’s testimony was important to the state’s case, but he decided not to play the tape because he wanted to avoid a rehash of the killings’ grisly details, which might be the last thing the jury would hear. Lead defense counsel had not personally viewed the tape, but he read the transcript and his co-counsel viewed the tape and discussed its contents with him. In Ervin’s direct appeal, the Missouri Supreme Court noted the postconviction court had “found that defense counsel could reasonably decide not to reprise the story of the Hodgeses’ deaths to the jury as a matter of trial strategy,” and concluded the postconviction court’s finding was not clearly erroneous. Ervin, 835 S.W.2d at 930.

Even though Ervin’s attorney had told the jury he would play the tape of Hunter’s guilty plea, he could reasonably change his mind. During the state’s case, Hunter had admitted exonerating Ervin during his guilty plea and on other occasions, and defense counsel cross-examined Hunter about his inconsistent statements. Defense counsel also cross-examined police officers about Hunter’s statements to them exonerating Ervin. Rather than playing the videotape during the defense case, defense counsel chose to elicit testimony from Hunter’s parole officer, who said that in discussing the murders with him, Hunter had expressly denied that Ervin was his accomplice. Although it is a close question, we conclude Ervin has not overcome the presumption that defense counsel used sound trial strategy. See Gillette v. Tansy, 17 F.3d 308, 311 (10th Cir. 1994) (defense counsel’s choice of means to impeach a witness was reasonable trial strategy). Also, because the jury knew Hunter had exonerated Ervin several times--before a judge, his parole officer, and police officers-- there is not a reasonable probability Ervin would have been acquitted if defense counsel had played the tape for the jury.

Tompkins v. Moore (11th Cir) Eleventh Circuit rejects evidence of actual innocence (ineffectiveness for failing to prepare/present timeline evidence of physical impossibility that Petitioner committed the crime, as well as prosecutorial misconduct, in light of Supreme Court precedent in Giglio, relating to ontological (teeth evidence) that the body alleged to have been the victims was in fact someone else) as well as claims arising out of the failure to present certain key mitigation evidence. Of key note is the Eleventh Circuit's adaptation of a level for mental retardation that is substantial below (IQ of 50-55 to 70 ) that of other circuits and the American Association on Mental Retardation (IQ of 75).

The thrust of Tompkins' guilt stage ineffective assistance attack centers around his argument that trial counsel did not do enough to show that Lisa DeCarr was alive after the morning of March 24, 1983, the morning Tompkins was seen struggling with her on the couch in the house they shared with Lisa's mother, who was Tompkins' girlfriend. If she was alive after that morning, Tompkins argues, someone else must have killed her, and besides, the State would have failed to prove he had killed her before 5:00 p.m. that day, a requirement it undertook in the bill of particulars.

The main thing trial counsel could and should have done to show that Lisa DeCarr was alive after the morning in question, Tompkins says, is present evidence that a young woman named Wendy Chancey had seen her alive later in the day, had seen her getting into a vehicle, and had seen her wearing clothes similar in appearance to those Tompkins told the police Lisa had been wearing when she left the house unharmed that morning. Before trial, counsel learned from a police report that Chancey had told the police those things during an interview, and he considered using her as a witness. He decided not to do so because he believed she would not have made a good witness.

At the state court evidentiary hearing, Tompkins tried unsuccessfully to show that Wendy Chancey would have been a useful witness for the defense. The evidence at that hearing showed that when Chancey was located and interviewed twice by collateral counsel's investigator, that she had no recollection at all of having seen Lisa on the day in question, and that she could not even identify a photograph of Lisa. The investigator who interviewed her included in his report this observation and recommendation:

This writer believes that Wendy Chancey is a troubled child who has been through many traumatic experiences, some of which may involve narcotics. It could well be that Wendy Chancey's past and possibly some unknown medical condition affects her ability of recall. Further attempts to interview this female are not recommended by this investigator.

There is no evidence in the record that at the time of the trial Wendy Chancey remembered anything about the events on the day in question, or that she even remembered Lisa DeCarr.

Tompkins faults trial counsel for not calling Wendy Chancey, anyway. He says she could have identified the statements referred to in the police reports as ones she had made, and she could have said that those statements were accurate when made even though she has no recollection of the events they describe. The argument is that testimony from Chancey - if she gave it - would have been enough to get those statements into evidence as prior recollections recorded. No, it would not have been enough, even assuming Chancey could have testified to the accuracy of the statements she could no longer recall. As the district court explained, under Florida law a prior recollection recorded is admissible only if the recorded statement is one that was recorded by the witness herself. See Fla. Stat. §90.893(5) ("A memorandum or record ... shown to have been made by the witness..."); Heindreth v. State, 483 So.2d 768, 769 (Fla. 1st DCA 1986)(police report's synopsis of a witness' statements to an officer not admissible as prior recollection recorded).

Tompkins has not shown that there is any basis for the admission of that part of the police report containing the statements Wendy Chancey supposedly made but can no longer recall. Of course, we will not hold an attorney ineffective for failing to offer inadmissible evidence. We also note, as did the district court, that if trial counsel had called Wendy Chancey or any other witness to testify at the guilt stage, under Florida law he would have forfeited his right to both open and close the arguments before the jury.

THE PENALTY STAGE INEFFECTIVENESS CLAIM

At the penalty stage, in addition to relying upon the evidence that had been presented during the guilt stage, the State also proved that Tompkins had been convicted of two separate, knife- point abductions and rapes of convenience store clerks. Both of those other crimes occurred after Tompkins sexually assaulted and murdered Lisa DeCarr on March 24, 1983, but before her body was found in June of 1984. The first of those two rapes occurred on April 7, 1984, and the second on May 30, 1984. Tompkins pled guilty to armed robbery, kidnaping, and sexual battery in connection with the first rape, and he pled no contest to kidnaping and sexual battery in connection with the second rape. The prosecutor accurately argued to the jury that Tompkins had been convicted of five violent felonies prior to his conviction for the capital offense in the present case, saying, "That is his violent past right there: two rapes, two kidnapings, and an armed robbery, five previous violent felony convictions." The prosecutor also argued that "these crimes he committed in Pasco County when he was raping these two other women on April 7, 1984, and May 30, 1984, Lisa DeCarr still had not been found. She was still buried under that house when this man unleashed his violence on these two other women in Pasco County." The crime was especially heinous, atrocious and cruel, the prosecutor urged, because as the fifteen-year-old victim resisted Tompkins' sexual advances and struggled against him, Tompkins strangled her to death with the sash of her bathrobe.He emphasized to the jury that Lisa DeCarr did not die instantly but instead had her life strangled out of her and must have realized before losing consciousness that she was going to die.

At the beginning of the penalty phase, trial counsel had informed the court that Tompkins had just decided that no mitigating circumstance evidence should be presented, because he did not want to spend the rest of his life in prison. Counsel did not want to forego presenting mitigating circumstances and asked the court for a recess so he would have an opportunity to talk his client into changing his mind. The trial court directed counsel to ignore his client's instructions and to present mitigating circumstance evidence.

Counsel called as mitigation witnesses Tompkins' two older sisters, and also a brother-in-law who had known him for fifteen years. The sisters testified that Tompkins was shy, had never displayed any violent behavior, had never hurt anyone, did not use obscene language, and had always worked and supported himself up until the time of his arrest. The brother-in-law testified he had known Tompkins for fifteen years, and that Tompkins had worked for him for four years in a roofing and construction business. He described Tompkins as a good employee who was always on time, good to follow orders, and eager to learn. He had not had any complaints from any customers about Tompkins, who never got into any arguments or fights with anyone.

In his closing argument, defense counsel pointed out that Tompkins had admitted his guilt for the two other crimes for which he had been convicted, and that no one had been seriously injured or killed in them. He also argued Tompkins' age as a statutory mitigating circumstance, and he discussed the non- statutory mitigating circumstances about which the defense witnesses had testified. He urged the jury to spare Tompkins' life.

The jury returned an advisory verdict unanimously recommending the death sentence. The trial court found three statutory aggravating circumstances: 1) previous convictions for felonies involving the use or threat of violence to the person; 2) the murder was committed while the defendant was engaged in an attempt to commit sexual battery; and, 3) the murder was especially heinous, atrocious, or cruel. The court found one statutory mitigating circumstance: the defendant's age (twenty- six years old) at the time of the crime. The trial court sentenced Tompkins to death.

Tompkins contends that trial counsel was ineffective at the penalty phase because he failed to present additional mitigating circumstance evidence. The state trial court conducted an evidentiary hearing on this claim, and although concluding that counsel's performance had been deficient, the court nonetheless rejected the claim because Tompkins had failed to establish prejudice, as required under the Strickland decision. On appeal, the Florida Supreme Court agreed with both aspects of the trial court's ruling. It found that counsel had been deficient because he failed to present some available mitigating circumstance evidence, but it also concluded that "this evidence would not have affected the penalty in light of the crime and the nature of the aggravating circumstances." See 549 So.2d at 1373. After conducting a de novo review, the district court agreed that Tompkins had failed to establish prejudice but found it unnecessary to determine whether or not trial counsel's performance had been outside the wide range of reasonable professional assistance. We follow the same path as the district court.

Under the prejudice prong of Strickland, "[i]t is not enough for the defendant to show that the error had some conceivable effect on the outcome of the proceeding." 466 U.S. at 693, 104 S.Ct. at 2067. Instead, "the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. at 2069. A "reasonable probability" of a different result here, as in regard to the guilt stage, is one sufficient to undermine our confidence in the outcome. Seeid. at 694, 104 S.Ct. at 2052. That means Tompkins must convince us that if the additional mitigating circumstance evidence in question had been presented, "there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different." Horsley v. Alabama, 45 F.3d 1486, 1493 (11th Cir. 1995); accord Weeks v. Jones, 26 F.3d 1030, 1042 (11th Cir. 1994) ("[T]he petitioner must show ... there is a reasonable probability that the sentencer would have weighed the balance of aggravating and mitigating factors to find that the circumstances did not warrant the death penalty.") (quoting Bush v. Singletary, 988 F.2d 1082, 1090 (11th Cir. 1993) (per curiam)). In order to decide this issue we look at the mitigating circumstance evidence that was not presented, along with that which was, and consider the totality of it against the aggravating circumstances that were found.

We have already set out the mitigating circumstance evidence that trial counsel did present at the penalty stage, so we turn now to the additional evidence which Tompkins contends should have been presented. It is primarily of three categories. The first category concerns physical abuse Tompkins suffered as a child. He was not abused by his parents, but by a man in the foster family with which Tompkins lived for several years until he was sixteen years old. Tompkins told a number of family members and friends that he was treated unfairly by his foster father and was whipped and beaten by him.

Evidence of physical abuse while a youth is admissible at sentencing, but Tompkins was twenty-six years old when he committed this capital offense. We have previously held that at least where there are significant aggravating circumstances and the petitioner was not young at the time of the capital offense, "evidence of a deprived and abusive childhood is entitled to little, if any, mitigating weight." Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990) (petitioner was thirty-one years old at the time of the capital offense); accord, Mills v. Singletary, 63 F.3d 999, 1025 (11th Cir. 1995) ("We note that evidence of Mills' childhood environment likely would have carried little weight in light of the fact that Mills was twenty-six when he committed the crime."). Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir. 1994) (same holding where petitioner was twenty-seven years old at the time of the capital offense).

The second category of mitigating circumstance evidence Tompkins contends his counsel should have presented is evidence of substance abuse. The evidence that Tompkins had a substance abuse problem is thin, consisting almost entirely of his own statements to Dr. Patricia Fleming, the psychologist who testified as his expert witness on mental state issues in the Rule 3.850 proceeding. Despite a professed awareness that, in her words, "anybody that is facing execution has every motivation to lie," Dr. Fleming believed Tompkins when he told her that he had taken drugs in the past and had ended up drinking beer and hard liquor in large quantities. Indeed, she wrote in her report that Tompkins began drinking at age seventeen and his alcohol consumption had increased until at the time of his arrest he was drinking one-half gallon of whiskey and one-half case of beer every day, which resulted in black outs, memory loss, and related problems.

Tompkins' self-serving statements to Dr. Fleming regarding the enormous quantity of alcohol he consumed each day, and the results of it, were contradicted by the affidavits and evidentiary hearing testimony on his behalf by nine family members and close friends, people who had observed him closely at work and at home over the years. Their sworn accounts provide a detailed description of Tompkins' personality and behavior, and although there is some reference in those accounts Tompkins' drinking, none of them indicate that he had a serious substance abuse or alcohol problem, or that he acted as though he did. Instead, with almost monotonous consistency those who knew Tompkins best described him as an industrious, dependable man, a good worker and provider who earned enough money as a roofer to buy presents for others and to regularly send his mother money. They tell how Tompkins was responsible about all of his obligations, kind, considerate, and caring, and how he was a stable influence on the children he was around. In short, the affidavit and evidentiary hearing testimony of nine people close to Tompkins indicate that he was anything but a hopeless alcoholic or drug abuser, and foreclose any realistic possibility that he suffered from a serious substance abuse problem.

The opinion of a medical expert that a defendant was intoxicated with alcohol or drugs at the time of the capital offense is unreliable and of little use as mitigating circumstances evidence when it is predicated solely upon the defendant's own self-serving statements, especially when other evidence is inconsistent with those statements. SeeDuren v. Hopper, 161 F.3d 655, 662 (11th Cir. 1998). A psychological defense strategy at sentencing is unlikely to succeed where it is inconsistent with the defendant's own behavior and conduct. SeeWeeks v. Jones, 26 F.3d at 1042; Bush v. Singletary, 988 F.2d at 1093. Moreover, even when there is a factual basis for it, a showing of alcohol and drug abuse is a two-edged sword which can harm a capital defendant as easily as it can help him at sentencing. See Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir. 1996).

The third category of mitigating circumstance evidence Tompkins says that counsel should have presented at sentencing is the testimony of Dr. Fleming. She submitted a report in connection with the Rule 3.850 proceeding and testified at the evidentiary hearing held during that proceeding. We have already discussed her factually unsupported conclusion that Tompkins had a serious alcohol or other substance abuse problem.

Dr. Fleming also found that Tompkins was "in the borderline of mental functioning," which is the terminology psychologists apply to a person who is below average intelligence but not mentally retarded. According to the tests Dr. Fleming gave Tompkins, he had a verbal IQ of 86, a performance IQ of 75, and a full scale IQ of 79. The range for even mild mental retardation is an IQ of from 50-55 to approximately 70.See American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 40 (4th ed. 1994). Tompkins' scores were well above that range, but Dr. Fleming says the tests she gave him revealed signs of brain damage which "suggests that he's significantly and seriously impaired in higher levels of brain functioning," and "[h]e becomes confused easily."Dr. Fleming admitted under cross-examination that a CAT scan is a better method for detecting brain damage than the tests she used, but no CAT scan was given Tompkins. She also said Tompkins had suffered emotional deprivations because he was separated while growing up from his natural parents, both of whom he loved very much.

Dr. Fleming insisted that Tompkins was not violent, but was himself a victim. She clung to that opinion even though Tompkins admitted to her that he had raped the two women in Pasco County at knife point. Dr. Fleming refused to acknowledge that those two crimes were actually violent, even though Tompkins told her he had held the knife to one victim's neck.When asked on cross-examination if she would not agree that a man who had stuck a knife to a woman's neck and raped her is a violent individual, Dr. Fleming paused for five seconds, and then would only say: "that was a violent act, depending on how you define violence."Throughout her testimony she adamantly refused to say that a man who would commit two rapes at knife point was a violent man. Nor would she concede that Tompkins would be especially dangerous if he was out on the street again. Asked if Tompkins, who had admitted two rapes and had also been convicted of sexual battery and murder or a fifteen-year old girl, could be dangerous in the future, Dr. Fleming said: "He has that capacity, as does everybody in this room." Dr. Fleming mischaracterized some of the statements in the affidavits that had been presented on Tompkins' behalf in a way that made them more supportive of her opinions about him.

Dr. Fleming also indicated in her report that she believed Tompkins was innocent, stating: "Mr. Tompkins' emphatic denial of involvement in the death is convincing." She claimed to have read the trial record and even stated that the circumstances of Lisa DeCarr's disappearance were sufficiently vague that there was some doubt about whether she was even dead. Dr. Fleming's opinion that Lisa DeCarr might not even be dead discredits her, because there was overwhelming evidence that the skeletal remains found in the shallow grave beneath Lisa' s house were those of Lisa. See pages 29 - 36, infra.

There is no real possibility that a jury would have been swayed toward a life sentence by anything she said. Dr. Fleming is palpably biased. She accepted everything Tompkins told her as the gospel, including the fact that the jury had wrongfully convicted him -- a belief the jury itself was unlikely to embrace. Her unwillingness to concede that the kidnapings and rapes Tompkins admitted committing at knife point are violent crimes shows the depth of her bias. Dr. Fleming saw Tompkins, a man who had been convicted of a total of six violent felonies involving sexual assaults on three different women as a non- violent victim himself. She described him as a "perpetual victim." We are confident the jury would have either totally rejected her testimony and opinions or given them very little weight.

We have considered all of the mitigating circumstance evidence Tompkins says should have been presented at the sentence stage, along with that which actually was presented. But weighing against it are multiple, strong aggravating circumstances. The weight of those aggravating circumstances overwhelms the mitigating circumstance evidence that was and could have been presented. We conclude in this case, as the Supreme Court concluded in the Strickland case, that: "Given the overwhelming aggravating factors, there is no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed." 466 U.S. at 700, 104 S.Ct. at 2071.

Jackson v. Johnson (5th Cir) Jackson "contends that his constitutional rights were transgressed by a Brady violation, by impermissible comments of the prosecution, and by the admission of evidence of an unadjudicated offense;" all claims relate to the penalty phase of the proceedings. Relief is uniformly denied.

Jackson maintains that there is a reasonable probability that he would have been sentenced differently had the prosecution disclosed the prior inconsistent statements of Clary. The authorities obtained several statements from Clary who, during Jackson's trial, was described as initially evasive, but who increased the significance of his role with each successive interview. Jackson was not provided with four of Clary's statements. He contends that these statements went beyond merely providing additional detail,(14) and argues that knowledge of the specifics of Clary's various statements would have better armed him to impeach Clary's testimony. Jackson further maintains that the state was able to paint Clary's several statements as merely increasing in detail because he did not have the statements and was not able to establish for the jury the true nature of Clary's shifting version of the truth. Jackson emphasizes the significance of Clary's testimony at sentencing, underscoring the fact that the state argued that the triggerman should receive a death sentence and only Clary implicated Jackson as the actual triggerman. From this Jackson argues that only non-credible evidence supported an affirmative response by the jury on the special issue concerning the deliberate nature of the act.

Under Brady v. Maryland, suppression by the state of material evidence favorable to the accused, after a request to examine such evidence, violates the accused's fourteenth amendment guarantee to due process. To be entitled to habeas relief on a Brady claim, a petitioner must establish that (1) the state suppressed or withheld evidence, (2) which was both favorable and (3) material to the defense. The state court determined that the evidence was not material. The state court's determination was not an unreasonable application of federal law nor was it based upon an unreasonable determination of the facts. No relief is warranted.

Suppression or Withholding of Evidence

The state habeas trial court determined that Clary's prior statements were not specifically requested by Jackson. Jackson moved for Brady material, and at a hearing on that motion the state agreed to turn over such information. Though the trial court did not order such disclosure, it considered same appropriate. Although not specifically requested, Jackson's earlier request for Brady evidence, suffices to raise this claim. The essential question before us is whether the evidence was favorable and material.

Favorable to the Defense

Favorable Brady evidence includes information that could be used to impeach the credibility of the state's witnesses. Jackson's contention that the various inconsistent statements by Clary could have been used to impeach his credibility is well-founded. The district court determined that these prior statements by Clary were favorable to the defense. We agree with that determination. We proceed then to address the materiality element of the Brady inquiry.

Before doing so, we must pause to address another of Jackson's concerns. Because only Clary specifically pointed to Jackson as the triggerman, Jackson argues that it was critical for him to be able to impeach Clary. Because the state sought a death sentence for the triggerman, identifying Jackson as the triggerman was crucial. The statements in question would have provided general impeachment information, but we are by no means persuaded that the statements would have enabled Jackson to impeach Clary on the specific issue of the identity of the triggerman. The four statements sought by Jackson explicitly or implicitly identify Jackson as the triggerman. Two of the statements include confessions by Jackson to the shooting. Each of the four statements placed Jackson alone with the decedent in the secluded location where the body was later discovered; each noted that Jackson was armed; and each related that, though both Jackson and Robison left the vehicle together, only Jackson returned to the vehicle before Jackson left the scene with Clary. While the changing details of these statements provide some general impeachment material, they would not have provided impeachment on the specific issue of the identity of the triggerman. Nonetheless, these statements were favorable to the defense, and we therefore must continue the analysis.

Material to the Defense

Evidence is "material" only if there is a reasonable probability that the result of the proceeding would have been different if the evidence had been disclosed. The reviewing court should consider the suppressed items collectively, not item by item. The state courts effectively and the district court explicitly determined that the Brady material was cumulative, and thus not material. When Brady evidence would have only a cumulative or marginal impact on the jury's credibility assessment, habeas relief is not in order because the evidence is not material, that is, there is no reasonable probability that the result of the proceeding would have been different if the defense had been provided the evidence in question.

Jackson had four other statements made by Clary, including a detailed statement that defense counsel obtained during an extensive interview. These various statements enabled Jackson to attack Clary's credibility; in fact, Jackson's own federal habeas petition reveals that "Clary's credibility was sharply called into question by defense counsel at trial . . . ." Clary admitted that he had not been truthful when he first talked to the police, when he testified before the grand jury, when he talked to defense counsel, and when he talked to the sheriff on an unspecified occasion. Clary testified that he provided different accounts of the incident each time that he was interviewed, and that his trial testimony differed from his previous accounts as well. The prosecution conceded in its opening statement that Clary's credibility was open to question given his various stories. Thus, the four withheld statements by Clary correctly were labeled as cumulative; they were not material.

In light of the persuasive and abundant physical and other evidence favoring affirmative responses to the special issue questions, and in light of mitigating evidence of "little, if any, value," there was not a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different if the evidence had been disclosed to the defense. The district court did not commit reversible error in denying relief on this Brady issue.

AEDPA Cases of Note

Jones v. Morton (3rd Cir) Panel holds, in what appears to be a first for a court of appeals, that a prior petition does not toll the statute of limitations either by operation of statute or by operation of equity. Due to the nature of the question a more expansive view of the rationale is offered:

[W]e granted a certificate of appealability limited to the issues of whether the District Court properly dismissed Jones's petition as time-barred under the statute of limitations, and whether Jones was entitled to any tolling of the limitations period pursuant to either 28 U.S.C. § 2244(d)(2) or the holding in Miller v. New Jersey State Dep't of Corr., 145 F.3d 616 (3d Cir. 1998). . .. Under § 2244(d)(1)(A), a state court criminal judgment becomes "final," and the statute of limitations begins to run, "at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires." Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999); see also Morris v. Horn, ___ F.3d ___, No. 98- 9008, 1999 WL 592440, at *2 n.1 (3d Cir. Aug. 9, 1999). . . . Jones's petition was signed and dated August 19, 1997, and his memorandum of law in support of the petition was signed and dated September 15, 1997. The petition was stamped "filed" by the District Court Clerk's Office on November 3, 1997. Although the record does not reflect the actual date on which he handed the petition to prison officials for mailing, it is clear that Jones mailed the petition after April 23, 1997, and Jones has not suggested otherwise. . . . A petitioner can seek tolling in two ways: (i) statutory tolling under § 2244(d)(2), or (ii) equitable tolling.

(i) Statutory tolling . . . . Jones contends, inter alia, that he is entitled to tolling under § 2244(d)(2) for the period following AEDPA's enactment during which his second habeas petition was pending in federal court. See Appellant's Br. at 17-18. On the date AEDPA was enacted (April 24, 1996), Jones's second petition was pending in the District Court. The District Court denied that petition on July 15, 1996, and Jones timely filed an appeal to this Court. Jones's request for a certificate of appealability was denied on January 13, 1997. Jones's timely petition for panel rehearing was denied on February 14, 1997. Thus, from the date of AEDPA's enactment on April 24, 1996, until February 14, 1997-- a period of almost 10 months-- Jones had the same claims that he raised in his third petition pending before a federal court in his second petition. If Jones were afforded tolling for that time, his third petition could be deemed timely filed. . . . . This issue appears to be one of first impression for our Court, but we see no need to dwell on it here, as we are persuaded by the analysis of the majority of Courts that have considered the issue that the statute of limitations is not tolled under § 2244(d)(2) for the time during which a habeas petition is pending in federal court. See Sperling v. White, 30 F. Supp.2d 1246, 1250 (C.D. Cal. 1998) ("A natural reading of the statute concludes that section 2244(d)(2) does not contemplate tolling limitations during the time a habeas petition is pending in federal court."); Kethley v. Berge, 14 F. Supp.2d 1077, 1079 (E.D. Wisc. 1998) (opining that there would be no tolling under § 2244(d)(2) for time that unexhausted claims in federal habeas petition were pending in District Court); Harrison v. Galaza, No. C98-3371, 1999 WL 58594, at *2 (N.D. Cal. Feb. 4, 1999) ("The running of the limitation period is not tolled, as petitioner contends, for the time period during which a properly filed application for post-conviction or other collateral review is pending in federal court."); Vinczev. Hickman, No. Civ. S-98-044, 1999 WL 68330, at *1 (E.D. Cal. Jan. 13, 1999) ("[T]he court concludes that the statutory tolling provision set forth in Section 2244(d)(2) does not toll the period during the pendency of petitioner's first federal habeas petition."); Babcock v. Duncan, No. C97- 2740, 1997 WL 724450, at *2 (N.D. Cal. Nov. 12, 1997) ("No court has found that the running of the limitations period also is tolled . . . for the time period during which a properly filed [habeas corpus petition] is pending in federal court."); but see Barrett v. Yearwood, ___ F. Supp.2d. ___, No. Civ. S-98-2226, 1999 WL 676220, at *5 (E.D. Cal. Sept. 1, 1999) (holding that the "plain meaning" of§ 2244(d)(2) "is that the statute of limitations is tolled during the pendency of any properly filed federal habeas corpus petition").

As the District Court explained in Sperling v. White, Congress clearly intended that the word "State" would be read to modify both "post-conviction" and "other collateral," so that tolling would be afforded under § 2244(d)(2) for various forms of state review only. See 30 F.Supp.2d at 1249-53. We find nothing in § 2244(d)(2)'s language or legislative history, and nothing in the policy concerns behind AEDPA's enactment, to suggest a contrary result. Consequently, Jones is not entitled to tolling under § 2244(d)(2), and he is limited to seeking an"equitable tolling" of the limitations period.

(ii) Equitable tollingIn Miller v. New Jersey State Dep't of Corr., 145 F.3d 616 (3d Cir. 1998), we determined that AEDPA's one-yearfiling requirement is a statute of limitations, not a jurisdictional rule, and thus a habeas petition should not be dismissed as untimely filed if the petitioner can establish an equitable basis for tolling the limitations period. We observed in Miller that "equitable tolling is proper only when the`principles of equity would make the rigid application of a limitation period unfair.' " Id. at 618 (quoting Shendock v. Director, Office of Workers' Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (in banc)) (punctuation marks omitted). This "unfairness" generally occurs "when the petitioner has `in some extraordinary way ... been prevented from asserting his or her rights.' " Id. (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994)). . . . In other cases, we have explained that equitable tolling "may be appropriate if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (quoting Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 753 (3d Cir. 1983)).. . . . In the present case, Jones has offered no explanation for his failure to pursue state court remedies after the District Court dismissed his first petition on exhaustion grounds. In the second petition, Jones raised the same unexhausted claims. After this Court denied a certificate of appealability on exhaustion grounds, Jones refiled the same claims in his third petition, again having failed to present those claims to the state courts. There is nothing in the record to suggest, and Jones has not alleged, that "there is an absence of available State corrective process," or that "circumstances exist that render such process ineffective to protect the rights of the applicant," such that the exhaustion requirement should be excused. See § 2254(b)(1)(B)(i)-(ii).

Jones argues that, "[b]y filing three pro se petitions, [he has] demonstrated his intent to be heard in federal court. He, therefore, cannot be deemed guilty of willful and inexcusable neglect, or even unreasonable delay, such that laches applies.... Instead of `sitting on his hands,' Petitioner moved, three separate times, in federal court, to vindicate his appellate rights, in state court. After these repeated efforts to be heard, it would be inequitable for Appellant to be time-barred." Appellant's Br. at 15-16. Jones seems to misunderstand the exhaustion requirement. Before his claims can be heard in federal court, he must present them to the state courts for review, which he can do pursuant to the New Jersey post-conviction review statute. Jones has made no showing that he "exercised reasonable diligence" in satisfying the exhaustion requirement in order to present his claims in a timely federal habeas petition. Cf. NewCastle Cty. v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) (stating that, to invoke equitable tolling, a party must show an exercise of reasonable diligence in bringing the claims). Instead, he has chosen on three occasions to file his claims in federal court without first pursuing state court remedies. Although it appears that Jones was simply mistaken in his belief that he could obtain review in federal court without having presented his claims to the state courts, his misunderstanding of the exhaustion requirement is insufficient to excuse his failure to comply with the statute of limitations.

(iii) Relation back The final argument that Jones seems to raise is that the filing date of his third petition should "relate back" to the filing date of his first or second petition, both of which were filed prior to AEDPA's enactment and were dismissed without prejudice for failure to exhaust state remedies. See Appellant's Br. at 17-18. If the filing date of the third petition relates back, it was improper to dismiss the petition as time-barred. We cannot agree with this argument. Traditionally, a statute of limitations is not tolled by the filing of a complaint that is subsequently dismissed without prejudice. As we explained in a recent habeas case, "[t]ypically, when a complaint (or habeas petition) is dismissed without prejudice, that complaint or petition is treated as if it never existed." Hull v. Kyler, ___ F.3d ___, No. 97-7551, 1999 WL 636957, at *13 (3d Cir. Aug. 23, 1999) (citations omitted). Thus, courts have recognized that, if a petition is dismissed for failure to exhaust state remedies, a subsequent petition filed after exhaustion is completed cannot be considered an amendment to the prior petition, but must be considered a new action. See Graham v. Johnson, 168 F.3d 762, 775-81 (5th Cir. 1999), petition for cert. filed, ___ U.S.L.W. ___ (U.S. June 21, 1999) (No. 98- 10002); Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3021 (U.S. June 30, 1999) (No. 99-26). Accordingly, we reject Jones's argument that the filing date of his third petition somehow related back to the filing date of his first or second petition.

Ott v. Johnson (5th Cir) Fifth Circuit holds that the time between denial by the state's highest court and certiorari denial does not toll the statute of limitations for the purposes of the AEDPA. As this is only the second time a Court of Appeals has addressed this question an examination of some length is proffered.

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), there is a one-year limitations period for filing a writ of habeas corpus by a person in state custody. Under 28 U.S.C. § 2244(d)(1)(A), the limitations period commences from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Moreover, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). . . .

Ott filed his state habeas application on April 23, 1997, one day before the expiration of the grace period. The limitations period expired on Friday, September 19, 1997, one day after the Texas Court of Criminal Appeals denied the habeas application on September 18, 1997.(5) Ott asserts two bases that would prevent his September 23, 1997 application from being deemed untimely filed. First, he contends that the ninety days in which a state habeas petitioner may petition the United States Supreme Court for a writ of certiorari, even if no petition for certiorari is filed, should toll the limitations period. . . .

We have not previously had an opportunity to consider this issue. We now reject same. We agree with our colleagues in the Tenth Circuit that § 2244(d)(2) does not toll the limitations period from the time of denial of state habeas relief by the state high court until the time in which a petitioner could have petitioned the United States Supreme Court for certiorari.

First, unlike § 2244(d)(1)(A), which takes into account the time for filing a certiorari petition in determining the finality of a conviction on direct review, § 2244(d)(2) contains no such provision. Rather, § 2244(d)(2) only tolls the period for a properly filed petition for "State post-conviction or other collateral review." It is a fundamental tenet of statutory construction that Congress intended to exclude language included in one section of a statute, but omitted from another section. We conclude and hold that a petition for writ of certiorari to the Supreme Court is not an application for "State" review that would toll the limitations period.

Second, we also note that judicial efficiency does not require a petitioner to begin federal habeas proceedings until the state conviction becomes final upon direct review, which occurs upon denial of certiorari by the Supreme Court or expiration of the period for seeking certiorari. For state post-conviction proceedings, however, the post-conviction application becomes final after a decision by the state's high court. Requesting relief from the Supreme Court is not necessary for prosecuting state habeas relief and is irrelevant to federal habeas jurisdiction. Thus, unlike direct review, there is no judicial interest in habeas proceedings for tolling the limitations period for Supreme Court certiorari petitions. Accordingly, the period for seeking a petition for certiorari does not toll Ott's limitations period under § 2244(d)(2).

[Second, he asserts that the limitations period in this case should be extended by the doctrine of equitable tolling.. . .]

We review the district court's decision not to invoke the doctrine of equitable tolling for abuse of discretion....

Although cautious not to apply the statute of limitations too harshly, we recognize that the equitable tolling doctrine is to be applied only if the relevant facts present sufficiently "rare and exceptional circumstances" that would warrant application of the doctrine. . . . Ott contends that it would be inequitable to apply the limitations period because he mailed his federal habeas petition for filing on the first business day after receiving notice of the denial of the state application. Moreover, Ott asserts that Texas created an impediment to the timely filing of his petition by its notification of habeas denials through mailed postcards. . . . As the district court noted, Ott did not challenge the parole board's actions until some nineteen years after the underlying conviction and fifteen years after the conviction became final. Further, we underscore that the state habeas application was not filed until one day before the expiration of the AEDPA's one-year grace period, an action that necessarily mandated a swift filing of the federal habeas application following the denial of the state petition. This was a matter totally within the control of Ott. The state application readily could have been filed a few days earlier, allowing an adequate period for the filing of the federal petition after final denial of the state application. Accordingly, we find that these are not "rare and exceptional" circumstances in which equitable tolling is warranted.

Habeas Cases

Jackson v. Gammon (8th Cir) Certificate of appealability required in all cases regardless when petition was filed; ineffective assistance of trial and appellate counsel for failing to challenge suggestive eyewitness identification testimony fails because of district court's conclusion that identification was reliable under the circumstances. Ineffective assistance of counsel claims fail as a matter of law.

Latorre v. United States (8th Cir) Case remanded to district court for evidentiary hearing to determine if defendant is actually innocent of using and carrying firearm under section 924(c)(1). On remand government may raise waiver issue under plea agreement.

White v. Helling (8th Cir) The state improperly withheld exculpatory evidence - police notes and memoranda - from White and he is entitled to a new trial.

Petty v. Card (8th Cir) Petty's failure to raise cause and prejudice argument in district court precluded its consideration on appeal.

Simmons v. Taylor (8th Cir) Limited reference to fact that photo shown to witness came from police records was not so prejudicial as to be fundamentally unfair; even if counsel's failure to object to Simmons' appearance at trial in jail clothes was ineffective assistance of counsel, he could not demonstrate prejudice in light of overwhelming evidence of guilt.

Bolden v. Warden (5th Cir) Bolden's double jeopardy rights were not violated because the jury could have found that the State failed to prove beyond a reasonable doubt that Bolden murdered Spicer without deciding whether his testimony was credible and without deciding whether Bolden in fact killed Spicer.

Johnson v. Johnson (5th Cir) Sufficient evidence existed to affirm petitioner's murder conviction where no alternate theory could explain away the evidence presented at trial.

Hoover v. Johnson (5th Cir) Without the "Supreme Court[] . . . having established a guarantee of a unanimous jury in felony cases, [the Sixth Amendment is vindicated where] the trial court either (1) give[s] instructions to the jury, explicit in themselves without regard to the arguments of counsel, that it must agree as to which act in a list of overt acts the defendant had committed before it could find him guilty of conspiracy; or (2) require[s] that the jury issue a special verdict signifying which of the overt acts it has found the defendant to have committed.

Spicer v. Gregoire (9th Cir) Jury instruction that may have placed burden to prove consent on defendant held harmless error assuming an error existed at all.

Spivey v. Rocha (9th Cir) Habeas denied as: (a) supplemental jury instructions on aiding and abetting was not erroneous; (b) because gang affiliation was more inflammatory then probative as it showed neither an alternate suspect or bias that was not shown through other less inflammatory means; and (c) testimony in a subsequent unrelated trial where witnesses gave slightly different testimony was not sufficiently exculpatory to warrant relief.

Vega v. Suthers (10th Cir) Operation of state statute that prevents the entrapment defense on "special offender status" charges is permissible when it relates only to the severity of the punishment of another felony and not to whether the accused should or should not be punished.

Peddie v. Hobbs (11th Cir) Peddie's §2241 petition attacked the legality of his sentence and thus should have been brought under § 2255, unless a § 2255 petition would be inadequate or ineffective. The mere fact that such a petition is procedurally barred by § 2255's statute of limitations or restriction on second or successive motions does not make it inadequate or ineffective.

Abbott v. United States (7th Cir) Burden of proving a violation of Giglio not met where a statement that "'no written promises or representations' could be made, perhaps a 'recommendation or statement from the federal authorities' could be made to the State's Attorney" was at the crux of whether a violation was or was not present.

Arroyo v. United States (1st Cir) Relief denied in this § 2255 motion challenging conviction on the basis of ineffective assistance of counsel. Trial counsel's failure to challenge the means of entry as a Fourth Amendment violation "is more a tribute to [habeas counsel's] own insight and imagination than anything approaching proof that trial counsel was incompetent in failing to make such arguments himself."

Prisoner's Rights/Governmental Misconduct Cases

Collins v. Bender (9th Cir) Dismissal of Bivens where plaintiff was a federal law enforcement official held to have been improper as the "search and seizure" of plaintiff's abode was not a "personnel action" within the traditional meaning of federal personnel statutes and hence the Bivens action was not co-opted by federal law.

Katz v. United States (9th Cir) Where material facts are at issue on claims of excessive force (here an arrest at an animal's rights protest) in a Bivens suit qualified immunity can not lie.

Webb v. Ada County Jail (9th Cir) District court's reduction in the hours awarded and rate billed approved as the results were de minimis in relation to the fees claimed on some issues. Compliance work in relation to the district court's substantive order remanded as the fees are in excess of the PLRA's limits.

Womack v. Sheehan (8th Cir) Officers who arrested bail bondsman for assault and robbery did not have reason to believe they had probable cause for the arrest; as a result, the officers were not entitled to qualified immunity for civil rights violations.

Palmer v. Johnson plra) (5th Cir) The use of prison labor outside in cold weather without proper clothing or sanitary facilities (if proven) violates clearly established constitutional principles therefore qualified immunity can not lie to prison officials ordering such hardships.

Hinson v. Edmond (11th Cir) Defendant, due to his status as a privately employed prison physician, is ineligible to advance the defense of qualified immunity.

Broadway v. Norris (8th Cir) A motion for reconsideration of a non final order is properly treated as a Rule 60(b) motion; no abuse of discretion in denying motion seeking reconsideration of order denying defendants' motion for summary judgment based on qualified immunity.

In Other News

In Botswana, in a critical death penalty test case, the court overturned the capital convictions of Mr. Maauwe and Mr. Motswetla, opening the way for a new trial. Raising issues that mirrored death penalty problems in the U.S., the defendants challenged the adequacy of their assigned counsel, but their letter was never placed before the proper court. The Botswana Centre for Human Rights, Ditshwanelo, which represented the defendants on appeal, noted the extremely low pay and lack of experience among lawyers assigned to capital trials. (Botswana Centre for Human Rights, Press Release, Oct. 29, 1999)

The U.S. Supreme Court decided not to hear the appeal of Nevada death row inmate Michael Domingues, who argued that his execution would violate the International Covenant on Civil and Political Rights because he was only 16 years old at the time of his crime. The treaty, which prohibits the execution of juvenile offenders, was ratified by the United States in 1992. However, the U.S. attached a reservation in order to allow the execution of those who committed crimes while under the age of 18. The Court's decision not to review the case is not a decision on the merits of Domingues's claim, which may be raised in other courts.

In Depth

This week continues begins the series on Eighth Amendment law. In this edition the focus is on nature of Guided Discretion (from various sources at http://capdefnet.org).

II. GUIDED DISCRETION

One of the most basic principles of modern death penalty jurisprudence is that "[sentencing] juries [must] be carefully and adequately guided in their deliberations." Gregg v. Georgia, 428 U.S. at 193. This is, in essence, the core holding of Furman: "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 189.

A. Vague and Overbroad Aggravating Circumstances

For the most part, the principle of guided discretion is relevant to assessing the validity of statutory aggravating circumstances. Aggravating factors, which are essential to the constitutionality of any death penalty scheme, must "genuinely narrow the class of death-eligible persons" in a way that reasonably "justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. at 877. In other words -- and on a more practical level -- the death penalty is not permitted for all murders. The most common valid aggravating circumstances involve murders committed during the commission of another felony, i.e., burglary, armed robbery, rape, etc. See Gregg, 428 U.S. at 101-02. Furthermore, both on their face, and as applied, aggravating circumstances must permit the sentencer to make a "principled distinction between those who deserve the death penalty and those who do not." Lewis v. Jeffers, 497 U.S. 764, 774 (1990); see also Richmond v. Lewis, 506 U.S. 40, 46 (1992) ("a statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty"); Clemons v. Mississippi, 494 U.S. 738, 758 (1990) ("invalid aggravating circumstance provided "no principled way to distinguish the case in which the death penalty is imposed, from the many cases in which it was not "); Maynard v. Cartwright, 486 U.S. 356 (1988) ("[t]he construction or application of an aggravating circumstance is unconstitutionally broad or vague if it does not channel or limit the sentencer's discretion in imposing the death penalty").

In Maynard v. Cartwright, supra, the United States Supreme Court unanimously set out the legal principles which control claims of this nature. In addressing the validity of a death sentence based solely on the statutory aggravating circumstance that the murder was "especially heinous, atrocious and cruel," the Court reasoned that an Eighth Amendment vagueness challenge to an aggravating factor in a capital case may not be analyzed under the familiar "as-applied" approach generally employed in due process vagueness challenges to criminal statutes. 486 U.S. at 361.

The Maynard Court emphasized that an Eighth Amendment challenge to a statutory aggravating circumstance requires a wholly different type of analysis. As a practical matter, such a challenge requires that reviewing courts evaluate the challenged aggravating circumstance on its face, entirely apart from the facts of the particular case in which it was applied. That is because an overbroad statutory aggravating circumstance vests in sentencing courts the sort of "open-ended discretion" to impose the death penalty which the Supreme Court condemned in Furman, and where a death sentence is imposed under such a regime of unbridled discretion, the state may not save the sentence by demonstrating that the result would have been the same even if the sentencer's discretion had been properly narrowed and guided. Maynard, 486 U.S. at 361-363.

However, even if a statutory aggravating circumstance does not, on its face, provide meaningful guidance to a capital sentencing authority, such an aggravating circumstance can nevertheless support a death sentence if the state courts have narrowed its scope to a constitutionally sufficient degree and if such a narrowing construction actually guided the sentencer in the case under review. Godfrey v. Georgia, 446 U.S. 420 (1980); see also Walton v. Arizona, 497 U.S. 639 (1990) (recognizing authority of state supreme court to supply limiting definition of facially overbroad or vague aggravating circumstance). In one application of this principle, the Court held that the Idaho Supreme Court's limiting instruction of it's "utter disregard for human life" aggravating circumstance -- i.e. that "the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded pitiless slayer" -- passed Eighth Amendment muster. Arave v. Creech, 507 U.S. 463, 468 (1993). The limiting instruction was satisfactory because it defined a "state of mind that is ascertainable from surrounding facts". Id. at 1541-42. Because some murderers do exhibit feeling, the Court also determined that the aggravating circumstance genuinely narrowed the class of persons eligible for the death penalty as required by Zant v. Stephens, 462 U.S. 862 (1983). Id.

B. Other Challenges to Aggravating Circumstances

A number of other challenges to statutory and non-statutory aggravating circumstances have met with mixed success. A quick review of some that have been successful, as well as those that have failed, provides some insight into the limits of guided discretion.

The Court has held that aggravating circumstances may not encompass rights guaranteed to those facing criminal prosecutions. For example, the defendant's "lack of remorse" may not be treated as an aggravating factor because such a circumstance infringes upon a defendant's right not to testify. See Zant, 462 U.S. at 885. He may have remained silent, as the Fifth and Fourteenth Amendments allow him to do without adverse consequences, and his silence converted by a prosecutor into an expression of lack of remorse. Similarly, the Court held in Dawson v. Delaware, 503 U.S. 159 (1992), that a defendant's abstract religious beliefs -- in Dawson's case his membership in a prison gang similar to the Aryan Nation -- may not be used in aggravation of punishment.

The Court has also recognized that aggravating circumstances cannot encompass factors "that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness." Zant v. Stephens, 462 U.S. at 885. Consider, for example, the case in which the defendant's capital crime is, in part, a function of severe mental illness. This was in part the driving force behind the Court's decision in Penry v. Lynaugh, 492 U.S. 302 (1989). The former Texas statute required a trial judge to sentence a defendant to death if the jury answered the following two "special issues" affirmatively: did the defendant commit the act "deliberately?" and, is the defendant likely to be dangerous in the future? A sharply divided Court held that this limited framework created the risk that some types of evidence which should be mitigating, e.g., a defendant's paranoid schizophrenia, could actually result in a death sentence because, in the Texas system, the evidence supported an affirmative answer to the future dangerousness special issue.

Nor can aggravating circumstances be based upon evidence that is inadmissible under state law or the federal constitution, or that is "materially inaccurate or misleading." Zant v. Stephens, 462 U.S. at 887 & nn.23, 24. The clearest application of this principle was Johnson v. Mississippi, 486 U.S. 578 (1988). In Johnson, the Court held that Johnson's death sentence, which was based in part on a prior conviction vacated after his Mississippi capital trial, violated the Eighth Amendment. Mr. Johnson was sentenced to death after a jury found three aggravating circumstances outweighed the mitigating factors. One of the aggravators (that Johnson had been previously convicted of a felony involving the use or threat of violence to another person) was supported solely by a 1963 New York conviction of second degree assault with intent to commit first degree rape.

After his Mississippi conviction, Johnson successfully challenged the 1963 assault conviction in the New York courts on the basis that he was not informed of his right to appeal. See People v. Johnson, 506 N.E.2d 1177 (N.Y. 1987). Johnson then sought post conviction relief from the Mississippi Supreme Court, which was denied. Subsequently, the United States Supreme Court granted certiorari to determine whether the reversal of the 1963 conviction affected the validity of the death sentence. The Supreme Court concluded that since the 1963 conviction was ultimately reversed, evidence regarding it was entirely irrelevant to the Mississippi jury's sentencing decision. Therefore, because the jury "was allowed to consider evidence that ha[d] been revealed to be materially inaccurate," 486 U.S. at 590, Johnson's death sentence violated the Eighth Amendment.

Errata

As many of you know despite the mailing address and Boston, MA business address I have been living in various locales in the death belt for years. Thanks to the wondrous technicians at Bell Atlantic only two complete editions of the weekly were missed due to a move of an astounding 9000 feet here in my adopted hometown an hour west of New York. It seems they lost the order to change service after they terminated service at the old locale, then hooked up to the wrong locale, then hooked up with a bad cable before deciding that I was worthy of service. In short, I have never been easier to reach. My apologies to all those who have tried to get a hold of me, those on the inside who depend on the materials in the battle for their lives and sanity, the law clerk(s) of an unnamed federal judge my moving party may have insulted over the phone, pro bono counsel who use this newsletter to get up to speed on this tricky area of the law, and a special humble apology to all those who will still not unsubscribe after this latest mess whose couches I have slept on, food I have eaten, adult beverages consumed and whose time I have wasted ranting about the ubiquitous arcanery of capital litigation.

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.