Two sets of decisions frame this week's edition. The first set is a juxtaposition on the approaches that the various courts of appeals are taking on the duty to investigate and present mitigation evidence. The Ninth Circuit in Smith v. Stewart granted relief for failure to investigate. In Williams v. Head (11th Cir), Smallwood v. Gibson (10th Cir) & Wallace v. Ward (10th Cir) each panel the denies of relief on the same issue.

The second set is the spate of capital decisions out of Oklahoma last Friday. In three separate cases Smallwood v. Gibson (10th Cir), Wallace v. Ward (10th Cir) & Braun v. Ward (10th Cir) relief was denied. The most sweeping of these cases, Smallwood, is given special treatment below due to the sheer number of issues that are presented and the likelihood of seeing it cited as precedent in the upcoming weeks and months.

Three other cases are worthy of brief note. The Seventh Circuit Sanchez v. Gilmore denied relief on a grab bag of issues, one of which being that yet another Illinois death row inmate may be actually innocent and have his sentence of death affirmed by the Seventh Circuit. The U.S. Supreme Court granted a stay of execution to Louisiana death row inmate Feltus Taylor, less than 30 minutes before his scheduled execution apparently on the issue that Taylor was given anti-psychotic drugs on an irregular schedule during his trial without counsel's knowledge (more on this in the Supreme Court preview edition coming in a few weeks). Finally the Ninth Circuit in Bell v. Hill examines whether the AEDPA can overturn Circuit Court precedent on constitutional law issues and holds it does not.

In Focus

Smallwood v. Gibson (10th Cir) Appeal examines whether: "(1) the state courts erroneously denied Mr. Smallwood's motion to suppress evidence acquired as the result of an illegal detention; (2) the federal district court erred in denying Mr. Smallwood an evidentiary hearing on his ineffective assistance of counsel claims; (3) petitioner's counsel was constitutionally ineffective at the trial, sentencing, appellate, and post-conviction stages; (4) the trial court violated petitioner's constitutional rights by failing to instruct the jury that mitigating factors need not be found unanimously; (5) the jury instructions given by the trial court were unconstitutional because they permitted the jury to ignore mitigating evidence; (6) the jury instructions were constitutionally impermissible because they failed to state that, to impose a capital sentence, the jury must find aggravating factors outweigh mitigating factors beyond a reasonable doubt; (7) the trial court violated petitioner's constitutional rights by failing to instruct the jury that there is a presumption of life in death penalty cases; (8) the jury instructions were unconstitutional because they did not properly limit the jury's consideration of sympathy to the defendant, rather than the decedent; (9) the trial court violated petitioner's constitutional rights by failing to instruct the jury that it had the option of imposing a life sentence even if it found aggravating factors outweighed mitigating factors; (10) Oklahoma's "heinous, atrocious, and cruel" aggravating factor is unconstitutional, and the evidence did not support such a factor; (11) prejudicial photographs of the decedent's burned corpse admitted into evidence rendered Mr. Smallwood's trial fundamentally unfair; (12) prosecutorial misconduct tainted petitioner's trial; (13) Mr. Smallwood was denied a fair trial because evidence of other crimes and bad acts was admitted at both the trial and sentencing stages; (14) Mr. Smallwood was found competent to stand trial under an unconstitutional standard; and (15) petitioner's constitutional rights were violated because defense counsel was unaware of ex parte communications from the jury to the trial court judge until after the fact." Relief denied.

III. Ineffective Assistance of Counsel Claims

Mr. Smallwood claims that he received ineffective assistance of trial counsel at both the guilt and sentencing stages and ineffective assistance of appellate counsel. Petitioner claims his trial counsel was ineffective at the guilt stage because he failed to present mental health evidence to support the defense theory that Mr. Smallwood lacked the capacity to commit malice aforethought murder and failed to present evidence of provocation. Mr. Smallwood also claims his trial counsel was ineffective at the penalty stage by failing to investigate and prepare mitigating social history and mental health evidence. Petitioner's ineffective assistance of appellate counsel claim is based on his appellate counsel's failure to challenge his trial counsel's performance due to an alleged conflict of interest and failure to argue that Mr. Smallwood was found competent to stand trial under an unconstitutional standard. Before addressing the merits of these claims, we must first consider the respondent's argument that they are procedurally barred.

Petitioners generally must exhaust available state court remedies before seeking redress via a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1); Demarest v. Price, 130 F.3d 922, 932 (10th Cir. 1997). Although petitioner raised an ineffective assistance of counsel claim on direct appeal, he based it on different reasons than those expressed in his habeas petition. Indeed, petitioner has not properly raised before the state courts any of the bases upon which his current ineffective assistance of counsel claims rely. Thus, petitioner has failed to exhaust his ineffective assistance of counsel claims. See Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir. 1998) (finding ineffective assistance of counsel claim unexhausted when petitioner asserted a different basis for the claim in the state courts than presented in his habeas petition), petition for cert. filed, __ U.S.L.W. __ (U.S. Apr. 23, 1999) (No. 97-8812); Lanigan v. Maloney, 853 F.2d 40, 45 (1st Cir. 1988) (same); cf.Demarest, 130 F.3d at 938-39 (finding claims unexhausted when petitioner made general allegations of ineffective assistance of counsel in state court and more specific allegations in federal court on habeas). However, dismissal without prejudice for failure to exhaust state remedies is not appropriate if the state court would now find the claims procedurally barred on independent and adequate state procedural grounds. SeeColeman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Demarest, 130 F.3d at 939. Such is the case here.

If petitioner returned to state court to file a second application for post-conviction relief, he would be procedurally barred. Oklahoma law deems waived any claims that could have been and were not raised in a first application for post-conviction relief in a death penalty case. See Okla. Stat. Ann. tit. 22, § 1089(D)(2) ("All grounds for relief that were available to the applicant before the last date on which an application could be timely filed not included in a timely application shall be deemed waived"); see also id. § 1089(D)(8) ("[I]f a subsequent application for post-conviction relief is filed after filing an original application, the Court of Criminal Appeals may not consider the merits of or grant relief based on the subsequent . . . application unless the application contains specific facts establishing that the current claims and issues . . . could not have been presented previously in a timely original application . . . ."); id. § 1086 (stating, inter alia, that a second post-conviction relief application cannot be based on claims that were not raised in an original, supplemental or amended application).( 5) Additionally, claims previously raised and rejected are barred by res judicata. Seeid. §§ 1086, 1089(C)(1). Mr. Smallwood's claims of ineffective assistance of counsel would be barred in state court by either res judicata or waiver.( 6) Therefore, we treat his claims as if they were exhausted because they would be procedurally barred.( 7)

We will not consider issues on habeas review "that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman, 501 U.S. at 749-50). For a state procedural ground to be independent, it must rely on state law, rather than federal law. See id. The procedural rules that would bar Mr. Smallwood's ineffective assistance of counsel claims are rooted solely in Oklahoma state law and are thus independent. A state ground will be considered adequate only if it is "'strictly or regularly followed' and applied 'evenhandedly to all similar claims.'" Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)), cert. denied, 119 S. Ct. 345 (1998). Although the prosecution has the ultimate burden of proving the adequacy of a state procedural bar, "[o]nce the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner." Hooks v. Ward, __ F.3d __, No. 98-6196, 1999 WL 502608, at *9 (10th Cir. July 16, 1999). To satisfy this burden, petitioner is, at a minimum, required to set forth specific factual allegations as to the inadequacy of the state procedure. See id. As noted by the district court, Mr. Smallwood has not challenged the adequacy of any of Oklahoma's procedural default rules. Consequently, under Hooks, petitioner has failed to carry his burden, and we may presume that the state procedural rules at issue in this case are adequate grounds for barring habeas review of his federal claims. However, this court in Hooks excused the petitioner's failure to place the adequacy of the state procedural rule in issue due to the timing of the proceedings below. See id. at *9-10. Applying the burden-shifting framework announced in Hooks likewise would be unfair to Mr. Smallwood, given that his habeas petition and supporting briefs were filed months before the Hooks decision. We will therefore consider the adequacy of the procedural default rules at issue in this case.

Although we normally view state procedural rules that bar ineffective assistance claims with a healthy degree of skepticism, see, e.g., Hickman v. Spears, 160 F.3d 1269, 1272 (10th Cir. 1998); Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994), this does not preclude a finding that a state procedural rule is adequate to bar federal review of ineffective assistance of counsel claims. In a recent death penalty case, this court reviewed Oklahoma's procedural rule barring claims brought in a second application for post-conviction relief that could have been and were not raised in a previous application and found that the rule was adequate to bar habeas review of ineffective assistance of counsel claims. SeeMoore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998), cert. denied, 119 S. Ct. 1266 (1999).( 8) With the exception of the appellate counsel conflict of interest claim that petitioner sought to raise in a supplemental pro se brief, petitioner did not raise the current ineffective assistance of counsel claims in his first application for post-conviction relief. Consequently, we follow Moore and find petitioner's failure to raise the factual bases for his ineffective assistance of counsel claims in his first application for state post-conviction relief precludes habeas review of these claims unless he demonstrates cause and prejudice or a fundamental miscarriage of justice.

Petitioner has failed to show cause for not raising his ineffective assistance of counsel claims in his first application for post-conviction relief. Although attorney error amounting to constitutionally ineffective assistance of counsel constitutes "cause" for a procedural default, seeColeman, 501 U.S. at 754, petitioner cannot make such a showing here because there is no constitutional right to post-conviction counsel, see Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997). In addition, because petitioner has failed to supplement his habeas claim with a colorable showing of factual innocence, he cannot demonstrate that our failure to review his ineffective assistance of counsel claims will result in a fundamental miscarriage of justice. See Hickman, 160 F.3d at 1275. Therefore, we conclude that all but one of Mr. Smallwood's ineffective assistance of counsel claims are procedurally barred and not subject to habeas review.

We now turn to the conflict of interest claim. As we noted above, petitioner did attempt to raise an ineffective assistance of appellate counsel claim based on an alleged conflict of interest in his first application for state post-conviction relief. However, instead of having his counsel of record address the claim in the original application, Mr. Smallwood raised the claim in a pro se handwritten statement which he attached to the application. The OCCA refused to consider Mr. Smallwood's pro se statement as part of the original application, citing its procedural rules barring consideration of supplemental pro se statements as part of a first post-conviction relief application filed by counsel. SeeSmallwood v. State, 937 P.2d 111, 117 (Okla. Crim. App. 1997) (citing rules). Thus, these procedural rules, in conjunction with Okla. Stat. Ann. tit. 22, §§ 1086, 1089, prevent state court review of this ineffective assistance of appellate counsel claim. The parties have not briefed the matter of whether the Oklahoma rules that prevented the OCCA from considering Mr. Smallwood's handwritten statement are adequate for the purposes of procedural default. Given this fact, we will, like the district court, assume the rules are inadequate to bar federal habeas review of this claim.( 9) Consequently, we will address the merits of this particular ineffective assistance of appellate counsel claim.

Petitioner's ineffective assistance of appellate counsel claim is governed by the familiar standards of Strickland v. Washington, 466 U.S. 668 (1984). Under the two-part Strickland test, to establish a successful ineffective assistance of counsel claim, petitioner must show: "(1) that his counsel's performance fell

below an objective standard of reasonableness and (2) that the deficient performance was prejudicial to his defense." Hickman, 160 F.3d at 1273 (citing Strickland, 466 U.S. at 688, 694)). The first prong requires petitioner to overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see also Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998). Moreover, "in considering counsel's performance, we focus on 'not what is prudent or appropriate, but only what is constitutionally compelled.'" Hickman, 160 F.3d at 1273 (quoting United States v. Chronic, 466 U.S. 648, 665 n.38 (1984)). To meet the second prong, petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

At trial, Mr. Barry Albert represented petitioner. During his direct appeal, different counsel, Mr. James Dennis, represented Mr. Smallwood. Both attorneys, however, worked for the Oklahoma City Public Defender's Office. According to petitioner, Mr. Dennis' performance was constitutionally deficient because he lacked the independence to objectively review Mr. Albert's performance. To this end, petitioner alleges that the Oklahoma City Public Defender's Office had a policy prohibiting its attorneys from pursuing ineffective assistance of counsel claims against other members of the office. The record contains no evidence that such a policy existed or that petitioner's counsel was unable to objectively review his trial counsel's performance. Indeed, the record indicates that petitioner's appellate counsel aggressively raised over twenty issues on direct appeal, including an ineffective assistance of counsel claim. See Smallwood v. State, 907 P.2d 217, 238-39 (Okla. Crim. App. 1995). This belies petitioner's contention that office policy prevented his appellate counsel from bringing ineffective assistance of trial counsel claims. We therefore refuse to give any weight to this naked allegation. Accordingly, petitioner has failed to show that his appellate counsel's performance fell below an objective standard of reasonableness, and this claim has no merit.

IV. Instructional ErrorsA. Failure to inform jury that mitigating circumstances need not be found unanimously

Petitioner next claims that the trial court violated his constitutional rights under the Eighth and Fourteenth Amendments because it failed to specifically instruct the jurors that they did not have to agree unanimously as to mitigating circumstances before considering such evidence. The relevant jury instructions provided:

Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.

Second Stage Jury Instruction No. 8, R., Vol. III at 597.

If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances, the death penalty shall not be imposed.

Second Stage Jury Instruction No. 9, R., Vol. III at 599.

If you unanimously find that one or more aggravating circumstances exist beyond a reasonable doubt, the law requires that you reduce such findings to writing by stating specifically which aggravating circumstances existed, if any. This finding must be made a part of your verdict.

You must indicate this finding by checking the box next to such aggravating circumstance or circumstances on the appropriate verdict form furnished you, and such verdict must be signed by your foreman.

The law does not require you to reduce to writing the mitigating circumstances you find, if any.

Second Stage Jury Instruction No. 10, R., Vol. III at 600.

This court has repeatedly upheld almost identical jury instructions against the same constitutional challenge raised by petitioner. SeeLafevers v. Gibson, __F.3d__, No. 98-6302, 1999 WL 394508, at *12-13 (10th Cir. June 16, 1999); Newsted v. Gibson, 158 F.3d 1085, 1093 (10th Cir. 1998), cert. denied, 119 S. Ct. 1509 (1999); Duvall v. Reynolds, 139 F.3d 768, 791 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998). We are bound by the decisions of prior panels, seeNewsted, 158 F.3d at 1093, and circuit precedent therefore forecloses this claim.

B. Instructions permitted jury to ignore mitigating evidence

Petitioner also claims that the jury instructions given by the district court were unconstitutional because they permitted the jury to ignore mitigating evidence. The challenged jury instruction states:

Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.

Second Stage Jury Instruction No. 8, R., Vol. III at 597. We rejected petitioner's argument with respect to virtually identical instructions in Boyd v. Ward, 179 F.3d 904, 924 (10th Cir. 1999) ("The use of the word 'may' does not alone compel the conclusion that the jury was empowered to ignore mitigating evidence. . . . There is no reasonable likelihood that the jury applied the instructions in such a way that it was prevented from considering mitigating evidence."). Consequently, petitioner is not entitled to relief on this claim.

C. Burden of proof

Petitioner further claims that the sentencing stage instructions were unconstitutional because the trial court failed to inform the jury of the standard to be used when balancing aggravating and mitigating factors. Mr. Smallwood contends that the jury instructions must expressly state that aggravating factors must outweigh mitigating factors beyond a reasonable doubt in order for the jury to impose the death penalty. We disagree. In Zant v. Stephens, 462 U.S. 862, 875 n.13 (1983), the Supreme Court stated that "specific standards for balancing aggravating against mitigating circumstances are not constitutionally required." Thus, petitioner's argument is without merit.

D. Presumption of life

Petitioner claims that the jury instructions given by the trial court were unconstitutional under the Eighth and Fourteenth Amendments because the court refused petitioner's request for a separate "presumption of life" instruction. We are not persuaded by petitioner's argument. First, petitioner has failed to cite any judicial authority, and our independent research revealed none, that the Constitution mandates a "presumption of life" instruction. In addition, we find that even if the Constitution requires a jury to be informed that a criminal defendant is entitled to a presumption of life unless the state satisfies its burden of showing that death is the appropriate penalty, the instructions given at Mr. Smallwood's trial adequately informed the jury of this fact. The trial court instructed the jury:

The defendant, Dion A. Smallwood, has entered a plea of not guilty to the allegations of this Bill of Particulars, which casts on the State the burden of proving the material allegations in this Bill of Particulars beyond a reasonable doubt. This Bill of Particulars simply states the grounds upon which the State seeks imposition of the death penalty. It sets forth in a formal way the aggravating circumstance of which the defendant is accused. It is, in itself, not evidence that any aggravating circumstance exist[s], and you must not allow yourselves to be influenced against defendant by reason of the filing of this Bill of Particulars.

The defendant is presumed to be innocent of the charge made against him in the Bill of Particulars, and innocent of each and every material element of said charge, and this presumption of innocence continues unless his guilt is established beyond a reasonable doubt. If upon consideration of the evidence, facts, and circumstances in the case, you entertain a reasonable doubt of the guilt of the defendant of the charge made against him in the Bill of Particulars, you must give him the benefit of that doubt and return a sentence of life imprisonment without parole or life.

Second Stage Jury Instruction No. 3, R., Vol. III, at 592 (emphasis added).

Should you unanimously find that an aggravating circumstance exists beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death.

If you do not unanimously find beyond a reasonable doubt that an aggravating circumstance exists, you are prohibited from considering the penalty of death. In that event, the sentence must be imprisonment for life or imprisonment for life without parole.

Second Stage Jury Instruction No. 4, R., Vol. III, at 594 (emphasis added).

If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances, the death penalty shall not be imposed.

Second Stage Jury Instruction No. 9, R., Vol. III, at 599 (emphasis added).

These instructions, in the context of the second stage jury instructions as a whole, fairly and adequately informed the jury that petitioner was entitled to a life sentence unless the jury unanimously found: (1) the state had proven the existence of one or more aggravating circumstances beyond a reasonable doubt; and (2) that the aggravating circumstance(s) outweighed any mitigating circumstances. We therefore hold that the trial court's refusal to give a separate "presumption of life" instruction in this case did not violate petitioner's constitutional rights under the Eighth and Fourteenth Amendments. Cf. Turner v. Williams, 812 F. Supp. 1400, 1436 (E.D. Va. 1993) (concluding that jury instructions providing that the state had the burden of proving beyond a reasonable doubt the appropriateness of the death penalty is "essentially the same thing" as an instruction that a life sentence is presumed), aff'd, 35 F.3d 872 (4th Cir. 1994).

E. Sympathy instruction

During the guilt phase of petitioner's trial, the court instructed the jury that it could not consider sympathy for either the defendant or the victim in reaching its verdict. Mr. Smallwood does not challenge that instruction. At the sentencing phase of Mr. Smallwood's trial, the court explicitly told the jury that it was no longer bound by the anti-sympathy instruction. The court did so by means of the following instruction:

All the previous instructions given you in the first part of this trial apply where appropriate and must be considered together with these additional instructions. The only exception is that, unlike what you were instructed in the first stage of this trial, you may, in your discretion, consider sympathy as a factor in your deliberations and then determine whether or not you should give any weight to such factor under all the evidence you have heard in both the first and second stages.

Second Stage Jury Instruction No. 11, R., Vol. III, at 601. Petitioner claims that the jury instruction violated his Eighth and Fourteenth Amendment rights because the court failed to "properly limit the jury's consideration and application of sympathy to the defendant," Appellant's Br. at 52, rather than to the victim. We disagree.

We are not convinced that sympathy for victims and/or their families cannot be appropriately considered at the penalty phase to counteract defendant's mitigating evidence, provided it is based on evidence adduced at trial and the evidence produced is not so unduly prejudicial as to render the defendant's trial fundamentally unfair. Petitioner relies solely on Williams v. State, 658 P.2d 499, 501 (Okla. Crim. App. 1983), for his assertion that a sentence based on sympathy for the victim is per se unconstitutional. Williams, however, is inapposite because it does not clearly deal with the penalty phase of a bifurcated trial. In Payne v. Tennessee, 501 U.S. 808, 827 (1991), the Supreme Court stated:

[I]f the State chooses to permit the admission of victim impact evidence and prosecutory argument on that subject [during the penalty phase], the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

See also Booth v. Maryland, 482 U.S. 496, 517 (1987) (White, J., dissenting) ("the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family." (internal citation omitted)). "Payne allows the introduction of victim impact testimony to aid the jury in making a 'reasoned moral response' when imposing sentence upon a defendant convicted of a capital offense." United States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir. 1998) (quoting Penry v. Lynaugh, 492 U.S. 302, 319 (1989)), cert. denied, 119 S. Ct. 1148 (1999). At the same time, Payne does not permit the introduction of evidence so prejudicial as to violate defendant's due process rights. SeePayne, 501 U.S. at 825; McVeigh, 153 F.3d at 1217.

Here, the trial court's instructions informed the jury that the weight given to the sympathy factor must be based on the evidence presented at trial. Petitioner does not direct us to any victim-impact testimony that rendered the trial fundamentally unfair. Therefore, the instruction allowing the jury to consider sympathy for the victim and/or his family did not violate Mr. Smallwood's Eighth and Fourteenth Amendment rights.

We also reject petitioner's claim that the sympathy instruction prevented the jury from considering sympathy for him. The trial court's instruction did not limit the jury's consideration of sympathy for Mr. Smallwood. Moreover, the court told the jury that it alone determined proper mitigating evidence and specifically listed information about Mr. Smallwood's background, family, and the love his family has for him as potential mitigating evidence.

F. Life option

Petitioner claims that the jury instructions were unconstitutional because the trial court failed to instruct the jurors that they had the option of imposing a life sentence, rather than death, even if they found that the aggravating factors outweighed mitigating factors. We have, on several previous occasions, rejected this identical argument based on the same jury instruction given at petitioner's trial. See Lafevers v. Gibson, __F.3d__, No. 98-6302, 1999 WL 394508, at *11-12 (10th Cir. June 16, 1999); Johnson v. Gibson, 169 F.3d 1239, 1254 (10th Cir. 1999); Duvall v. Reynolds, 139 F.3d 768, 790-91 (10th Cir.), cert. denied, 119 S. Ct. 345 (1998). Our circuit precedent therefore precludes us from granting relief on this claim.

G. Heinous, Atrocious, and Cruel Aggravator

Petitioner's final challenge to the jury instructions involves Oklahoma's "heinous, atrocious, and cruel" aggravating factor. Mr. Smallwood asserts that the factor is unconstitutionally vague, and that even if it is constitutional, there was insufficient evidence presented at his trial to warrant the aggravator. We have repeatedly upheld Oklahoma's "heinous, atrocious, and cruel" aggravating factor against vagueness challenges. See, e.g., Hooks v. Ward, __ F.3d __, No. 98-6196, 1999 WL 502608, at *33-34 (10th Cir. July 16, 1999); Lafevers, 1999 WL 394508, at *14-15; Duvall, 139 F.3d at 792-93.

In addition, we agree with the district court and the OCCA that there was sufficient evidence presented at petitioner's trial to support a "heinous, atrocious, and cruel" aggravator. The record contains numerous pieces of evidence upon which a reasonable juror could conclude beyond a reasonable doubt that the victim's death was preceded by "torture of the victim or serious physical abuse," Duvall, 139 F.3d at 793 (quoting Stouffer v. State, 742 P.2d 562, 563 (Okla. Crim. App. 1987)). The state court characterized the evidence as follows:

The evidence presented, much of it in the form of Appellant's direct testimony, indicated that he arrived, uninvited, at the victim's house at approximately 4:00 p.m., ostensibly to look for his girlfriend. A quick search of the house and garage revealed that she was not there, yet Appellant did not leave until almost 21/2 hours later. During that time he admitted pushing the decedent backward over two tables, causing her to fall and injure herself; to destroying her telephone so she could not call the police; to punching her in the face and making her nose bleed; and to hitting her hard enough with a croquet mallet to knock her dentures from her mouth. Although Appellant claimed Frederick did not move after he hit her, and that he hit her only once, physical evidence at the scene indicated the victim bled profusely at numerous locations throughout the residence. Blood spatter evidence, and expert testimony to the same, indicated there was more than one blow with the croquet mallet. Cups located in the living room and bedroom showed bloody lip prints, suggesting the victim had been conscious enough to drink from containers at least twice before being beaten and/or bludgeoned into a state of unconsciousness, if indeed she ever reached that point. Appellant further claimed he had placed the victim in her car with her head facing the driver's side of the vehicle, and that she did not move after being placed in the car. However, photos of the crime scene showed the victim's burned body with her head and torso facing the passenger's side of the vehicle, and at least one witness to the burning testified he saw her leg move as he tried to extinguish the fire. Overall, we find there was more than sufficient evidence for the jury to find the murder was heinous, atrocious or cruel.

Smallwood, 907 P.2d at 234-35. The OCCA's evidentiary findings have support in the record and are not clearly erroneous, and its conclusions are not an unreasonable application of clearly established federal law. Mr. Smallwood is not entitled to habeas relief on this ground.

Wallace v. Ward (10th Cir) Appeal examines: (1) application of the new standards of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (ADEPA) would have an impermissible retroactive effect; (2) the trial court violated his due process rights by analyzing his competency under the "clear and convincing evidence" standard prohibited by Cooper v. Oklahoma, 517 U.S. 348 (1996); and (3) his trial counsel was ineffective due to a conflict of interest and his failure to investigate mitigating evidence. Petitioner also argues the federal district court abused its discretion in denying his request for discovery on the conflict issue." Relief denied.

B. FAILURE TO INVESTIGATE AND PRESENT MITIGATION EVIDENCE

Petitioner argues that even if he waived his right to conflict-free counsel, he made no waiver of his right to effective representation. Essentially, petitioner complains counsel did not investigate and present mitigating evidence. According to petitioner, counsel failed to investigate his background; did not interview his family members; and failed to request or review records regarding his previous incarcerations, hospitalizations, and commitments. If counsel had done so, petitioner believes he would have found evidence of physical and sexual abuse, a family history of mental illness, and a previous "horrific" incarceration in Arkansas. Also, petitioner complains that counsel did not present evidence about his cooperation in prison. Because counsel allegedly conducted no investigation, petitioner maintains the decision not to present mitigating evidence was not an informed tactical decision.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals held petitioner was permitted to waive presentation of mitigating evidence. SeeWallace, 893 P.2d at 508, 515 n.10. The court determined if counsel had presented mitigating evidence, he would have contravened petitioner's wish that no evidence be presented. See id. at 515 n.10.

On post-conviction review, the Oklahoma appellate court first determined petitioner had waived his claims that ineffective assistance of counsel deprived him of mitigating evidence and that his waiver of the presentation of mitigating evidence was not knowing, intelligent, and voluntary. SeeWallace, 935 P.2d at 370. The Oklahoma Court of Criminal Appeals, however, recognized that it had made a determination on direct appeal that

Petitioner had the capacity to understand the choice between life and death and to knowingly and intelligently waive all rights to present mitigating evidence. Petitioner knew what mitigating evidence was, as his attorney discussed it with him. He likewise knew he had the right to present mitigating evidence. Petitioner refused to cooperate with his attorney in the presentation of mitigating evidence; indeed, Petitioner would not even let his attorney cross-examine prosecution witnesses during the sentencing hearing.

Id. at 376. The court concluded "[p]etitioner understood the nature of mitigating evidence, understood the choice between life and death, and knowingly and intelligently waived all his rights to present mitigating evidence." Id.

The federal district court determined that counsel did as petitioner wished and that petitioner failed to show he would not have pleaded guilty if counsel had more thoroughly investigated mitigating evidence.

Claims of ineffective assistance of counsel are mixed questions of law and fact. See Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998) (applying AEDPA). "To establish ineffective assistance of counsel, a petitioner must prove that counsel's performance was constitutionally deficient and that counsel's deficient performance prejudiced the defense . . . ." Boyd, 179 F.3d at 913 (citing Strickland, 466 U.S. at 687); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding this two-part test applies to challenges to guilty pleas based upon ineffectiveness of counsel). To prove deficient performance, petitioner must overcome the presumption that counsel's conduct was not constitutionally defective. See Boyd, 179 F.3d at 914. Judicial scrutiny of counsel's performance is highly deferential. See Strickland, 466 U.S. at 689. To establish prejudice, petitioner must show that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Seeid. at 694.

"[C]ounsel's duty to investigate all reasonable lines of defense is strictly observed in capital cases." Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998); see also Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir. 1994) (in context of sentencing phase, attorney has duty to conduct reasonable investigation, which includes investigation into defendant's background; failure to conduct reasonable investigation "may" be deficient performance). Counsel, however, may make a reasonable decision that investigation is unnecessary. See Strickland, 466 U.S. at 691; Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997). A decision not to investigate is assessed for reasonableness, giving deference to the attorney's judgment. SeeStrickland, 466 U.S. at 691; Williamson, 110 F.3d at 1517. The reasonableness of counsel's decision not to investigate may be determined or greatly influenced by the petitioner's statements or behavior. SeeStrickland, 466 U.S. at 691.

Failure to present mitigating evidence is not per se ineffective assistance of counsel. See Boyd, 179 F.3d at 918. Where available mitigating evidence is not presented, this court focuses on the reason for the decision not to present the evidence. See Brecheen, 41 F.3d at 1368. "'[T]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements and actions.'" Seeid. at 1370 (quoting Strickland, 466 U.S. at 691).

Although the decision to introduce mitigating evidence is a nonfundamental right which is waivable by the defense attorney on the defendant's behalf, seeid. at 1368-69, petitioner here actually waived investigation and presentation of mitigating evidence himself after conferring with counsel. At all times, counsel acted in accordance with petitioner's wishes not to cross-examine State witnesses, object to State evidence, or present mitigating evidence. See Tr. of 4/4/91 Hr'g at 51-52, 58-59, 67, 70-71, 84, 97, 102-03, 105 (counsel stated that at petitioner's request and instructions he would not cross-examine witnesses; petitioner confirmed counsel's statements and said he understood he could receive death penalty and death penalty was what he wanted; petitioner stated he did not want counsel to object to the videotape deposition of Ferguson; counsel stated that at petitioner's direction he would not object to exhibits and petitioner confirmed).

Petitioner, the only defense witness at the punishment trial, testified: (1) counsel presented no defense at his instructions; (2) he understood counsel could have vigorously presented a defense if he had desired one; (3) he pleaded guilty against his attorney's advice and he informed counsel from the outset he wanted the death penalty; (4) the aggravating evidence was overwhelming and damning; (5) he instructed counsel not to cross-examine witnesses or to object to the evidence because his goal was to obtain the death penalty; (6) if he had not been caught, he would engage in the same behavior again; and (7) he had no desire to present mitigating evidence. Seeid. at 106-08. Defense counsel's closing statement confirmed that he represented defendant's professed interests. See id. at 115-16. At sentencing, petitioner again declined to present any evidence to mitigate punishment. See Tr. of 4/12/91 Hr'g at 5. Based on the unique facts of this case, counsel's decision not to investigate or present mitigating evidence was completely determined by petitioner and was within the realm of reasonable tactical decisions. Cf. Brecheen, 41 F.3d at 1369 (deciding failure to present additional mitigating evidence was tactical decision where petitioner did not want to delay proceedings). We conclude petitioner has failed to show that counsel's performance was deficient.

Also, petitioner has not shown prejudice. He has not shown that but for any failure of counsel to investigate he would not have pleaded guilty or sought the death penalty. See Hill, 474 U.S. at 59. Rather, the record shows petitioner was absolutely determined to plead guilty and to obtain the death penalty.

Because petitioner has failed to make the required showings under Strickland and Hill, we conclude the state court decisions that counsel was not ineffective and that petitioner waived presentation of mitigating evidence are not unreasonable. See 28 U.S.C. § 2254(d).

Braun v. Ward (10th Cir) Appeal examines: "(1) whether Braun's waiver of assistance of counsel at the motion to withdraw plea hearing was constitutionally infirm; and (2) whether Braun's plea of nolo contendere was voluntary rather than the result of ineffective assistance of counsel." Relief denied.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a defendant has a right to self-representation, but to invoke that right the defendant must waive his right to counsel "voluntarily" and "knowingly and intelligently." Id. at 835; see also United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989) ("the Supreme Court held in Faretta v. California that a criminal defendant has the right to appear pro se if he voluntarily, knowingly, and intelligently waives his Sixth Amendment right to counsel") (internal citations omitted). We review de novo whether a waiver of counsel is voluntary, knowing and intelligent. See United States v. Taylor, No. 98-6042, 1999 WL 476024, at *4 (10th Cir. July 9, 1999).

Braun argues that his waiver of counsel was involuntary under Silkwood because it was a choice between no counsel and ineffective counsel. In Silkwood, interpreting Faretta, we stated that, "[f]or the waiver to be voluntary, the trial court must inquire into the reasons for the defendant's dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se." Silkwood, 893 F.2d at 248.

We are not persuaded by Braun's argument. Here, Braun did not have to choose between incompetent or unprepared counsel and appearing pro se. Rather, as our review of the hearing shows, Braun had a third choice open to him: the trial court offered multiple times to reschedule the hearing to ensure that Braun could have new counsel present. Braun essentially refused this option because he was "really tired of being moved around," and "being stuck in this holding cell and things like this for a day or two." However, Braun does not argue, and we do not find, that the third alternative of waiting a few days for counsel was unconstitutional. SeeUnited States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) ("When a defendant is given a clear choice between waiver of counsel and another course of action, . . . the choice is voluntary as long as it is not constitutionally offensive."); cf. United States v. Conrad, 598 F.2d 506, 510 (9th Cir. 1979) (finding defendant knowingly and voluntarily waived right to counsel at motion to withdraw plea hearing and sentencing where "he knew he could have new appointed counsel," but "[i]nstead he chose to represent himself"). The Hobson's choice presented in Silkwood is absent here. Braun makes no showing that, if he had accepted the trial court's offer of a continuance, that replacement counsel would have failed to appear at the rescheduled hearing or that such replacement counsel would have performed in a constitutionally deficient manner. We decline to make any such assumptions. Thus, we believe the OCCA's determination that Braun's waiver was voluntary is in accord with clearly established federal law as determined by the Supreme Court.

Braun also argues that his waiver was not knowing and intelligent. He states that the trial court's inquiry was "clearly inconsistent with Faretta" because the court "failed to fully explain the dangers of self-representation at that stage of the proceedings, except for cross-examination." We disagree.

The Sixth Amendment inquiry into waiver should be tailored to the particular stage of the criminal proceeding. The Supreme Court has adopted a

pragmatic approach to the waiver question--asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage--to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized.

Patterson v. Illinois, 487 U.S. 285, 298 (1988). Thus, the necessary warnings and procedures will vary according to the stage of the proceedings. As the Court illustrated, "[a]t one end of the spectrum, we have concluded that there is no Sixth Amendment right to counsel whatsoever at a postindictment photographic display identification, because this procedure is not one at which the accused requires aid in coping with legal problems or assistance in meeting his adversary." Id. (internal quotation omitted). In contrast, "[a]t the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial." Id. (citing inter alia, Faretta, 422 U.S. at 835-36). In between these extreme cases, the Court has "defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel." Id. If a defendant "is made aware of these basic facts," then his waiver of the right to counsel "is 'knowing.'" Id.

In this case, Braun waived counsel at the evidentiary hearing on his motion to withdraw plea. The issue presented at the hearing was discrete--whether Braun's plea was involuntary. See Motion to Withdraw Nolo Contendere Plea, filed Aug. 27, 1993. The proceeding would involve examining and cross-examining witnesses and arguing whether the motion should be granted. The role of counsel at such a hearing, therefore, would be more limited than the role of counsel at trial. Cf. Patterson, 487 U.S. at 294 n.6 (addressing the attorney's limited role during postindictment questioning); United States v. Salemo, 61 F.3d 214, 219 (3d Cir. 1995) ("[T]he inquiry at sentencing need only be tailored to that proceeding and the consequences that may flow from it. Therefore, it need not be as exhaustive and searching as a similar inquiry before the conclusion of trial."); United States v. Day, 998 F.2d 622, 626 (8th Cir. 1993) (same).

The trial court informed Braun of the dangers of self-representation at the motion to withdraw plea hearing by warning Braun that he would be cross-examined if he took the stand and that he might have to cross-examine the state's witnesses. The trial court also conveyed to Braun that his life was on the line. Braun made it clear that he understood the objective of the hearing, and importantly, Braun testified that he had consulted with counsel prior to the hearing. Thus, he had a clear idea of the strategy that he wished to pursue at the hearing. Under the circumstances, we believe Braun's waiver of counsel was knowing and intelligent.

The cases on which Braun relies, Faretta, Silkwood, and United States v. Willie, 941 F.2d 1384 (10th Cir. 1991), are inapposite. Faretta and Willie both involve waivers of counsel for trial rather than a post-conviction, post-sentencing hearing on a motion to withdraw plea. And, in Willie we concluded that the defendant had intelligently, knowingly and voluntarily waived his right to counsel even though the court did not fully discuss all of the risks involved in proceeding to trial without counsel. See Willie, 941 F.2d at 1388-89. As for Silkwood, which involved a waiver of counsel for sentencing, the case is distinguishable for several reasons. There, the trial court initially granted "without inquiry or advisement" a defendant's post-trial request to proceed pro se. Silkwood, 893 F.2d at 247. At two subsequent hearings, including a sentencing enhancement hearing, the court asked the defendant whether he wanted a new appointed attorney, provided only "general statements about the seriousness of sentence enhancement," and grossly misinformed the defendant about the maximum enhancement he could receive (the court mistakenly quoted the figure for a minimum enhancement). See id. at 248 & n.4. In contrast, the trial court here gave Braun specific warnings that, as part of the evidentiary hearing, Braun would have to conduct cross-examination and be cross-examined without the assistance of an attorney, and Braun was specifically warned about the seriousness of the hearing. Moreover, unlike Silkwood, the trial court in Braun's case did not provide any misinformation about the potential consequences of the hearing.

We hold, in short, that Braun voluntarily, knowingly, and intelligently waived his right to counsel at the motion to withdraw plea hearing. The OCCA's similar conclusion was neither "contrary to, [n]or involved unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Consequently, we affirm the district court's denial of habeas relief on this claim.

Capital Cases

Smith v. Stewart (9th Cir) Relief granted for failure to investigate mitigation issues.

On appeal in 1979, the Arizona Supreme Court remanded Smith's case for resentencing in light of changes to the state's death penalty statute.*fn2 Rempe now could present any mitigating evidence on behalf of Smith, including additional evidence of mental illness not rising to the level of an impairment of Smith's capacity to conform his conduct to the law. Instead, at Smith's resentencing, Rempe simply resubmitted Dr. Hoogerbeets' and Dr. Goldberg's testimony under the same statutory mitigating factor, without recalling them to testify or presenting other evidence of mental or emotional disturbance. In fact, Rempe had never tried a death penalty case before and he had no idea what mitigating evidence he could present. He even asked the court to help him out, a request that was ignored. ...

We have no doubt that Rempe's performance was deficient. He failed to investigate, develop, and present evidence of Smith's mental condition which did not rise to the level of the statutory mitigating factor of significant impairment. He failed to introduce any additional mitigating evidence that might call for leniency. He failed to call any witnesses on Smith's behalf at the resentencing. This case is more akin to those situations in which defense counsel failed to present any mitigating evidence at all.

The failure to present mitigating evidence during the penalty phase of a capital case, where there are no tactical considerations involved, constitutes deficient performance, since competent counsel would have made an effective case for mitigation. See Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998); Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998); Correll v. Stewart, 137 F.3d 1404, 1412 (9th Cir. 1998); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995) (failure to call witnesses, introduce evidence of defendant's history of mental illness, or to argue any mitigating circumstance besides defendant's mental condition at time of the offense). Likewise, "failure to investigate [the defendant's] mental condition as a mitigating factor in a penalty phase hearing, without a supporting strategic reason, constitutes deficient performance." Hendricks v. Calderon , 70 F.3d 1032, 1043 (9th Cir. 1995). See also Wallace v. Stewart, No. 9799016, 1999 WL 511348, *3-4 (9th Cir. July 21, 1999); Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir. 1999) (all relevant evidence must be unearthed for consideration at a capital sentencing hearing).

Yet by the time of Smith's resentencing in 1979, his attorney had no qualms about resting on the testimony of these two experts, whose opinions the court previously rejected as not rising to the level of mitigation. Even the Arizona Supreme Court found the testimony of these experts to be "inexplicit and often equivocal." State v. Smith, 638 P.2d 696, 701 (Ariz. 1981). As a result of the Arizona Supreme Court's remand for resentencing, Rempe now could present any evidence bearing on Smith's mental and emotional condition, as well as his background and character, that might avoid the penalty of death. Instead, he did nothing. He did not do any investigation. He did not even recall Dr. Hoogerbeets and Dr. Goldberg for additional testimony about Smith's mental condition irrespective of his "compulsive" tendencies at the time of the crimes. It is clear that there was other evidence counsel could have raised that would have strengthened the case for mitigation. The defense's own investigator witnessed evidence of multiple personalities. A friend of Smith's who was also a pastor believed that Smith possessed multiple personalities. An investigation into his family background would have revealed that Smith suffered from serious psychosexual problems stemming from developmental problems and conflicts with his parents. His antisocial, egocentric, paranoid, manic and impulsive behaviors marked Smith with a sociopathic or psychopathic character disorder. Rempe also could have pointed to Smith's good relationship with his girlfriend. See Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir. 1998) (noting that good family relationships are relevant mitigating evidence). . . . .

At the sentencing hearing, the prosecution offered no additional evidence. Rempe briefly argued that the new death penalty statute still suffered from constitutional problems, even though two other courts had rejected that argument. He asked the sentencing judge to consider the recommendation of a probation officer in the supplemental presentence report to appoint another psychiatric expert, a request the court rejected based on what it perceived as a lack of supporting evidence from Hoogerbeets and Goldberg. Finally, Rempe reiterated the few sentences that he made at the first sentencing: "If we are looking to punish Mr. Smith, I can't think of a more heinous type of punishment than to lock someone up at the Arizona State Prison for the rest of his life."

Furthermore, Rempe even ignored the prosecutor's own doubts at Smith's guilty plea hearing as to Smith's lack of emotional stability. The prosecutor's comment should have set off fireworks for Rempe. He should have seized the opportunity to pursue any supporting evidence about Smith's background and mental condition, but he did not. In addition, for no apparent tactical reason, Rempe failed to attack the prosecutor's use of his prior rape convictions to aggravate his sentence. There was some evidence that the attorney representing him in his 1974 rape conviction labored under an actual conflict of interest. Moreover, a relevant argument existed that Smith's 1974 and 1976 rape convictions did not support one aggravating factor that the judge found: that they were prior felony convictions involving the use or threat of violence. At the time of the convictions, rape could be committed in Arizona without the use or threat of violence. See A.R.S. S 13611. This argument was available to Rempe in 1979. In all, there is no doubt that Rempe effectively presented no defense on Smith's behalf, amounting to abandonment of his client to the fate of death.

In similar circumstances, we previously have found deficient performance. In Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995), defense counsel did not call any witnesses, introduce any evidence of the defendant's history of mental illness, or argue any other mitigation besides his mental condition at the penalty phase of a capital case. Like Rempe, Clabourne's attorney argued briefly that Arizona's death penalty statute was unconstitutional, and, as mitigating evidence, he only resubmitted evidence presented at trial to establish Clabourne's insanity.

As proof that Clabourne's attorney was deficient, we noted several problems that are replicated here. First, we said that the fact that the government rested on its evidence of mental illness at trial and made no further argument is proof that Clabourne's attorney failed to bring forth anything new at sentencing. Likewise, the government here rested on the evidence and argument presented at Smith's first sentencing. Next, we noted as deficient performance the failure of Clabourne's attorney to have his trial experts expound on the case for miti gation since the focus of these witnesses was on whether Clabourne met the test for legal insanity. In fact, defense counsel had argued before sentencing that one of those experts, Dr. Berlin, should have been provided the opportunity to supplement his testimony about Clabourne's mental state since his focus at trial was on showing Clabourne's psychosis and possible insanity. In light of this admission that the case for mitigation was incomplete, we said that the attorney's "failure to call Dr. Berlin, or to put on any additional evidence at the sentencing hearing is inexplicable." Id. at 1385 n.19. We concluded that Clabourne's representation at sentencing amounted in every respect to no representation at all. Id. at 1387. Surely Smith's complete unawareness that he could recall Dr. Hoogerbeets and Dr. Goldberg for additional explanation is equally deficient without any supporting tactical reason.

Likewise, in Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995), Hendrick's attorney failed to re-investigate his client's mental defenses in the sentencing phase of his capital case, even though he had presented evidence of mental impairment at the guilt phase. In that case, the defense had actually introduced a psychologist, Dr. Carson, to testify to Hendrick's past history of problems. We noted that lack of corroboration of Carson's testimony about his difficult childhood and mental problems, as well as the state's effective cross-examination, undermined the value of the testimony. Id. at 1044. We once again concluded the case "is more akin to those cases in which no mitigating evidence was put on." Id.

More recently, in Bean v. Calderon, 163 F.3d 1073, 1080 (9th Cir. 1998), we reached the same conclusion after defense counsel failed to adequately prepare his penalty phase experts for their testimony and failed to conduct an adequate investigation. We found that the limited preparation and informational foundations for the mental health experts' conclusions severely undercut the effectiveness and persuasiveness of Bean's penalty phase defense. Id. at 1080-81. In Wallace v. Stewart, No. 97-99016, 1999 WL 511348, at *5 (9th Cir. July 21, 1999), we again recognized the duty of defense counsel "to seek out [evidence of the defendant's background] and bring it to the attention of the experts." The limited time Dr. Hoogerbeets and Dr. Goldberg spent with Smith and the narrow focus of their evaluation leads to the conclusion that they did little to aid Smith's fight for life, and any reasonably competent counsel at his resentencing would have at least recalled them or bolstered their testimony. . . . .

Additional evidence of Smith's mental illness and background was readily available to Rempe which, cumulatively, might have had an effect on the sentencing judge. Richard Todd, a court-appointed investigator, witnessed Smith's "second personality" during their conversations. Smith had called himself John Jameson and talked as if he was Jameson on several occasions. His manner would change and he talked in the third person, at one time revealing the location of other murders. Todd told Rempe of these conversations. A friend of Smith's, Rev. Larry Maddox, also told the prosecutor during Smith's 1976 rape trial that Smith possessed multiple person alities. Rempe could have learned this information from Smith's previous attorney. Smith's former girlfriend, Debbie Lippiett, testified during the rape trial that Smith suffered from wide-ranging mood swings. At least, this information should have been furnished to Smith's psychiatric experts to strengthen their conclusions, making their testimony less "inexplicit and equivocal" to the judge. Without it, Smith's defense was undercut. See Bean, 163 F.3d at 1081. A lawyer who should have known but does not inform his expert witnesses about essential information going to the heart of the defendant's case for mitigation does not function as "counsel" under the Sixth Amendment. See Caro v. Calderon , 165 F.3d 1223, 1228 (9th Cir. 1999).

In addition, other experts were needed to corroborate Dr. Goldberg's testimony, by far the more thoroughly researched testimony of Smith's two experts. See Hendricks , 70 F.3d at 1044. For example, another psychologist, Dr. Donald Tatro, later interviewed Smith, administered tests and researched his family background. Like Dr. Goldberg, Dr. Tatro concluded that Smith had a "split personality," compartmentalizing himself into a "positive" and "negative" self. Smith normally kept these personalities separated, but when circumstances caused the two selves to overlap, the conflict became so unbearable that Smith would lose contact with reality, Dr. Tatro explained. This may be why Smith steadfastly maintained his innocence for the crimes, the doctor noted. Smith's reaction also corresponded to his well-documented mood swings from depression to paranoia. Smith even attempted suicide in prison.

Williams v. Head (11th Cir) After a prior remand on the issues of ineffective assistance of counsel, relief denied on claims that counsel did not sufficiently investigate, develop and present mental health and other mitigation evidence.

The principles of law that we have been discussing apply with equal force to the claim of Williams' present counsel that Allen was ineffective for failing to develop facts relating to Williams' mental state and not requesting a mental evaluation of him. Nothing that Allen learned from talking to Williams indicated that he was suffering from any mental disorder or disease. To the contrary, Allen found Williams to be intelligent, attentive, cooperative and polite. Williams was interested in what was happening, asked intelligent questions, and responded intelligently to Allen's questions. They had no problem communicating. See, e.g., Baldwin v. Johnson, 152 F.3d 1304, 1314-15 (11th Cir.1998) (failure to request a psychiatric examination not ineffective where nothing the defendant did or said indicated he had any mental problem), cert. denied, --- U.S. ----, 119 S.Ct. 1350, 143 L.Ed.2d 512 (1999).

When Allen spoke to Williams' mother, he did discover something Collins had overlooked. Allen learned from her that she had sent Williams to Georgia Regional, a mental facility, for about a week in 1985 in order to have him evaluated. She told Allen, however, that she had sent Williams there because he would not mind her. Thinking that few teenagers do mind their parents, Allen thought that was not going to be much help. Nonetheless, he questioned her further on the subject, but she was weak about it and did not give him much that was useful about Williams' mental condition.

Allen still tried to exploit that lead. He called or visited the superintendent at Georgia Regional, Dr. Everett Kuglar, with whom Allen had worked on numerous occasions in the past. Allen talked to Dr. Kuglar several times, telling him that Allen thought there had not been a proper medical investigation in the case, and that it should be pursued, and asking Dr. Kuglar to see if he could help with the issue. Dr. Kuglar had the record of Williams' stay and evaluation at Georgia Regional.

The word that came back to Allen was not good for the defense. Dr. Kuglar told Allen that there was nothing to indicate Williams suffered from schizophrenia or had any other mental disorder, and that there was no reason to conduct another evaluation of him. Dr. Kuglar said that Williams was just a sociopath. Knowing that if he requested another mental evaluation of Williams, the court would send Williams back to Georgia Regional, Allen decided not to ask for one. He knew that if he did, it would likely hurt Williams by showing that Collins' failure to pursue a mental evaluation had not mattered. In Allen's words: "[f]rom my conversations with Dr. Kuglar I felt if I did take it a step further I probably wasn't going to like the result."

At the time Allen made the strategic decision not to have Williams evaluated, he was aware of something about Williams wanting to conduct a religious ritual at the jail, and his having taken a temporary vow of silence. As it turns out, neither episode actually involved bizarre behavior. In any event, Allen was also thoroughly familiar with the transcript of the trial, which contains abundant evidence that Williams was not suffering from a serious mental disorder. For example, it shows that shortly after he was arrested on March 12, 1986, Williams repeatedly tried to cut a deal with the investigating officer in which he would get a lesser sentence in return for information about the still missing girl. He wanted a written deal, but the officer refused to negotiate. Williams made up a story about how he had come to have the victim's purse and credit cards, saying that he had stolen them out of her car in the mall parking lot when she was not there. As the officer's questions became more pointed, Williams was wise enough to refuse to say any more until he had an attorney. He also refused to sign a written waiver. See Williams v. State, 258 Ga. at 283, 368 S.E.2d at 745-46.

Another example of how the trial transcript indicates that Williams did not suffer from serious mental problems involves the first pretrial proceeding, which took place on July 1, 1986. At that proceeding Williams expressed his dissatisfaction with, and made an objection to, having been indicted on more counts than he was bound over for at the preliminary hearing. In arguing his point, Williams referred to the date of his arrest, his attorney's letter demanding a preliminary hearing, and the fact that the preliminary hearing had concerned fewer charges than those contained in the subsequent indictment. Williams then sought and obtained permission from the court to ask the district attorney a question, which was: what evidentiary basis had there been for the indictment? The district attorney replied that Major Strength had testified before the grand jury, to which Williams responded that his understanding was that Strength had told the grand jury what a witness named Harold Lester had said. Williams also asked the court to explain to him the Miranda decision, and he asked for an explanation about illegal search and seizure. Williams acknowledged that he had seen the prosecution's witness list, and that he had read and understood the indictment. During the trial, defense counsel made a motion to dismiss specific counts in the indictment at Williams' request.

One of the State's witnesses at the trial was Jerry Smith, an acquaintance of Williams. Smith testified that one evening Williams asked him whether he had ever shot anyone. When Smith said that he had, Williams asked him what he had done with the body. Later on, while the two of them were talking in a parked car, Williams told Smith that he felt close to the girl, and that God had picked her out. In Smith's words, "He was just talking like that." Williams never said why he kidnaped, raped, and murdered the victim but did say he had shot her. The two men talked about how Williams had committed a sin, about how bad it was, and that he should not have done it. As Smith described it, they were "talking about God, and stuff, you know," and "just feeling down about it." The next day, at Smith's suggestion, they went over to Smith's mother's house and had a Bible study session, because Smith felt they should have one. Smith's mother is very religious, and he wanted Williams to meet her and talk with her. Three of their other acquaintances joined them at the house for the talk and Bible study session. All of these facts came out at trial.

After the jury had retired to deliberate concerning the sentence on August 29, 1986, a Unified Appeal Proceeding was conducted. During it, Williams made a number of objections some of which demonstrated how attentive he had been. For example, Williams objected because on August 26, the judge had talked to one of the jurors about a friend being in the hospital. He also objected to a brief conversation the judge had with a female juror on August 28, before the jury retired to deliberate concerning the guilt stage verdict. Williams said the conversation had occurred when the juror walked by the bench and stood by a chair. The trial judge, admitting it had happened, explained to Williams that the female juror had simply said to the judge "I'm losing weight going in and out so much," or words to that effect. Williams' behavior and statements during the trial and the Unified Appeal proceedings do not indicate he was suffering from a mental problem of any kind.

Moreover, Allen also knew from the trial transcript that Collins, who apparently had talked with Williams more than anyone else in the period leading up to the trial, saw no indication that Williams was mentally ill.

With all of this knowledge, and aware of the strong likelihood that another mental evaluation would reveal no mental illness, just like the one conducted less than a year before the crime, Allen decided not to request one. Even though he thought it would be unwise to request another mental evaluation, Allen nonetheless made the most he could out of Collins' failure to discover that Williams had been sent to Georgia Regional. Allen's strategic decision was "to leave it with the court that here was something very obvious that Mr. Collins didn't inquire into." That is exactly what Allen did. At the hearing on the motion for a new trial, Allen tried to get Collins to admit that Williams had behaved strangely from time to time, and he succeeded in getting Collins to admit he was unaware Williams had been sent to Georgia Regional. Allen then had Ms. Blair testify that Williams had been sent to Georgia Regional, that she never got a report concerning it, and that she had discussed with Collins the possibility of having Williams evaluated, but Collins had told her the court would not order a mental evaluation.

Strategic decisions, such as the one Allen made not to request another mental evaluation of Williams, are virtually unassailable, especially when they are made by experienced criminal defense attorneys. See, e.g., Strickland, 466 U.S. at 690, 104 S.Ct. at 2066; Spaziano, 36 F.3d at 1040; Mills, 63 F.3d at 1024. Indeed, the district court observed that Williams' present counsel have "not attacked Allen for making this tactical decision." They do, however, criticize him for not developing additional evidence about Williams' mental state, which they contend might have changed the prospects for another mental evaluation.

They argue, for example, that Allen should have investigated whether there were any records at the prison that might have been helpful on the mental state issue. One problem with that argument is that the December 11, 1986 prison record they point to was not generated until months after Williams was convicted, sentenced to death, and sent to prison. As the district court pointed out, "Allen was looking for evidence that Collins could have found [at or before the August 29, 1986 sentence hearing], and these records were obviously unavailable to Collins." We agree, and add only that it would not have done Allen any good if he had found that record, because no court would conclude a trial attorney was ineffective for failing to discover a document that had not even been created at the time of his representation.

Allen is also faulted for failing to discover and use a mental evaluation form that an assistant district attorney named George Guest had filled out before Williams' trial. Guest was not directly involved in Williams' prosecution, but he had signed a mental evaluation referral form for Williams, although years later he could not recall the form or the circumstances which had led to his signing it. He speculated the form might have been filled out at the request of Williams' pretrial counsel (not Collins). Guest had written on the form that the basis for it was: "[c]ircumstances of the case under investigation and the nature of the charges, also Defendant's references to 'being told by God' to do or not do certain things." When called upon to explain that at the state habeas evidentiary hearing, however, Guest had no knowledge or recollection about any of those things.

The former district attorney who had prosecuted Williams testified at the state habeas hearing that he had no specific recollection of ever seeing the mental evaluation referral form in question, and that he did not know its origin. He said that such a document could have been filled out at the impetus of the defense attorney or the district attorney's office. That such a form was signed by a member of the district attorney's office did not mean it was generated at the request of someone within that office, because as a courtesy the office would prepare such documents for defense attorneys from time to time. This particular form did not have a judge's signature on it.

It is undisputed that the judge at Williams' trial conducted an in camera inspection of the district attorney's file and turned over to the defense any information whose disclosure he thought was required as a result of the Brady decision. It is also undisputed that this mental evaluation referral form was not among the records the judge ordered to be disclosed to Collins, and that neither Collins nor Allen knew of it. The form was not in Collins' file, which Allen obtained long before the hearing on the motion for new trial.

Williams' present counsel have failed to convince us that Allen's failure to discover the mental evaluation referral form puts his representation outside the wide range of reasonable professional assistance. Allen knew that the judge had conducted an in camera inspection of the district attorney's file and turned over any favorable evidence from it to Collins, whose files and records Allen obtained. The Supreme Court has recently held that it is reasonable for an attorney representing a defendant in a collateral proceeding (and that is what Allen was doing in the new trial proceeding) to rely upon the presumption that a prosecutor will fully perform his duty to disclose all exculpatory materials and the implicit representation that any exculpatory materials would be included in open files tendered to defense counsel for their examination. See Strickler v. Greene, --- U.S. ----, ----, 119 S.Ct. 1936, 1949, --- L.Ed.2d ----, ---- (1999). By the same token, it was reasonable for Allen to rely upon the district attorney's duty to disclose any exculpatory material to Collins coupled with the trial judge's in camera inspection of the district attorney's file. Allen's failure to discover the form was not outside the wide range of reasonable professional assistance.

Williams' present counsel also criticize Allen for not ferreting out from Williams' father and sister evidence concerning his life and behavior that would have been helpful in establishing mental health mitigating circumstances. But as we have previously held, Allen's failure to interview them did not place his representation outside the wide range of reasonable professional assistance.

Allen conducted a reasonable investigation into the possibility Williams suffered from sufficient mental problems that Collins' failure to present mental state mitigating circumstances met the performance and prejudice prongs of the ineffective assistance of counsel standard. Allen's strategic decisions about the scope of his own investigation into Williams' mental state and about whether to request another evaluation were reasonable. Other attorneys might have done more or less than Allen, or they might have made the strategic calls differently, but we cannot say that no reasonable attorney would have done as he did. And "the test is whether some reasonable attorney could have acted, in the circumstances, as [this one] did." Waters, 46 F.3d at 1518. Because Williams has failed to meet the requirements of the performance prong, we have no need to address the prejudice prong of the ineffective assistance test.

Sanchez v. Gilmore (7th Cir) Capital habeas petition denied on claims relating to Illinois sentencing scheme, competency to stand trial after a suicide attempt, a co-defendant's exculpation of petitioner, and the prosecution's cross-examination in the penalty phase.

Sanchez claims that after his suicide attempt the state trial judge should have held an evidentiary hearing to determine whether he was competent to proceed. Tangentially, he claims the waiver of his right to have a jury determination of his eligibility for the death penalty was not voluntary because he was not competent at the time.

There is no question that Sanchez was competent to proceed through the guilt portion of his trial. Unlike the defendant in Drope v. Missouri, 420 U.S. 162 (1975), Sanchez's competency to proceed during that phase of the trial was never questioned. But Drope teaches that even when a defendant is competent at the start of a trial, courts must "be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Id. at 181.

After the suicide attempt, Sanchez's attorney reported that his client was "distraught" and not cooperating; counsel also said, as we previously noted, that Sanchez told him to send his witnesses home. But nothing that was reported to the judge suggested legal incompetency to proceed from a defendant who had previously been of unquestioned competency. On top of that, the state trial judge saw Sanchez and observed his conduct (especially when he was questioned about his jury waiver on the eligibility question), and that was enough to convince him that Sanchez was not incompetent to continue. Although it would have been preferable to hold an evidentiary hearing right after the suicide attempt was reported and nail the matter down once and for all, we cannot condemn the trial judge's decision not to do so; after all, he observed Sanchez's demeanor and heard, firsthand, counsel's reports of his condition. As matters proceeded, the judge personally heard Sanchez's responses to questions, and nothing he heard caused him to doubt that Sanchez was indeed competent. Nor can we condemn the Illinois Supreme Court's decision to affirm the trial judge's decision to move forward with sentencing. That decision was not an unreasonable application of the rule in Drope. We add further the obvious: being "distraught" about the possibility of being sentenced to die at the hands of the State does not demonstrate a failure to understand and appreciate the nature of the proceedings; on the contrary, it's a quite lucid reaction to a very chilling situation.

Finally, to justify an evidentiary hearing to explore the possibility of Sanchez's competency to continue with the trial, he had to produce "clear and convincing evidence [raising a] threshold doubt about his competency." Nguyen v. Reynolds, 131 F.3d 1340, 1346 (10th Cir. 1997), quoting from Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir. 1980). The Supreme Court of Illinois concluded that Sanchez had not demonstrated sufficient doubt about his competence, and that determination is far from an unreasonable application of law as established by the United States Supreme Court.

Sanchez goes on to argue that his jury waiver resulted from his incompetence. He doesn't explain why, however, preferring instead to rely on an inference that no reasonable defendant would waive his right to a determination by a jury that his crimes warranted the imposition of the death penalty. We reject that inference. Sanchez is certainly not the first defendant to waive full jury participation in the death penalty phase of a case; in fact, defendants often concede eligibility and move directly to the aggravation-mitigation phase of a sentencing hearing. That decision, in and of itself, does not demonstrate incompetence, and because Sanchez offered nothing more, no hearing was required. See Tenner v. Gilmore, No. 98-3814, 1999 WL 371675, at *5 (7th Cir. June 9, 1999). Furthermore, we emphasize again that the trial judge saw Sanchez up close and personal. The judge heard responsive answers by Sanchez, given in a rational, lucid manner, to questions about his waiver. Plus, Sanchez did not engage in irrational conduct in court that red-flagged a questionable mental state.. . . .

Sanchez argues that the state court erred in denying his petition (under sec. 2-1401 of the Illinois statutes) for relief from the judgment. He sought relief under sec. 2-1401 based on the statement of Oscar Cartegena, an inmate in Milwaukee County jail who said he saw Thompson's abduction from D. Laney's. Cartegena, who was in jail with Sanchez, swore in a statement that Sanchez played no role in the abduction or in Valentine's shooting. This is perhaps the most troubling of Sanchez's claims and represents yet another instance in which the standard of review constrains what we can do. Based on Cartegena's statement, Sanchez moved for a new trial under sec. 2-1401 of the Illinois code. At the hearing on Sanchez's petition, Cartegena was called to testify but he refused, invoking the Fifth Amendment. After determining that Cartegena's invocation of the Fifth Amendment was legitimate, the trial judge found that Sanchez was not entitled to relief. We agree. Sanchez suggests that the court merely accepted Cartegena's "say so" that his testimony would subject him to incrimination. But the record doesn't support that parsing of the facts. The judge weighed and considered the testimony and ultimately concluded that Cartegena's invocation of the Fifth Amendment was legitimate. We said this aspect of the case is troubling, and it is. In the second (1989) Sanchez opinion from the Illinois Supreme Court, Justice Ryan dissented because, although he had no idea what Cartegena would have said, he thought the court "should have the benefit of all information available" before affirming a death sentence. We think Justice Ryan got it right. But that's really not the issue here. The question before us is whether the Illinois Supreme Court's decision on the 2-1401 petition was consistent with federal law. It was. Even Justice Ryan conceded that the Illinois Supreme Court's decision on this issue was supported by (i.e., consistent with) law. Finally, Sanchez argues that his attorneys provided ineffective assistance at the penalty phase because they failed to offer substantial evidence in mitigation. Going directly to the merits of this claim, we find it untenable. The record shows that Sanchez's attorneys put him on the stand to describe to the jury how his father abused him and how he was generally treated cruelly as a child. Sanchez testified that, despite his tragic start in life, he got a job and kept it for nearly 15 years; he saved enough money to buy a house; and he took care of his family. Sanchez's attorneys called his family members to tell the jury how well he had treated them. And the attorneys elicited that Sanchez had no record of criminal convictions. Perhaps there was more Sanchez's attorneys could have put on--Sanchez doesn't tell us what that evidence might have been--but we find no flaw in the Illinois Supreme Court's decision that the attorneys' conduct did not rise to the level of incompetence required by Strickland v. Washington, 466 U.S. 668 (1984) (defendant must show first that counsel's performance was deficient and, second, that counsel's deficient performance was so serious that it deprived defendant of a fair hearing).

Habeas Cases

Stubbs v. Gomez (9th Cir) District court's after evidentiary hearing conclusion that " that Stubbs had presented a prima facie case of race discrimination in jury selection" but that prosecution nonetheless offered race neutral reasons upheld.

Bogovich v. Sandoval (9th Cir) Where a prisoners' past substance abuse history is used as a part of parole decisions, whether such a policy violates the Americans with Disabilities Act ("ADA") need not be brought as a habeas corpus petition.

Bledsue v. Johnson (5th Cir) In a very fact specific holding, the district court's grant of relief on insufficiency of the evidence in this drug conviction

Morales - Rivera v. United States (1st Cir) "A pro se prisoner's motion under 28 U.S.C. § 2255 or § 2254 is filed on the date that it is deposited in the prison's internal mail system for forwarding to the district court, provided that the prisoner utilizes, if available, the prison's system for recording legal mail."

Bell v. Hill (9th Cir) AEDPA does not overturn circuit precedent that was well established prior to trial even though the Supreme Court had not established the precedent.

Our conclusion that the application of Menefield in this proceeding does not constitute the impermissible application of a "new rule" under Teague is also supported by the simple fact that Menefield is a post-Teague decision. We decided Menefield more than five months after the Supreme Court issued its opinion in Teague, but we did not discuss Teague in Menenfield. This demonstrates that we did not view Teague as a barrier to granting habeas relief to the petitioner in Menefield. If Teague did not stand as a barrier to the holding "announced" and applied in Menefield, Teague cannot now stand as barrier to the application of Menefield the second time around in this habeas proceeding ten years later.

Finally, we feel compelled to note that at the most basic level we must give effect to controlling Ninth Circuit precedent in this habeas proceeding because the determinative issue in this pre-AEDPA proceeding is whether Bell is in state custody in violation of the constitution. See 28 U.S.C.A. SS 2241 and 2254 (West 1994) (amended Apr. 24, by 1996, Pub. L. 104-132). Under controlling Ninth Circuit precedent, Bell is in state custody in violation of the constitution and habeas relief must be granted because Bell was denied his Sixth Amendment right to counsel when the state court denied Bell's request for counsel for his new trial motion. See Menefield, 881 F.2d at 701. If we did not affirm the district court's order granting Bell habeas relief and circumvented our express holding in Menefield, circuit court precedent would have no precedential value in the pre-AEDPA habeas context. This cannot be the rule of law that governs habeas proceedings that come before this or any other court. The district court did not, therefore, err when it issued an order granting Bell a writ of habeas corpus unless the State of California schedules a motion for a new trial with appointed counsel or a new trial.

Prisoner's Rights/Governmental Misconduct Cases

Sheehy v. Town of Plymouth (1st Cir) "This case requires us to decide whether a police officer sued for making an allegedly illegal arrest can invoke the "related crimes" defense in asserting qualified immunity. The defense, adopted by a number of other circuits, provides "that even where there is no probable cause to arrest the plaintiff for the crime charged, proof of probable cause to arrest the plaintiff for a related offense is also a defense which may entitle the arresting officer to qualified immunity." Avery v. King, 110 F.3d 12, 14 (6th Cir. 1997). The district court adopted the related crimes defense and granted summary judgment for the defendant police officer. Although we conclude that a police officer is entitled to invoke the related crimes defense, we must vacate the district court's entry of summary judgment. There exists a genuine issue of material fact as to whether the defendant police officer, Rita Quinn, clearly did not have probable cause to arrest plaintiff Richard Sheehy for disorderly conduct, the crime cited by the officer as the basis for the arrest at the scene. We further conclude that the related crimes defense should not apply to assault and battery with a dangerous weapon, the crime charged at the police station after the arrest.

Cooper v. Schriro (8th Cir.) District court erred in dismissing case as plaintiff stated a claim for deliberate indifference to medical needs, for denial of access to legal and religious materials, and for retaliation for filing a grievance.

Smith v. Hundley (8th Cir) Prisoner civil rights. Transfer mooted plaintiff's First Amendment claims.

Madrid v. Gomez (9th Cir) Attorney's fees where a case straddles pre- and post- PLRA enactment are limited by the PLRA only for those funds earned after the date of enactment.

Crosby v. Paulk (11th Cir) "Local law enforcement officers and a state revenue agent are entitled to qualified immunity for investigating underage drinking and after hours sales of alcohol in nightclubs."

Strogov v. Attorney General of the State of New York (2nd Cir) "Strogov's sole argument on this appeal is that her conviction should be vacated because the Medicaid billing code pursuant to which she submitted these claims failed to give her fair notice that it did not cover the claimed goods and services." Relief denied.

Altizer v. Deeds (4th Cir) A split panel holds that prison officials may legally open outgoing mail from a prisoner.

Giron v. Corrections Corporation of America (10th Cir) Trial court's instruction on rape claims by a female prisoner in segregation impermissibly included malice as a prerequisite for recovery.

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